Amendment No. 5 to Credit Agreement



 Exhibit 10.1 

Execution Version 
 AMENDMENT NO. 5 TO CREDIT AGREEMENT, AMENDMENT NO. 1 TO SECURITY AGREEMENT AND AMENDMENT NO. 1 TO PLEDGED COLLATERAL ACCOUNT CONTROL AGREEMENT 

This AMENDMENT NO. 5 TO CREDIT AGREEMENT, AMENDMENT NO. 1 TO SECURITY AGREEMENT AND AMENDMENT NO. 1 TO PLEDGED COLLATERAL ACCOUNT CONTROL
AGREEMENT (this “Amendment”), dated as of September 30, 2011, is entered into by and between GEN-PROBE INCORPORATED, a Delaware corporation (the “Borrower”), and BANK OF AMERICA, N.A. (the
“Lender”). 
 RECITALS 
 A. The Borrower and the Lender are party to that certain Credit Agreement dated as of February 27, 2009 (as amended by Amendment to Credit Agreement dated as of March 23, 2009, as amended by
Amendment No. 2 to Credit Agreement dated as of February 11, 2010, as amended by Amendment No. 3 to Credit Agreement dated as of February 10, 2011, as amended by Amendment No. 4 to Credit Agreement dated as of June 24,
2011, and as further amended, restated, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), pursuant to which the Lender has extended certain credit facilities to the Borrower. 

B. The Borrower is also party to that certain Security Agreement dated as of February 27, 2009 (as amended, restated, extended,
supplemented or otherwise modified from time to time, the “Security Agreement”), pursuant to which the Borrower granted a security interest in certain of its assets as collateral security for the Obligations (as defined in the
Credit Agreement). 
 C. The Borrower, the Lender and Merrill Lynch, Pierce, Fenner & Smith Incorporated
(“Merrill Lynch”) are also party to that certain Pledged Collateral Account Control Agreement dated as of February 27, 2009 (as amended, restated, extended, supplemented or otherwise modified from time to time, the
“Account Control Agreement”), pursuant to which the Borrower granted control over certain of its accounts at Merrill Lynch as collateral security for the Obligations (as defined in the Credit Agreement). 

D. The Borrower has requested that the Lender agree to certain amendments with respect to the Credit Agreement, the Security Agreement,
and the Account Control Agreement and the Lender and, with respect to the Account Control Agreement, Merrill Lynch have agreed to such request, subject to the terms and conditions of this Amendment. 

NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby agree as
follows: 
 1. Defined Terms. Unless otherwise defined herein, capitalized terms used herein shall have the meanings, if
any, assigned to such terms in the Credit Agreement. As used herein, “Amendment Documents” means this Amendment, the Credit Agreement (as amended by this Amendment), and each certificate and other document executed and delivered by
the Borrower pursuant to Section 4 hereof. 
 2. Amendment to Credit Agreement. Subject to the terms and
conditions hereof and with effect from and after the Effective Date, Schedule 1.01 of the Credit Agreement shall be amended by deleting such schedule in its entirety and replacing it with the Schedule 1.01 attached hereto. 

3. Amendment to Security Agreement. Subject to the terms and conditions hereof and with effect from and after the Effective Date,
clause (a) of Exhibit A to the Security Agreement shall be amended by deleting such clause in its entirety and replacing it with the following: 
 “(a) Account number 291-07552 maintained by Merrill Lynch Pierce Fenner & Smith, Inc. (“ML”) titled “WCMA Account” and all successor and replacement accounts,
regardless of the number of such accounts or the offices at which such accounts are maintained (the “Accounts”) and all rights of Pledgor against ML in connection with the Accounts.” 

  
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 4. Amendment to Account Control Agreement. Subject to the terms and conditions hereof
and with effect from and after the Effective Date, Box A in Section 2 of the Account Control Agreement shall be amended by deleting such box in its entirety and replacing it with the following: 

 

	
	  

Box A
 Client has granted Creditor a
security interest in Merrill Lynch account 291-07552
 (“Accounts”) pursuant to a separate Security Agreement between Client and
Creditor
  


 5. Representations and Warranties. The Borrower hereby represents and warrants to the Lender as
follows: 
 (a) After giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.

 (b) The execution, delivery and performance by the Borrower of this Amendment and the other Amendment Documents have been
duly authorized by all necessary corporate and other organizational action and do not and will not require any registration with, consent or approval of, or notice to or action by, any Person (including any Governmental Authority) in order to be
effective and enforceable. 
 (c) All representations and warranties of the Borrower contained in Article V of the
Amended Credit Agreement are true and correct on and as of the Effective Date after giving effect to this Amendment, except to the extent that any such representation and warranty specifically relates to an earlier date, in which case they
shall be true and correct as of such earlier date after giving effect to this Amendment. 
 (d) The Borrower is entering into
this Amendment on the basis of its own investigation and for its own reasons, without reliance upon the Lender or any other Person. 
 (e) The obligations of the Borrower under the Amended Credit Agreement and each other Loan Document are not subject to any defense, counterclaim, set-off, right of recoupment, abatement or other claim.

 6. Effective Date. This Amendment will become effective when each of the conditions precedent set forth in this
Section 6 has been satisfied (the “Effective Date”): 
 (a) The Lender shall have received from the
Borrower a duly executed original counterpart to this Amendment. 
 (b) The Borrower shall have paid to the Lender all
reasonable and documented costs and attorneys’ fees incurred by the Lender in connection with this Amendment and the other Amendment Documents, to the extent invoiced prior to the Effective Date. 

(c) The Lender shall have received, in form and substance satisfactory to it, such additional approvals, consents, documents and other
information as the Lender shall reasonably request. 
 7. Reservation of Rights. The Borrower acknowledges and agrees
that neither the execution nor the delivery by the Lender of this Amendment shall (a) be deemed to create a course of dealing or otherwise obligate the Lender to execute similar amendments or consents under the same or similar circumstances in
the future or (b) be deemed to create any implied waiver of any right or remedy of the Lender with respect to any term or provision of any Loan Document. 
 8. Miscellaneous. 
 (a) Except as expressly amended or modified hereby, all
terms, covenants and provisions of the Credit Agreement are and shall remain in full force and effect and all references therein to such Credit Agreement shall henceforth refer to the Credit Agreement as modified by this Amendment. This Amendment
shall be deemed incorporated into, and be a part of, the Credit Agreement. 
 (b) This Amendment shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns. No third party beneficiaries are intended in connection with this Amendment. 

  
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 (c) THIS AMENDMENT IS SUBJECT TO THE PROVISIONS OF SECTION 9.13, 9.14 AND
9.15 OF THE CREDIT AGREEMENT RELATING TO, INTER ALIA, GOVERNING LAW, SUBMISSION TO JURISDICTION, VENUE, WAIVER OF THE RIGHT TO TRIAL BY JURY, AND JUDICIAL REFERENCE, THE PROVISIONS OF WHICH SECTIONS ARE BY THIS REFERENCE INCORPORATED HEREIN
IN FULL. 
 (d) This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument. Each of the parties hereto understands and agrees that this document (and any other document required herein) may be delivered by any party hereto or thereto either in
the form of an executed original or an executed original sent by telecopy, facsimile or other electronic transmission (including .PDF) to be followed promptly by mailing of a hard copy original, and the receipt by the Lender of a telecopy, facsimile
or other electronically transmitted document purportedly bearing the signature of the Borrower or one of the other parties hereto, as applicable, shall bind the Borrower or such other party, respectively, with the same force and effect as the
delivery of a hard copy original. Any failure by the Lender to receive the hard copy executed original of such document shall not diminish the binding effect of receipt of the telecopy, facsimile or other electronically transmitted executed original
of such document of the party whose hard copy page was not received by the Lender. 
 (e) This Amendment contains the entire and
exclusive agreement of the parties hereto with reference to the matters discussed herein. This Amendment supersedes all prior drafts and communications with respect thereto. This Amendment may not be amended except by a written agreement executed by
the Borrower and the Lender. 
 (f) If any term or provision of this Amendment shall be deemed prohibited by or invalid under
any applicable law, such provision shall be invalidated without affecting the remaining provisions of this Amendment or the Credit Agreement, respectively. 
 (g) The Borrower covenants to pay to or reimburse the Lender, upon demand, for all reasonable and documented out-of-pocket costs and expenses incurred in connection with the development, preparation,
negotiation, execution and delivery, and enforcement of this Amendment. 
 (h) This Amendment shall constitute a “Loan
Document” under and as defined in the Credit Agreement. 
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 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed
as of the date first above written. 
  

			
	GEN-PROBE INCORPORATED, as the Borrower
		
	By:	 	 /s/ Herm Rosenman

	Name:	 	Herm Rosenman
	Title:	 	Senior Vice President, Finance & Chief Financial Officer



  

Signature Page to Amendment No. 5 to Credit Agreement, Amendment No. 1 to Security Agreement and 

Amendment No. 1 to Pledged Collateral Account Control Agreement 








 
			
	BANK OF AMERICA, N.A., as the Lender
		
	By:	 	 /s/ John C. Plecque

	Name:	 	John C. Plecque
	Title:	 	Senior Vice President



  

Signature Page to Amendment No. 5 to Credit Agreement, Amendment No. 1 to Security Agreement and 

Amendment No. 1 to Pledged Collateral Account Control Agreement 








 
			
	 MERRILL LYNCH, PIERCE, FENNER & SMITH

INCORPORATED

		
	By:	 	 /s/ Karen Merker

	Name:	 	Karen Merker
	Title:	 	Administrative Manager



  

Signature Page to Amendment No. 5 to Credit Agreement, Amendment No. 1 to Security Agreement and 

Amendment No. 1 to Pledged Collateral Account Control Agreement 








 SCHEDULE 1.01 

APPROVED COLLATERAL 
  

									
	 Approved Collateral Types
	  	Incurrence Borrowing Base
Percentage	 	 	Maintenance Borrowing
Base Percentage	 
	 State/Municipal Bonds

(A/A2 or higher ratings from Standard & Poor’s Ratings Services and Moody’s Investors Service,
Inc., respectively)
	  	 	80	% 	 	 	85	% 
	 Corporate Bonds

(BBB-/Baa3 or higher ratings from Standard & Poor’s Ratings Services and Moody’s Investors Service,
Inc., respectively)
	  	 	80	% 	 	 	85	% 
	 U.S. Government Obligations
	  	 	92	% 	 	 	95	% 
	 U.S. Agency Obligations
	  	 	85	% 	 	 	90	% 
	 Mutual Funds (Quoted in the Wall Street Journal or Barron’s)

U.S. Government Obligations
	  	 	92	% 	 	 	95	% 
	 Corporate/Municipal Bonds
	  	 	80	% 	 	 	85	% 
	 Bank of America, N.A. Deposit Account
	  	 	100	% 	 	 	100	% 
	 All other Cash/Money Account Balances held within pledged account #291-07552
	  	 	80	% 	 	 	85	%