THIRD AMENDMENT TO CREDIT AGREEMENT dated as of April 1, 2008 among BAKER HUGHES INCORPORATED, as Borrower, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and The Lenders Party Hereto
Exhibit 10.2
EXECUTION VERSION
THIRD AMENDMENT TO
CREDIT AGREEMENT
dated as of
April 1, 2008
among
XXXXX XXXXXX INCORPORATED,
as Borrower,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
and
The Lenders Party Hereto
dated as of
April 1, 2008
among
XXXXX XXXXXX INCORPORATED,
as Borrower,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
and
The Lenders Party Hereto
X.X. XXXXXX SECURITIES INC.
as Sole Lead Arranger and Sole Book Manager
as Sole Lead Arranger and Sole Book Manager
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT (this “Third Amendment”) dated as of April 1,
2008, is among XXXXX XXXXXX INCORPORATED, a Delaware corporation, as the Borrower;
JPMORGAN CHASE BANK, N.A., as Administrative Agent, and the Lenders party hereto.
R E C I T A L S
A. The Borrower, the Administrative Agent and the Lenders are parties to that certain Credit
Agreement dated as of July 7, 2005 (as amended by that certain First Amendment to Credit Agreement
dated June 7, 2006, as amended by that certain Second Amendment to Credit Agreement dated May 31,
2007, the “Credit Agreement”), pursuant to which the Lenders have agreed to make certain
loans to and extensions of credit for the account of the Borrower.
B. The Borrower has requested and the Lenders have agreed to amend certain provisions of the
Credit Agreement.
C. NOW, THEREFORE, in consideration of the premises and the mutual covenants herein contained,
for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
Section 1. Defined Terms. Each capitalized term used herein but not otherwise defined
herein has the meaning given such term in the Credit Agreement. Unless otherwise indicated, all
article and section references in this Third Amendment refer to articles and sections of the Credit
Agreement.
Section 2. Amendments to Credit Agreement.
2.1 Amendments to Section 1.01 — Definitions
(a) The definition of “Credit Agreement” is hereby amended in its entirety to read as
follows:
“Credit Agreement” means this Credit Agreement, as amended by the First
Amendment, the Second Amendment and the Third Amendment, as the same may from time
to time be amended, modified, restated, or replaced from time to time.
(b) The definition of “Eligible Assignee” is hereby amended by deleting “a Default or”
in the fourth line.
(c) The definition of “Funded Indebtedness” is hereby amended in its entirety to read
as follows:
“Funded Indebtedness” of any Person means, without duplication, (a) all
obligations of such Person for borrowed money (excluding from this clause (a) and
clause (b) below intraday over advances and overnight overdrafts; provided that,
such obligations are not outstanding for more than two (2) Business Days),
(b) all obligations of such Person evidenced by bonds, debentures, notes or
similar instruments, or upon which interest payments are customarily made, (c) all
Contingent Obligations of such Person with respect to Funded Indebtedness of another
Person, (d) the principal portion of all obligations of such Person under (i)
capital lease obligations and (ii) any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product of such
Person where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an operating lease in accordance with GAAP, and after
giving effect to any of the foregoing in this clause (d) to any third-party
indemnification, and (e) all obligations of such Person with respect to Redeemable
Preferred Stock. The Funded Indebtedness of any Person shall include the Funded
Indebtedness of any partnership or unincorporated joint venture for which such
Person is legally obligated. For the avoidance of doubt, Funded Indebtedness shall
exclude any actual fair value adjustment arising from any interest rate swap
transactions entered into in the ordinary course of business and not for investment
or speculative purposes.
(d) The definition of “Indebtedness” is hereby amended in its entirety to read as follows:
“Indebtedness” of any Person means, without duplication, (a) all
obligations of such Person for borrowed money (excluding from this clause (a) and
clause (b) below intraday over advances and overnight overdrafts; provided that,
such obligations are not outstanding for more than two (2) Business Days), (b) all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property purchased by such Person to the extent of the value
of such property (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of business), (d) all
obligations, other than intercompany items, of such Person issued or assumed as the
deferred purchase price of property or services purchased by such Person which would
appear as liabilities on a balance sheet of such Person, (e) all Indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, property owned or acquired by such Person, whether or
not the obligations secured thereby have been assumed, (f) all Contingent
Obligations of such Person, (g) the principal portion of all obligations of such
Person under (i) capital lease obligations and (ii) any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar off-balance sheet
financing product of such Person where such transaction is considered borrowed money
indebtedness for tax purposes but is classified as an operating lease in accordance
with GAAP, and after giving effect in any of the foregoing in this clause (g) to any
third-party indemnification, (h) all obligations of such Person with respect to
Redeemable Preferred Stock, (i) the Swap Termination Value (including both debit and
credit values) in respect of any Swap Contract of such Person and (j) the maximum
amount of all bid, performance and standby letters of credit issued or bankers’
acceptances facilities created for the account of
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such Person and, without duplication, all drafts drawn thereunder (to the
extent unreimbursed). The Indebtedness of any Person shall include the Indebtedness
of any partnership or unincorporated joint venture for which such Person is legally
obligated.
(e) The definition of “Third Amendment” is hereby added to Section 1.01 in proper
alphabetic order which definition shall read as follows:
“Third Amendment” means the Third Amendment to Credit Agreement dated as of
April 1, 2008 among the Borrower, JPMorgan Chase Bank, N.A., as Administrative Agent and the
Lenders party thereto.
2.2 Amendment to Section 2.05. Section 2.05 is hereby amended by deleting “a Default
or” in the thirteenth line.
2.3
Amendment to Section 8.02. Section 8.02 is hereby amended by deleting “Default
or” in the fourth line.
2.4 Amendment to Article XI. Article XI is hereby amended by adding the following as
Section 11.19:
Section 11.19. No Fiduciary Duty. Each of the Administrative Agent,
each Lender and their Affiliates (collectively, solely for purposes of this
paragraph, the “Lenders”), may have economic interests that conflict with those of
the Borrower. The Borrower agrees that nothing in the Credit Documents or otherwise
will be deemed to create an advisory, fiduciary or agency relationship or fiduciary
or other implied duty between the Lenders and the Borrower, its stockholders or its
Affiliates. The Borrower acknowledges and agrees that (i) the transactions contemplated by the
Credit Documents are arm’s-length commercial transactions between the Lenders, on
the one hand, and the Borrower, on the other, (ii) in connection therewith and with
the process leading to such transaction each of the Lenders is acting solely as a
principal and not the agent or fiduciary of the Borrower, its management,
stockholders, creditors or any other person, (iii) no Lender has assumed an advisory
or fiduciary responsibility in favor of the Borrower with respect to the
transactions contemplated hereby or the process leading thereto (irrespective of
whether any Lender or any of its affiliates has advised or is currently advising the
Borrower on other matters) or any other obligation to the Borrower except the
obligations expressly set forth in the Credit Documents and (iv) the Borrower has
consulted its own legal and financial advisors to the extent it deemed appropriate.
The Borrower further acknowledges and agrees that it is responsible for making its
own independent judgment with respect to such transactions and the process leading
thereto. The Borrower agrees that it will not claim that any Lender has rendered
advisory services of any nature or respect, or owes a fiduciary or similar duty to
the Borrower, in connection with such transaction or the process leading thereto.
Section 3. Conditions Precedent. This Third Amendment shall not become effective
until the date (the “Effective Date”) on which (i) the Administrative Agent shall have
received
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from the Required Lenders and the Borrower, counterparts (in such number as may be requested
by the Administrative Agent) of this Third Amendment signed on behalf of such Person and (ii) the
Borrower shall deliver to the Administrative Agent a certificate of the Borrower (in sufficient
copies for each Lender) signed by a Responsible Officer of the Borrower certifying that, (A) before
and after giving effect to this Third Amendment, the representations and warranties contained in
Article VI of the Credit Agreement made by it (other than those made in Section 6.08) are true and
correct on and as of the execution date of this Third Amendment, except to the extent that such
representations and warranties specifically refer to an earlier date, (B) no Default exists or will
exist as of the execution date of this Third Amendment, and (C) no Material Adverse Effect (except
as may have arisen in connection with the matters covered in Section 6.08) has occurred since the
date of the most recently filed Form 10-K or 10-Q through the execution date of this Third
Amendment.
Section 4. Miscellaneous.
4.1 Confirmation. The provisions of the Credit Agreement, as amended by this Third
Amendment, shall remain in full force and effect following the effectiveness of this Third
Amendment.
4.2 Ratification and Affirmation; Representations and Warranties. The Borrower hereby
(a) ratifies and affirms its obligations under, and acknowledges, renews and extends its continued
obligations under, each Loan Document to which it is a party and agrees that each Loan Document to
which it is a party remains in full force and effect, except as expressly amended hereby and (b)
represents and warrants to the Lenders that as of the date hereof, after giving effect to the terms
of this Third Amendment: (i) before and after giving effect to this Third Amendment, the
representations and warranties contained in Article VI of the Credit Agreement made by it (other
than those made in Section 6.08) are true and correct on and as of the execution date of this Third
Amendment, except to the extent that such representations and warranties specifically refer to an
earlier date and (ii) no Default exists or will exist as of the execution date of this Third
Amendment and no Material Adverse Effect (except as may have arisen in connection with the matters
covered in Section 6.08) has occurred since the date of the most recently filed Form 10-K or 10-Q
through the date hereof.
4.3 Loan Document. This Third Amendment is a “Credit Document” as defined and
described in the Credit Agreement and all of the terms and provisions of the Credit Agreement
relating to Credit Documents shall apply hereto.
4.4 Counterparts. This Third Amendment may be executed by one or more of the parties
hereto in any number of separate counterparts, and all of such counterparts taken together shall be
deemed to constitute one and the same instrument. Delivery of this Third Amendment by facsimile
transmission shall be effective as delivery of a manually executed counterpart hereof.
4.5 NO ORAL AGREEMENT. THIS THIRD AMENDMENT, THE CREDIT AGREEMENT AND THE OTHER
CREDIT DOCUMENTS EXECUTED IN CONNECTION HEREWITH AND THEREWITH REPRESENT THE FINAL AGREEMENT AMONG
THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
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CONTEMPORANEOUS, OR UNWRITTEN ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO SUBSEQUENT ORAL
AGREEMENTS BETWEEN THE PARTIES.
4.6 GOVERNING LAW. THIS THIRD AMENDMENT (INCLUDING, BUT NOT LIMITED TO, THE VALIDITY
AND ENFORCEABILITY HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK.
[SIGNATURES BEGIN NEXT PAGE]
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IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to be duly executed as
of the date first written above.
| XXXXX XXXXXX INCORPORATED | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Name: | ||||||
| Title: | Senior Vice President and Chief Financial Officer |
|||||
Signature Page to Third Amendment to Xxxxx Xxxxxx Incorporated Credit Agreement
| JPMORGAN CHASE BANK, N.A., as Administrative Agent |
||||||
| By: | /s/ Xxxxx X. Xxxxx | |||||
| Name: | Xxxxx X. Xxxxx | |||||
| Title: | Vice President | |||||
Signature Page to Third Amendment to Xxxxx Xxxxxx Incorporated Credit Agreement
| JPMORGAN CHASE BANK, N.A., as Lender |
||||||
| By: | /s/ Xxxxx X. Xxxxx | |||||
| Name: | Xxxxx X. Xxxxx | |||||
| Title: | Vice President | |||||
Signature Page to Third Amendment to Xxxxx Xxxxxx Incorporated Credit Agreement
| BANK OF AMERICA, N.A., as Lender | ||||||
| By: | /s/ Xxxxxxx X. XxXxxxxx | |||||
| Name: | Xxxxxxx X. XxXxxxxx | |||||
| Title: | Senior Vice President | |||||
Signature Page to Third Amendment to Xxxxx Xxxxxx Incorporated Credit Agreement
| BARCLAYS BANK PLC, as Lender | ||||||
| By: | /s/ Xxxxxx Xxxxxx | |||||
| Name: | Xxxxxx Xxxxxx | |||||
| Title: | Director | |||||
Signature Page to Third Amendment to Xxxxx Xxxxxx Incorporated Credit Agreement
| CITIBANK, N.A., as Lender | ||||||
| By: | /s/ Xxx Xxxxx | |||||
| Name: | Xxx Xxxxx | |||||
| Title: | Vice President | |||||
Signature Page to Third Amendment to Xxxxx Xxxxxx Incorporated Credit Agreement
| THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as Lender |
||||||
| By: | /s/ Xxxxx Xxxxx | |||||
| Name: | Xxxxx Xxxxx | |||||
| Title: | Vice President and Manager | |||||
Signature Page to Third Amendment to Xxxxx Xxxxxx Incorporated Credit Agreement
| ABN AMRO BANK N.V., as Lender | ||||||
| By: | /s/ Xxx Xxxxx | |||||
| Name: | Xxx Xxxxx | |||||
| Title: | Managing Director | |||||
| By: | /s/ Xxx Xxxx | |||||
| Name: | Xxx Xxxx | |||||
| Title: | Director | |||||
Signature Page to Third Amendment to Xxxxx Xxxxxx Incorporated Credit Agreement
| THE BANK OF NEW YORK, as Lender | ||||||
| By: | /s/ Xxxxxx X. Xxxxxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxxxxx | |||||
| Title: | Vice President | |||||
Signature Page to Third Amendment to Xxxxx Xxxxxx Incorporated Credit Agreement
| UBS LOAN FINANCE LLC, as Lender | ||||||
| By: | /s/ Xxxx X. Xxxx | |||||
| Name: | Xxxx X. Xxxx | |||||
| Title: | Associate Director | |||||
| By: | /s/ Xxxx X. Xxxxx | |||||
| Name: | Xxxx X. Xxxxx | |||||
| Title | Associate Director | |||||
Signature Page to Third Amendment to Xxxxx Xxxxxx Incorporated Credit Agreement
