FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT
EXHIBIT 10.29
FIRST AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 28, 2016
This FIRST AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) is by and among MERIT MEDICAL SYSTEMS, INC., a Utah corporation (the “Borrower”), certain subsidiaries of the Borrower party hereto (the “Subsidiary Guarantors”), the lenders who are party to this Amendment (the “Consenting Lenders”), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as administrative agent for the Lenders (in such capacity, the “Administrative Agent”).
PRELIMINARY STATEMENTS
WHEREAS, the Borrower, the lenders party thereto (the “Lenders”), and the Administrative Agent entered into that certain Second Amended and Restated Credit Agreement dated as of July 6, 2016 (as amended hereby and as may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”); and
WHEREAS, the Borrower requested that the Administrative Agent and the Lenders agree to amend the Credit Agreement as specifically set forth herein and, subject to the terms of this Amendment, the Administrative Agent and the Consenting Lenders have agreed to grant such request of the Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. Capitalized Terms. All capitalized terms not otherwise defined in this Amendment (including without limitation in the introductory paragraph and the Preliminary Statements hereto) shall have the meanings as specified in the Credit Agreement.
Section 2. Amendments to Credit Agreement. Subject to and in accordance with the terms and conditions set forth herein, the Administrative Agent and each of the Consenting Lenders hereby agrees as follows:
(a)Section 1.1 of the Credit Agreement is hereby amended by inserting the following new definitions in appropriate alphabetical order:
““Merit China” means Merit Medical Beijing Company Ltd., a company organized under the laws of the People's Republic of China.”
““Merit China Loan” means a loan transaction pursuant to the following: (a) the issuance of a standby letter of credit for the account of Merit China in favor of HSBC Bank (China) (the “HSBC LC”) in a face amount equal to the renminbi equivalent of $7,000,000, which is secured by cash of Merit China in amount equal to 100% of the face amount of the HSBC LC; (b) the making of a loan by HSBC Bank (Hong Kong) to Merit HK in amount equal to the face amount of the HSBC LC (the “HK Loan”), which is secured by the HSBC LC; and (c) the making of an intercompany loan by Merit HK to Merit Ireland with the proceeds of the HK Loan and the subsequent repayment by Merit Ireland of an existing intercompany loan in the amount of $7,000,000 to the Borrower on or prior to September 30, 2017.”
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““Merit HK” means Merit Medical Asia Company Limited., a company organized under the laws of the Hong Kong Special Administrative Region of the People's Republic of China.”
““Merit Ireland” means Merit Medical Ireland Limited, a company organized under the laws of Ireland.”
(b)Section 11.1 of the Credit Agreement is hereby amended by (i) deleting the “and” at the end of subsection “(j)”, (ii) inserting “and” at the end of subsection “(k)” and (iii) inserting the following new subsection (l) therein:
“(l) Indebtedness incurred by Merit China, Merit HK and Merit Ireland pursuant to the Merit China Loan.”
(c)Section 11.2 of the Credit Agreement is hereby amended by amending and restating subsection (o) thereof in its entirety to read as follows:
“(o) Liens on the assets of Merit China securing the Indebtedness permitted under Section 11.1(l).”
Section 3. Conditions of Effectiveness. The effectiveness of this Amendment shall be subject to the satisfaction of each of the following conditions precedent:
(a) Executed Amendment. The Administrative Agent shall have received counterparts of this Amendment executed by the Borrower, each other Credit Party, the Administrative Agent and the Lenders in sufficient number constituting Required Lenders.
(b) No Default. No Default or Event of Default shall have occurred and be continuing both before and after giving effect to this Amendment and the Merit China Loan.
(c) Payment of Fees. The Administrative Agent shall have been paid or reimbursed for all fees and reasonable and documented out-of-pocket costs and expenses incurred by it or its Affiliates in connection with this Agreement, including, without limitation, the reasonable and documented fees, disbursements and other charges of counsel for the Administrative Agent and its Affiliates, to the extent such fees, cost and expenses have been invoiced on or before the date hereof.
Section 4. Representations and Warranties. The Borrower and each other Credit Party hereby represents and warrants to the Administrative Agent and the Lenders that:
(a) both before and after giving effect to this Amendment and the Merit China Loan, each of the representations and warranties set forth in the Credit Agreement and the other Loan Documents is true, correct and complete in all material respects as of the date hereof, except for any representation and warranty made as of an earlier date, which representation and warranty shall remain true, correct and complete as of such earlier date; provided, that any representation or warranty that is qualified by materiality or by reference to Material Adverse Effect shall be true, correct and complete in all respects as of the date hereof;
(b) no Default or Event of Default has occurred or is continuing both before and after giving effect to this Amendment and the Merit China Loan;
(c) it has the right, power and authority and has taken all necessary corporate and other action to authorize the execution, delivery and performance of this Amendment and each of the other documents executed in connection herewith to which it is a party in accordance with their respective terms and the transactions contemplated hereby; and
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(d)this Amendment and each other document executed in connection herewith has been duly executed and delivered by the duly authorized officers of the Borrower and each other Credit Party, and each such document constitutes the legal, valid and binding obligation of the Borrower and each other Credit Party, enforceable in accordance with its terms, except as such enforceability may be limited by Debtor Relief Laws from time to time in effect which affect the enforcement of creditors’ rights in general and the availability of equitable remedies.
Section 5. Limited Effect. This Amendment is a Loan Document. Except as expressly provided herein, the Credit Agreement and the other Loan Documents shall remain unmodified and in full force and effect. Except as expressly provided herein, this Amendment shall not be deemed (a) to be a waiver of, or consent to, or a modification or amendment of, any other term or condition of the Credit Agreement or any other Loan Document, (b) to prejudice any right or rights which the Administrative Agent or the Lenders may now have or may have in the future under or in connection with the Credit Agreement or the other Loan Documents or any of the instruments or agreements referred to therein, as the same may be amended, restated, supplemented or modified from time to time, (c) to be a commitment or any other undertaking or expression of any willingness to engage in any further discussion with the Borrower, any of its Subsidiaries or any other Person with respect to any waiver, amendment, modification or any other change to the Credit Agreement or the Loan Documents or any rights or remedies arising in favor of the Lenders or the Administrative Agent, or any of them, under or with respect to any such documents or (d) to be a waiver of, or consent to or a modification or amendment of, any other term or condition of any other agreement by and among the Borrower or any of its Subsidiaries, on the one hand, and the Administrative Agent or any other Lender, on the other hand. References in the Credit Agreement to “this Agreement” (and indirect references such as “hereunder”, “hereby”, “herein”, “hereof” or other words of like import) and in any Loan Document to the “Credit Agreement” shall be deemed to be references to the Credit Agreement as modified hereby.
Section 6. Acknowledgment and Reaffirmation. The Borrower and each other Credit Party (a) agrees that the transactions contemplated by this Amendment shall not limit or diminish the obligations of such Person under, or release such Person from any obligations under, the Credit Agreement, the Guaranty Agreement, the Collateral Agreement and each other Security Document to which it is a party, (b) confirms and reaffirms its obligations under the Credit Agreement, the Guaranty Agreement, the Collateral Agreement and each other Security Document to which it is a party and (c) agrees that the Credit Agreement, the Guaranty Agreement, the Collateral Agreement and each other Security Document to which it is a party remain in full force and effect and are hereby reaffirmed.
Section 7. Costs, Expenses and Taxes. The Borrower agrees to pay on demand all reasonable and documented out-of-pocket costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery, administration, modification and amendment of this Amendment and the other instruments and documents to be delivered hereunder, including, without limitation, the reasonable and documented fees and out-of-pocket expenses of counsel for the Administrative Agent with respect thereto and with respect to advising the Administrative Agent as to its rights and responsibilities hereunder and thereunder.
Section 8. Execution in Counterparts. This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page of this Amendment by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Amendment.
Section 9. Governing Law. This Amendment and any claim, 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 and thereby shall be governed by, and construed in accordance with, the law of the State of New York.
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Section 10. Entire Agreement. This Amendment and the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent, the Issuing Lender, the Swingline Lender and/or the Arranger, constitute the entire agreement among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written.
MERIT MEDICAL SYSTEMS, INC., as Borrower
By: /s/ XXXXXXX XXXXXXX
Name: Xxxxxxx Xxxxxxx
Title: CFO
MERIT HOLDINGS, INC., as Subsidiary Guarantor
By: /s/ XXXXXXX XXXXXXX
Name: Xxxxxxx Xxxxxxx
Title: CFO
MERIT SENSOR SYSTEMS, INC., as Subsidiary Guarantor
By: /s/ XXXXXXX XXXXXXX Name: Xxxxxxx Xxxxxxx
Title: CFO
MERIT SERVICES, INC., as Subsidiary Guarantor
By: /s/ XXXXXXX XXXXXXX
Name: Xxxxxxx Xxxxxxx
Title: CFO
BIOSPHERE MEDICAL, INC., as Subsidiary Guarantor
By: /s/ XXXXXXX XXXXXXX
Name: Xxxxxxx Xxxxxxx
Title: CFO
BSMD VENTURES, INC., as Subsidiary Guarantor
By: /s/ XXXXXXX XXXXXXX
Name: Xxxxxxx Xxxxxxx
Title: CFO
BIOSPHERE MEDICAL JAPAN, INC., as Subsidiary Guarantor
By: /s/ XXXXXXX XXXXXXX
Name: Xxxxxxx Xxxxxxx
Title: CFO
Merit Medical Systems, Inc.
First Amendment to Second Amended and Restated Credit Agreement
Signature Page
XXXXXX MEDICAL PRODUCTS, INC., as Subsidiary Guarantor
By: /s/ XXXXXXX XXXXXXX
Name: Xxxxxxx Xxxxxxx
Title: CFO
DFINE, INC., as Subsidiary Guarantor
By: /s/ XXXXXXX XXXXXXX
Name: Xxxxxxx Xxxxxxx
Title: CFO
Merit Medical Systems, Inc.
First Amendment to Second Amended and Restated Credit Agreement
Signature Page
ADMINISTRATIVE AGENT AND LENDERS:
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent, Swingline Lender, Issuing Lender and Lender
By: /s/ XXXXX XXXXX
Name: Xxxxx Xxxxx
Title: Vice President
Merit Medical Systems, Inc.
First Amendment to Second Amended and Restated Credit Agreement
Signature Page
BANK OF AMERICA, N.A., as Lender
By: /s/ XXXXX XXXXXX
Name: Xxxxx Xxxxxx
Title: Senior Vice President
Merit Medical Systems, Inc.
First Amendment to Second Amended and Restated Credit Agreement
Signature Page
U.S. BANK NATIONAL ASSOCIATION, as Lender
By: /s/ XXXXXXX XXXXX
Name: Xxxxxxx Xxxxx
Title: Vice President
Merit Medical Systems, Inc.
First Amendment to Second Amended and Restated Credit Agreement
Signature Page
HSBC BANK USA, NATIONAL ASSOCIATION, as Lender
By: /s/ XXXXXXXXXXX XXXX
Name: Xxxxxxxxxxx Xxxx
Title: Senior Vice President
Merit Medical Systems, Inc.
First Amendment to Second Amended and Restated Credit Agreement
Signature Page
