First Amendment to Credit Agreement dated as of March 15, 2018, by and among BioMarin Pharmaceutical Inc., the lenders party thereto, and Bank of America, N.A. as Administrative Agent

Exhibit 10.1

FIRST AMENDMENT TO CREDIT AGREEMENT

first AMENDMENT TO credit AGREEMENT (this “Amendment”), dated as of March 15, 2018, by and among BIOMARIN PHARMACEUTICAL INC., a Delaware corporation (the “Borrower”), the Lenders party hereto and BANK OF AMERICA, N.A., as Administrative Agent.

W I T N E S S E T H:

WHEREAS, the Borrower, the Lenders from time to time party thereto and the Administrative Agent are party to that certain Credit Agreement, dated as of November 29, 2016 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”); and

WHEREAS, pursuant to Section 10.01 of the Existing Credit Agreement, the Borrower, the Required Lenders and the Administrative Agent wish to amend the Existing Credit Agreement on the terms set forth in Section 2 hereof and subject to the conditions set forth herein;

NOW, THEREFORE, in consideration of the covenants and agreements contained herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1.  Defined Terms. Capitalized terms used but not defined herein shall have the respective meanings assigned to such terms in the Existing Credit Agreement, as amended by this Amendment (the “Amended Credit Agreement”).

SECTION 2.  Amendments. Effective as of the Amendment Effective Date (as defined below):

(a)Section 7.02(j) of the Existing Credit Agreement is hereby amended to replace the reference to “$10,000,000” therein with “$30,000,000”.

SECTION 3.  Conditions to Effectiveness.  The effectiveness of the amendments set forth in Section 2 hereof are subject solely to satisfaction of the following conditions precedent (the date of such satisfaction being the “Amendment Effective Date”):

(a)         (i) the Borrower shall have executed and delivered counterparts of this Amendment to the Administrative Agent, (ii) Lenders constituting the Required Lenders (as defined in the Existing Credit Agreement) shall have executed and delivered counterparts of this Amendment to the Administrative Agent, and (iii) the Administrative Agent shall have executed a counterpart of this Amendment;

(b)  the representations and warranties of the Borrower contained in Section 4 hereof shall be true and correct in all material respects, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects, on and as of the Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects as of such earlier date;

(c)  prior to and immediately after the Amendment Effective Date, no Default or Event of Default shall exist; and

(d)  all legal fees, charges, disbursements of and other charges of counsel to the Administrative Agent and the Lenders in connection with this Amendment required to be paid by the Borrower pursuant to Section 10.04 of the Exiting Credit Agreement shall have been paid or shall be paid on the Amendment Effective Date to the extent invoiced prior to the Amendment Effective Date.

SECTION 4.  Representations and Warranties.  The Borrower hereby represents and warrants on and as of the Amendment Effective Date that:

(a)  the representations and warranties of the Borrower and each other Loan Party contained in Article V of the Credit Agreement or any other Loan Document, or which are contained in any document furnished at any time under or in connection with the Credit Agreement or any other Loan Document, are true and correct in all material respects, except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty is true and correct in all respects, on and as of the Amendment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty is true and correct in all respects as of such earlier date, and except that for purposes of this Section 4(a), the representations and warranties contained in Sections 5.05(a) and (b) of the Credit Agreement shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b) of the Credit Agreement, respectively;

(b)  this Amendment has been duly executed and delivered by the Borrower and this Amendment constitutes a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except as enforceability may be limited by applicable Debtor Relief Laws and by equitable principles regardless of whether considered in a proceeding in equity or at law;

(c)  the execution, delivery and performance by the Borrower of this Amendment has been duly authorized by all necessary corporate or other organizational action, and does not and will not (x) contravene the terms of any of the Borrower’s Organization Documents; (y) conflict with or result in any breach or contravention of, or the creation of any Lien under, or require any payment to be made under (i) any Contractual Obligation to which the Borrower is a party or affecting the Borrower or the properties of the Borrower or any of its Subsidiaries or (ii) any order, injunction, writ or decree of any Governmental Authority or any arbitral award to which the Borrower or its property is subject; or (z) violate any Law, except in each case referred to in the foregoing clauses (y) and (z), to the extent that such conflict, breach, contravention or violation could not reasonably be expected to have a Material Adverse Effect; and

(d)  no approval, consent, exemption, authorization, or other action by, or notice to, or filing with, any Governmental Authority or any other Person is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Borrower of this Amendment.

SECTION 5.  Effects on Loan Documents.

(a)  On and after the effectiveness of this Amendment, (x) each reference in any Loan Document to “the Credit Agreement” shall mean and be a reference to the Amended Credit Agreement and (y) each reference in the Existing Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import shall mean and be a reference to the Amended Credit Agreement.

(b)  Except as specifically amended herein, all Loan Documents (including the Guaranty and any Collateral Documents and all Guarantees and any Liens granted thereunder in respect of the Obligations) shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. The parties hereto acknowledge and agree that the amendment of the Existing Credit Agreement pursuant to this Amendment and all other Loan Documents amended and/or executed and delivered in connection herewith shall not constitute a novation of the Existing Credit Agreement or of any other Loan Documents as in effect prior to the Amendment Effective Date.

(c)  The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of the Loan Documents or in any way limit, impair or otherwise affect the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents.

(d)  The Borrower and the other parties hereto acknowledge and agree that, on and after the Amendment Effective Date, this Amendment shall constitute a Loan Document for all purposes of the Amended Credit Agreement.

SECTION 6.  APPLICABLE LAW.  THIS AMENDMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

SECTION 7.  WAIVER OF JURY TRIAL.   EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS

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AMENDMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AMENDMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 7.

SECTION 8.  Jurisdiction; Consent to Service of Process.

SECTION 9.  Miscellaneous.

(a)  This Amendment shall be binding upon and inure to the benefit of the Borrower and its successors and permitted assigns, and upon the Administrative Agent, the Lenders and the L/C Issuer and their respective successors and permitted assigns.

(b)  In the event any one or more of the provisions contained in this Amendment should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction).

(c)   This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract.

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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Amendment as of the date first above written.

BIOMARIN PHARMACEUTICAL INC.,

as the Borrower

[Signature Page to First Amendment to Biomarin Credit Agreement]

Acknowledged and agreed:

BANK OF AMERICA, N.A.,
as Administrative Agent

[Signature Page to First Amendment to Biomarin Credit Agreement]

IN WITNESS WHEREOF, the undersigned has caused this Amendment to be executed and delivered by a duly authorized officer as of the date first written above.

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

By:/s/ Sebastian Lurie
Name: Sebastian Lurie
Title: SVP

[Signature Page to First Amendment to Biomarin Credit Agreement]