exv10w1






Exhibit 10.1




QUIDEL CORPORATION




SECOND AMENDMENT TO CREDIT AGREEMENT



     This SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is dated as of September 27, 2010
and entered into by and among QUIDEL CORPORATION, a Delaware corporation (“Borrower”), the
financial institutions listed on the signature pages hereof (“Lenders”), and BANK OF AMERICA, N.A.,
a national banking association, as agent for Lenders (in such capacity, “Agent”), and, for purposes
of Sections 4 and 6 hereof, each of the Guarantors listed on the signature pages hereof
(“Guarantors”), and is made with reference to that certain Credit Agreement dated as of October 8,
2008, as amended by that certain First Amendment to Credit Agreement and Security Agreement, dated
as of February 19, 2010 (as so amended, the “Credit Agreement”), by and among Borrower, Lenders,
U.S. Bank N.A., as Syndication Agent, and Bank of America, N.A., as Agent, Swing Line Lender and
L/C Issuer. Capitalized terms used herein without definition shall have the same meanings herein as
set forth in the Credit Agreement.



RECITALS



          WHEREAS, Borrower and Lenders desire to (i) waive compliance with the terms of Sections
6.12(a) and 6.12(b) of the Credit Agreement with respect to a specified date, (ii) amend the
definition of “Applicable Rate” as provided herein, and (iii) to make certain other amendments as
set forth below;




          NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:




Section 1. AMENDMENTS TO THE CREDIT AGREEMENT




     A. Section 1.1 of the Credit Agreement is hereby amended by adding thereto the following
definitions, which shall be inserted in proper alphabetical order:



          “Second Amendment” means the Second Amendment to Credit Agreement dated as of September 27,
2010 among Borrower, Lenders party thereto, Agent and Guarantors.




          “Second Amendment Effective Date” has the meaning specified in the Second Amendment.




     B. The definition of “Applicable Rate” in Section 1.1 of the Credit Agreement is hereby
amended by inserting the following text at the end thereof:



          “Notwithstanding anything herein to the contrary, the Applicable Rate in effect from the
Second Amendment Effective Date through the date a Compliance
Certificate is delivered pursuant to Section 6.2(b) for the reporting period ending on March
31, 2011 shall be based upon the following percentages per annum; provided, however, that (i) if no
Compliance Certificate is delivered when due in accordance with such Section for such reporting
period,





 









 







then, upon the request of the Required Lenders, Pricing Level 1 of the chart below shall apply
commencing on the 5th Business Day following the date such Compliance Certificate was
required to have been delivered to but excluding the date such Compliance Certificate is received
by Agent and, thereafter, the pricing level (in the chart below or chart above, as applicable)
indicated by such Compliance Certificate until such pricing level is required to be adjusted
pursuant to the terms of this definition and (ii) if an Event of Default has occurred and is
continuing at the time of delivery of such Compliance Certificate (whether under Section 6.12(a),
6.12(b) or otherwise), then the Applicable Rate shall be based on the percentages set forth below
until such time that no Event of Default shall be continuing (it being understood and agreed by the
parties that at any time that any such Event of Default has occurred and is continuing, the
applicable Default Rate shall also apply).”




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Applicable Rate
	 	 	 	 	 	 	 	 	Eurodollar Rate	 	 
	 	 	 	 	 	 	 	 	Margin	 	 
	Pricing	 	Funded Debt to EBITDA	 	Commitment	 	or Standby	 	Base Rate
	Level	 	Ratio	 	Fee	 	Letters of Credit	 	Margin
	1

	 	Greater than 2.50:1.00
	 	 	0.50	%	 	 	3.25	%	 	 	2.25	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2

	 	Less than or equal to
2.50:1.00 but greater than or
equal to 2.00:1.00
	 	 	0.45	%	 	 	3.00	%	 	 	2.00	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	3

	 	Less than 2.00:1.00 but
greater than or equal to
1.50:1.00
	 	 	0.40	%	 	 	2.75	%	 	 	1.75	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	4

	 	Less than 1.50:1.00 but
greater than or equal to
1.00:1.00
	 	 	0.35	%	 	 	2.25	%	 	 	1.25	%
	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	5

	 	Less than 1.00:1.00
	 	 	0.30	%	 	 	2.00	%	 	 	1.00	%






Section 2. LIMITED WAIVER




     A. Subject to the terms and conditions set forth herein and in reliance on the representations
and warranties of Borrower herein contained, Lenders hereby waive Borrower’s compliance with
Section 6.12(a) and Section 6.12(b) of the Credit Agreement for the measurement date occurring on
(and only on) December 31, 2010 and agree that any failure by Borrower to comply with Section
6.12(a) and Section 6.12(b) for the measurement date



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occurring on (and only on) December 31, 2010 shall not be treated as a Default or Event of Default
for purposes of the Credit Agreement and Loan Documents (it being understood and agreed by the
parties that Borrower shall still be required to deliver the Compliance Certificates required by
Section 6.2(b) of the Credit Agreement to be delivered with the financial statements being
delivered for the fiscal year and fiscal quarter ended December 31, 2010 in accordance with
Sections 6.1(a) and 6.1(b) of the Credit Agreement).




     B. Without limiting the generality of the provisions of Section 10.1 of the Credit Agreement,
the waiver and agreement set forth above shall be limited precisely as written and relates solely
to compliance with Section 6.12(a) and Section 6.12(b) of the Credit Agreement in the manner and to
the extent described above, and nothing in the waiver set forth above shall be deemed to: (A)
constitute a waiver of compliance by any Loan Party with respect to (1) Section 6.12(a) or Section
6.12(b) of the Credit Agreement in any other instance or (2) any other term, provision or condition
of the Credit Agreement or any other instrument or agreement referred to therein or (B) prejudice
any other right or remedy that Agent or any Lender may now have or may have in the future under or
in connection with the Credit Agreement or any other instrument or agreement referred to therein.



Section 3. CONDITIONS TO EFFECTIVENESS




          Sections 1 and 2 of this Amendment shall become effective only upon the satisfaction of all
of the following conditions precedent (the date of satisfaction of such conditions being referred
to herein as the “Second Amendment Effective Date”):




     A. On or before the Second Amendment Effective Date, Borrower shall deliver to Lenders (or to
Agent for Lenders with sufficient originally executed copies, where appropriate, for each Lender
and its counsel) the following, each, unless otherwise noted, dated the Second Amendment Effective
Date:




     (i) A certificate, dated as of the Second Amendment Effective Date, of its corporate
secretary or an assistant secretary of Borrower, certifying that there have been no changes
in its Certificate of Incorporation and its Bylaws from the form of Certificate of
Incorporation and Bylaws previously delivered to Lenders (or attaching copies of any such
amendments or other modifications);




     (ii) Resolutions of its Board of Directors approving and authorizing the execution,
delivery, and performance of this Amendment and the transactions contemplated hereby,
certified as of the Second Amendment Effective Date by its corporate secretary or an
assistant secretary as being in full force and effect without modification or amendment;




     (iii) Signature and incumbency certificates of its officers executing this Amendment;




     (iv) Executed copies of this Amendment executed by Borrower and each Guarantor;




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     (v) A Certificate of a Responsible Officer of Borrower to the effect that each of the
conditions set forth in Section 3 of this Amendment have been satisfied;



     B. On or before the Second
Amendment Effective Date, Borrower shall pay to counsel to Agent all outstanding Attorney Costs
owing to counsel to Agent (including Attorney Costs incurred in connection with this Amendment) to
the extent invoiced prior to the date hereof; provided,
however, Borrower’s obligation under this
Section 3(B) shall not exceed $7,500.



     C. Borrower shall pay to each Lender executing this Amendment
on or before the Second Amendment Effective Date, by 5:00 PM, California time, on the Second
Amendment Effective Date, the amendment fee set forth in that certain letter agreement, dated as of
the date hereof, by and among Borrower and the lenders party thereto.



Section 4. REPRESENTATIONS AND WARRANTIES




         In order to induce Lenders to enter into this Amendment and to amend the Credit Agreement in
the manner provided herein, each Loan Party represents and warrants to each Lender that the
following statements are true, correct and complete:



     A. Corporate Power and Authority. Each Loan Party has all requisite corporate power and
authority to enter into this Amendment and to carry out the transactions contemplated by, and
perform its obligations under, the Credit Agreement as amended by this Amendment (the “Amended
Agreement”) and the other Loan Documents.



     B. Authorization of Agreements. The execution and
delivery of this Amendment and the performance of the Amended Agreement have been duly authorized
by all necessary corporate action on the part of each Loan Party.



     C. No Conflict. The execution and delivery by each Loan Party of this Amendment and the
performance by such Loan Party of the Amended Agreement and the other Loan Documents do not and
will not (i) violate any provision of any law or any governmental rule or regulation applicable to
such Loan Party or any of its Subsidiaries, the Certificate or Articles of Incorporation or Bylaws
of such Loan Party or any of its Subsidiaries or any order, judgment or decree of any court or
other agency of government binding on such Loan Party or any of its Subsidiaries, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or both) a default
under any Contractual Obligation of such Loan Party or any of its Subsidiaries, (iii) result in or
require the creation or imposition of any Lien upon any of the properties or assets of such Loan
Party or any of its Subsidiaries (other than Liens created under any of the Loan Documents in favor
of Agent on behalf of Lenders), or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of such Loan Party or any of its
Subsidiaries, except for such approvals or consents which have been obtained on or before the
Second Amendment Effective Date and disclosed in writing to Lenders.



     D. Governmental Consents. The execution and delivery by Borrower and Guarantors of this
Amendment and the performance by Borrower and Guarantors of the Amended Agreement and the other
Loan Documents do not and will not require any registration



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with, consent or approval of, or notice to, or other action to, with or by, any federal, state or
other governmental authority or regulatory body.




     E. Binding Obligation. This Amendment has been duly executed and delivered by each Loan Party
and this Amendment and the Amended Agreement are the legally valid and binding obligations of such
Loan Party, enforceable against such Loan Party in accordance with their respective terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors’ rights generally or by equitable principles relating to enforceability.



     F. Incorporation of Representations and Warranties From Loan Documents. The representations
and warranties contained in Article V of the Credit Agreement and in the other Loan Documents are
and will be true, correct and complete in all material respects on and as of the Second Amendment
Effective Date (both before and after giving effect to this Amendment) to the same extent as though
made on and as of that date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.



     G. Absence of Default. Both before and after giving effect to this Amendment, no event has
occurred and is continuing or will result from the consummation of the transactions contemplated by
this Amendment that would constitute a Default or an Event of Default.



Section 5. MISCELLANEOUS




     A. Reference to and Effect on the Credit Agreement and the Other Loan Documents.




     (i) On and after the Second Amendment Effective Date, each reference in the Credit
Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import
referring to the Credit Agreement and each reference in the other Loan Documents to the
“Credit Agreement”, “thereunder”, “thereof” or words of like import referring to the Credit
Agreement shall mean and be a reference to the Amended Agreement.




     (ii) Except as specifically amended by this Amendment, the Credit Agreement and the
other Loan Documents shall remain in full force and effect and are hereby ratified and
confirmed.




     (iii) The execution, delivery and performance of this Amendment shall not, except as
expressly provided herein, constitute a waiver of any provision of, or operate as a waiver
of any right, power or remedy of Agent or any Lender under, the Credit Agreement or any of
the other Loan Documents.



     B. Fees and Expenses. Borrower acknowledges that all costs, fees and expenses as described in
Section 10.4(a) of the Credit Agreement incurred by Agent and its counsel with respect to this
Amendment and the documents and transactions contemplated hereby shall be for the account of
Borrower.



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     C. Headings. Section and subsection 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 or be given any substantive effect.



     D. Applicable Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF
THE STATE OF CALIFORNIA (INCLUDING WITHOUT LIMITATION SECTION 1646.5 OF THE CIVIL CODE OF THE STATE
OF CALIFORNIA), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.



     E. Counterparts; Effectiveness. This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate counterparts and
attached to a single counterpart so that all signature pages are physically attached to the same
document. This Amendment (other than the provisions of Sections 1 and 2 hereof, the effectiveness
of which is governed by Section 3 hereof) shall become effective upon the execution of a
counterpart hereof by Borrower, each Guarantor and Required Lenders and receipt by Borrower and
Agent of written or telephonic notification of such execution and authorization of delivery
thereof.



Section 6. ACKNOWLEDGEMENT AND CONSENT BY GUARANTORS




          Each Guarantor hereby acknowledges that it has read this Amendment and consents to the terms
thereof, and hereby confirms and agrees that, notwithstanding the effectiveness of this Amendment,
the obligations of each Guarantor under each Loan Document to which it is a party or otherwise
bound (i) shall continue in full force and effect, (ii) shall be valid and enforceable, (iii) shall
not be impaired or affected by the execution or effectiveness of this Amendment, and (iv) are
hereby confirmed and ratified in all respects. Each Guarantor acknowledges and agrees that (i)
notwithstanding the conditions to effectiveness set forth in this Amendment, such Guarantor is not
required by the terms of the Credit Agreement or any other Loan Document to consent to the
amendments to the Credit Agreement effected pursuant to this Amendment, and (ii) nothing in the
Credit Agreement, this Amendment or any other Loan Document shall be deemed to require the consent
of such Guarantor to any future amendments to the Credit Agreement.




[signature pages follow]




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          IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered by their respective officers thereunto duly authorized as of the date first written
above.



	 	 	 	 	 
	 	BORROWER: 



QUIDEL CORPORATION

 	 
	 	By:  	/s/
John M. Radak
 	 
	 	 	Name:  	JOHN M. RADAK 	 
	 	 	Title:  	CHIEF FINANCIAL OFFICER 	 
	 
	 	GUARANTORS:



PACIFIC BIOTECH, INC.

 	 
	 	By:  	/s/
John M. Radak
 	 
	 	 	Name:  	JOHN M. RADAK 	 
	 	 	Title:  	SECRETARY AND TREASURER 	 
	 
	 	METRA BIOSYSTEMS, INC.

 	 
	 	By:  	/s/
John M. Radak
 	 
	 	 	Name:  	JOHN M. RADAK 	 
	 	 	Title:  	SECRETARY AND TREASURER 	 
	 
	 	OSTEO SCIENCES CORPORATION

 	 
	 	By:  	/s/
John M. Radak
 	 
	 	 	Name:  	JOHN M. RADAK 	 
	 	 	Title:  	SECRETARY AND TREASURER 	 
	 
	 	LITMUS CONCEPTS, INC.

 	 
	 	By:  	/s/ John M. Radak
 	 
	 	 	Name:  	JOHN M. RADAK 	 
	 	 	Title:  	SECRETARY AND TREASURER 	 
	 



[Signature Page to Second Amendment]




 









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as Agent

 	 
	 	By:  	/s/
Tiffany Shin
 	 
	 	 	Name:  	Tiffany Shin 	 
	 	 	Title:  	Assistant Vice President 	 
	 



[Signature Page to Second Amendment]




 









 





	 	 	 	 	 
	 	BANK OF AMERICA, N.A., as Lender

 	 
	 	By:  	/s/
John C. Plecque
 	 
	 	 	Name:  	John C. Plecque 	 
	 	 	Title:  	Senior Vice President 	 
	 



[Signature Page to Second Amendment]




 









 





	 	 	 	 	 
	 	U.S. BANK N.A., as Lender

 	 
	 	By:  	/s/
Maureen Sullivan
 	 
	 	 	Name:  	Maureen Sullivan 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Second Amendment]




 









 





	 	 	 	 	 
	 	UNION BANK, N.A., as Lender

 	 
	 	By:  	/s/
Glenn Fortin
 	 
	 	 	Name:  	Glenn Fortin 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Second Amendment]