<PAGE>
EXHIBIT 4.1.2
AMENDMENT NO. 2 TO CREDIT AGREEMENT
This Amendment No. 2 (this "Amendment") is entered into as of
June 21, 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, as amended
(the "Credit Agreement");
WHEREAS, the Borrower seeks to amend the Credit Agreement, among other
things, to permit the sale of certain assets by the Borrower; 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:
"Intercompany Indebtedness" means any Indebtedness owed by the
Borrower or any Subsidiary to the Borrower or any Subsidiary.
"SMD Sale" means the sale of the assets of the Semiconductor
Measurements Division of the Borrower and its Subsidiaries pursuant
to a purchase agreement among the Borrower and certain of its
Subsidiaries, as seller parties, and Accent Semiconductor
Technologies, Inc. and ASTI Operating Company, Inc., as buyer
parties.
by amending the definition of "Excess Cash Flow" in its entirety to
read as follows:
"Excess Cash Flow" means, for any fiscal year of the Borrower,
an amount equal to the Borrower's (i) Consolidated EBITDA for such
period, minus (ii) income taxes paid in cash for such period,
<PAGE>
minus (iii) Consolidated Capital Expenditures paid in cash during
such period, minus (iv) Consolidated Interest Expense for such
period, minus (v) all payments, other than mandatory prepayments,
of the principal portion of the Term Loans and scheduled
amortization of the principal portion of all other term
Indebtedness of the Borrower and its Subsidiaries during such
period, minus (vi) cash payments in respect of extraordinary and
nonrecurring items, minus (vii) the increase (or plus the
decrease) in Working Capital during such period, but not including
any change in Working Capital resulting from an Asset Sale
(whether or not accounted for as discontinued operations) or a
Permitted Acquisition, in each case as calculated in accordance
with Agreement Accounting Principles.
and by adding at the end of the definition of "Applicable Percentage"
the following sentence:
Notwithstanding the foregoing, with respect to the Asset Sale
consisting of the SMD Sale, the Applicable Percentage to be
applied to the initial Net Cash Proceeds thereof shall be 100%
and the Applicable Percentage to be applied to the subsequent
conversion to cash of any note, common stock or other non-cash
proceeds thereof shall be 0%.
(b) Section 2.7.2 of the Credit Agreement is amended by adding
at the end of subsection (a) thereof the following:
Notwithstanding the foregoing, upon receipt by the Borrower or any
of its Subsidiaries of the initial Net Cash Proceeds of the SMD
Sale, such Net Cash Proceeds shall be applied to prepay
outstanding Revolving Loans, and from the date of such prepayment
until August 7, 2000, the Agent shall maintain a reserve against
the availability of Revolving Loans hereunder in the amount of
such initial Net Cash Proceeds. The foregoing reserve shall not
affect the calculation of commitment fees pursuant to Section 2.5.
On August 7, 2000, the Borrowers shall be deemed to have requested
a Revolving Advance in the amount of such initial Net Cash
Proceeds, and such Advance shall be made on such date, without
regard to whether the conditions set forth in Section 4.2 shall
have been satisfied, and the proceeds of such Advance shall be
applied to prepay the Term Loans in such amount.
(c) Section 5.8 of the Credit Agreement is amended by amending
the first sentence thereof in its entirety to read as follows:
Amended Schedule 5.8 contains an accurate list of all Subsidiaries
of the Borrower as of June 21, 2000, setting forth their respective
jurisdictions of organization and the percentage of their
respective Equity Interests owned by the Borrower or other
Subsidiaries.
(d) Section 6.10 of the Credit Agreement is amended in its
entirety to read as follows:
2
<PAGE>
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 dividends payable in
its own capital stock) or redeem, repurchase or otherwise acquire
or retire any of its Equity Interests at any time outstanding,
except that any Subsidiary may declare and pay dividends or make
distributions to the Borrower or to a Wholly-Owned Subsidiary and
excluding share repurchases of the Borrower's capital stock used
(i) to fund employee stock purchase plans and employee stock option
plans or (ii) as consideration, in whole or in part, for any
Permitted Acquisition, provided that all such share repurchases do
not exceed $5,000,000 in the aggregate in any fiscal year, and
provided further, in the case of any repurchase of capital stock
to be used as described in clause (ii) above, that no Default or
Unmatured Default exists before or after giving effect to such
repurchase.
(e) Section 6.11 of the Credit Agreement is amended by deleting
clauses (ii), (v), (ix) and (x) thereof and substituting therefor the
following clauses (ii), (v), (ix), (x), (xi) and (xii):
(ii) Indebtedness (other than Indebtedness of Foreign
Subsidiaries and Intercompany Indebtedness) existing on
April 30, 2000 and described in Part I of Amended Schedule 6.11.
(v) Indebtedness (other than Intercompany Indebtedness)
of Foreign Subsidiaries not exceeding $25,000,000 (or equivalent
in foreign currencies) in aggregate principal amount at any one
time outstanding.
(ix) Intercompany Indebtedness of the Borrower to any
Subsidiary or of any Guarantor to the Borrower or any other
Subsidiary or of any Subsidiary that is not a Guarantor to any
other Subsidiary that is not a Guarantor; provided that if the
Borrower or any Guarantor is the obligor on such Intercompany
Indebtedness, such Intercompany Indebtedness shall be expressly
subordinate to the payment in full of the Secured Obligations
in a manner satisfactory in form and substance to the Agent.
(x) Intercompany Indebtedness of any Subsidiary that is
not a Guarantor to the Borrower or any Guarantor existing on
April 30, 2000 and described on Part II of Amended Schedule 6.11.
(xi) Other Intercompany Indebtedness, not otherwise
permitted by clauses (ix) and (x) above, permitted by Section
6.14.(iii)
(xii) Other Indebtedness (other than Intercompany
Indebtedness), not otherwise permitted by clauses (i) through (xi)
above, not exceeding $15,000,000 in the aggregate outstanding at
any one time.
(f) Section 6.14 of the Credit Agreement is amended by amending
clause (ii) thereof in its entirety to read as follows:
3
<PAGE>
(ii) Investments in Equity Interests in Subsidiaries
existing on April 30, 2000; Intercompany Indebtedness permitted by
Section 6.11 (other than clause (xi) thereof); and other
Investments existing on April 30, 2000 and described in Amended
Schedule 6.14.
by amending clause (iii) thereof to add the following sentence at the
end thereof:
To the extent that the Borrower or any Guarantor makes an
Investment in a Subsidiary by converting Intercompany
Indebtedness of such Subsidiary to an Equity Interest
or Equity Interests in such Subsidiary, such conversion
shall not be deemed to be a new Investment for purposes
of this clause (iii).
and by renumbering clause (vii) thereof as clause (ix) and adding new
clauses (vii) and (viii) thereto to read as follows:
(vii) Investments in the Ancillary Assets (as defined in
the PSD Purchase Agreement).
(viii) Investments consisting of non-cash consideration
received pursuant to the SMD Sale.
(g) Section 6.26 of the Credit Agreement is amended by amending
subsections 6.26.1, 6.26.2, 6.26.3 and 6.26.4 thereof in their entirety
to read as follows:
6.26.1. Interest Coverage Ratio. The Borrower will not
permit the ratio, determined as of the end of each of its fiscal
quarters for the then most-recently ended four fiscal quarters,
of (i) Consolidated EBITDA to (ii) Consolidated Interest Expense
to be less than 3.00 to 1 for each fiscal quarter ending on or
prior to June 30, 2000; 3.25 to 1 for each fiscal quarter ending
after June 30, 2000 and on or prior to March 31, 2001; 3.50 for
the fiscal quarter ending June 30, 2001; 3.75 to 1 for the fiscal
quarters ending September 30, 2001 and December 31, 2001; and 4.00
to 1 for each fiscal quarter ending after December 31, 2001.
6.26.2. Fixed Charge Coverage Ratio. The Borrower will
not permit the ratio, determined as of the end of each of its
fiscal quarters for the then most-recently ended four fiscal
quarters, of (i) Consolidated EBITDA minus Consolidated Capital
Expenditures to (ii) Consolidated Interest Expense, plus (without
duplication) scheduled maturities of principal of Consolidated
Funded Indebtedness during such four fiscal quarter period, plus
expense for taxes paid or accrued, all calculated for the Borrower
and its Subsidiaries on a consolidated basis, to be less than 1.15
to 1 for each fiscal quarter ending on or prior to June 30, 2001;
and 1.25 to 1 for each fiscal quarter ending thereafter.
6.26.3. Leverage Ratio. The Borrower will not permit the
ratio, determined as of the end of each of its fiscal quarters, of
(i) Consolidated Funded Indebtedness to (ii) Consolidated EBITDA
for the then most-recently ended four fiscal quarters to be
greater than: 4.75 to 1 for each fiscal quarter ending on or
prior to March 31, 2000; 4.25 to 1 for the fiscal quarter ending
June 30, 2000; 4.00 to 1 for the fiscal quarter ending
5
<PAGE>
September 30, 2000; 3.50 to 1 for each fiscal quarter ending after
September 30, 2000 and on or prior to September 30, 2001; and 3.00
to 1 for each fiscal quarter ending after September 30, 2001.
6.26.4. Senior Leverage Ratio. The Borrower will not
permit the ratio, determined as of the end of each of its fiscal
quarters, of (i) Consolidated Funded Indebtedness minus
Subordinated Indebtedness to (ii) Consolidated EBITDA for the then
most-recently ended four fiscal quarters to be greater than 3.50
to 1 for each fiscal quarter ending on or prior to March 31, 2000;
3.00 to 1 for the fiscal quarter ending June 30, 2000; 2.75 to 1
for the fiscal quarter ending September 30, 2000; and 2.50 to 1
for each fiscal quarter ending on or after December 31, 2000.
(h) Exhibit A to the Credit Agreement is amended (i) in
Part I.C thereof in the calculation of Excess Cash Flow by adding
after the phrase "increase/decrease in Working Capital" the
parenthetical phrase "(show adjustment for any changes in Working
Capital resulting from Asset Sales or Permitted Acquisitions in
reasonable detail on Schedule II)"; (ii) in Part II.A thereof by
adding at the end of clause (1) the phrase "or to be used as
consideration for a Permitted Acquisition"; (iii) in Part II.B
thereof by deleting the reference to "Section 6.11(x)" in clause (3)
thereof and substituting a reference to "Section 6.11(xii)" therefor;
and (iv) in Part II.D thereof by deleting the reference to "Section
6.14(vii)" in clauses (3) and (4) thereof and substituting a reference
to "Section 6.14(ix)" therefor.
(i) Schedule 5.8 of the Credit Agreement is deleted in its
entirety and Amended Schedule 5.8 attached hereto is substituted therefor.
(j) Schedule 6.11 of the Credit Agreement is deleted in its
entirety and Amended Schedule 6.11 attached hereto is substituted
therefor.
(k) Schedule 6.14 of the Credit Agreement is deleted in its
entirety and Amended Schedule 6.14 attached hereto is substituted
therefor.
3. Waiver; Consent. The Lenders hereby waive any Default that may
have arisen under Section 6.11 or 6.14 of the Credit Agreement prior to
the effectiveness of this Amendment and consent to the SMD Sale to the
extent that it otherwise would result in a Default under Section 6.13.
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
and giving effect to this Amendment:
(a) there exists no Default or Unmatured Default; and
5
<PAGE>
(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]
6
<PAGE>
IN WITNESS WHEREOF, the Borrower, the Agent and the Lenders have
executed this Amendment No. 2 as of the date first above written.
BIO-RAD LABORATORIES, INC.
By: /s/ Ronald Hutton
Name: Ronald W. Hutton
Title: Treasurer
BANK ONE, NA, as a Lender and as Agent
By: /s/ Kandis A. Jeffrey
Name: Kandis A. Jeffrey
Title: Vice President
ABN AMRO BANK N.V., as a Lender
By: /s/ Maria Vickroy-Peralta
Name: Mari Vickroy-Peralta
Title: Vice President
By: /s/ Sean P. Klimchalk
Name: Sean P. Klimchalk
Title: Credit Officer
UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By: /s/ Carol A. Garrett
Name: Carol A. Garrett
Title: Vice President
Amendment No. 2 to
Bio-Rad Laboratories, Inc.
Credit Agreement
7
<PAGE>
THE BANK OF NOVA SCOTIA, as a Lender
By: /s/ R. P. Reynolds
Name: R. P. Reynolds
Title: Director
BANQUE NATIONALE DE PARIS,
as a Lender
By:/s/ Debra Wright
Name: Debra Wright
Title: Vice President
By: /s/ Sandra F. Bertram
Name: Sandra F. Bertram
Title: Assistant Vice President
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH,
as a Lender
By:_________________________________
Name:
Title:
By:_________________________________
Name:
Title:
WELLS FARGO BANK,
as a Lender
By: /s/ Kenneth M. Lloyd
Name: Kenneth M. Lloyd
Title: Vice President
Amendment No. 2 to
Bio-Rad Laboratories, Inc.
Credit Agreement
8
<PAGE>
COMERICA BANK-CALIFORNIA,
as a Lender
By: /s/ R. Michael Law
Name: R. Michael Law
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH,
as a Lender
By: /s/ Robert J. Ivosevich
Name: Robert J.Ivosevich
Title: Senior Vice President
LLOYDS TSB BANK PLC, as a Lender
By: /s/ Ian Dimmock
Name: Ian Dimmock
Title: Vice President,
Acquisition Finance D080
By: /s/ David Rodway
Name: David Roday
Title: Assistant Director R156
THE NORTHERN TRUST COMPANY,
as a Lender
By: /s/ Candelario Martinez
Name: Candelario Martinez
Title: Vice President
U.S. BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Meredith N. Davis
Name: Meredith N. David
Title: Vice President
Amendment No. 2 to
Bio-Rad Laboratories, Inc.
Credit Agreement
9
