First Amendment, dated as of April 23, 2020, to the Credit Agreement dated as of November 1, 2019, among Zimmer Biomet Holdings, Inc., Zimmer Biomet G.K., Zimmer Luxembourg II S..R.L., the other borrowing subsidiaries referred to therein, JPMorgan Chase Bank, N.A., as General Administrative Agent, JPMorgan Chase Bank, N.A., Tokyo Branch, as Japanese Administrative Agent, J.P. Morgan Europe Limited, as European Administrative Agent, and the lenders from time to time party thereto
Exhibit 10.2
EXECUTION VERSION
FIRST AMENDMENT, dated as of April 23, 2020 (this “Amendment”), to the Credit Agreement dated as of November 1, 2019 (as in effect prior to the date hereof, the “Existing Credit Agreement”), among ZIMMER BIOMET HOLDINGS, INC., a Delaware corporation (the “Company”), ZIMMER BIOMET G.K., a company organized under the laws of Japan (the “Initial Japanese Borrower”), ZB LUXEMBOURG II S.À.R.L., a company organized under the laws of Luxembourg, inclusive of its Winterthur Branch (the “Luxembourg Borrower”), the other BORROWING SUBSIDIARIES from time to time party thereto, the LENDERS from time to time party thereto, JPMORGAN CHASE BANK, N.A., as administrative agent for the Lenders (in such capacity, the “General Administrative Agent”), JPMORGAN CHASE BANK, N.A., TOKYO BRANCH, as administrative agent for the Japanese Lenders (in such capacity, the “Japanese Administrative Agent”), and J.P. MORGAN EUROPE LIMITED, as administrative agent for the European Lenders (in such capacity, the “European Administrative Agent”). Capitalized terms used but not defined herein have the meanings assigned to them in the Existing Credit Agreement, as amended hereby.
WHEREAS, the Company has requested that the Existing Credit Agreement be amended as set forth herein and the Lenders party hereto, constituting the Required Lenders, have agreed so to amend the Existing Credit Agreement.
NOW THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto hereby agree as follows:
SECTION 1. Amendments to the Existing Credit Agreement. Effective as of the First Amendment Effective Date (as defined below):
(a) The definition of “Bail-In Action” in Section 1.01 of the Existing Credit Agreement is amended to read as follows:
“Bail-In Action” shall mean the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
(b) The definition of “Bail-In Legislation” in Section 1.01 of the Existing Credit Agreement is amended to read as follows:
“Bail-In Legislation” shall mean, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, rule, regulation or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).
(c) Clause (b) of the definition of “Consolidated Total Debt” in Section 1.01 of the Existing Credit Agreement is amended to read as follows:
(b) up to US$200,000,000 (or, for any calculation of the Consolidated Leverage Ratio for any Test Period ending during the period from the First Amendment Effective Date through
and including March 31, 2021, US$500,000,000) of cash and Cash Equivalents held in the United States by the Company and its Domestic Wholly Owned Subsidiaries as of such date; provided that such cash and Cash Equivalents are free of any Liens (other than Liens referred to in Section 9.02(o)).
(d) Each reference to “zero” in the definition of “Interpolated Screen Rate” in Section 1.01 of the Existing Credit Agreement is amended to read “0.75%”.
(e) The definition of “Pricing Grid” in Section 1.01 of the Existing Credit Agreement is amended to read as follows:
“Pricing Grid” shall mean (a) from the First Amendment Effective Date through and including March 31, 2021, the facility fee and Applicable Margin grid set forth in Section 1 of Annex I and (b) after March 31, 2021, the facility fee and Applicable Margin grid set forth in Section 2 of Annex I.
(f) Each reference to “zero” in the definition of “Screen Rate” in Section 1.01 of the Existing Credit Agreement is amended to read “0.75%”.
(g) The definition of “Write-Down and Conversion Powers” in Section 1.01 of the Existing Credit Agreement is amended to read as follows:
“Write-Down and Conversion Powers” shall mean, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
(h) The following defined terms are added to Section 1.01 of the Existing Credit Agreement in the appropriate alphabetical order:
“Affected Financial Institution” shall mean (a) any EEA Financial Institution, or (b) any UK Financial Institution.
“First Amendment Effective Date” shall mean April 23, 2020.
“Resolution Authority” shall mean an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“UK Financial Institution” shall mean any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person subject to IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” shall mean the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
(i) Each reference to “zero” in the definition of “Benchmark Replacement” in Section 5.09(c) of the Existing Credit Agreement is amended to read “0.75%”.
(j) Each reference to “zero” in the definition of “Unadjusted Benchmark Replacement” in Section 5.09(c) of the Existing Credit Agreement is amended to read “0.75%”.
(k) Section 9.04 of the Existing Credit Agreement is amended to read as follows:
SECTION 9.04 Financial Condition Covenant. Permit the Consolidated Leverage Ratio as at the last day of any period of four consecutive fiscal quarters of the Company (each such period, a “Test Period”) to exceed (a) 4.50 to 1.00, for the Test Period ending March 31, 2020, (b) 5.75 to 1.00, for any Test Period ending during the period from April 1, 2020 to and including December 31, 2020, (c) 5.00 to 1.0, for the Test Period ending March 31, 2021, and (d) 4.50 to 1.00, for any Test Period ending after April 1, 2021; provided that on or after July 1, 2021, upon the consummation of a Qualified Material Acquisition (to the extent such Qualified Material Acquisition is consummated on or after July 1, 2021), if the Company shall so elect by a written notice delivered to the General Administrative Agent within 30 days following such consummation, the maximum permitted ratio set forth in clause (d) above shall be increased to 5.00 to 1.00 at the end of and for the fiscal quarter in which such Qualified Material Acquisition is consummated and the subsequent three consecutive fiscal quarters (the “Leverage Increase Period”); provided further that, following any such election by the Company, no subsequent election may be made by the Company unless the Consolidated Leverage Ratio has been at or below 4.50 to 1.00 as of the last day of at least two consecutive Test Periods ended after the expiration of the Leverage Increase Period with respect to such prior election.
(l) The reference to “EEA Financial Institutions” in the heading of Section 12.21 of the Existing Credit Agreement is amended to read “Affected Financial Institutions”. Each reference to “EEA Financial Institution” in Section 12.21 of the Existing Credit Agreement is amended to read “Affected Financial Institution”. Each reference to “an EEA Resolution Authority” in Section 12.21 of the Existing Credit Agreement is amended to read “the applicable Resolution Authority”. The reference to “any EEA Resolution Authority” in Section 12.21 of the Existing Credit Agreement is amended to read “the applicable Resolution Authority”.
(m) Annex I of the Existing Credit Agreement is amended in its entirety to read as set forth in Annex I attached hereto.
SECTION 2. Representations and Warranties. The Company represents and warrants to each of the Lenders and each of the Administrative Agents that:
(a) This Amendment has been duly authorized by all necessary corporate or other organizational and, if required, stockholder action of each Borrower and has been duly executed and delivered by each Borrower and constitutes a legal, valid and binding obligation of each Borrower, enforceable against it in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(b) As of the First Amendment Effective Date and after giving effect to the transactions contemplated hereby:
(i) the representations and warranties of each Borrower set forth in the Loan Documents are true and correct in all material respects on and as of such date; provided that (A) to the extent such representations and warranties expressly relate to an earlier date, they shall be true and correct in all material respects as of such earlier date, and (B) to the extent such representations and warranties are qualified by materiality, such representations and warranties shall be true and correct in all respects; provided further that for purposes of this Section 2(b)(i), for purposes of determining the accuracy of the representation and warranty set forth in Section 6.05(b) of the Existing Credit Agreement as of the First Amendment Effective Date, the impacts of the novel coronavirus COVID-19 pandemic on the business, operations or financial condition of the Company and its Subsidiaries, taken as a whole, that occurred prior to the First Amendment Effective Date and that were disclosed to the Lenders prior to the First Amendment Effective Date will be disregarded; and
(ii) no Default has occurred and is continuing.
SECTION 3. Conditions to Effectiveness. This Amendment shall become effective, as of the date first above written (the “First Amendment Effective Date”), when each of the following conditions shall have been satisfied:
(a) the General Administrative Agent shall have received from each Borrower and Lenders constituting the Required Lenders either counterparts of this Amendment signed on behalf of such parties or evidence satisfactory to the General Administrative Agent (which may include facsimile transmissions or transmissions by electronic mail (in ..pdf or .tif format)) that such parties have signed counterparts of this Amendment; and
(b) the General Administrative Agent shall have received, for the account of each Lender executing this Amendment, a fee for each such Lender in an amount equal to 0.05% of the sum of (i) such Lender’s U.S. Commitment (as in effect immediately prior to giving effect to this Amendment), plus (ii) such Lender’s Multicurrency Commitment (as in effect immediately prior to giving effect to this Amendment), plus (iii) such Lender’s Japanese Commitment (as in effect immediately prior to giving effect to this Amendment).
The General Administrative Agent shall notify the Company, the other Borrowers and the Lenders of the First Amendment Effective Date, and such notice shall be conclusive and binding.
SECTION 4. Reimbursement of Expenses. The General Administrative Agent shall have received for its own account all fees and other amounts due and payable on or prior to the First Amendment Effective Date to the General Administrative Agent in connection with this Amendment, including, to the extent invoiced, payment or reimbursement of all fees and expenses (including reasonable fees, charges and disbursements of counsel) required to be paid or reimbursed by the Borrowers under the Existing Credit Agreement.
SECTION 5. Effect of this Amendment.
(a) Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Administrative Agents or the Lenders under the Existing Credit Agreement or any other Loan
Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other Loan Document, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Borrower to any other consent to, or any other waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Existing Credit Agreement or any other Loan Document in similar or different circumstances.
(b) On and after the First Amendment Effective Date, each reference in the Existing Credit Agreement to “this Agreement”, “herein”, “hereunder”, “hereto”, “hereof” and words of similar import shall, unless the context otherwise requires, refer to the Existing Credit Agreement as amended hereby, and each reference to the Credit Agreement in any other Loan Document shall be deemed to be a reference to the Existing Credit Agreement as amended hereby. This Amendment shall constitute a “Loan Document” for all purposes of the Existing Credit Agreement and the other Loan Documents.
(c) Each party hereto acknowledges and agrees to the provisions set forth in Section 12.21 of the Existing Credit Agreement, as amended hereby.
SECTION 6. Applicable Law. THIS AMENDMENT AND AN CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF, OR RELATING TO THIS AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
SECTION 7. Jurisdiction; Waiver of Jury Trial. The terms of Sections 12.13(a), 12.13(b) and 12.14 with respect to submission to jurisdiction, waiver of venue and waiver of jury trial are incorporated herein by reference, mutatis mutandis, and the parties hereto agree to such terms.
SECTION 8. Counterparts; Integration; Effectiveness. 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. This Amendment constitutes the entire contract among the parties hereto relating to the subject matter hereof and supersedes any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. This Amendment shall be binding upon and inure to the benefit of the parties hereto, the Lenders and the Administrative Agents and their respective successors and permitted assigns (it being agreed to no party hereto may assign its rights or obligations hereunder except in accordance with the Existing Credit Agreement). Delivery of an executed counterpart of a signature page of this Amendment by facsimile, electronic mail (in .pdf or .tif format) or other electronic imaging shall be effective as delivery of a manually executed counterpart of this Amendment. This Amendment may not be waived, amended or otherwise modified except in accordance with Section 12.07 of the Existing Credit Agreement.
SECTION 9. Headings. The Section headings used herein are for convenience of reference only, are not part of this Amendment and are not to affect the construction of, or to be taken into consideration in interpreting, this Amendment.
[Remainder of page intentionally left blank.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed by their respective authorized officers as of the day and year first above written.
ZIMMER BIOMET HOLDINGS, INC.
By: /s/ Suketu Upadhyay
Name: Suketu Upadhyay
Title: Executive Vice President and Chief Financial Officer
ZIMMER BIOMET G.K.
By: /s/ Chad F. Phipps
Name: Chad F. Phipps
Title: Executive Manager
ZIMMER LUXEMBOURG II S.À.R.L.
By: /s/ Jitender Sahni
Name: Jitender Sahni
Title: Manager
[Signature Page — First Amendment to Zimmer Credit Agreement]
JPMORGAN CHASE BANK, N.A.,
individually and as General Administrative Agent
By: /s/ Stephen Lescher
Name: Stephen Lescher
Title: Vice President
JPMORGAN CHASE BANK, N.A., TOKYO BRANCH,
as Japanese Administrative Agent
By: /s/ Angelyn Sng
Name: Angelyn Sng
Title: Vice President
J.P. MORGAN EUROPE LIMITED,
as European Administrative Agent
By: /s/ Fatma Mustafa
Name: Fatma Mustafa
Title: Vice President
[Signature Page — First Amendment to Zimmer Credit Agreement]
BANK OF AMERICA, N.A.,
as a Lender
By: /s/ Darren Merten
Name: Darren Merten
Title: Director
[Signature Page — First Amendment to Zimmer Credit Agreement]
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Andrea S Chen
Name: Andrea S Chen
Title: Managing Director
[Signature Page — First Amendment to Zimmer Credit Agreement]
BNP PARIBAS,
as a Lender
By: /s/ Brendan Heneghan
Name: Brendan Heneghan
Title: Director
By: /s/ Karim Remtoula
Name: Karim Remtoula
Title: Vice President
[Signature Page — First Amendment to Zimmer Credit Agreement]
CITIBANK, N.A.,
as a Lender
By: /s/ Richard Rivera
Name: Richard Rivera
Title: Vice President
[Signature Page — First Amendment to Zimmer Credit Agreement]
CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH,
as a Lender
By: /s/ Lingzi Huang
Name: Lingzi Huang
Title: Authorized Signatory
By: /s/ Brady Bingham
Name: Brady Bingham
Title: Authorized Signatory
[Signature Page — First Amendment to Zimmer Credit Agreement]
CREDIT SUISSE (SWITZERLAND) LTD,
as a Lender
By: /s/ Ramon Schraner
Name: Ramon Schraner
Title: Assistant Vice President
By: /s/ Manuela Hug
Name: Manuela Hug
Title: Assistant Vice President
[Signature Page — First Amendment to Zimmer Credit Agreement]
DNB CAPITAL LLC,
as a Lender
By: /s/ Samantha Stone
Name: Samantha Stone
Title: Vice President
By: /s/ Mita Zalavadia
Name: Mita Zalavadia
Title: Assistant Vice President
[Signature Page — First Amendment to Zimmer Credit Agreement]
HSBC BANK USA, N.A.,
as a Lender
By: /s/ Iain Stewart
Name: Iain Stewart
Title: Managing Director
[Signature Page — First Amendment to Zimmer Credit Agreement]
MIZUHO BANK, LTD.,
as a Lender
By: /s/ Tracy Rahn
Name: Tracy Rahn
Title: Executive Director
[Signature Page — First Amendment to Zimmer Credit Agreement]
MUFG BANK, LTD.,
as a Lender
By: /s/ David Meisner
Name: David Meisner
Title: Vice President
[Signature Page — First Amendment to Zimmer Credit Agreement]
ROYAL BANK OF CANADA,
as a Lender
By: /s/ Scott MacVicar
Name: Scott MacVicar
Title: Authorized Signatory
[Signature Page — First Amendment to Zimmer Credit Agreement]
SUMITOMO MITSUI BANKING CORPORATION,
as a Lender
By: /s/ Michael Maguire
Name: Michael Maguire
Title: Managing Director
[Signature Page — First Amendment to Zimmer Credit Agreement]
BANK OF MONTREAL,
as a Lender
By: /s/ Tim Massey
Name: Tim Massey
Title: Sr. V.P.
[Signature Page — First Amendment to Zimmer Credit Agreement]
GOLDMAN SACHS BANK USA,
as a Lender
By: /s/ Annie Carr
Name: Annie Carr
Title: Authorized Signatory
[Signature Page — First Amendment to Zimmer Credit Agreement]
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ Michael West
Name: Michael West
Title: Senior Vice President
[Signature Page — First Amendment to Zimmer Credit Agreement]
T.D. BANK, N.A.,
as a Lender
By: /s/ Jason Siewert
Name: Jason Siewert
Title: Senior Vice President
[Signature Page — First Amendment to Zimmer Credit Agreement]
UNICREDIT BANK AG, NEW YORK BRANCH,
as a Lender
By: /s/ Fabio Della Malva
Fabio Della Malva
Managing Director
By: /s/ Liz Lebedinskaya
Liz Lebedinskaya
Associate Director
[Signature Page — First Amendment to Zimmer Credit Agreement]
BANK OF CHINA, CHICAGO BRANCH,
as a Lender
By: /s/ Kai Wu
Name: Kai Wu
Title: SVP
[Signature Page — First Amendment to Zimmer Credit Agreement]
DZ BANK AG Deutsche Zentral-Genossenschaftsbank
Frankfurt am Main New York Branch,
as a Lender
By: /s/ Oliver Hildenbrand
Name: Oliver Hildenbrand
Title: Director
By: /s/ Heiko Voss
Name: Heiko Voss
Title: Assistant Vice President
[Signature Page — First Amendment to Zimmer Credit Agreement]
PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ John W. Lichtle
Name: John W. Lichtle
Title: Senior Vice President
[Signature Page — First Amendment to Zimmer Credit Agreement]
The Northern Trust Company,
as a Lender
By: /s/ Lisa DeCristofaro
Name: Lisa DeCristofaro
Title: SVP
[Signature Page — First Amendment to Zimmer Credit Agreement]
LAKE CITY BANK,
as a Lender
By: /s/ Michael E. Gavin
Name: Michael E. Gavin
Title: Executive Vice President – Chief Credit Officer,
Credit Administration
[Signature Page — First Amendment to Zimmer Credit Agreement]
ANNEX I
PRICING GRID
1. From the First Amendment Effective Date through and including March 31, 2021, the facility fee and Applicable Margin grid set forth below:
| Pricing Category | Ratings (S&P/Moody’s) | Facility Fee Rate (in Basis Points) | Applicable Margin for LIBOR/ EURIBOR/ TIBOR Revolving Loans (in Basis Points) | Applicable Margin for ABR Revolving Loans (in Basis Points) |
| Category 1 | A-/A3 or higher | 15.0 | 122.5 | 22.5 |
| Category 2 | BBB+/Baa1 | 17.5 | 132.5 | 32.5 |
| Category 3 | BBB/Baa2 | 20.0 | 142.5 | 42.5 |
| Category 4 | BBB-/Baa3 | 25.0 | 150.0 | 50.0 |
| Category 5 | BB+/Ba1 or lower | 32.5 | 155.0 | 55.0 |
2. After March 31, 2021, the facility fee and Applicable Margin grid set forth below:
| Pricing Category | Ratings (S&P/Moody’s) | Facility Fee Rate (in Basis Points) | Applicable Margin for LIBOR/ EURIBOR/ TIBOR Revolving Loans (in Basis Points) | Applicable Margin for ABR Revolving Loans (in Basis Points) |
| Category 1 | A-/A3 or higher | 8.0 | 79.5 | 0.0 |
| Category 2 | BBB+/Baa1 | 9.0 | 91.0 | 0.0 |
| Category 3 | BBB/Baa2 | 11.0 | 101.5 | 1.5 |
| Category 4 | BBB-/Baa3 | 15.0 | 110.0 | 10.0 |
| Category 5 | BB+/Ba1 or lower | 22.5 | 140.0 | 40.0 |
The Applicable Margin and the facility fee rate in effect on any date shall be based on the Ratings (as defined below) in effect on such date. The ratings to be utilized for purposes of this Annex I are the public ratings assigned by the Rating Agencies to senior, unsecured long-term indebtedness for borrowed money of the Company that is not subject to any credit enhancement (the “Ratings”). The Rating by any Rating Agency in effect at any date is that in effect at the close of business on such date. The Company hereby agrees that at all times it shall maintain a Rating from either S&P or Moody’s. If a Rating is supplied by only one of S&P and Moody’s, then that single Rating shall be determinative. In the case of split Ratings from S&P and Moody’s, the Rating to be used to determine which pricing category applies shall be the higher of the two Ratings; provided that if the split is more than one full Category, the Category that is one below that applicable to the higher Rating shall be used (e.g. BBB+/Baa3 results in Category 3 and A-/Baa3 in Category 2). For purposes of the Pricing Grid, “Basis Point” shall mean 1/100th of 1%.
Capitalized terms used but not otherwise defined in this Annex I have the meanings given to them in the Credit Agreement to which this Annex I is attached.
