First Amendment to Bridge Credit Agreement, dated as of June 5, 2020, among Thermo Fisher Scientific Inc., the lenders party thereto, and JPMorgan Chase Bank, N.A

EX-10.2 3 tm2022048d1_ex10-2.htm EXHIBIT 10.2

Exhibit 10.2

FIRST AMENDMENT

FIRST AMENDMENT, dated as of June 5, 2020 (this “Agreement”), among Thermo Fisher Scientific Inc., a Delaware corporation (the “Company”), the Lenders party hereto and JPMorgan Chase Bank, N.A., as administrative agent (the “Administrative Agent”), which shall amend that certain Bridge Credit Agreement, dated as of April 17, 2020 (the “Credit Agreement”), by and among the Company, the Lenders from time to time party thereto, the Administrative Agent and the other parties thereto.

W I T N E S S E T H:

WHEREAS, the Company, the Lenders and the Administrative Agent are parties to the Credit Agreement;

WHEREAS, the Company has requested that the Credit Agreement be amended as set forth herein;

WHEREAS, as permitted by Section 10.01 of the Credit Agreement, the Company, the Required Lenders and the Administrative Agent consent to the amendments to the Credit Agreement described in Section 2 below upon the terms and conditions set forth herein;

NOW, THEREFORE, the parties hereto hereby agree as follows:

SECTION 1. Defined Terms. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Credit Agreement.

SECTION 2. Amendments to Credit Agreement. Effective as of the Amendment Effective Date (as defined below), each Lender party hereto (which collectively constitute the Required Lenders) hereby consents to amend the Credit Agreement as follows:

(a) The definition of “Consolidated Leverage Ratio” in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:

“Consolidated Net Leverage Ratio” means, as of any date of determination, the ratio of (a) all Indebtedness of the Company and its Subsidiaries outstanding as of such date minus unrestricted cash and cash equivalents (but, for the avoidance of doubt (and without duplication of the effect of the provisos to Sections 7.03 and 7.04), excluding the netting of any proceeds of Acquisition Debt or any Indebtedness in favor of the Target excluded from Indebtedness pursuant to Section 7.03 or 7.04) of the Company and its Subsidiaries as of such date to (b) Consolidated EBITDA for the period of the four fiscal quarters most recently ended; provided, however, that Consolidated EBITDA shall be calculated on a Pro Forma Basis to give effect to the Acquisition and any other acquisition or sale of a Subsidiary or operating division thereof, in each case, for more than $3,000,000,000.”

(b) Clause (ix) of the definition of “Excluded Indebtedness” in Section 1.01 of the Credit Agreement is hereby amended by replacing the words “other Indebtedness not to exceed $750,000,000” with the words “other Indebtedness not to exceed $1,750,000,000”.

(c) Section 4.04 of the Credit Agreement is hereby amended by replacing all references to “the Effective Date” therein with the words “the Effective Date or the effectiveness of the First Amendment hereto”.

(d) Section 7.03 of the Credit Agreement is hereby amended by (i) replacing all references to “Consolidated Leverage Ratio” with references to “Consolidated Net Leverage Ratio” and (ii) replacing the words “greater than 4.5 to 1.0” with the words “greater than 5.0 to 1.0”.

(e) Exhibit C of the Credit Agreement is hereby amended and restated to be in the form of Annex A hereof.

SECTION 3. Conditions to Effectiveness. This Agreement shall become effective on the first date on which each of the following conditions has been satisfied or waived (the date on which such conditions shall have been so satisfied or waived, the “Amendment Effective Date”):

(a) Counterparts. The Administrative Agent (or its counsel) shall have received from the Company, the Administrative Agent and the Required Lenders either (i) a counterpart of this Agreement duly executed by such party or (ii) written evidence reasonably satisfactory to the Administrative Agent (which may include telecopy or other electronic transmission (e.g., “pdf” or “tif” via electronic mail) of a signed signature page (whether signed manually or electronically) of this Agreement) that such party has signed a counterpart of this Agreement; and

(b) Fees and Expenses. The Administrative Agent shall have received on or before the Amendment Effective Date all reasonable and documented fees and expenses required to be paid to the Administrative Agent in connection with the preparation and negotiation of this Agreement pursuant to and in accordance with the terms of Section 10.04 of the Credit Agreement, provided that such fees and expenses have been invoiced at least three Business Days prior to the Amendment Effective Date.

The Administrative Agent shall notify the Company and the Lenders of the Amendment Effective Date, and such notice shall be conclusive and binding.

SECTION 4. Representations and Warranties. The Company hereby represents to the Administrative Agent and each Lender, as follows:

(a) The execution, delivery and performance by the Company of this Agreement have been duly authorized by all necessary corporate or other organizational action. No approval, consent, exemption, authorization, or other material action by, or material notice to, or material filing with (other than any SEC filing by the Company in compliance with the SEC disclosure obligations), any Governmental Authority is necessary or required in connection with the execution, delivery or performance by, or enforcement against, the Company of this Agreement. This Agreement has been duly executed and delivered by the Company. This Agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to applicable Debtor Relief Laws and general principles of equity, regardless of whether considered in a proceeding in equity or at law.

(b) At the time of and immediately after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.

SECTION 5. Effect on the Loan Documents.

(a) Except as specifically amended herein, all Loan Documents shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. The Company hereby agrees, with respect to each Loan Document to which it is a party, that all of its obligations, liabilities and indebtedness under such Loan Document shall remain in full force and effect on a continuous basis after giving effect to this Agreement.

(b) Upon the Amendment Effective Date, each reference in the Credit Agreement to “this Agreement,” “herein,” “hereto,” “hereunder,” “hereof,” or in the other Loan Documents to the “Credit Agreement”, or, in each case, words of like import shall mean and be a reference to the Credit Agreement, as amended and modified by this Agreement.

(c) Except as expressly set forth in this Agreement, the execution, delivery and effectiveness of this Agreement 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 any of the Loan Documents.

(d) The Company and the other parties hereto acknowledge and agree that this Agreement shall constitute a Loan Document.

SECTION 6. GOVERNING LAW; WAIVER OF JURY TRIAL; SUBMISSION TO JURISDICTION. THIS AGREEMENT 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 AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK. 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 AGREEMENT. THE COMPANY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT IN ANY FORUM OTHER THAN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN (OR IF SUCH COURT LACKS SUBJECT MATTER JURISDICTION, THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF MANHATTAN), AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION, LITIGATION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT.

SECTION 7. Amendments; Execution in Counterparts; Electronic Signatures.

(a) This Agreement may not be amended, nor may any provision hereof be waived, except in accordance with Section 10.01 of the Credit Agreement.

(b) This Agreement may be executed by one or more of the parties to this Agreement on any number of separate counterparts, and all of said counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of an executed signature page of this Agreement by email or facsimile transmission shall be effective as delivery of a manually executed counterpart hereof.

(c) The words “delivery”, “execute,” “execution,” “signed,” “signature,” and words of like import in this Amendment and any document executed in connection herewith shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary neither the Administrative Agent nor any Lender is under any obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent or such Lender pursuant to procedures approved by it and provided further without limiting the foregoing, upon the request of any party, any electronic signature shall be promptly followed by such manually executed counterpart.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered by their respective proper and duly authorized officers as of the day and year first above written.

	THERMO FISHER SCIENTIFIC INC.

	By:	/s/ Anthony H. Smith
	Name:	Anthony H. Smith
	Title:	Vice President of Tax & Treasury and Treasurer