Exhibit 4.1.1
EXECUTION COPY
AMENDMENT NO. 1 TO CREDIT AGREEMENT
This Amendment No. 1 (this "Amendment") is entered into as
of January 31, 2000 by and among BIO-RAD LABORATORIES, INC., a
Delaware corporation (the "Borrower"), the undersigned lenders
(collectively, the "Lenders") and BANK ONE, NA, having its
principal office in Chicago, Illinois, as one of the Lenders and
in its capacity as contractual representative (the "Agent") on
behalf of itself and the other Lenders.
RECITALS:
WHEREAS, the Borrower, the Lenders and the Agent have
entered into that certain Credit Agreement dated as of September
30, 1999 (the "Credit Agreement");
WHEREAS, the Borrower seeks to amend the Credit Agreement to
permit the refinancing of the Bridge Loan (as defined in the
Credit Agreement); and
WHEREAS, the Lenders and the Agent are willing to amend the
Credit Agreement on the terms and conditions herein set forth;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used herein and not
otherwise defined herein shall have the meanings attributed to
such terms in the Credit Agreement.
2. Amendments to Credit Agreement. Upon the effectiveness
of this Amendment in accordance with the provisions of Section 4
below, the Credit Agreement is hereby amended as follows:
(a) Article I of the Credit Agreement is amended by adding
thereto the following new definitions:
"New Bridge Loan" means the bridge loan in the initial
principal amount of $100,000,000 made to the Borrower on or
about January 31, 2000 pursuant to the New Bridge Loan
Agreement to refinance the Bridge Loan in its entirety,
including any increase in such principal amount as a result
of the capitalization of interest thereon and including any
Rollover Bridge Notes and Exchange Notes, as defined in the
New Bridge Loan Agreement; provided that the Exchange Notes
shall be issued pursuant to an indenture all of the terms
and conditions of which are reasonably acceptable to the
Agent and the Required Lenders, and provided further that
terms and conditions substantially
similar to those contained in the Description of Notes shall
be deemed to be reasonably acceptable.
"New Bridge Loan Agreement" means the Senior
Subordinated Credit Agreement dated as of January 31, 2000
among the Borrower, the lenders named therein and UBS AG,
Stamford Branch, as agent for such lenders, together with
any notes issued pursuant thereto.
(b) Article I of the Credit Agreement is further amended by
amending and restating in their entirety the following
definitions as follows:
"Consolidated EBITDA" means, with reference to any
period, Consolidated Net Income for such period plus, to
the extent deducted from revenues in determining
Consolidated Net Income (without duplication), (i)
Consolidated Interest Expense and all non-cash interest
expense, (ii) expense for income taxes paid or accrued,
(iii) depreciation, (iv) amortization, (v) extraordinary
losses incurred other than in the ordinary course of
business and losses from discontinued operations, (vi) any
extraordinary, unusual or non-recurring non-cash expenses or
non-cash losses, and (vii) non-recurring cash charges,
including any capitalized non-recurring cash charges, taken
on or prior to March 31, 2000 resulting from severance,
integration and other adjustments made as a result of the
PSD Acquisition (provided that the amounts referred to in
this clause (vii) shall not, in the aggregate, exceed
$25,000,000), and minus, to the extent included in
Consolidated Net Income, extraordinary gains and gains from
discontinued operations, all net of tax, realized other than
in the ordinary course of business, all calculated for the
Borrower and its Subsidiaries on a consolidated basis for
such period; provided that the items to be added to and
subtracted from Consolidated Net Income with respect to any
Subsidiary shall be added or subtracted only to the extent
and in the same proportions that (a) the net income of such
Subsidiary was included in the calculation of Consolidated
Net Income, if such Subsidiary is not a Wholly-Owned
Subsidiary and (b) the Consolidated EBITDA of such
Subsidiary (calculated as if such Subsidiary were the
"Borrower") is permitted to be paid or distributed as a
dividend, advance, loan or other distribution to the
Borrower.
"Consolidated Net Income" means, with reference to any
period, the net income (or loss) of the Borrower and its
Subsidiaries calculated on a consolidated basis for such
period, provided that Consolidated Net Income shall exclude
the net income, if positive, of any of the Borrower's
consolidated Subsidiaries to the extent that the declaration
or payment of dividends of similar distributions is not at
the time permitted by operation of the terms of its charter
or by-laws or any other agreement, instrument, judgment,
decree, order, statute, rule or governmental regulation
applicable to such Subsidiary.
"Description of Notes" means the Description of Notes
attached hereto as Exhibit D, provided that the amount "$155
million" in clause (3) of the description of "Limitation on
Incurrence of Additional Indebtedness and Disqualified
Capital Stock" in such Description
of Notes shall be deleted
and the amount "$180 million" substituted therefor.
"Financing" means, with respect to any Person, the
issuance or sale by such Person of any Equity Interests of
such Person or any Indebtedness consisting of debt
securities of such Person pursuant to a registered offering
or private placement, but excluding the issuance or sale of
(i) any Indebtedness permitted to be incurred pursuant to
Section 6.11, including, without limitation, the
Subordinated Indebtedness, except that the first $20,000,000
of Permitted Subordinated Indebtedness incurred in excess of
the amount required to refinance the New Bridge Loan shall
be deemed to be a Financing, (ii) Equity Interests by the
Borrower to the extent that the proceeds thereof are used to
refinance the New Bridge Loan in its entirety, (iii) Equity
Interests by the Borrower to any officer, director or
employee of the Borrower or any of its Subsidiaries pursuant
to any incentive compensation plan or program and (iv)
Equity Interests or Indebtedness by any Subsidiary of the
Borrower to the Borrower or any Wholly-Owned Subsidiary of
the Borrower.
"Permitted Subordinated Indebtedness" means
Indebtedness of the Borrower, the payment of which is
subordinated to payment of the Secured Obligations and all
of the terms and conditions of which are reasonably
acceptable to the Agent and the Required Lenders, issued in
an aggregate principal amount not to exceed $150,000,000,
the proceeds of which are used, in whole or in part, to
refinance the New Bridge Loan in its entirety; provided that
terms and conditions substantially similar to those
contained in the Description of Notes shall be deemed to be
reasonably acceptable.
"Subordinated Indebtedness" means the Bridge Loan, the
New Bridge Loan and the Permitted Subordinated Indebtedness.
(c) Section 6.1 of the Credit Agreement is amended by
deleting the figure "100" in Section 6.1(i) and substituting
the figure "90" therefor, by deleting the figure "60" in
Section 6.1(ii) and substituting the figure "45" therefor,
and by deleting the phrase "Together with the financial
statements required under Sections 6.1(i) and (ii)," in
Section 6.1(iv) and substituting the following phrase
therefor:
Within 10 days after the delivery of the financial
statements required under Section 6.1(i) and within 15 days
after the delivery of the financial statements required
under Section 6.1(ii),
(d) Section 6.21 of the Credit Agreement is amended by
deleting the term "Bridge Loan Agreement" both places it
appears in clause (i) thereof and substituting the term "New
Bridge Loan Agreement" therefor and by deleting the term
"Bridge Loan" in clause (ii) thereof and substituting the
term "New Bridge Loan" therefor.
(e) Section 6.22 of the Credit Agreement is amended by
adding to the last sentence thereof after the phrase "the
Bridge Loan" the phrase "and the New Bridge Loan".
(f) Section 7.5 of the Credit Agreement is amended by
amending and restating the parenthetical phrase in the third
clause thereof in its entirety to read as follows:
(other than by a regularly scheduled payment and other than
in connection with the refinancing of the Bridge Loan with
the proceeds of the New Bridge Loan and the refinancing of
the New Bridge Loan with the proceeds of Permitted
Subordinated Indebtedness or Equity Interests of the
Borrower)
(g) The Credit Agreement is amended by adding a new Exhibit
D thereto in the form of Exhibit D attached to this
Amendment.
3. Consent. The Lenders hereby consent to the terms of
the Senior Subordinated Credit Agreement dated as of January 31,
2000 among the Borrower, the lenders named therein and UBS AG,
Stamford Branch, as agent for such lenders (the "New Bridge Loan
Agreement"), provided that such terms are substantially the same
as those contained in the draft dated January 26, 2000 (12:50
P.M.) of such Senior Subordinated Credit Agreement furnished to
the Lenders, and consent to the refinancing of the Bridge Loan
with the proceeds of the loans made pursuant to the New Bridge
Loan Agreement.
4. Conditions of Effectiveness. This Amendment shall
become effective and be deemed effective as of the date hereof
(the "Effective Date") if, and only if, the Agent shall have
received duly executed originals of this Amendment from the
Borrower and the Required Lenders.
5. Representations and Warranties of the Borrower. The
Borrower represents and warrants to the Lenders that, as of the
Effective Date:
(a) there exists no Default or Unmatured Default; and
(b) the representations and warranties contained in
Article V of the Credit Agreement are true and correct as of
the Effective Date except to the extent any such
representation or warranty is stated to relate solely to an
earlier date, in which case such representation or warranty
was true and correct on and as of such earlier date.
6. Reference to and Effect on the Credit Agreement.
6.1 Upon the effectiveness of this Amendment pursuant to
Section 4 hereof, on and after the Effective Date each reference
in the Credit Agreement to "this Agreement," "hereunder,"
"hereof," "herein" or words of like import and each reference to
the Credit Agreement in each Loan Document shall mean and be a
reference to the Credit Agreement as modified hereby.
6.2 Except as specifically waived or amended herein, all of
the terms, conditions and covenants of the Credit Agreement and
the other Loan Documents shall remain in full force and effect
and are hereby ratified and confirmed.
6.3 The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate
as a waiver of (a) any right, power or remedy of any Lender or
the Agent under the Credit Agreement or any of the Loan
Documents, or (b) any Default or Unmatured Default under the
Credit Agreement.
7. CHOICE OF LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING 735 ILCS 105/5-1 ET
SEQ. BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO
FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
8. Counterparts. This Amendment may be executed in any
number of counterparts, each of which when so executed shall be
deemed an original and all of which taken together shall
constitute one and the same agreement.
9. Headings. Section headings in this Amendment are
included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose.
[Signature Pages Follow]
IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders
have executed this Amendment No. 1 as of the date first above
written.
BIO-RAD LABORATORIES, INC.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
BANK ONE, NA, as a Lender and as Agent
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
ABN AMRO BANK N.V., as a Lender
By: /s/ Xxxxxx X. Xxx
Name: Xxxxxx X. Xxx
Title: Vice President
By: /s/ Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: Group Vice President
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ X. Xxx Xxxxxxxx
Name: X. Xxx Xxxxxxxx
Title: Managing Director, Corporate
BANQUE NATIONALE DE PARIS,
as a Lender
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title:Vice President
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title:Assistant Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH,
as a Lender
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
XXXXX FARGO BANK,
as a Lender
By: /s/ Xxxxx X. O'Melveny
Name: Xxxxx X. O'Melveny
Title: Vice President
COMERICA BANK-CALIFORNIA,
as a Lender
By: /s/ R. Xxxxxxx Xxx
Name: R. Xxxxxxx Xxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By: /s/ Xxxxxx Xxxxxxxxx
Name: Xxxxxx Xxxxxxxxx
Title: Senior Vice President
LLOYDS TSB BANK PLC, as a Lender
By:/s/ Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Assistant Director
THE NORTHERN TRUST COMPANY,
as a Lender
By: /s/ Xxxxxxxxxx Xxxxxxxx
Name: Xxxxxxxxxx Xxxxxxxx
Title: Vice President
U.S. BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title:Assistant Vice President
