exv10w22






Exhibit 10.22




THIRD AMENDMENT TO FIRST LIEN CREDIT AGREEMENT




          THIS THIRD AMENDMENT, dated as of December 7, 2010 (this “Amendment”), to the Credit
Agreement referred to below, by and among ALERE US HOLDINGS, LLC (f/k/a IM US Holdings, LLC) , a
Delaware limited liability company (the “Borrower”), the other Loan Parties signatory
hereto (the “Loan Parties”), ALERE INC. (f/k/a 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 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, as amended hereby.




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




          (a) Article I of the Credit Agreement is hereby amended by deleting the word “and”
immediately after clause (b)(viii) of the definition “Excess Cash Flow” therein and
inserting a new clause (b)(x) immediately after clause (b)(ix) of such definition
as follows:





“, and (x) the aggregate consideration paid in cash by the
Group Members for all Permitted Stock Repurchases during
such period but excluding the portion thereof financed with
long-term Indebtedness (other than the Obligations) or with
proceeds of the issuance of common stock of Holdings,”



          (b) Article I of the Credit Agreement is hereby amended by adding the following new
definition in the appropriate alphabetical order as follows:





“‘Permitted Stock Repurchases’ means any repurchase,
redemption, retirement or other purchase by Holdings of
Stock or Stock Equivalents of Holdings satisfying each of
the following conditions: (a) as of the date of consummation
of any such repurchase, redemption, retirement or other
purchase and after giving effect thereto on such date, no
Default or Event of Default shall be continuing, (b) both
immediately before and immediately after giving effect to
such repurchase, redemption,



 









 







retirement or other purchase, the Loan Parties and their
Subsidiaries shall have Revolver Availability (as defined
below) and available cash and Cash Equivalents of at least
$150,000,000 in the aggregate, and (c) the aggregate
consideration paid by the Group Members for all such
repurchases, redemptions, retirements or other purchases
after the Third Amendment Effective Date shall not exceed
$200,000,000. For purposes of this definition, “Revolver
Availability” shall mean the maximum amount of unused
Revolving Credit Commitments that would be available for
borrowing of Revolving Loans if after giving effect to such
Revolving Loans, Borrower would be in compliance with the
Consolidated Leverage Ratio covenant set forth in
Section 5.1 on a Pro Forma Basis as of the last day
of the last Fiscal Quarter for which Financial Statements
have been delivered hereunder for the four Fiscal Quarter
period ending on such day (as if the Borrower had incurred
such Revolving Loans on the first day of such period).




‘Third Amendment Effective Date’ means December 7,
2010.”



          (c) Section 6.1 of the Credit Agreement is hereby amended by inserting a new
Section 6.1(l) immediately following Section 6.1(k) therein as follows:




               “(l) Permitted Stock Repurchases. Together with each delivery of any Financial
Statements pursuant to clause (a) above, a summary of all Permitted Stock Repurchases made
during such Fiscal Quarter, including the applicable repurchase dates of, and consideration paid by
the Group Members for, such Permitted Stock Repurchases, and a calculation of the aggregate
consideration paid by the Group Members for all Permitted Stock Repurchases made since the Third
Amendment Effective Date through the end of such Fiscal Quarter.”



          (d) Section 8.5 of the Credit Agreement is hereby amended by (i) replacing each
reference to “clause (c)” in the lead in paragraph thereof with the words “clause
(c) or clause (e)”, and (ii) replacing the period at the end of Section 8.5(d)
with “; and” and inserting a new Section 8.5(e) immediately following Section
8.5(d) therein as follows:




               “(e) Permitted Stock Repurchases, and cash dividends or other distributions on the Stock of
Subsidiaries of Holdings to Holdings paid, declared and used solely for such purposes.”



          (e) Section 8.8(b)(ii) of the Credit Agreement is hereby amended and restated as
follows:




               “(ii) issuing and selling its own Stock or Stock Equivalents, and repurchasing, redeeming,
retiring or otherwise purchasing its own Stock or Stock Equivalents,”



          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






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Parties represents and warrants to the Administrative Agent, the Lenders and the L/C Issuers on and
as of the Third 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 Third 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.




          (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






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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 November 19, 2010, (a) the principal amount outstanding of the
Revolving Loan is $0, (b) the principal amount outstanding of the Initial Term Loan is $870,750,000
and (c) the principal amount outstanding on the Incremental Term Loan is $72,937,500. 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 Third
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 Third Amendment Effective Date for the benefit of each Lender executing this
Amendment, a consent fee equal to 25 basis points of the aggregate amount of such Lender’s
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 the Third 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 Third






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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 Third 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 Second 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 thereof.




          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.



	 	 	 	 	 
	 	ALERE US HOLDINGS, LLC (f/k/a IM US Holdings, LLC), 

     as Borrower

 	 
	 	By:  	/s/ David Teitel
 	 
	 	 	Name:  	David A. Teitel 	 
	 	 	Title:  	President 	 
	 
	 
	 	ALERE INC. (f/k/a Inverness Medical Innovations, Inc.), 

     as a Guarantor

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



[SIGNATURE PAGE TO THIRD 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 THIRD 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 HEALTH, LLC

ALERE HEALTHCARE OF ILLINOIS, INC.

ALERE HEALTH IMPROVEMENT COMPANY

ALERE HEALTH SYSTEMS, INC.

ALERE HOME MONITORING, INC.

ALERE INTERNATIONAL HOLDING CORP.

ALERE MEDICAL, INC.

ALERE NEWCO, INC.

ALERE NEWCO II, INC.

ALERE NORTH AMERICA, INC.

ALERE SAN DIEGO, INC.

ALERE SCARBOROUGH, INC.

ALERE WELLOLOGY, INC.

ALERE WOMEN’S AND CHILDREN’S HEALTH, LLC

 
	 	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,
Finance;
 President; Vice President and Treasurer;
President;
 President; Vice President, Finance; Vice
President,
 Finance; Vice President, Finance; Vice
President,
 Finance; Vice President, Finance; 	 
	 



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



 









 




(continued):




	 	 	 	 	 
	 	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.

INSTANT TECHNOLOGIES, INC.

INVERNESS MEDICAL, LLC

INVERNESS MEDICAL — BIOSTAR INC.

IVC INDUSTRIES, INC.

MATRITECH, INC.

OSTEX INTERNATIONAL, INC.

QUALITY ASSURED SERVICES, INC.

REDWOOD TOXICOLOGY LABORATORY, INC.

RMD NETWORKS, INC.

RTL HOLDINGS, INC.

SELFCARE TECHNOLOGY, INC.

SPDH, INC.

WAMPOLE LABORATORIES, LLC

ZYCARE, INC.

 	 
	 	By:  	/s/ David Teitel
 	 
	 	 	Name:  	David A. Teitel 	 
	 	 	Title (respectively):  General Manager; Vice
President;
 Vice President, Finance; Vice President,
Finance and
 Chief Financial Officer; Vice President,
Finance; Vice
 President, Finance; Vice President and
Treasurer; Vice
 President, Finance; Vice President
and Treasurer;
 Treasurer; Vice President, Finance;
Vice President,
 Finance; Vice President, Finance;
Vice President,
 Finance; Vice President; Vice
President, Finance; Vice
 President, Finance; Vice
President, Finance; Vice
 President, Finance; Vice
President, Finance and
 Treasurer; Vice President,
Finance; Vice President,
 Finance; President; Vice
President; Chief Financial
 Officer and Treasurer 	 
	 



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



 









 




(continued):




	 	 	 	 	 
	 	ALERE TOXICOLOGY SERVICES, INC.

LABORATORY SPECIALISTS OF AMERICA, INC.

SCIENTIFIC TESTING LABORATORIES, INC.

 	 
	 	By:  	/s/ Ellen Chiniara
 	 
	 	 	Name:  	Ellen V. Chiniara 	 
	 	 	Title (respectively):   Secretary; Secretary; Secretary 	 
	 



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



 









 




(continued):




	 	 	 	 	 
	 	MATRIA OF NEW YORK, INC.

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



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