exv10w3






Exhibit 10.3




FIRST AMENDMENT TO CREDIT AGREEMENT




          FIRST AMENDMENT TO CREDIT AGREEMENT (this “First Amendment”), dated as of July 27,
2011, among ALERE INC., a Delaware corporation (the “Borrower”), the Lenders (as defined in
the Credit Agreement referred to below) party hereto and GENERAL ELECTRIC CAPITAL CORPORATION, as
administrative agent (in such capacity, the “Administrative Agent”) for the Lenders.
Unless otherwise indicated, all capitalized terms used herein and not otherwise defined shall have
the respective meanings provided such terms in the Credit Agreement referred to below (as amended
by this First Amendment).




W I T N E S S E T H :




          WHEREAS, the Borrower, the Lenders and the L/C Issuers from time to time party thereto, Credit
Suisse Securities (USA) LLC, Goldman Sachs Bank USA, DnB Nor Bank ASA and Suntrust Bank, as
Co-Documentation Agents, Jefferies Finance LLC, as Syndication Agent, and the Administrative Agent
are parties to a Credit Agreement, dated as of June 30, 2011 (the “Credit Agreement”); and




          WHEREAS, the parties hereto wish to amend the Credit Agreement as herein provided;




          NOW, THEREFORE, it is agreed:



I. Amendments and Modifications to Credit Agreement.




          1. The definition of “Proposed Acquisition” appearing in Section 1.1 of the
Credit Agreement is hereby amended by inserting the following text immediately after the words
“Proposed Acquisition Target” appearing before clause (a)(x)(i) thereof:





	 	 	“(provided that the proposed Axis-Shield Acquisition need not be on a consensual basis that
is approved by the board of directors (or other applicable governing body) of the Proposed
Acquisition Target)”.





          2. Section 1.1 of the Credit Agreement is hereby further amended by inserting in
appropriate alphabetical order the following new definitions:





     “Axis-Shield Acquisition” means the proposed acquisition by the Borrower or a
Subsidiary thereof of any or all of the Stock of Axis-Shield plc, a company incorporated
under the laws of the United Kingdom.




     “Designated Permitted Investments” means one or more Investments pursuant to
Section 8.3(k) in which the Borrower or a Subsidiary thereof purchases or otherwise
acquires any Stock of a Person, together with any other Security of such Person.



 









 





          3. Section 4.9 of the Credit Agreement is hereby amended by deleting the text “,
except as permitted by Section 8.5,” appearing therein.




          4. Section 4.19 of the Credit Agreement is hereby restated in its entirety as follows:





     “Section 4.19 Use of Proceeds. (a) All proceeds of the Initial Term Loans will be used by the Borrower to (i)
finance the Refinancing, (ii) finance any Permitted Stock Repurchases that are consummated
on or after the Closing Date in an aggregate amount not to exceed $300,000,000 (and to pay
related fees, costs and expenses), (iii) to the extent not used for the purposes described
in another clause of this Section 4.19(a), finance one or more Permitted
Acquisitions after the Closing Date (and to pay related fees, costs and expenses), (iv) pay
the fees, costs and expenses incurred with the Transactions and (v) provide for working
capital, Capital Expenditures and other general corporate purposes (including Investments)
of the Borrower and its Subsidiaries.




     (b) The proceeds of all Delayed-Draw Term Loans will be used by the Borrower to
finance Permitted Acquisitions (and to pay related fees, costs and expenses) and for the
working capital, Capital Expenditures and other general corporate purposes (including
Investments) of the Borrower and its Subsidiaries; provided, however, in no
event shall more than $200,000,000 of proceeds in the aggregate from Delayed-Draw Term Loans
be used to finance Permitted Stock Repurchases (and to pay related fees, costs and
expenses).




     (c) The proceeds of all Incremental Term Loans will be used by the Borrower to
finance Permitted Acquisitions (and to pay related fees, costs and expenses) and for the
working capital, Capital Expenditures and other general corporate purposes (including
Investments) of the Borrower and its Subsidiaries.




     (d) All proceeds of the Revolving Loans and the Swing Loans will be used to finance
Permitted Acquisitions (and to pay related fees, costs and expenses) and for the working
capital, Capital Expenditures and other general corporate purposes (including Investments)
of the Borrower and its Subsidiaries; provided that (x) no proceeds from Revolving
Loans or Swing Loans may be used for the purposes described in Section 4.19(a)
(other than clause (iii), (iv) or (v) thereof) and (y) proceeds of
the Revolving Loans drawn on the Closing Date may only be used to repay any then-outstanding
loans and other amounts outstanding under the revolving credit facility under the Existing
First Lien Credit Agreement.”



          5. Section 7.11(a) of the Credit Agreement is hereby amended by restating clause
(ii) (y) thereof in its entirety as follows:





“(y) cash and Cash Equivalents that are required under applicable foreign law (including to
comply with (or is advisable to facilitate compliance with) any applicable foreign takeover
statutes) to be deposited by a Group Member in a non-controlled foreign bank account in
connection with the consummation of a Permitted Acquisition or Designated Permitted
Investment of any Person that is not a Domestic Person in advance of completing such
Permitted Acquisition or Designated



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Permitted Investment, provided that if after
such cash or Cash Equivalents have been deposited, such Permitted Acquisition or Designated
Permitted Investment is terminated or not otherwise consummated for any reason, the
applicable Group Member shall promptly re-transfer such cash to a Controlled Deposit Account
or Controlled Securities Account otherwise in compliance with this Section 7.11”.



          6. Section 8.2 of the Credit Agreement is hereby amended by (i) deleting the word
“and” appearing at the end of clause (j) thereof, (ii) deleting the period appearing at the
end of clause (k) thereof, and (iii) inserting the following new clause (l) at the end
thereof:





     “(l) to the extent constituting a Lien, any Lien on cash and Cash Equivalents on
deposit in one or more foreign bank accounts referred to in Section 7.11(a)(ii)(y)
in favor of the seller or sellers in or under the relevant Permitted Acquisition or
Designated Permitted Investment.”



          7. Section 8.3(k) of the Credit Agreement is hereby restated in its entirety as
follows:





     “(k) any Investment by the Borrower or any of its Subsidiaries; provided,
however, that the aggregate outstanding amount of all such Investments shall not
exceed $350,000,000 at any time plus an additional amount, not to exceed $100,000,000 in the
aggregate, to the extent that such additional amount is used solely to finance the
Axis-Shield Acquisition pursuant to this clause (k); and”.



          8. Section 8.3 of the Credit Agreement is hereby further amended by inserting the
following new sentences at the end thereof:





“In the event that that the Borrower or a Subsidiary thereof consummates an Investment (or
series of related Investments) pursuant to clause (k) above at a time when such
Investment (or series of related Investments) could not be classified as a Permitted
Acquisition, the Borrower shall have the right, upon written notice to the Administrative
Agent (which notice may be delivered concurrently with any notices or certificates delivered
pursuant to the definition of Permitted Acquisition), to later reclassify such Investment
(or series of related Investments) as a Permitted Acquisition so long as such Investment
(or series of related Investments) satisfies all of the applicable requirements of a
Permitted Acquisition at such time and the Borrower takes all actions in accordance with the
terms of this Agreement that are applicable to Permitted Acquisitions. Upon any
reclassification of an Investment (and series of related Investments) as a Permitted
Acquisition in accordance with the terms of the immediately preceding sentence, such
Investment (and series of related Investments) will be deemed to have been made under
clause (d) above and shall no longer be deemed to be outstanding under clause
(k) above.”



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II. Miscellaneous Provisions.




          1. In order to induce the Lenders to enter into this First Amendment, the Borrower hereby
represents and warrants that (i) no Default or Event of Default has occurred and is continuing as
of the First Amendment Effective Date (as defined below), both immediately before and after giving
effect to this First Amendment, and (ii) all of the representations and warranties contained in the
Credit Agreement and the other Loan Documents are true and correct in all material respects on the
First Amendment Effective Date, both immediately before and after giving effect to this First
Amendment, with the same effect as though such representations and warranties had been made on and
as of the First Amendment Effective Date (it being understood that (x) any representation or
warranty that is qualified by concepts of materiality shall be true and correct in all respects and
(y) any representation or warranty that relates to a specific date shall be true and correct in all
material respects (or all respects, as the case may be) as of such specific date).




          2. This First Amendment is limited as specified and shall not constitute a modification,
acceptance or waiver of any other provision of the Credit Agreement or any other Loan Document.




          3. This First Amendment may be executed in any number of counterparts and by the different
parties hereto on separate counterparts, each of which counterparts when executed and delivered
shall be an original, but all of which shall together constitute one and the same instrument. A
complete set of counterparts shall be lodged with the Borrower and the Administrative Agent.




          4. THIS FIRST AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.




          5. This First Amendment shall become effective on the date (the “First Amendment Effective
Date”) when the Borrower and the Required Lenders shall have signed a counterpart hereof
(whether the same or different counterparts) and shall have delivered (including by way of
facsimile transmission or electronic mail) the same to White & Case LLP, 1155 Avenue of the
Americas, New York, NY 10036 Attention: Joseph Capasso (joseph.capasso@ny.whitecase.com; facsimile
number 212-354-8113).




          6. From and after the First Amendment Effective Date, all references in the Credit Agreement
and each of the other Loan Documents to the Credit Agreement shall be deemed to be references to
the Credit Agreement, as modified hereby.




*     *     *




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          IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute
and deliver this First Amendment as of the date first above written.




	 	 	 	 	 
	 	ALERE INC.

 	 
	 	By:  	/s/ David Teitel 	 
	 	 	Name:  	David Teitel 	 
	 	 	Title:  	CFO, Vice President & Treasurer 	 
	 
	 	GENERAL ELECTRIC CAPITAL CORPORATION, as 

     Lender and as Administrative Agent

 	 
	 	By:  	/s/ Ryan Guenin 	 
	 	 	Name:  	Ryan Guenin 	 
	 	 	Title:  	Duly Authorized Signatory 	 
	 








 









 











	 	 	 	 	 
	 	SIGNATURE PAGE TO THE FIRST AMENDMENT TO CREDIT AGREEMENT,
DATED AS OF THE DATE FIRST WRITTEN ABOVE, AMONG ALERE INC.,
THE LENDERS PARTY THERETO AND GENERAL ELECTRIC CAPITAL
CORPORATION, AS ADMINISTRATIVE AGENT




NAME OF INSTITUTION:

 	 
	 	 	 
	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: