exv10w21






Exhibit 10.21




SECOND AMENDMENT TO FIRST LIEN CREDIT AGREEMENT




          THIS SECOND AMENDMENT, dated as of December 17, 2009 (this “Amendment”), to the Credit
Agreement referred to below, by and among IM US HOLDINGS, LLC, a Delaware limited liability company
(the “Borrower”), the other Loan Parties signatory hereto (the “Loan Parties”),
INVERNESS MEDICAL INNOVATIONS, INC., a Delaware corporation (“Holdings”), the Lenders
signatory hereto (collectively, the “Lenders”) and GENERAL ELECTRIC CAPITAL CORPORATION, as
collateral agent and administrative agent for the Lenders (in such capacity, the
“Administrative Agent”).




W I T N E S S E T H




          WHEREAS, the Borrower, Holdings, the Administrative Agent, the Lenders and L/C Issuers party
thereto from time to time, Citizens Bank of Massachusetts, Fifth Third Bank, and Merrill Lynch
Capital, a division of Merrill Lynch Business Financial Services Inc., as Co-Documentation Agents,
UBS Securities LLC, as Joint Lead Arranger and Sole Bookrunner, are parties to that certain First
Lien Credit Agreement, dated as of June 26, 2007 (as amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”); and




          WHEREAS, the Borrower has requested, and the Administrative Agent and Required Lenders have
agreed, to provide for certain amendments to the Credit Agreement, on the terms and subject to the
conditions set forth herein.




          NOW THEREFORE, in consideration of the promises and for other good and valuable consideration,
the receipt, adequacy and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:





     1. Definitions. Capitalized terms not otherwise defined herein, including in
the recitals, shall have the meanings ascribed to them in the Credit Agreement.



          2. Amendments to Credit Agreement. The Credit Agreement is hereby amended as of the
Second Amendment Effective Date (as hereinafter defined) as follows:




          (a) Section 8.3(k) of the Credit Agreement is hereby amended by replacing the figure
“$100,000,000” therein with the figure “$250,000,000”.




          (b) Section 8.4(e) of the Credit Agreement is hereby amended by amending and
restating the proviso thereof as follows:





“provided, however, that the aggregate consideration
received for all such Sales made after the Closing Date shall not at any
time exceed $250,000,000;”



          (c) Section 8.5(b) of the Credit Agreement is hereby amended by amending and restating
such Section 8.5(b) as follows:





“(b) dividends and distributions declared and paid on the common Stock or
any preferred Stock of any Group Member ratably to the holders thereof and
payable only in common Stock of such Group Member (and cash payments in lieu
of issuance of fractional shares in connection therewith);”



          (d) Section 8.5(d) of the Credit Agreement is hereby amended by amending and restating
such Section 8.5(d) as follows:







 









 









“(d) (i) conversion or exchange of preferred stock of Holdings or
convertible Indebtedness (including the Subordinated Convertible Notes) into
or for common stock of Holdings (and cash payments in lieu of issuance of
fractional shares in connection therewith) and (ii) payments in respect of
(including Permitted Refinancings of) convertible Indebtedness permitted by
Section 8.6.”



          (e) Section 8.6(f) of the Credit Agreement is hereby amended by amending and restating
such Section 8.6(f) as follows:





“(f) convert or exchange the Subordinated Convertible Notes or any other
convertible Indebtedness into or for common stock of Holdings (and cash
payments in lieu of issuance of fractional shares in connection therewith).”



          3. Remedies. This Amendment shall constitute a Loan Document. The breach by any Loan
Party of any representation, warranty, covenant or agreement in this Amendment shall constitute an
immediate Event of Default hereunder and under the other Loan Documents.




          4. Representations and Warranties. To induce the Administrative Agent and the
Required Lenders to enter into this Amendment, each of Holdings, the Borrower and the other Loan
Parties represents and warrants to the Administrative Agent, the Lenders and the L/C Issuers on and
as of the Second Amendment Effective Date that:




          (a) The execution, delivery and performance by the Borrower and Holdings of this Amendment and
the performance of the Credit Agreement, as amended by this Amendment (the “Amended Credit
Agreement”), and the acknowledgment of this Amendment by the other Loan Parties signatory
hereto: (i) are within such Loan Party’s corporate or similar powers and, at the time of execution
thereof, have been duly authorized by all necessary corporate and similar action (including, if
applicable, consent of the holders of its Securities), (ii) do not (A) contravene such Loan Party’s
Constituent Documents, (B) violate any Requirement of Law, (C) conflict with, contravene,
constitute a default or breach under, any material Contractual Obligation of any Loan Party or any
of their respective Subsidiaries, other than those which could not reasonably be expected to have
either individually or in the aggregate, a Material Adverse Effect, or (D) result in the imposition
of any Lien (other than a Permitted Lien) upon any property of any Loan Party or any of their
respective Subsidiaries and (iii) do not require any Loan Party or any of their respective
Subsidiaries to obtain any Permit of, or make any filing with, any Governmental Authority or obtain
any consent of, or notice to, any Person, prior to the Second Amendment Effective Date or, if not
obtained, made or complied with, such failure could not, reasonably be expected to have either
individually or in the aggregate, a Material Adverse Effect.




          (b) This Amendment has been duly executed and delivered by or on behalf of the Borrower and
Holdings and acknowledged by each other Loan Party.




          (c) Each of this Amendment and the Amended Credit Agreement is the legal, valid and binding
obligation of the Borrower and Holdings and is enforceable against the Borrower and Holdings in
accordance with its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other similar laws affecting creditors’ rights
generally or by general equitable principles relating to enforceability.




          (d) No Default or Event of Default has occurred and is continuing or would result after giving
effect to the provisions of this Amendment.







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          (e) No action, claim or proceeding is now pending or, to the knowledge of any Loan Party,
threatened against such Loan Party, at law, in equity or otherwise, before any court, board,
commission, agency or instrumentality of any foreign, federal, state, or local government or of any
agency or subdivision thereof, or before any arbitrator or panel of arbitrators, which (i)
challenges any Loan Party’s right or power to enter into or perform any of its obligations under
this Amendment, the Amended Credit Agreement, or any other Loan Document to which it is or will be,
a party, or the validity or enforceability of this Amendment, the Amended Credit Agreement or any
other Loan Document or any action taken thereunder, or (ii) has a reasonable risk of being
determined adversely to such Loan Party and that, if so determined, could reasonably be expected to
have a Material Adverse Effect after giving effect to this Amendment.




          (f) The representations and warranties of the Loan Parties set forth in any Loan Document are
true and correct in all material respects (provided that if any representation or warranty is by
its terms qualified by concepts of materiality, such representation is true and correct in all
respects) on and as of the date hereof or, to the extent such representations and warranties
expressly relate to an earlier date, on and as of such earlier date




          5. No Waivers/Consents/Amendments. Except as expressly provided herein: (a) the
Credit Agreement and the other Loan Documents shall be unmodified and shall continue to be in full
force and effect in accordance with their terms, and (b) this Amendment shall not be deemed a
waiver of any term or condition of any Loan Document and shall not be deemed to prejudice any right
or rights which the Administrative Agent or any Lender may now have or may have in the future under
or in connection with any Loan Document or any of the instruments or agreements referred to
therein, as the same may be amended, restated, supplemented and otherwise modified from time to
time.




          6. Affirmation of Obligations. Each of the Loan Parties hereby acknowledges, agrees
and affirms: (a) its obligations under the Credit Agreement and the other Loan Documents,
including, without limitation, its guaranty obligations thereunder, (b) that such guaranty shall
apply to the Obligations in accordance with the terms thereof, (c) the grant of the security
interest in all of its assets pursuant to the Loan Documents and (d) that such Liens and security
interests created and granted are valid and continuing and secure the Obligations in accordance
with the terms thereof.




          7. Outstanding Indebtedness; Waiver of Claims. Each of the Loan Parties hereby
acknowledges and agrees that as of December 17, 2009, (a) the principal amount outstanding of the
Revolving Loan is $142,000,000, (b) the principal amount outstanding of the Initial Term Loan is
$879,750,000 and (c) the principal amount outstanding on the Incremental Term Loan is $73,687,500.
Each of the Borrower and the other Loan Parties hereby waives, releases, remises and forever
discharges the Administrative Agent, any Lender, any L/C Issuers and each other Indemnitee from any
and all claims, suits, actions, investigations, proceedings or demands arising out of or in
connection with the Credit Agreement or any other Loan Document (collectively, “Claims”),
whether based in contract, tort, implied or express warranty, strict liability, criminal or civil
statute or common law of any kind or character, known or unknown, which the Borrower or any other
Loan Party ever had, now has or might hereafter have against the Administrative Agent, any Lender,
any L/C Issuer or any other Indemnitee which relates, directly or indirectly, to any acts or
omissions of the Administrative Agent, any Lender, any L/C Issuer or any other Indemnitee on or
prior to the Second Amendment Effective Date; provided, that neither the Borrower
nor any other Loan Party waives any Claim solely to the extent such Claim relates to the
Administrative Agent’s or any Lender’s gross negligence or willful misconduct.




          8. Fees and Expenses. The Borrower and Holdings agree to pay to the Administrative
Agent on the Second Amendment Effective Date for the benefit of each Lender executing this
Amendment, a consent fee equal to 5 basis points of the aggregate amount of such Lender’s






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Revolving Credit Commitment and Pro Rata Outstandings of the Initial Term Loan and the Incremental
Term Loan (the “Consent Fee”). The Borrower hereby reconfirms its obligations pursuant to
Section 11.3 of the Credit Agreement to pay and reimburse the Administrative Agent for all
reasonable costs and expenses (including, without limitation, reasonable fees of counsel) incurred
in connection with the negotiation, preparation, execution and delivery of this Amendment and all
other documents and instruments delivered in connection herewith.




          9. Amendment Effectiveness. Upon satisfaction in full in the judgment of the
Administrative Agent of each of the following conditions, this Amendment shall be deemed effective
as of December 17, 2009 (the “Second Amendment Effective Date”):




          (a) Amendment. The Administrative Agent shall have received copies of signature pages
to this Amendment, duly executed and delivered by the Administrative Agent, the Borrower, Holdings
and the Required Lenders, and acknowledged by each of the other Loan Parties, with originals to
follow promptly thereafter.




          (b) Representations and Warranties; No Defaults. The following statements shall be
true on such date: (i) the representations and warranties set forth in any Loan Document shall be
true and correct in all material aspects (provided that if any representation is by its terms
qualified by concepts of materiality, such representation shall be true and correct in all
respects) on and as of the Second Amendment Effective Date, to the extent such representations and
warranties expressly relate to an earlier date, on and as of such earlier date, and (ii) no Default
or Event of Default shall be continuing.




          (c) Payment of Costs and Expenses. The Borrower shall have paid to the Administrative
Agent, for the account of the Administrative Agent, its Related Persons or any Lender, all fees and
reimbursement of costs or expenses, in each case, due and payable under the Loan Documents on or
before the Second Amendment Effective Date (including, without limitation, reasonable legal fees
and expenses of the Administrative Agent and the Consent Fee).




          (d) Amendment to Second Lien Credit Agreement. The Administrative Agent shall have
received two (2) copies of the First Amendment to Second Lien Credit Agreement, dated as of the
date hereof, duly executed and delivered by the parties signatory thereto and effective in
accordance with the terms hereof.




          10. Governing Law. This Amendment, and the rights and obligations of the parties
hereto, shall be governed by, and construed and interpreted in accordance with, the law of the
State of New York.




          11. Counterparts. This Amendment may be executed by the parties hereto on any number
of separate counterparts and all of said counterparts taken together shall be deemed to constitute
one and the same instrument.




[SIGNATURE PAGES FOLLOW]







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          IN WITNESS WHEREOF, this Amendment has been duly executed as of the date first written above.




	 	 	 	 	 
	 	IM US HOLDINGS, LLC, as Borrower

 	 
	 	By:  	/s/ David Teitel
 	 
	 	 	Name:  	David A. Teitel 	 
	 	 	Title:  	President 	 
	 
	 
	 	INVERNESS MEDICAL INNOVATIONS, INC., as a Guarantor

 	 
	 	By:  	/s/ David Teitel
 	 
	 	 	Name:  	David A. Teitel 	 
	 	 	Title:  	Chief Financial Officer and Treasurer 	 
	 



[SIGNATURE PAGE TO SECOND AMENDMENT TO FIRST LIEN CREDIT AGREEMENT]



 









 





	 	 	 	 	 
	 	GENERAL ELECTRIC CAPITAL CORPORATION, as

Administrative Agent and Lender

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



[SIGNATURE PAGE TO SECOND AMENDMENT TO FIRST LIEN CREDIT AGREEMENT]



 









 





          Each of the undersigned Loan Parties hereby (i) acknowledges this Amendment and (ii) confirms
and agrees that its obligations under the Loan Documents shall continue without any diminution
thereof and shall remain in full force and effect on and after the effectiveness of this Amendment:



ACKNOWLEDGED, CONSENTED and AGREED to as of the date first written above:




ALERE LLC

ALERE HEALTHCARE OF ILLINOIS, INC.

ALERE HEALTH IMPROVEMENT COMPANY

ALERE HEALTH SYSTEMS, INC.

ALERE MEDICAL, INC.

ALERE WELLOLOGY, INC.

ALERE WOMEN’S AND CHILDREN’S HEALTH, LLC

AMEDITECH INC.

APPLIED BIOTECH, INC.

BINAX, INC.

BIOSITE INCORPORATED

CHOLESTECH CORPORATION

FIRST CHECK DIAGNOSTICS CORP.

FIRST CHECK ECOM, INC.

FREE & CLEAR, INC.

GENECARE MEDICAL GENETICS CENTER, INC.

HEMOSENSE, INC.

INNOVACON, INC.

INNOVATIVE MOBILITY, LLC

INSTANT TECHNOLOGIES, INC.

INVERNESS MEDICAL, LLC

INVERNESS MEDICAL — BIOSTAR INC.

INVERNESS MEDICAL INNOVATIONS NORTH AMERICA, INC.

INVERNESS MEDICAL INTERNATIONAL HOLDING CORP.

ISCHEMIA TECHNOLOGIES, INC.

IVC INDUSTRIES, INC.

MATRITECH, INC.

OSTEX INTERNATIONAL, INC.

QUALITY ASSURED SERVICES, INC.

REDWOOD TOXICOLOGY LABORATORY, INC.




[SIGNATURE PAGE TO SECOND AMENDMENT TO FIRST LIEN CREDIT AGREEMENT]



 









 





RTL HOLDINGS, INC.

SELFCARE TECHNOLOGY, INC.

SPDH, INC.

TAPESTRY MEDICAL, INC.

WAMPOLE LABORATORIES, LLC

ZYCARE, INC.




	 	 	 	 	 
	 	 	 
	 	By:  	                        /s/ David Teitel
 	 
	 	 	Name:  	David A. Teitel 	 
	 	 	Title (respectively): Vice President and Treasurer;

Vice President, Finance; Vice President, Finance;

Vice President and Treasurer; Vice President and

Treasurer; Vice President, Finance; Vice President,

Finance; General Manager; Vice President; Vice

President, Finance; Vice President, Finance; Vice

President, Finance and Chief Financial Officer; Vice

President, Finance; Vice President; Vice President,

Finance and Treasurer; Vice President and Treasurer;

Treasurer; Vice President, Finance; Chief Financial

Officer; Vice President, Finance; Vice President,

Finance; Vice President, Finance; Vice President,

Finance; President; Vice President, Finance; Vice

President; Vice President, Finance; Vice President,

Finance; Chief Financial Officer; Vice President,

Finance; Vice President, Finance; Vice President,

Finance; President; Vice President, Finance; Vice

President; Chief Financial Officer and Treasurer 	 
	 



[SIGNATURE PAGE TO SECOND AMENDMENT TO FIRST LIEN CREDIT AGREEMENT]



 









 





	 	 	 	 	 
	 	MATRIA OF NEW YORK, INC.

 	 
	 	By:  	/s/ Tom Underwood
 	 
	 	 	Name:  	Tom Underwood 	 
	 	 	Title:  	President 	 
	 



[SIGNATURE PAGE TO SECOND AMENDMENT TO FIRST LIEN CREDIT AGREEMENT]