EXHIBIT 10.12.1
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT (this "Amendment") is
made and dated as of the 12 day of February, 1999, by and among THE
FIRST NATIONAL BANK OF CHICAGO ("FNBC"), UNION BANK OF CALIFORNIA,
N.A., ABN AMRO BANK N.V., and BANQUE NATIONALE DE PARIS (each of the
above parties, a "Lender", and collectively, the "Lenders"), FNBC as
agent for the Lenders (in such capacity, the "Agent"), and BIO-RAD
LABORATORIES, INC., a Delaware corporation (the "Borrower").
RECITALS
A. Pursuant to that certain Credit Agreement dated as of May 15,
1998 among the Agent, the Lenders and the Borrower (as amended to
date, the "Agreement"), the Lenders agreed to extend credit to the
Borrower on the terms and subject to the conditions set forth
therein. All capitalized terms not otherwise defined herein shall
have the meanings given to such terms in the Agreement.
B. The parties hereto have agreed to certain amendments to the
Agreement, all as more particularly described below.
NOW, THEREFORE, in consideration of the foregoing Recitals and
for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as
follows:
AGREEMENT
1. Dividends. To reflect the agreement of the parties hereto
to amend the Borrower's covenant on dividends, effective as of the
First Amendment Effective Date (as defined in Paragraph 3 below),
Section 6.10 of the Agreement is hereby amended to read in its
entirety as follows:
"6.10 Dividends. The Borrower will not, nor will it permit
any Subsidiary to, declare or pay any dividends or make any
distributions on its capital stock (other than (i) dividends
payable in its own capital stock and (ii) excluding share
repurchases used solely to fund employee stock purchase plans
and employee stock option plans, provided such share repurchases
do not exceed $4,000,000 in any fiscal year (including, without
limitation, the fiscal year ended December 31, 1998)) or redeem,
purchase or otherwise acquire or retire any of its capital stock
at any time outstanding ("Restricted Payments"), except that any
Subsidiary may declare and pay dividends to the Borrower or to a
wholly-owned Subsidiary and the Borrower may make Restricted
Payments in any one fiscal quarter up to an amount not in excess
of 50% of the sum of consolidated net income during the four
fiscal quarters ending on the date of determination less any
Restricted Payments paid during such period, provided that
during the term of this Agreement the total amount of Restricted
Payments made shall not exceed $25,000,000 and further, provided
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no Restricted Payment may be made if prior to, and after giving
effect thereto, any Default or Unmatured Default exists."
2. Reaffirmation of Other Loan Documents. The Borrower hereby
affirms and agrees that (a) the execution and delivery by the
Borrower of and the performance of its obligations under this
Amendment shall not in any way amend, impair, invalidate or otherwise
affect any of the obligations of the Borrower under the Agreement or
any other Loan Document, (b) the term "Obligations" as used in the
Loan Documents include, without limitation, the Obligations of the
Borrower under the Agreement as amended by this Amendment, and
(c) except as expressly amended hereby, the Loan Documents remain in
full force and effect as written.
3. First Amendment Effective Date. This Amendment shall be
effective on the earliest date (the "First Amendment Effective
Date") upon which the Agent has received (a) duly executed copies of
this Amendment from each of the Lenders, the Agent and the Borrower,
and (b) such board resolutions, incumbency certificates and other
additional documentation as the Agent may request in connection
herewith.
4. Representations and Warranties. The Borrower hereby
represents and warrants to the Agent and the Lenders as follows:
(a) The Borrower has the corporate power and authority and
the legal right to execute, deliver and perform this Amendment and
has taken all necessary corporate action to authorize the execution,
delivery and performance of this Amendment.
(b) This Amendment has been duly executed and delivered on
behalf of the Borrower and constitutes the legal, valid and binding
obligation of the Borrower enforceable against the Borrower in
accordance with its terms.
5. Counterparts. This Amendment may be executed in any number
of counterparts, each of which when so executed shall be deemed to be
an original and all of which when taken together shall constitute one
and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the day and year first above written.
BIO-RAD LABORATORIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
THE FIRST NATIONAL BANK OF CHICAGO,
as the Agent and as a Lender
By: /s/ Xxxx X. Xxxxx
Name: Xxxx X. Xxxxx
Title: First Vice President
UNION BANK OF CALIFORNIA, N.A., as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ABN AMRO BANK N.V., as a Lender
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Group Vice President
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Group Vice President
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BANQUE NATIONALE DE PARIS, as a Lender
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Vice President
By: /s/ Xxxx XxXxxxxx
Name: Xxxx XxXxxxxx
Title: Assistant Vice President
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