exv10w2






Exhibit 10.2




EXECUTION VERSION




      




GUARANTY AND SECURITY AGREEMENT



Dated as of June 30, 2011


among


Alere Inc.,

as Borrower,


and


Each Grantor

From Time to Time Party Hereto


and


GENERAL ELECTRIC CAPITAL CORPORATION,

as Administrative Agent



      




 









 






TABLE OF CONTENTS




	 	 	 	 	 

	ARTICLE I DEFINED TERMS
	 	 	1	 
	 
	 	 	 	 
	Section 1.1 Definitions
	 	 	1	 
	Section 1.2 Certain Other Terms
	 	 	4	 
	 
	 	 	 	 
	ARTICLE II GUARANTY
	 	 	5	 
	 
	 	 	 	 
	Section 2.1 Guaranty
	 	 	5	 
	Section 2.2 Limitation of Guaranty
	 	 	5	 
	Section 2.3 Contribution
	 	 	5	 
	Section 2.4 Authorization; Other Agreements
	 	 	5	 
	Section 2.5 Guaranty Absolute and Unconditional
	 	 	6	 
	Section 2.6 Waivers
	 	 	7	 
	Section 2.7 Reliance
	 	 	7	 
	 
	 	 	 	 
	ARTICLE III GRANT OF SECURITY INTEREST
	 	 	7	 
	 
	 	 	 	 
	Section 3.1 Collateral
	 	 	7	 
	Section 3.2 Grant of Security Interest in Collateral
	 	 	8	 
	 
	 	 	 	 
	ARTICLE IV REPRESENTATIONS AND WARRANTIES
	 	 	8	 
	Section 4.1 Title; No Other Liens
	 	 	8	 
	Section 4.2 Perfection and Priority
	 	 	9	 
	Section 4.3 Jurisdiction of Organization; Chief Executive Office
	 	 	9	 
	Section 4.4 Locations of Inventory, Equipment and Books and Records
	 	 	9	 
	Section 4.5 Pledged Collateral
	 	 	10	 
	Section 4.6 Instruments and Tangible Chattel Paper Formerly Accounts
	 	 	10	 
	Section 4.7 Intellectual Property
	 	 	10	 
	Section 4.8 Commercial Tort Claims
	 	 	10	 
	Section 4.9 Specific Collateral
	 	 	10	 
	Section 4.10 Promissory Notes
	 	 	11	 
	Section 4.11 Representations and Warranties of the Credit Agreement
	 	 	11	 
	 
	 	 	 	 
	ARTICLE V COVENANTS
	 	 	11	 
	 
	 	 	 	 
	Section 5.1 Maintenance of Perfected Security Interest; Further Documentation and
Consents
	 	 	11	 
	Section 5.2 Changes in Locations, Name, Etc
	 	 	12	 
	Section 5.3 Pledged Collateral; Other Matters
	 	 	12	 
	Section 5.4 Accounts
	 	 	13	 
	Section 5.5 Commodity Contracts
	 	 	13	 
	Section 5.6 Delivery of Instruments and Tangible Chattel Paper and Control of
Investment Property, Letter-of-Credit Rights and Electronic Chattel Paper
	 	 	13	 
	Section 5.7 Intellectual Property
	 	 	14	 
	Section 5.8 Notice of Commercial Tort Claims
	 	 	15	 
	Section 5.9 Compliance with Credit Agreement
	 	 	15	 
	 
	 	 	 	 
	ARTICLE VI REMEDIAL PROVISIONS
	 	 	15	 
	 
	 	 	 	 
	Section 6.1 Code and Other Remedies
	 	 	15	 






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	Section 6.2 Accounts and Payments in Respect of General Intangibles
	 	 	19	 
	Section 6.3 Pledged Collateral
	 	 	20	 
	Section 6.4 Proceeds to be Turned over to and Held by Administrative Agent
	 	 	20	 
	Section 6.5 Sale of Pledged Collateral
	 	 	21	 
	Section 6.6 Deficiency
	 	 	21	 
	 
	 	 	 	 
	ARTICLE VII THE ADMINISTRATIVE AGENT
	 	 	21	 
	 
	 	 	 	 
	Section 7.1 Administrative Agent’s Appointment as Attorney-in-Fact
	 	 	21	 
	Section 7.2 Authorization to File Financing Statements
	 	 	23	 
	Section 7.3 Authority of Administrative Agent
	 	 	23	 
	Section 7.4 Duty; Obligations and Liabilities
	 	 	24	 
	 
	 	 	 	 
	ARTICLE VIII MISCELLANEOUS
	 	 	24	 
	 
	 	 	 	 
	Section 8.1 Reinstatement
	 	 	24	 
	Section 8.2 Release of Collateral
	 	 	24	 
	Section 8.3 Independent Obligations
	 	 	25	 
	Section 8.4 No Waiver by Course of Conduct
	 	 	25	 
	Section 8.5 Amendments in Writing
	 	 	25	 
	Section 8.6 Additional Grantors; Additional Pledged Collateral
	 	 	26	 
	Section 8.7 Notices
	 	 	26	 
	Section 8.8 Successors and Assigns
	 	 	26	 
	Section 8.9 Counterparts
	 	 	26	 
	Section 8.10 Severability
	 	 	26	 
	Section 8.11 Governing Law
	 	 	26	 
	Section 8.12 Jurisdiction
	 	 	26	 
	Section 8.13 Waiver of Jury Trial
	 	 	27	 
	Section 8.14 Subordination
	 	 	27	 






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ANNEXES AND SCHEDULES




	 	 	 

	Annex 1

	 	Form of Pledge Amendment
	Annex 2

	 	Form of Joinder Agreement
	Annex 3

	 	Form of Intellectual Property Security Agreement
	 
	 	 
	Schedule 1

	 	Commercial Tort Claims
	Schedule 2

	 	Filings
	Schedule 3

	 	Jurisdiction of Organization; Chief Executive Office
	Schedule 4

	 	Location of Inventory and Equipment
	Schedule 5

	 	Pledged Collateral
	Schedule 6

	 	Intellectual Property
	Schedule 7

	 	Promissory Notes






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          GUARANTY AND SECURITY AGREEMENT, dated as of June 30, 2011, by Alere Inc., a Delaware
corporation (the “Borrower”), each of the other entities listed on the signature pages
hereof or that becomes a party hereto pursuant to Section 8.6 (together with the Borrower,
the “Grantors”), in favor of General Electric Capital Corporation (“GE Capital”),
as administrative agent and collateral agent (in such capacity, together with its successors and
permitted assigns, the “Administrative Agent”) for the Lenders and the L/C Issuers and each
other Secured Party (each as defined in the Credit Agreement referred to below).




W I T N E S S E T H:




          WHEREAS, pursuant to the Credit Agreement dated as of June 30, 2011 (as the same may be
modified from time to time, the “Credit Agreement”), among the Borrower, the Lenders and
the L/C Issuers from time to time party thereto and GE Capital, as administrative agent and
collateral agent for the Lenders and the L/C Issuers, the Lenders and the L/C Issuers have
severally agreed to make extensions of credit to the Borrower upon the terms and subject to the
conditions set forth therein;




          WHEREAS, each Grantor has agreed to guaranty the Obligations (as defined in the Credit
Agreement) of each other Loan Party;




          WHEREAS, each Grantor will derive substantial direct and indirect benefits from the making of
the extensions of credit under the Credit Agreement; and




          WHEREAS, it is a condition precedent to the obligation of the Lenders and the L/C Issuers to
make their respective extensions of credit to the Borrower under the Credit Agreement that the
Grantors shall have executed and delivered this Agreement to the Administrative Agent;




          NOW, THEREFORE, in consideration of the premises and to induce the Lenders, the L/C Issuers
and the Administrative Agent to enter into the Credit Agreement and to induce the Lenders and the
L/C Issuers to make their respective extensions of credit to the Borrower thereunder, each Grantor
hereby agrees with the Administrative Agent as follows:




ARTICLE I




DEFINED TERMS



     Section 1.1 Definitions. (a) Capitalized terms used herein without definition
are used as defined in the Credit Agreement.



          (b) The following terms have the meanings given to them in the UCC and terms used herein
without definition that are defined in the UCC have the meanings given to them in the UCC (such
meanings to be equally applicable to both the singular and plural forms of the terms defined):
“account”, “account debtor”, “as-extracted collateral”, “certificated
security”, “chattel paper”, “commercial tort claim”, “commodity
contract”, “deposit account”, “electronic chattel paper”, “equipment”,
“farm products”, “fixture”, “general intangible”, “goods”,
“health-care-insurance receivable”, “instruments”, “inventory”,
“investment property”, “letter-of-credit right”, “proceeds”,
“record”, “securities account”, “security”, “supporting obligation”
and “tangible chattel paper”.







 









 








          (c) The following terms shall have the following meanings:




          “Affiliate Guarantor” means any Guarantor that is a Subsidiary or other Affiliate of
the Borrower other than the Excluded Foreign Subsidiaries.




          “Agreement” means this Guaranty and Security Agreement.




          “Applicable IP Office” means the United States Patent and Trademark Office, the United
States Copyright Office or any similar office, authority or agency within or outside the United
States.




          “Collateral” has the meaning specified in Section 3.1.




          “Excluded Equity” means any voting stock in excess of 65% of the outstanding voting
stock of any Excluded Foreign Subsidiary that is a first-tier subsidiary of the relevant Grantor.
For the purposes of this definition, “voting stock” means, with respect to any issuer, the
issued and outstanding shares of each class of Stock of such issuer entitled to vote (within the
meaning of Treasury Regulations § 1.956-2(c)(2)).




          “Excluded Property” means, collectively, (i) Excluded Equity, (ii) any permit or
license of, or any Contractual Obligation entered into by, any Grantor (A) that prohibits or
requires the consent of any Person other than the Borrower and its Affiliates as a condition to the
creation by such Grantor of a Lien on any right, title or interest in such permit, license or
Contractual Obligation or any Stock or Stock Equivalent related thereto or (B) to the extent that
any Requirement of Law applicable thereto prohibits the creation of a Lien thereon, but only, with
respect to the prohibition in (A) and (B), to the extent, and for as long as, such prohibition is
not terminated or rendered unenforceable or otherwise deemed ineffective by the UCC or any other
Requirement of Law or required consent is not obtained (and immediately upon the lapse,
termination, unenforceability or ineffectiveness of any such prohibition or grant of such required
consent, the Collateral shall include, and Grantors shall be deemed to have automatically granted a
security interest in, all such permits, licenses, Contractual Obligations or Stock or Stock
Equivalents no longer subject to such prohibition or required consent), (iii) any fixed or capital
assets (including any associated software or other general intangibles) owned by any Grantor that
is subject to a purchase money Lien or a Capital Lease if the Contractual Obligation pursuant to
which such Lien is granted (or in the document providing for such Capital Lease) prohibits or
requires the consent of any Person other than the Borrower and its Affiliates as a condition to the
creation of any other Lien on such equipment, (iv) any “intent to use” Trademark applications for
which a statement of use, or an amendment to allege use, has not been accepted by the U.S. Patent
and Trademark Office (but only until such statement, or an amendment to allege use, is accepted),
(v) capital stock or other equity interests of the P&G JV Companies, (vi) except as otherwise
required by Section 7.14 of the Credit Agreement, any Margin Stock owned by such Grantor, (vii)
Selfcare Technology, Inc.’s 50% joint venture interests in SelfCare-PMB, LLC, and (viii) any
capital stock or other equity interest of Orgenics Ltd. held by the Borrower for so long as the
terms of the Indebtedness of Orgenics Ltd. or Orgenics International Holdings, B.V. prohibit such
pledge or would give rise to an event of default thereunder; provided, however,
“Excluded Property” shall not include any proceeds, products, substitutions or replacements
of Excluded Property (unless such proceeds, products, substitutions or replacements would otherwise
constitute Excluded Property).




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          “Foreign Registered IP” means any Intellectual Property registered (or for which an
application for registration has been filed) in any Applicable IP Office outside of the United
States.




          “Guaranteed Obligations” has the meaning set forth in Section 2.1.




          “Guarantor” means each Grantor other than the Borrower.




          “Guaranty” means the guaranty of the Guaranteed Obligations made by the Guarantors as
set forth in this Agreement.




          “Intercompany Obligations” has the meaning set forth in Section 8.14(a).




          “Pledged Certificated Stock” means all certificated securities and any other Stock or
Stock Equivalent of any Person evidenced by a certificate, instrument or other similar document (as
defined in the UCC), in each case owned by any Grantor, and any distribution in the form of any
certificated securities, Stock or Stock Equivalent made on, in respect of or in exchange for the
foregoing from time to time, exceeding $1,000,000 in the aggregate for any particular issuer
thereof, including all Stock and Stock Equivalents listed on Schedule 5. Pledged
Certificated Stock excludes all Excluded Property that would otherwise constitute “Pledged
Certificated Stock”.




          “Pledged Collateral” means, collectively, the Pledged Stock and the Pledged Debt
Instruments, excluding all Excluded Property that would otherwise constitute “Pledged Collateral”.




          “Pledged Debt Instruments” means all right, title and interest of any Grantor in
instruments evidencing any Indebtedness owed to such Grantor or other obligations, and any
distribution in the form of any instrument evidencing any such Indebtedness made on, in respect of
or in exchange for the foregoing from time to time, including all such instruments described on
Schedule 5 issued by the obligors named therein, excluding all Excluded Property that would
otherwise constitute “Pledged Debt Instruments”.




          “Pledged Investment Property” means any investment property of any Grantor, and any
distribution of property in the form of any such investment property made on, in respect of or in
exchange for the foregoing from time to time, other than any Pledged Stock or Pledged Debt
Instruments, excluding all Excluded Property that would otherwise constitute “Pledged Investment
Property”.




          “Pledged Stock” means all Pledged Certificated Stock and all Pledged Uncertificated
Stock, excluding all Excluded Property that would otherwise constitute “Pledged Stock”.




          “Pledged Uncertificated Stock” means any Stock or Stock Equivalent of any Person that
is not Pledged Certificated Stock, including all right, title and interest of any Grantor as a
limited or general partner in any partnership not constituting Pledged Certificated Stock or as a
member of any limited liability company, all right, title and interest of any Grantor in, to and
under any Constituent Document of any partnership or limited liability company to which it is a
party, and any distribution of property in the form of any such stock or stock equivalent made on,
in respect of or in exchange for the foregoing from time to time, including in each case those




3









 




interests set forth on Schedule 5, to the extent such interests are not certificated,
excluding all Excluded Property that would otherwise constitute “Pledged Uncertificated Stock”.




          “Secured Obligations” has the meaning set forth in Section 3.2.




          “Security Cash Collateral Account” means a Cash Collateral Account that is not a L/C
Cash Collateral Account.




          “Senior Obligations” has the meaning set forth in Section 8.14(a).




          “Software” means (a) all computer programs, including source code and object code
versions, (b) all data, databases and compilations of data, whether machine readable or otherwise,
and (c) all documentation, training materials and configurations related to any of the foregoing.




          “UCC” means the Uniform Commercial Code as from time to time in effect in the State of
New York; provided, however, that, in the event that, by reason of mandatory
provisions of any applicable Requirement of Law, any of the attachment, perfection or priority of
the Administrative Agent’s or any other Secured Party’s security interest in any Collateral is
governed by the Uniform Commercial Code of a jurisdiction other than the State of New York,
“UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for
purposes of the provisions hereof relating to such attachment, perfection or priority and for
purposes of the definitions related to or otherwise used in such provisions.




          “Vehicles” means all vehicles covered by a certificate of title law of any state.




     Section 1.2 Certain Other Terms. (a) The meanings given to terms defined
herein shall be equally applicable to both the singular and plural forms of such terms. The terms
“herein”, “hereof” and similar terms refer to this Agreement as a whole and not to
any particular Article, Section or clause in this Agreement. References herein to an Annex,
Schedule, Article, Section or clause refer to the appropriate Annex or Schedule to, or Article,
Section or clause in this Agreement. Where the context requires, provisions relating to any
Collateral when used in relation to a Grantor shall refer to such Grantor’s Collateral or any
relevant part thereof.




          (b) Section 1.5 (Interpretation) of the Credit Agreement is applicable to this
Agreement as and to the extent set forth therein.




          (c) The term “payment in full” or “paid in full” with respect to the Obligations, the Secured
Obligations or the Senior Obligations means upon (A) termination of the Commitments, (B) payment
and satisfaction in full of all Loans, all L/C Reimbursement Obligations and all other Obligations
that the Administrative Agent has been notified in writing are then due and payable by the holder
of such obligation, (C) deposit of cash collateral with respect to all contingent Obligations
(other than contingent indemnification obligations as to which no claim has been asserted) (or, in
the case of any L/C Obligation, a back-up letter of credit has been issued), in amounts required
under Section 9.3 of the Credit Agreement and on terms and conditions and with parties
satisfactory to the Administrative Agent and each Indemnitee that is owed such Obligations and (D)
to the extent requested by the Administrative Agent, receipt by the Secured Parties of liability
releases from the Loan Parties each in form and substance acceptable to the Administrative Agent.







4









 








ARTICLE II




GUARANTY



     Section 2.1 Guaranty. To induce the Lenders to make the Loans, the L/C
Issuers to Issue Letters of Credit, the Secured Hedge Counterparties to enter into Secured Hedging
Agreements and the Secured Treasury Service Creditors to enter into Secured Treasury Services
Agreements, each Guarantor hereby, jointly and severally, absolutely, unconditionally and
irrevocably guarantees, as primary obligor and not merely as surety, the full and punctual payment
when due, whether at stated maturity or earlier, by reason of acceleration, mandatory prepayment or
otherwise in accordance with any Loan Document, of all the Obligations of each other Loan Party
whether existing on the date hereof or hereinafter incurred or created (the “Guaranteed
Obligations”). This Guaranty by each Guarantor hereunder constitutes a guaranty of payment and
not of collection. Each Guarantor agrees that its obligations under this Agreement shall not be
discharged until the Obligations (other than contingent indemnification obligations as to which no
claim has been asserted) are paid in full. Each Guarantor shall be regarded, and shall be in the
same position, as principal debtor with respect to the Guaranteed Obligations.



     Section 2.2 Limitation of Guaranty. Any term or provision of this Guaranty or
any other Loan Document to the contrary notwithstanding, the maximum aggregate amount for which any
Affiliate Guarantor shall be liable hereunder shall not exceed the maximum amount for which such
Affiliate Guarantor can be liable without rendering this Guaranty or any other Loan Document, as it
relates to such Affiliate Guarantor, subject to avoidance under applicable Requirements of Law
relating to fraudulent conveyance or fraudulent transfer (including the Uniform Fraudulent
Conveyance Act, the Uniform Fraudulent Transfer Act and Section 548 of title 11 of the United
States Code or any applicable provisions of comparable Requirements of Law) (collectively,
“Fraudulent Transfer Laws”). Any analysis of the provisions of this Guaranty for purposes
of Fraudulent Transfer Laws shall take into account the right of contribution established in
Section 2.3 and, for purposes of such analysis, give effect to any discharge of
intercompany debt as a result of any payment made under the Guaranty.



     Section 2.3 Contribution. To the extent that any Affiliate Guarantor shall be
required hereunder to pay any portion of any Guaranteed Obligation exceeding the greater of (a) the
amount of the economic benefit actually received by such Affiliate Guarantor from the Loans and
other Obligations and (b) the amount such Affiliate Guarantor would otherwise have paid if such
Affiliate Guarantor had paid the aggregate amount of the Guaranteed Obligations (excluding the
amount thereof repaid by the Borrower) in the same proportion as such Affiliate Guarantor’s net
worth on the date enforcement is sought hereunder bears to the aggregate net worth of all the
Affiliate Guarantors on such date, then such Guarantor shall be reimbursed by such other Affiliate
Guarantors for the amount of such excess, pro rata, based on the respective net worth of such other
Affiliate Guarantors on such date.



     Section 2.4 Authorization; Other Agreements. The Secured Parties are hereby
authorized, without notice to or demand upon any Guarantor and without discharging or otherwise
affecting the obligations of any Guarantor hereunder and without incurring any liability hereunder,
from time to time, to do each of the following:



          (a) (i) modify, amend, supplement or otherwise change, (ii) accelerate or otherwise change the
time of payment or (iii) waive or otherwise consent to noncompliance with, any Guaranteed
Obligation or any Loan Document;







5









 








          (b) apply to the Guaranteed Obligations any sums by whomever paid or however realized to any
Guaranteed Obligation in such order as provided in the Loan Documents;




          (c) refund at any time any payment received by any Secured Party in respect of any Guaranteed
Obligation;




          (d) (i) Sell, exchange, enforce, waive, substitute, liquidate, terminate, release, abandon,
fail to perfect, subordinate, accept, substitute, surrender, exchange, affect, impair or otherwise
alter or release any Collateral for any Guaranteed Obligation or any other guaranty therefor in any
manner, (ii) receive, take and hold additional Collateral to secure any Guaranteed Obligation,
(iii) add, release or substitute any one or more other Guarantors, makers or endorsers of any
Guaranteed Obligation or any part thereof and (iv) otherwise deal in any manner with the Borrower
and any other Guarantor, maker or endorser of any Guaranteed Obligation or any part thereof; and




          (e) settle, release, compromise, collect or otherwise liquidate the Guaranteed Obligations.




     Section 2.5 Guaranty Absolute and Unconditional. Each Guarantor hereby waives
and agrees not to assert any defense, whether arising in connection with or in respect of any of
the following or otherwise, and hereby agrees that its obligations under this Guaranty are
irrevocable, absolute and unconditional and shall not be discharged as a result of or otherwise
affected by any of the following (which may not be pleaded and evidence of which may not be
introduced in any proceeding with respect to this Guaranty, in each case except as otherwise agreed
in writing by the Administrative Agent):



          (a) the invalidity or unenforceability of any obligation of the Borrower or any other
Guarantor under any Loan Document or any other agreement or instrument relating thereto (including
any amendment, consent or waiver thereto), or any security for, or other guaranty of, any
Guaranteed Obligation or any part thereof, or the lack of perfection or continuing perfection or
failure of priority of any security for the Guaranteed Obligations or any part thereof;




          (b) the absence of (i) any attempt to collect any Guaranteed Obligation or any part thereof
from the Borrower or any other Guarantor or other action to enforce the same or (ii) any action to
enforce any Loan Document or any Lien thereunder;




          (c) the failure by any Person to take any steps to perfect and maintain any Lien on, or to
preserve any rights with respect to, any Collateral;




          (d) any workout, insolvency, bankruptcy proceeding, reorganization, arrangement, liquidation
or dissolution by or against the Borrower, any other Guarantor or any of the Borrower’s other
Subsidiaries or Affiliates or any procedure, agreement, order, stipulation, election, action or
omission thereunder, including any discharge or disallowance of, or bar or stay against collecting,
any Guaranteed Obligation (or any interest thereon) in or as a result of any such proceeding;




          (e) any foreclosure, whether or not through judicial sale, and any other Sale of any
Collateral or any election following the occurrence of an Event of Default by any Secured




6









 




Party to proceed separately against any Collateral in accordance with such Secured Party’s
rights under any applicable Requirement of Law; or




          (f) any other defense, setoff, counterclaim or any other circumstance that might otherwise
constitute a legal or equitable discharge of the Borrower, any other Guarantor or any of the
Borrower’s other Subsidiaries or Affiliates, in each case other than the payment in full of the
Guaranteed Obligations.




     Section 2.6 Waivers. Each Guarantor hereby unconditionally and irrevocably
waives and agrees not to assert any claim, defense, setoff or counterclaim based on diligence,
promptness, presentment, requirements for any demand or notice hereunder including any of the
following: (a) any demand for payment or performance and protest and notice of protest, (b) any
notice of acceptance, (c) any presentment, demand, protest or further notice or other requirements
of any kind with respect to any Guaranteed Obligation (including any accrued but unpaid interest
thereon) becoming immediately due and payable and (d) any other notice in respect of any Guaranteed
Obligation or any part thereof, and any defense arising by reason of any disability or other
defense of the Borrower or any other Guarantor. Each Guarantor further unconditionally and
irrevocably agrees, until payment in full of the Obligations in accordance with Section
1.2(c), not to (x) enforce or otherwise exercise any right of subrogation or any right of
reimbursement or contribution or similar right against the Borrower or any other Guarantor by
reason of any Loan Document or any payment made thereunder or (y) if an Event of Default shall have
occurred and be continuing, assert any claim, defense, setoff or counterclaim it may have against
any other Loan Party or set off any of its obligations to such other Loan Party against obligations
of such Loan Party to such Guarantor. No obligation of any Guarantor hereunder shall be discharged
other than by complete performance and payment in full.



     Section 2.7 Reliance. Each Guarantor hereby assumes responsibility for
keeping itself informed of the financial condition of the Borrower, each other Guarantor and any
other guarantor, maker or endorser of any Guaranteed Obligation or any part thereof, and of all
other circumstances bearing upon the risk of nonpayment of any Guaranteed Obligation or any part
thereof that diligent inquiry would reveal, and each Guarantor hereby agrees that no Secured Party
shall have any duty to advise any Guarantor of information known to it regarding such condition or
any such circumstances. In the event any Secured Party, in its sole discretion, undertakes at any
time or from time to time to provide any such information to any Guarantor, such Secured Party
shall be under no obligation to (a) undertake any investigation not a part of its regular business
routine, (b) disclose any information that such Secured Party, pursuant to accepted or reasonable
commercial finance or banking practices, wishes to maintain confidential or (c) make any future
disclosures of such information or any other information to any Guarantor.



ARTICLE III




GRANT OF SECURITY INTEREST



     Section 3.1 Collateral. For the purposes of this Agreement, all of the
following property now owned or at any time hereafter acquired by a Grantor or in which a Grantor
now has or at any time in the future may acquire any right, title or interests is collectively
referred to as the “Collateral”:



7









 





          (a) all accounts, chattel paper, deposit accounts, documents (as defined in the UCC),
equipment, general intangibles, instruments, inventory, investment property and any supporting
obligations related thereto (including any Pledged Collateral);




          (b) the commercial tort claims described on Schedule 1 and on any supplement thereto
received by the Administrative Agent pursuant to Section 5.9;




          (c) all books and records pertaining to the other property described in this Section
3.1;




          (d) all property of such Grantor held by any Secured Party, including all property of every
description, in the custody of or in transit to such Secured Party for any purpose, including
safekeeping, collection or pledge, for the account of such Grantor or as to which such Grantor may
have any right or power, including but not limited to cash;




          (e) all other goods (including but not limited to fixtures) and personal property of such
Grantor, whether tangible or intangible and wherever located;




          (f) in the case of the pledge of the shares of Alere International GmbH (“Swissco”),
in all events, only 66% of all of the total shares held by Alere International Holding Corp. in the
aggregate in Swissco); and




          (g) to the extent not otherwise included, all proceeds of the foregoing;



provided, however, that “Collateral” shall not include any Excluded
Property; and provided, further, that if and when any property shall cease to be
Excluded Property, such property shall automatically be deemed at all times from and after the date
hereof to constitute Collateral.




          Section 3.2 Grant of Security Interest in Collateral. Each Grantor, as
collateral security for the prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of the Obligations of such Grantor (the “Secured
Obligations”), hereby mortgages, pledges and hypothecates to the Administrative Agent for the
benefit of the Secured Parties, and grants to the Administrative Agent for the benefit of the
Secured Parties a Lien on and security interest in, all of its right, title and interest in, to and
under the Collateral of such Grantor.




ARTICLE IV




REPRESENTATIONS AND WARRANTIES



          To induce the Lenders, the L/C Issuers and the Administrative Agent to enter into the Loan
Documents, each Grantor hereby represents and warrants each of the following to the Administrative
Agent, the Lenders, the L/C Issuers and the other Secured Parties:




     Section 4.1 Title; No Other Liens. Except for the Lien granted to the
Administrative Agent pursuant to this Agreement and other Permitted Liens under any Loan Document
(including Section 4.2), such Grantor owns each item of the Collateral free and clear of
any and all Liens. Such Grantor (a) is the record and beneficial owner of the Collateral pledged
by it hereunder constituting instruments or certificated securities and (b) has rights in or the
power to



8









 




transfer each other item of Collateral in which a Lien is granted by it hereunder, free and
clear of any other Lien, other than Permitted Liens.




     Section 4.2 Perfection and Priority. The security interest granted pursuant
to this Agreement constitutes a valid and continuing perfected security interest in favor of the
Administrative Agent, for the benefit of the Secured Parties, in all Collateral subject, for the
following Collateral, to the occurrence of the following: (i) in the case of all Collateral in
which a security interest may be perfected by filing a financing statement under the UCC, the
completion of the filings and other actions specified on Schedule 2 (which, in the case of
all filings and other documents referred to on such schedule, have been delivered to the
Administrative Agent in completed and duly authorized form), (ii) with respect to any deposit
account, the execution of Control Agreements, (iii) in the case of all Copyrights, Trademarks and
Patents for which UCC filings are insufficient, all appropriate filings having been made with the
United States Copyright Office, the United States Patent and Trademark Office, or any other
Applicable IP Office or similar office, agency or authority outside the United States, as
applicable, (iv) in the case of letter-of-credit rights that are not supporting obligations of
Collateral, the execution of a Contractual Obligation granting control to the Administrative Agent
over such letter-of-credit rights, (v) in the case of electronic chattel paper, the completion of
all steps necessary to grant control to the Administrative Agent over such electronic chattel paper
and (vi) in the case of Vehicles, the actions required under Section 5.1(e). Such security
interest shall be prior to all other Liens on the Collateral, except for Customary Permitted Liens
and Liens permitted by Sections 8.2(c), (d), (h), (i) and (j) of the Credit Agreement,
having priority over the Administrative Agent’s Lien or unless otherwise permitted by any Loan
Document upon (i) in the case of all Pledged Certificated Stock, Pledged Debt Instruments and
Pledged Investment Property, the delivery to the Administrative Agent of such Pledged Certificated
Stock, Pledged Debt Instruments and Pledged Investment Property consisting of instruments and
certificates, in each case properly endorsed for transfer to the Administrative Agent or in blank,
(ii) in the case of all Pledged Investment Property not in certificated form, the execution of
Control Agreements with respect to such investment property and (iii) in the case of all other
instruments and tangible chattel paper that are not Pledged Certificated Stock, Pledged Debt
Instruments or Pledged Investment Property, the delivery to the Administrative Agent of such
instruments and tangible chattel paper. Except as set forth in this Section 4.2, all
actions by each Grantor necessary or desirable to protect and perfect the Lien granted hereunder on
the Collateral have been duly taken as of the date hereof and all such actions shall be taken by
each Grantor at such times required under Section 5.7.



     Section 4.3 Jurisdiction of Organization; Chief Executive Office. Such
Grantor’s (a) jurisdiction of organization or formation, (b) exact legal name (as it appears in
such Grantor’s Constituent Documents), (c) organizational identification number, if any, issued by
the jurisdiction of organization or formation, (d) type of organization, (e) Federal Taxpayer
Identification Number, (f) location of its chief executive office or sole place of business, (g)
legal name or jurisdiction of organization or formation if different than otherwise provided in
this Section 4.3 within the prior five (5)-year period, in each case as of the date hereof,
is specified on Schedule 3.



     Section 4.4 Locations of Inventory, Equipment and Books and Records. On the
date hereof, such Grantor’s inventory and equipment (other than inventory or equipment in transit)
with an aggregate value in excess of $3,000,000 per location and material books and records
concerning the Collateral are kept at the locations listed on Schedule 4.



9









 





     Section 4.5 Pledged Collateral. (a) The Pledged Stock pledged by such Grantor
hereunder (i) as of the date hereof is listed on Schedule 5 and if the issuer is a
Subsidiary of such Grantor, constitutes that percentage of the issued and outstanding equity of all
classes of each issuer thereof as set forth on Schedule 5, (ii) if the issuer is a
Subsidiary of such Grantor, has been duly authorized, validly issued and is fully paid and
nonassessable (other than Pledged Stock in limited liability companies and partnerships) and (iii)
if the issuer is a Subsidiary of such Grantor, constitutes the legal, valid and binding obligation
of the obligor with respect thereto, enforceable 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.



          (b) As of the Closing Date, all Pledged Collateral (other than Pledged Uncertificated Stock)
and all Pledged Investment Property, in each case, consisting of instruments and certificates, has
been delivered to the Administrative Agent in accordance with Section 5.3(a), except to the
extent provided for under Section 7.13 of the Credit Agreement.




          (c) Upon the occurrence and during the continuance of an Event of Default, the Administrative
Agent shall be entitled to exercise all of the rights of the Grantor granting the security interest
in any Pledged Stock of any issuer that is a wholly owned subsidiary of such Grantor, and a
transferee or assignee of such Pledged Stock shall become a holder of such Pledged Stock to the
same extent as such Grantor.




     Section 4.6 Instruments and Tangible Chattel Paper Formerly Accounts. No
amount payable to such Grantor under or in connection with any account is evidenced by any
instrument or tangible chattel paper that has not been delivered to the Administrative Agent,
properly endorsed for transfer, to the extent delivery is required by Section 5.6(a).



     Section 4.7 Intellectual Property. Schedule 6 sets forth, as of the
date hereof, a true and complete list in all material respects of the Patents, Trademarks and
Copyrights owned by such Grantor and registered by such Grantor or subject to applications for
registration by such Grantor in any applicable IP Office, including (i) the Grantor that is the
owner thereof, (ii) the title of such Patent, Trademark, or Copyright, (iii) if applicable, the
jurisdiction in which such item has been registered or in which an application for registration has
been filed and (iv) if applicable and if determined and available, the registration or application
number and registration or application date. From time to time, at the Administrative Agents’
reasonable request, each Grantor shall deliver a list of (i) material inbound IP Licenses of such
Grantor, (ii) to the extent available or applicable, all material outbound IP Licenses to
non-Affiliates and (iii) material Internet Domain Names.



     Section 4.8 Commercial Tort Claims. The only commercial tort claims of any
Grantor existing on the date hereof (regardless of whether the amount, defendant or other material
facts can be determined and regardless of whether such commercial tort claim has been asserted,
threatened or has otherwise been made known to the obligee thereof or whether litigation has been
commenced for such claims) are those listed on Schedule 1, which sets forth such
information separately for each Grantor.



     Section 4.9 Specific Collateral. None of the Collateral is or is proceeds or
products of farm products, as-extracted collateral, health-care-insurance receivables or timber to
be cut.



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     Section 4.10 Promissory Notes. Schedule 7 hereto sets forth for each
Grantor a list of all promissory notes and debt securities in the form of instruments payable or
due to such Grantor by or from any other Person (including any other Grantor) that will not be
repaid on the Closing Date.



     Section 4.11 Representations and Warranties of the Credit Agreement. The
representations and warranties as to such Grantor and its Subsidiaries made by the Borrower in
Article IV (Representations and Warranties) of the Credit Agreement are true and
correct (A) if the relevant date is the Closing Date, on and as of such date and (B) otherwise, in
all material respects (provided, that if any representation or warranty is by its terms qualified
by concepts of materiality, such representation shall be true and correct in all respects) on and
as of such date or, to the extent such representations and warranties expressly relate to an
earlier date, on and as of such earlier date.



ARTICLE V




COVENANTS



     Each Grantor agrees with the Administrative Agent to the following, until payment in full of
the Obligations in accordance with Section 1.2(c) and unless the Required Lenders otherwise
consent in writing:



     Section 5.1 Maintenance of Perfected Security Interest; Further Documentation and
Consents. (a) Generally. Such Grantor shall not use or permit any Collateral to be
used in violation of any provision of any Loan Document or any Related Document, or in violation in
any material respect of any Requirement of Law or any policy of insurance covering the Collateral.



          (b) Such Grantor shall maintain the security interest created by this Agreement as a perfected
security interest having at least the priority described in Section 4.2 and shall defend
such security interest and such priority against the claims and demands of all Persons.




          (c) Subject to the reporting requirements contained in Section 5.7, such Grantor shall
furnish to the Administrative Agent from time to time statements and schedules further identifying
and describing the Collateral and such other documents in connection with the Collateral as the
Administrative Agent may reasonably request, all in reasonable detail and in form and substance
satisfactory to the Administrative Agent.




          (d) At any time and from time to time, upon the written request of the Administrative Agent,
such Grantor shall, for the purpose of obtaining or preserving the full benefits of this Agreement
and of the rights and powers herein granted, (i) promptly and duly execute and deliver, and have
recorded, such further documents, including an authorization to file (or, as applicable, the
filing) of any financing statement or amendment under the UCC (or other filings under similar
Requirements of Law) in effect in any jurisdiction with respect to the security interest created
hereby and (ii) take such further action as the Administrative Agent may reasonably request,
including (A) during such time as an Event of Default shall have occurred and be continuing, using
its commercially reasonable efforts to secure all approvals necessary or appropriate for the
assignment to or for the benefit of the Administrative Agent of any Contractual Obligation,
including any IP License, held by such Grantor and to enforce the security interests granted
hereunder and (B) executing and delivering any Control Agreements




11









 




with respect to deposit accounts and securities accounts to the extent required under
Section 7.11 of the Credit Agreement.




          (e) If requested by the Administrative Agent, the Grantor shall arrange for the Administrative
Agent’s first priority security interest, subject to Permitted Liens, to be noted on the
certificate of title of each Vehicle and shall file any other necessary documentation in each
jurisdiction that the Administrative Agent shall deem advisable to perfect its security interests
in any Vehicle.




          (f) To ensure that any of the Excluded Property set forth in clause (ii) of the
definition of “Excluded Property” becomes part of the Collateral (other than Excluded Collateral
that exists on the date hereof), such Grantor shall use good faith efforts, at the Administrative
Agent’s request, to obtain any required consents from any Person other than the Borrower and its
Affiliates with respect to any material permit or material license or any material Contractual
Obligation with such Person entered into by such Grantor that requires such consent as a condition
to the creation by such Grantor of a Lien on any right, title or interest in such permit, license
or Contractual Obligation (other than with respect to any such property which is immaterial) or any
Stock or Stock Equivalent related thereto.




     Section 5.2 Changes in Locations, Name, Etc. Except upon 10 days’ prior
written notice to the Administrative Agent and delivery to the Administrative Agent of (a) all
documents reasonably requested by the Administrative Agent to maintain the validity, perfection and
priority of the security interests provided for herein and (b) if applicable, a written supplement
to Schedule 4 showing any additional locations at which inventory or equipment shall be
kept, such Grantor shall not do any of the following:




          (i) permit any inventory or equipment with an aggregate value in excess of $1,000,000
for such location to be kept at a location other than those listed on Schedule 4,
except for inventory or equipment in transit, located at customer sites, or in the
possession of a third party for repair or service in the ordinary course of business;




          (ii) change its jurisdiction of organization or its location (as defined under Section
9-307 of the UCC), in each case from that referred to in Section 4.3; or




          (iii) change its legal name or organizational identification number, if any, or
corporation, limited liability company, partnership or other organizational structure to
such an extent that any financing statement filed in connection with this Agreement would
become misleading.



     Section 5.3 Pledged Collateral; Other Matters. (a) Delivery of Pledged
Collateral. Such Grantor shall (i) promptly after such Grantor obtains possession thereof,
deliver to the Administrative Agent (A) all Pledged Certificated Stock, (B) all Pledged Debt
Instruments in excess of $1,000,000 in the aggregate for any particular issuer thereof and (C) all
certificates and instruments evidencing Pledged Investment Property in excess of $1,000,000 in the
aggregate for any particular issuer thereof and (ii) maintain all other Pledged Investment Property
in a Controlled Securities Account to the extent such Pledged Investment Property constitutes
“investment property” under Section 9-102(a)(49) of the UCC.



          (b) Event of Default. During the continuance of an Event of Default, the
Administrative Agent shall have the right, at any time in its discretion and without notice to the






12









 







Grantor, to (i) transfer to or to register in its name or in the name of its nominees any
Pledged Collateral or any Pledged Investment Property and (ii) exchange any certificate or
instrument representing or evidencing any Pledged Collateral or any Pledged Investment Property for
certificates or instruments of smaller or larger denominations.




          (c) Cash Distributions with respect to Collateral. Except as provided in Article
VI, such Grantor shall be entitled to receive all cash dividends or other distributions or
payments paid in respect of the Pledged Collateral, the Pledged Investment Property or any other
Collateral.




          (d) Voting Rights. Except as provided in Article VI, such Grantor shall be
entitled to exercise all voting, consent and corporate, partnership, limited liability company and
similar rights with respect to the Pledged Collateral or the Pledged Investment Property;
provided, however, that no vote shall be cast, consent given or right exercised or
other action taken by such Grantor that would result in any violation of any provision of any Loan
Document.




     Section 5.4 Accounts. If an Event of Default shall have occurred and be
continuing, the Administrative Agent shall have the right to make test verifications of the
Accounts in any manner and through any medium that it reasonably considers advisable, and such
Grantor shall furnish all such assistance and information as the Administrative Agent may
reasonably require in connection therewith. If an Event of Default shall have occurred and be
continuing, upon the Administrative Agent’s request, such Grantor shall cause independent public
accountants or others satisfactory to the Administrative Agent to furnish to the Administrative
Agent reports showing reconciliations, aging and test verifications of, and trial balances for, the
accounts.



     Section 5.5 Commodity Contracts. Such Grantor shall not have any commodity
contract other than subject to a Control Agreement.



     Section 5.6 Delivery of Instruments and Tangible Chattel Paper and Control of
Investment Property, Letter-of-Credit Rights and Electronic Chattel Paper. (a) If any amount
in excess of $1,000,000 payable under or in connection with any Collateral owned by such Grantor
shall be or become evidenced by an instrument or tangible chattel paper other than such instrument
delivered in accordance with Section 5.3(a) and in the possession of the Administrative
Agent, at the request of the Administrative Agent, such Grantor shall mark all such instruments and
tangible chattel paper with the following legend: “This writing and the obligations evidenced or
secured hereby are subject to the security interest of General Electric Capital Corporation, as
Administrative Agent” and, at the request of the Administrative Agent, shall promptly deliver such
instrument or tangible chattel paper to the Administrative Agent, duly indorsed in a manner
satisfactory to the Administrative Agent.



          (b) Such Grantor shall not grant “control” (within the meaning of such term under Article
9-106 of the UCC) over any investment property to any Person other than the Administrative Agent..




          (c) If such Grantor is or becomes the beneficiary of a letter of credit that is (i) not a
supporting obligation of any Collateral and (ii) in excess of $1,000,000, such Grantor shall
promptly, and in any event within 3 Business Days after becoming a beneficiary, notify the
Administrative Agent thereof and thereafter, if requested by the Administrative Agent and consented
to by the issuer of such letter of credit or any nominated person, enter into a Contractual
Obligation with the Administrative Agent, the issuer of such letter of credit or such






13









 







nominated person with respect to the letter-of-credit rights under such letter of credit
assigning such letter-of-credit rights to the Administrative Agent in a manner sufficient to grant
control for the purposes of Section 9-107 of the UCC (or any similar section under any equivalent
UCC). The provisions of the Contractual Obligation shall be in form and substance reasonably
satisfactory to the Administrative Agent.




          (d) If any amount in excess of $1,000,000 payable under or in connection with any Collateral
owned by such Grantor shall be or become evidenced by electronic chattel paper, such Grantor shall
take all steps necessary to grant the Administrative Agent control of all such electronic chattel
paper for the purposes of Section 9-105 of the UCC (or any similar section under any equivalent
UCC) and all “transferable records” as defined in each of the Uniform Electronic Transactions Act
and the Electronic Signatures in Global and National Commerce Act.




     Section 5.7 Intellectual Property. (a) Grantors shall deliver to
Administrative Agent within 30 days of each anniversary of the Closing Date, and at such times
reasonably requested by the Administrative Agent, a complete and accurate list of each Grantor’s
(i) registered United States Patents and all applications therefor, (ii) registered United States
Trademarks and all applications therefor, (iii) registered United States Copyrights and all
applications therefore and (iv) Foreign Registered IP and all applications therefor, and promptly
upon receipt of such supplement from Administrative Agent, the applicable Grantors shall execute
and deliver a supplement hereto (in form and substance satisfactory to Administrative Agent) to
evidence Administrative Agent’s Lien on such Patents, Trademarks or Copyrights, and the general
intangibles of such Grantor relating thereto or represented thereby, subject to the limitations in
Section 5.7(f) with respect to Foreign Registered IP.



          (b) Each Grantor shall notify Administrative Agent promptly if it knows or has reason to know
that any application or registration relating to any Patent, Trademark or Copyright (now or
hereafter existing) may become abandoned or dedicated to the public, or of any adverse
determination or development (including the institution of, or any such determination or
development in, any proceeding in the Applicable IP Office or any court) regarding such Grantor’s
ownership of any such Patent, Trademark or Copyright, its right to register the same, or to keep
and maintain the same, in each case, unless Grantor determines, in its reasonable business judgment
and in good faith, that the prosecution or maintenance of any application or registration is not,
or is no longer, material in the conduct of the business as a whole of the Group Members; provided,
that any notice provided for above shall only be required with respect to such Patent, Trademark or
Copyright registered or acquired by such Grantor after the Closing Date following the
Administrative Agent’s receipt of such information required with respect thereto pursuant to
Section 5.7(a).




          (c) Each Grantor shall take all actions necessary or reasonably requested by Administrative
Agent to maintain and pursue each application, to obtain the relevant registration and to maintain
the registration of each of the Patents or Trademarks (now or hereafter existing), including the
filing of applications for renewal, affidavits of use, affidavits of noncontestability and
opposition and interference and cancellation proceedings, in each case, unless such Grantor
determines, in its reasonable business judgment and in good faith, that the prosecution or
maintenance of any application or registration is not, or is no longer, necessary or desirable in
the conduct of its business.




          (d) In the event that any material item of the Patent, Trademark and Copyright Collateral is
infringed upon, or misappropriated or diluted by a third party, such






14









 







Grantor shall notify Administrative Agent promptly after such Grantor learns thereof. Such
Grantor shall, unless such Grantor shall reasonably determine that such Patent, Trademark and
Copyright Collateral is not material to the conduct of the business or operations as a whole of the
Group Members, promptly take such actions to enforce its rights and protect such Patent, Trademark
and Copyright Collateral, whether by action, suit, proceeding or otherwise, as such Grantor shall
deem necessary or appropriate under the circumstances in its reasonable business judgment or as
Administrative Agent may otherwise reasonably request.




          (e) At such times as required under Sections 5.7(a) and 5.7(f), such Grantor
shall execute and deliver to the Administrative Agent in form and substance reasonably acceptable
to the Administrative Agent and suitable for filing in the Applicable IP Office the short-form
intellectual property security agreements in the form attached hereto as Annex 3 for all
Copyrights, Trademarks and Patents of such Grantor.




          (f) At Administrative Agent’s request (after consideration of the cost and expense of
recording the Administrative Agent’s Lien in any Foreign Registered IP against the value of such
Foreign Registered IP), such owner of any Foreign Registered IP shall execute and deliver to the
Administrative Agent a short form intellectual property security agreement in form and substance
reasonably acceptable to the Administrative Agent and suitable for filing in the Applicable IP
Office.




     Section 5.8 Notice of Commercial Tort Claims. Such Grantor agrees that, if it
shall acquire any interest in any commercial tort claim with an aggregate value in excess of
$500,000 (whether from another Person or because such commercial tort claim shall have come into
existence), (i) such Grantor shall, promptly upon such acquisition, deliver to the Administrative
Agent, in each case in form and substance satisfactory to the Administrative Agent, a notice of the
existence and nature of such commercial tort claim and a supplement to Schedule 1
containing a specific description of such commercial tort claim, (ii) Section 3.1 shall
apply to such commercial tort claim and (iii) such Grantor shall execute and deliver to the
Administrative Agent, in each case in form and substance reasonably satisfactory to the
Administrative Agent, any document, and take all other action, deemed by the Administrative Agent
to be reasonably necessary or appropriate for the Administrative Agent to obtain, on behalf of the
Lenders, a perfected security interest having at least the priority set forth in Section
4.2 in all such commercial tort claims. Any supplement to Schedule 1 delivered
pursuant to this Section 5.9 shall, after the receipt thereof by the Administrative Agent,
become part of Schedule 1 for all purposes hereunder other than in respect of
representations and warranties made prior to the date of such receipt.



     Section 5.9 Compliance with Credit Agreement. Such Grantor agrees to comply
with all covenants and other provisions applicable to it under the Credit Agreement, including
Sections 2.17 (Taxes), 11.3 (Costs and Expenses) and 11.4
(Indemnities) of the Credit Agreement and agrees to the same submission to jurisdiction as
that agreed to by the Borrower in the Credit Agreement.



ARTICLE VI




REMEDIAL PROVISIONS



     Section 6.1 Code and Other Remedies. (a) UCC Remedies. During the
existence and continuance of an Event of Default, the Administrative Agent may exercise, in
addition to all



15









 




other rights and remedies granted to it in this Agreement and in any other instrument or
agreement securing, evidencing or relating to any Secured Obligation, all rights and remedies of a
secured party under the UCC or any other applicable law.




          (b) Disposition of Collateral. Without limiting the generality of the foregoing, the
Administrative Agent may, without demand of performance or other demand, presentment, protest,
advertisement or notice of any kind (except any notice required by law referred to below) to or
upon any Grantor or any other Person (all and each of which demands, defenses, advertisements and
notices are hereby waived), during the existence and continuance of any Event of Default
(personally or through its agents or attorneys), (i) enter upon the premises where any Collateral
is located, without any obligation to pay rent, through self-help, without judicial process,
without first obtaining a final judgment or giving any Grantor or any other Person notice or
opportunity for a hearing on the Administrative Agent’s claim or action, (ii) collect, receive,
appropriate and realize upon any Collateral and (iii) Sell, grant option or options to purchase and
deliver any Collateral (enter into Contractual Obligations to do any of the foregoing), in one or
more parcels at public or private sale or sales, at any exchange, broker’s board or office of any
Secured Party or elsewhere upon such terms and conditions as it may deem advisable and at such
prices as it may deem best, for cash or on credit or for future delivery without assumption of any
credit risk. The Administrative Agent shall have the right, upon any such public sale or sales
and, to the extent permitted by the UCC and other applicable Requirements of Law, upon any such
private sale, to purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption of any Grantor, which right or equity is hereby waived and released.




          (c) Management of the Collateral. Each Grantor further agrees, that, during the
existence and continuance of any Event of Default, (i) at the Administrative Agent’s request, it
shall assemble the Collateral and make it available to the Administrative Agent at places that the
Administrative Agent shall reasonably select, whether at such Grantor’s premises or elsewhere, (ii)
without limiting the foregoing, the Administrative Agent also has the right to require that each
Grantor store and keep any Collateral pending further action by the Administrative Agent and, while
any such Collateral is so stored or kept, provide such guards and maintenance services as shall be
necessary to protect the same and to preserve and maintain such Collateral in good condition, (iii)
until the Administrative Agent is able to Sell any Collateral, the Administrative Agent shall have
the right to hold or use such Collateral to the extent that it deems appropriate for the purpose of
preserving the Collateral or its value or for any other purpose deemed appropriate by the
Administrative Agent and (iv) the Administrative Agent may, if it so elects, seek the appointment
of a receiver or keeper to take possession of any Collateral and to enforce any of the
Administrative Agent’s remedies (for the benefit of the Secured Parties), with respect to such
appointment without prior notice or hearing as to such appointment. The Administrative Agent shall
not have any obligation to any Grantor to maintain or preserve the rights of any Grantor as against
third parties with respect to any Collateral while such Collateral is in the possession of the
Administrative Agent.




          (d) Application of Proceeds. The Administrative Agent shall apply the cash proceeds
of any action taken by it pursuant to this Section 6.1, after deducting all reasonable
costs and expenses of every kind incurred in connection therewith or incidental to the care or
safekeeping of any Collateral or in any way relating to the Collateral or the rights of the
Administrative Agent and any other Secured Party hereunder, including reasonable attorneys’ fees
and disbursements, to the payment in whole or in part of the Secured Obligations, as set forth






16









 







in the Credit Agreement, and only after such application and after the payment by the
Administrative Agent of any other amount required by any Requirement of Law, need the
Administrative Agent account for the surplus, if any, to any Grantor.




          (e) Direct Obligation. Neither the Administrative Agent nor any other Secured Party
shall be required to make any demand upon, or pursue or exhaust any right or remedy against, any
Grantor, any other Loan Party or any other Person with respect to the payment of the Obligations or
to pursue or exhaust any right or remedy with respect to any Collateral therefor or any direct or
indirect guaranty thereof. All of the rights and remedies of the Administrative Agent and any
other Secured Party under any Loan Document shall be cumulative, may be exercised individually or
concurrently and not exclusive of any other rights or remedies provided by any Requirement of Law.
To the extent it may lawfully do so, each Grantor absolutely and irrevocably waives and
relinquishes the benefit and advantage of, and covenants not to assert against the Administrative
Agent or any Lender, any valuation, stay, appraisement, extension, redemption or similar laws and
any and all rights or defenses it may have as a surety, now or hereafter existing, arising out of
the exercise by them of any rights hereunder. If any notice of a proposed sale or other
disposition of any Collateral shall be required by law, such notice shall be deemed reasonable and
proper if given at least 10 days before such sale or other disposition.




          (f) Commercially Reasonable. To the extent that applicable Requirements of Law impose
duties on the Administrative Agent to exercise remedies in a commercially reasonable manner, each
Grantor acknowledges and agrees that it is not commercially unreasonable for the Administrative
Agent to do any of the following:





          (i) fail to incur significant costs, expenses or other Liabilities reasonably deemed
as such by the Administrative Agent to prepare any Collateral for disposition or otherwise
to complete raw material or work in process into finished goods or other finished products
for disposition;




          (ii) fail to obtain Permits, or other consents, for access to any Collateral to Sell
or for the collection or Sale of any Collateral, or, if not required by other Requirements
of Law, fail to obtain Permits or other consents for the collection or disposition of any
Collateral;




          (iii) fail to exercise remedies against account debtors or other Persons obligated on
any Collateral or to remove Liens on any Collateral or to remove any adverse claims against
any Collateral;




          (iv) advertise dispositions of any Collateral through publications or media of general
circulation, whether or not such Collateral is of a specialized nature or to contact other
Persons, whether or not in the same business as any Grantor, for expressions of interest in
acquiring any such Collateral;




          (v) exercise collection remedies against account debtors and other Persons obligated
on any Collateral, directly or through the use of collection agencies or other collection
specialists, hire one or more professional auctioneers to assist in the disposition of any
Collateral, whether or not such Collateral is of a specialized nature or, to the extent
deemed appropriate by the Administrative Agent, obtain the services of other brokers,
investment bankers, consultants and other professionals to assist the Administrative



17









 






Agent in the collection or disposition of any Collateral, or utilize Internet sites
that provide for the auction of assets of the types included in the Collateral or that have
the reasonable capacity of doing so, or that match buyers and sellers of assets to dispose
of any Collateral;




          (vi) dispose of assets in wholesale rather than retail markets;




          (vii) disclaim disposition warranties, such as title, possession or quiet enjoyment;
or




          (viii) purchase insurance or credit enhancements to insure the Administrative Agent
against risks of loss, collection or disposition of any Collateral or to provide to the
Administrative Agent a guaranteed return from the collection or disposition of any
Collateral.


Each Grantor acknowledges that the purpose of this Section 6.1 is to provide a
non-exhaustive list of actions or omissions that are commercially reasonable when exercising
remedies against any Collateral and that other actions or omissions by the Secured Parties shall
not be deemed commercially unreasonable solely on account of not being indicated in this
Section 6.1. Without limitation upon the foregoing, nothing contained in this Section
6.1 shall be construed to grant any rights to any Grantor or to impose any duties on the
Administrative Agent that would not have been granted or imposed by this Agreement or by applicable
Requirements of Law in the absence of this Section 6.1.




          (g) IP Licenses. For the purpose of enabling the Administrative Agent to exercise
rights and remedies under this Section 6.1 (including in order to take possession of,
collect, receive, assemble, process, appropriate, remove, realize upon, Sell or grant options to
purchase any Collateral) at such time as the Administrative Agent shall be lawfully entitled to
exercise such rights and remedies, upon the occurrence and during the continuance of an Event of
Default, each Grantor hereby grants to the Administrative Agent, for the benefit of the Secured
Parties, (i) an irrevocable, non-exclusive, worldwide license (exercisable without payment of
royalty or other compensation to such Grantor), including in such license the right to sublicense,
use and practice any Intellectual Property now owned or hereafter acquired by such Grantor and
access to all media in which any of the licensed items may be recorded or stored and to all
Software and programs used for the compilation or printout thereof and (ii) an irrevocable license
(without payment of rent or other compensation to such Grantor) to use, operate and occupy all Real
Property owned, operated, leased, subleased or otherwise occupied by such Grantor.




          (h) P&G Joint Venture. The Administrative Agent, on behalf of the Lenders and L/C
Issuer, hereby covenants that in connection with the exercise of remedies against the Collateral,
including in connection with any foreclosure upon the Collateral, not to: (a) take any action which
would cause the license rights under the P&G JV License Agreements to become owned by, licensed to,
or sublicensed to, as applicable, any Person who is not either a “Licensee” or “Affiliate”, as
applicable, under the applicable P&G JV License Agreement, or (b) exercise any remedies against or
transfer the capital stock or other equity interests of the P&G JV Companies to any Person who is
not either a “Licensee” or “Affiliate” or “sublicensee” under the P&G JV License Agreements, to the
extent and upon such terms and conditions as may be agreed to in writing by the Administrative
Agent in its discretion. As used herein “P&G JV License Agreements” mean, collectively,
(i) the Settlement and Cross-License agreement, effective September 25, 1998, by and among Carter
Wallace, Inc., Carter Wallace Ltd., Unilever NV,






18









 







Unilever PLC, CONOPCO, Inc. and Unipath Limited and (ii) the License Agreement, effective
August 6, 1997, by and between Selfcare, Inc. and PBM-Selfcare, LLC.




     Section 6.2 Accounts and Payments in Respect of General Intangibles. (a) In
addition to, and not in substitution for, any similar requirement in the Credit Agreement, if
required by the Administrative Agent at any time during the existence and continuance of an Event
of Default, any payment of accounts or payment in respect of general intangibles, when collected by
any Grantor, shall be promptly (and, in any event, within 5 Business Days) deposited by such
Grantor in the exact form received, duly indorsed by such Grantor to the Administrative Agent, in a
Security Cash Collateral Account, subject to withdrawal by the Administrative Agent as provided in
Section 6.4. Until so turned over, such payment shall be held by such Grantor in trust for
the Administrative Agent, segregated from other funds of such Grantor. Each such deposit of
proceeds of accounts and payments in respect of general intangibles shall be accompanied by a
report identifying in reasonable detail the nature and source of the payments included in the
deposit.



          (b) At any time during the existence and continuance of an Event of Default:





          (i) each Grantor shall, upon the Administrative Agent’s request, deliver to the
Administrative Agent all copies (or originals if specifically requested) and other
documents evidencing, and relating to, the Contractual Obligations and transactions that
gave rise to any account or any payment in respect of general intangibles, including all
original orders, invoices and shipping receipts and notify account debtors that the
accounts or general intangibles have been collaterally assigned to the Administrative Agent
and that payments in respect thereof shall be made directly to the Administrative Agent;




          (ii) the Administrative Agent may, without notice, at any time during the continuance
of an Event of Default, limit or terminate the authority of a Grantor to collect its
accounts or amounts due under general intangibles or any thereof and, in its own name or in
the name of others, communicate with account debtors to verify with them to the
Administrative Agent’s satisfaction the existence, amount and terms of any account or
amounts due under any general intangible. In addition, the Administrative Agent may at any
time enforce such Grantor’s rights against such account debtors and obligors of general
intangibles; and




          (iii) each Grantor shall take all actions, deliver all documents and provide all
information necessary or reasonably requested by the Administrative Agent to ensure any
Internet Domain Name is registered.



               (c) Anything herein to the contrary notwithstanding, each Grantor shall remain liable under
each account and each payment in respect of general intangibles to observe and perform all the
conditions and obligations to be observed and performed by it thereunder, all in accordance with
the terms of any agreement giving rise thereto. No Secured Party shall have any obligation or
liability under any agreement giving rise to an account or a payment in respect of a general
intangible by reason of or arising out of any Loan Document or the receipt by any Secured Party of
any payment relating thereto, nor shall any Secured Party be obligated in any manner to perform any
obligation of any Grantor under or pursuant to any agreement giving rise to an account or a payment
in respect of a general intangible, to make any payment, to make any inquiry as to the nature or
the sufficiency of any payment received by it or as to the sufficiency of






19









 







any performance by any party thereunder, to present or file any claim, to take any action to
enforce any performance or to collect the payment of any amounts that may have been assigned to it
or to which it may be entitled at any time or times.




     Section 6.3 Pledged Collateral. (a) Voting Rights. During the
existence and continuance of an Event of Default, upon notice by the Administrative Agent to the
relevant Grantor or Grantors, the Administrative Agent or its nominee may exercise (A) any voting,
consent, corporate and other right pertaining to the Pledged Stock at any meeting of shareholders,
partners or members, as the case may be, of the relevant issuer or issuers of Pledged Stock or
otherwise and (B) any right of conversion, exchange and subscription and any other right, privilege
or option pertaining to the Pledged Stock as if it were the absolute owner thereof (including the
right to exchange at its discretion any Pledged Stock upon the merger, amalgamation, consolidation,
reorganization, recapitalization or other fundamental change in the corporate or equivalent
structure of any issuer of Pledged Stock, the right to deposit and deliver any Pledged Stock with
any committee, depositary, transfer agent, registrar or other designated agency upon such terms and
conditions as the Administrative Agent may determine), all without liability except to account for
property actually received by it; provided, however, that the Administrative Agent
shall have no duty to any Grantor to exercise any such right, privilege or option and shall not be
responsible for any failure to do so or delay in so doing.



          (b) Proxies. In order to permit the Administrative Agent to exercise the voting and
other consensual rights that it may be entitled to exercise pursuant hereto and to receive all
dividends and other distributions that it may be entitled to receive hereunder, (i) each Grantor
shall promptly execute and deliver (or cause to be executed and delivered) to the Administrative
Agent all such proxies, dividend payment orders and other instruments as the Administrative Agent
may from time to time reasonably request and (ii) without limiting the effect of clause (i)
above, such Grantor hereby grants to the Administrative Agent an irrevocable proxy to vote all or
any part of the Pledged Stock and to exercise all other rights, powers, privileges and remedies to
which a holder of the Pledged Stock would be entitled (including giving or withholding written
consents of shareholders, partners or members, as the case may be, calling special meetings of
shareholders, partners or members, as the case may be, and voting at such meetings), which proxy
shall be effective, automatically and without the necessity of any action (including any transfer
of any Pledged Stock on the record books of the issuer thereof) by any other person (including the
issuer of such Pledged Stock or any officer or agent thereof), during the continuance of an Event
of Default and which proxy shall only terminate upon the payment in full of the Obligations in
accordance with Section 1.2(c).




          (c) Authorization of Issuers. Each Grantor hereby expressly irrevocably authorizes
and instructs, without any further instructions from such Grantor, each issuer of any Pledged Stock
pledged hereunder by such Grantor to (i) comply with any instruction received by it from the
Administrative Agent in writing that states that an Event of Default exists and is continuing and
is otherwise in accordance with the terms of this Agreement and each Grantor agrees that such
issuer shall be fully protected from Liabilities to such Grantor in so complying and (ii) if
required by the Administrative Agent at any time during the existence or continuance of an Event of
Default, pay any dividend or make any other payment with respect to the Pledged Stock directly to
the Administrative Agent.




     Section 6.4 Proceeds to be Turned over to and Held by Administrative Agent.
If required by the Administrative Agent at any time during the existence or continuance of an Event
of Default, all proceeds of any Collateral received by any Grantor hereunder in cash or Cash



20









 




Equivalents shall be held by such Grantor in trust for the Administrative Agent and the other
Secured Parties, segregated from other funds of such Grantor, and shall, promptly upon receipt by
any Grantor, be turned over to the Administrative Agent in the exact form received (with any
necessary endorsement). Only so long as an Event of Default exists, all such proceeds of
Collateral and any other proceeds of any Collateral received by the Administrative Agent in cash or
Cash Equivalents shall be held by the Administrative Agent in a Security Cash Collateral Account.
All proceeds being held by the Administrative Agent in a Security Cash Collateral Account (or by
such Grantor in trust for the Administrative Agent) shall continue to be held as collateral
security for the Secured Obligations and shall not constitute payment thereof until applied as
provided in the Credit Agreement.




     Section 6.5 Sale of Pledged Collateral. (a) Each Grantor recognizes that the
Administrative Agent may be unable to effect a public sale of any Pledged Collateral by reason of
certain prohibitions contained in the Securities Act and applicable state or foreign securities
laws or otherwise or may determine that a public sale is impracticable, not desirable or not
commercially reasonable and, accordingly, may resort to one or more private sales thereof to a
restricted group of purchasers that shall be obliged to agree, among other things, to acquire such
securities for their own account for investment and not with a view to the distribution or resale
thereof. Each Grantor acknowledges and agrees that any such private sale may result in prices and
other terms less favorable than if such sale were a public sale and, notwithstanding such
circumstances, to the extent that the Administrative Agent elects to conduct such private sale,
such election shall be deemed commercially reasonable; provided that such private sale is conducted
in a commercially reasonable manner. The Administrative Agent shall be under no obligation to
delay a sale of any Pledged Collateral for the period of time necessary to permit the issuer
thereof to register such securities for public sale under the Securities Act or under applicable
state securities laws even if such issuer would agree to do so.



          (b) Each Grantor agrees to use its best efforts to do or cause to be done all such other acts
as may be necessary to make such sale or sales of any portion of the Pledged Collateral pursuant to
this Section 6.5 valid and binding and in compliance with all applicable Requirements of
Law. Each Grantor further agrees that a breach of any covenant contained in this Section
6.5 will cause irreparable injury to the Administrative Agent and other Secured Parties, that
the Administrative Agent and the other Secured Parties have no adequate remedy at law in respect of
such breach and, as a consequence, that each and every covenant contained in this Section
6.5 shall be specifically enforceable against such Grantor, and such Grantor hereby waives and
agrees not to assert any defense against an action for specific performance of such covenants
except for a defense that no Event of Default has occurred under the Credit Agreement.




     Section 6.6 Deficiency. Each Grantor shall remain liable for any deficiency
if the proceeds of any sale or other disposition of any Collateral are insufficient to pay in full
the Obligations in accordance with Section 1.2(c) including, the fees and disbursements of
any attorney employed by the Administrative Agent or any other Secured Party to collect such
deficiency.



ARTICLE VII




THE ADMINISTRATIVE AGENT



     Section 7.1 Administrative Agent’s Appointment as Attorney-in-Fact. (a) Each
Grantor hereby irrevocably constitutes and appoints the Administrative Agent and any Related



21









 




Person thereof, with full power of substitution, as its true and lawful attorney-in-fact with
full irrevocable power and authority in the place and stead of such Grantor and in the name of such
Grantor or in its own name, for the purpose of carrying out the terms of the Loan Documents, to
take any appropriate action and to execute any document or instrument that may be necessary or
desirable to accomplish the purposes of the Loan Documents, and, without limiting the generality of
the foregoing, each Grantor hereby gives the Administrative Agent and its Related Persons the power
and right, on behalf of such Grantor, without notice to or assent by such Grantor, to do any of the
following when an Event of Default exists and is continuing:





          (i) in the name of such Grantor, in its own name or otherwise, take possession of and
indorse and collect any check, draft, note, acceptance or other instrument for the payment
of moneys due under any account or general intangible or with respect to any other
Collateral and file any claim or take any other action or proceeding in any court of law or
equity or otherwise deemed appropriate by the Administrative Agent for the purpose of
collecting any such moneys due under any account or general intangible or with respect to
any other Collateral whenever payable;




          (ii) in the case of any Intellectual Property owned by or licensed to the Grantors,
execute, deliver and have recorded any document that the Administrative Agent may request
to evidence, effect, publicize or record the Administrative Agent’s security interest in
such Intellectual Property and the goodwill and general intangibles of such Grantor
relating thereto or represented thereby;




          (iii) pay or discharge taxes and Liens levied or placed on or threatened against any
Collateral, effect any repair or pay any insurance called for by the terms of the Credit
Agreement (including all or any part of the premiums therefor and the costs thereof);




          (iv) execute, in connection with any sale provided for in Section 6.1 or
Section 6.5, any document to effect or otherwise necessary or appropriate in
relation to evidence the Sale of any Collateral; or




          (v) (A) direct any party liable for any payment under any Collateral to make payment
of any moneys due or to become due thereunder directly to the Administrative Agent or as
the Administrative Agent shall direct, (B) ask or demand for, and collect and receive
payment of and receipt for, any moneys, claims and other amounts due or to become due at
any time in respect of or arising out of any Collateral, (C) sign and indorse any invoice,
freight or express bill, bill of lading, storage or warehouse receipt, draft against
debtors, assignment, verification, notice and other document in connection with any
Collateral, (D) commence and prosecute any suit, action or proceeding at law or in equity
in any court of competent jurisdiction to collect any Collateral and to enforce any other
right in respect of any Collateral, (E) defend any actions, suits, proceedings, audits,
claims, demands, orders or disputes brought against such Grantor with respect to any
Collateral, (F) settle, compromise or adjust any such actions, suits, proceedings, audits,
claims, demands, orders or disputes and, in connection therewith, give such discharges or
releases as the Administrative Agent may deem appropriate, (G) assign any Intellectual
Property owned by the Grantors or any IP Licenses of the Grantors throughout the world on
such terms and conditions and in such manner as the Administrative Agent shall in its sole
discretion determine, including the execution and filing of any document necessary to
effectuate or record such assignment and (H) generally, Sell, grant a Lien on, make any



22









 






Contractual Obligation with respect to and otherwise deal with, any Collateral as
fully and completely as though the Administrative Agent were the absolute owner thereof for
all purposes and do, at the Administrative Agent’s option, at any time or from time to
time, all acts and things that the Administrative Agent deems necessary to protect,
preserve or realize upon any Collateral and the Secured Parties’ security interests therein
and to effect the intent of the Loan Documents, all as fully and effectively as such
Grantor might do.



          (b) If any Grantor fails to perform or comply with any Contractual Obligation contained
herein, the Administrative Agent, at its option, but without any obligation so to do, may perform
or comply, or otherwise cause performance or compliance, with such Contractual Obligation.




          (c) The expenses of the Administrative Agent incurred in connection with actions undertaken as
provided in this Section 7.1, together with interest thereon at a rate set forth in
Section 2.9 (Interest) of the Credit Agreement, from the date of payment by the
Administrative Agent to the date reimbursed by the relevant Grantor, shall be payable by such
Grantor to the Administrative Agent on demand.




          (d) Each Grantor hereby ratifies all that said attorneys shall lawfully do or cause to be done
by virtue of this Section 7.1. All powers, authorizations and agencies contained in this
Agreement are coupled with an interest and are irrevocable until this Agreement is terminated and
the security interests created hereby are released.




     Section 7.2 Authorization to File Financing Statements. Each Grantor
authorizes the Administrative Agent and its Related Persons, at any time and from time to time, to
file or record financing statements, amendments thereto, and other filing or recording documents or
instruments with respect to any Collateral in such form and in such offices as the Administrative
Agent reasonably determines appropriate to perfect the security interests of the Administrative
Agent under this Agreement, and such financing statements and amendments may described the
Collateral covered thereby as “all assets of the debtor”. A photographic or other reproduction of
this Agreement shall be sufficient as a financing statement or other filing or recording document
or instrument for filing or recording in any jurisdiction. Such Grantor also hereby ratifies its
authorization for the Administrative Agent to have filed any initial financing statement or
amendment thereto under the UCC (or other similar laws) in effect in any jurisdiction if filed
prior to the date hereof.



     Section 7.3 Authority of Administrative Agent. Each Grantor acknowledges that
the rights and responsibilities of the Administrative Agent under this Agreement with respect to
any action taken by the Administrative Agent or the exercise or non-exercise by the Administrative
Agent of any option, voting right, request, judgment or other right or remedy provided for herein
or resulting or arising out of this Agreement shall, as between the Administrative Agent and the
other Secured Parties, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the Administrative Agent
and the Grantors, the Administrative Agent shall be conclusively presumed to be acting as agent for
the Secured Parties with full and valid authority so to act or refrain from acting, and no Grantor
shall be under any obligation or entitlement to make any inquiry respecting such authority.



23









 





     Section 7.4 Duty; Obligations and Liabilities. (a) Duty of Administrative
Agent. The Administrative Agent’s sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession shall be to deal with it in the same
manner as the Administrative Agent deals with similar property for its own account. The powers
conferred on the Administrative Agent hereunder are solely to protect the Administrative Agent’s
interest in the Collateral and shall not impose any duty upon the Administrative Agent to exercise
any such powers. The Administrative Agent shall be accountable only for amounts that it receives
as a result of the exercise of such powers, and neither it nor any of its Related Persons shall be
responsible to any Grantor for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct as finally determined by a court of competent jurisdiction. In
addition, the Administrative Agent shall not be liable or responsible for any loss or damage to any
Collateral, or for any diminution in the value thereof, by reason of the act or omission of any
warehousemen, carrier, forwarding agency, consignee or other bailee if such Person has been
selected by the Administrative Agent in good faith.



          (b) Obligations and Liabilities with respect to Collateral. No Secured Party and no
Related Person thereof shall be liable for failure to demand, collect or realize upon any
Collateral or for any delay in doing so or shall be under any obligation to sell or otherwise
dispose of any Collateral upon the request of any Grantor or any other Person or to take any other
action whatsoever with regard to any Collateral. The powers conferred on the Administrative Agent
hereunder shall not impose any duty upon any other Secured Party to exercise any such powers. The
other Secured Parties shall be accountable only for amounts that they actually receive as a result
of the exercise of such powers, and neither they nor any of their respective officers, directors,
employees or agents shall be responsible to any Grantor for any act or failure to act hereunder,
except for their own gross negligence or willful misconduct as finally determined by a court of
competent jurisdiction.




ARTICLE VIII




MISCELLANEOUS



     Section 8.1 Reinstatement. Each Grantor agrees that, if any payment made by
any Loan Party or other Person and applied to the Secured Obligations is at any time annulled,
avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise
required to be refunded or repaid, or the proceeds of any Collateral are required to be returned by
any Secured Party to such Loan Party, its estate, trustee, receiver or any other party, including
any Grantor, under any bankruptcy law, state or federal law, common law or equitable cause, then,
to the extent of such payment or repayment, any Lien or other Collateral securing such liability
shall be and remain in full force and effect, as fully as if such payment had never been made. If,
prior to any of the foregoing, (a) any Lien or other Collateral securing such Grantor’s liability
hereunder shall have been released or terminated by virtue of the foregoing or (b) any provision of
the Guaranty hereunder shall have been terminated, cancelled or surrendered, such Lien, other
Collateral or provision shall be reinstated in full force and effect and such prior release,
termination, cancellation or surrender shall not diminish, release, discharge, impair or otherwise
affect the obligations of any such Grantor in respect of any Lien or other Collateral securing such
obligation or the amount of such payment.



     Section 8.2 Release of Collateral. (a) At the time provided in clause
(b)(iii) of Section 10.10 (Release of Collateral or Guarantors) of the Credit
Agreement, the Collateral shall be released from the Lien created hereby and this Agreement and all
obligations (other than those



24









 




expressly stated to survive such termination) of the Administrative Agent and each Grantor
hereunder shall terminate, all without delivery of any instrument or performance of any act by any
party, and all rights to the Collateral shall revert to the Grantors. Each Grantor is hereby
authorized to file UCC amendments at such time evidencing the termination of the Liens so released.
At the request of any Grantor following any such termination, the Administrative Agent shall
deliver to such Grantor any Collateral of such Grantor held by the Administrative Agent hereunder
and execute and deliver to such Grantor such documents as such Grantor shall reasonably request to
evidence such termination.




          (b) If the Administrative Agent shall be directed or permitted pursuant to clause (i)
or (ii) of Section 10.10(b) of the Credit Agreement to release any Lien or any
Collateral, such Collateral shall be released from the Lien created hereby to the extent provided
under, and subject to the terms and conditions set forth in, such clauses (i) and
(ii). In connection therewith, the Administrative Agent, at the request of any Grantor,
shall execute and deliver to such Grantor such documents as such Grantor shall reasonably request
to evidence such release.




          (c) At the time provided in Section 10.10(a) of the Credit Agreement and at the
request of the Borrower, a Grantor shall be released from its obligations hereunder in the event
that all the Securities of such Grantor shall be Sold to any Person that is not an Affiliate of the
Borrower and the Subsidiaries of the Borrower in a transaction permitted by the Loan Documents.




     Section 8.3 Independent Obligations. The obligations of each Grantor
hereunder are independent of and separate from the Secured Obligations and the Guaranteed
Obligations. If any Secured Obligation or Guaranteed Obligation is not paid when due, or upon any
Event of Default, the Administrative Agent may, at its sole election, proceed directly and at once,
without notice, against any Grantor and any Collateral to collect and recover the full amount of
any Secured Obligation or Guaranteed Obligation then due, without first proceeding against any
other Grantor, any other Loan Party or any other Collateral and without first joining any other
Grantor or any other Loan Party in any proceeding.



     Section 8.4 No Waiver by Course of Conduct. No Secured Party shall by any act
(except by a written instrument pursuant to Section 8.5), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any
Default or Event of Default. No failure to exercise, nor any delay in exercising, on the part of
any Secured Party, any right, power or privilege hereunder shall operate as a waiver thereof. No
single or partial exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege. A waiver by any
Secured Party of any right or remedy hereunder on any one occasion shall not be construed as a bar
to any right or remedy that such Secured Party would otherwise have on any future occasion.



     Section 8.5 Amendments in Writing. None of the terms or provisions of this
Agreement may be waived, amended, supplemented or otherwise modified except in accordance with
Section 11.1 of the Credit Agreement; provided, however, that annexes to
this Agreement may be supplemented (but no existing provisions may be modified and no Collateral
may be released) through Pledge Amendments and Joinder Agreements, in substantially the form of
Annex 1 and Annex 2, respectively, in each case duly executed by the Administrative
Agent and each Grantor directly affected thereby.



25









 





     Section 8.6 Additional Grantors; Additional Pledged Collateral. (a)
Joinder Agreements. If, at the option of the Borrower or as required pursuant to
Section 7.10 of the Credit Agreement, the Borrower shall cause any Subsidiary that is not a
Grantor to become a Grantor hereunder, such Subsidiary shall execute and deliver to the
Administrative Agent a joinder agreement substantially in the form of Annex 2 (each, a
“Joinder Agreement”) and shall thereafter for all purposes be a party hereto and have the
same rights, benefits and obligations as a Grantor party hereto on the Closing Date.



          (b) Pledge Amendments. To the extent any Pledged Collateral has not been delivered as
of the Closing Date, such Grantor shall deliver a pledge amendment duly executed by the Grantor in
substantially the form of Annex 1 (each, a “Pledge Amendment”). Such Grantor
authorizes the Administrative Agent to attach each Pledge Amendment to this Agreement.




     Section 8.7 Notices. All notices, requests and demands to or upon the
Administrative Agent or any Grantor hereunder shall be effected in the manner provided for in
Section 11.11 of the Credit Agreement; provided, however, that any such
notice, request or demand to or upon any Grantor shall be addressed to the Borrower’s notice
address set forth in such Section 11.11 of the Credit Agreement.



     Section 8.8 Successors and Assigns. This Agreement shall be binding upon the
successors and assigns of each Grantor and shall inure to the benefit of each Secured Party and
their successors and assigns; provided, however, that no Grantor may assign,
transfer or delegate any of its rights or obligations under this Agreement without the prior
written consent of the Administrative Agent.



     Section 8.9 Counterparts. This Agreement may be executed in any number of
counterparts and by different parties in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall constitute one and the same
agreement. Signature pages may be detached from multiple separate counterparts and attached to a
single counterpart. Delivery of an executed signature page of this Agreement by facsimile
transmission or by Electronic Transmission shall be as effective as delivery of a manually executed
counterpart hereof.



     Section 8.10 Severability. Any provision of this Agreement being held
illegal, invalid or unenforceable in any jurisdiction shall not affect any part of such provision
not held illegal, invalid or unenforceable, any other provision of this Agreement or any part of
such provision in any other jurisdiction.



     Section 8.11 Governing Law. This Agreement 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.



     Section 8.12 Jurisdiction.



          (a) Submission to Jurisdiction. Any legal action or proceeding with respect to any
Loan Document may be brought in the courts of the State of New York located in the City of New
York, Borough of Manhattan, or of the United States of America for the Southern District of New
York and, by execution and delivery of this Agreement, each party hereto hereby accepts for itself
and in respect of its property, generally and unconditionally, the jurisdiction of the






26









 







aforesaid courts. The parties hereto (and, to the extent set forth in any other Loan
Document, each other Loan Party) hereby irrevocably waive any objection, including any objection to
the laying of venue or based on the grounds of forum non conveniens, that any of them may now or
hereafter have to the bringing of any such action or proceeding in such jurisdictions.




          (b) Service of Process. Each Grantor (and, to the extent set forth in any other Loan
Document, each other Loan Party) hereby irrevocably waives personal service of any and all legal
process, summons, notices and other documents and other service of process of any kind and consents
to such service in any suit, action or proceeding brought in the United States of America with
respect to or otherwise arising out of or in connection with any Loan Document by any means
permitted by applicable Requirements of Law, including by the mailing thereof (by registered or
certified mail, postage prepaid) to the address of the Borrower specified in Section 11.11
of the Credit Agreement (and shall be effective when such mailing shall be effective, as provided
therein). Each Grantor (and, to the extent set forth in any other Loan Document, each other Loan
Party) agrees that a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.




          (c) Non-Exclusive Jurisdiction. Nothing contained in this Section 8.12 shall
affect the right of the Administrative Agent or any Lender to serve process in any other manner
permitted by applicable Requirements of Law or commence legal proceedings or otherwise proceed
against any Grantor in any other jurisdiction.




     Section 8.13 Waiver of Jury Trial. Each party hereto hereby irrevocably
waives trial by jury in any suit, action or proceeding with respect to, or directly or indirectly
arising out of, under or in connection with, any loan document or the transactions contemplated
therein or related thereto (whether founded in contract, tort or any other theory). Each party
hereto (A) certifies that no other party and no Related Person of any other party has represented,
expressly or otherwise, that such other party would not, in the event of litigation, seek to
enforce the foregoing waiver and (B) acknowledges that it and the other parties hereto
have been induced to enter into this agreement by the mutual waivers and certifications in this
Section 8.12.



     Section 8.14 Subordination.



          (a) Each Grantor executing this Agreement covenants and agrees that the payment of all
indebtedness, principal, interest (including interest which accrues after the commencement of any
case or proceeding in bankruptcy, or for the reorganization of any Loan Party), fees, charges,
expenses, attorneys’ fees and any other sum, obligation or liability owing by any other Grantor to
such Grantor, including any intercompany trade payables or royalty or licensing fees (collectively,
the “Intercompany Obligations”), is subordinated, to the extent and in the manner provided
in this Section 8.14, to the prior payment in full of all Secured Obligations (other than
contingent indemnification obligations as to which no claim has been asserted) (herein, the
“Senior Obligations”) and that the subordination is for the benefit of Administrative Agent
and the other Secured Parties, and Administrative Agent may enforce such provisions directly.




          (b) Each Grantor executing this Agreement hereby (i) authorizes Administrative Agent to demand
specific performance of the terms of this Section 8.14, whether






27









 







or not any other Grantor shall have complied with any of the provisions hereof applicable to
it, at any time when such Grantor shall have failed to comply with any provisions of this
Section 8.14 which are applicable to it and (ii) irrevocably waives (to the maximum extent
permitted by Requirement of Law) any defense based on the adequacy of a remedy at law, which might
be asserted as a bar to such remedy of specific performance.




               (c) Upon any distribution of assets of any Loan Party in any dissolution, winding up,
liquidation or reorganization (whether in bankruptcy, insolvency or receivership proceedings or
upon an assignment for the benefit of creditors or otherwise):





          (i) Administrative Agent and other Secured Parties shall first be entitled to receive
payment in full in cash of the Senior Obligations before any Grantor is entitled to receive
any payment on account of the Intercompany Obligations.




          (ii) Any payment or distribution of assets of any Grantor of any kind or character,
whether in cash, property or securities, to which any other Grantor would be entitled
except for the provisions of this Section 8.14(c), shall be paid by the liquidating
trustee or agent or other Person making such payment or distribution directly to
Administrative Agent, to the extent necessary to make payment in full of all Senior
Obligations (other than contingent indemnification obligations as to which no claim has
been asserted) remaining unpaid after giving effect to any concurrent payment or
distribution or provisions therefore to Administrative Agent and the other Secured Parties.




          (iii) In the event that notwithstanding the foregoing provisions of this Section
8.14(c), any payment or distribution of assets of any Grantor of any kind or character,
whether in cash, property or securities, shall be received by any other Grantor on account
of the Intercompany Obligations before all Senior Obligations (other than contingent
indemnification obligations as to which no claim has been asserted) are paid in full, such
payment or distribution shall be received and held in trust for and shall be paid over to
Administrative Agent for application to the payment of the Senior Obligations (other than
contingent indemnification obligations as to which no claim has been asserted) until all of
the Senior Obligations (other than contingent indemnification obligations as to which no
claim has been asserted) shall have been paid in full, after giving effect to any
concurrent payment or distribution or provision therefore to Administrative Agent and other
Secured Parties.



               (d) No right of Administrative Agent and the other Secured Parties or any other present or
future holders of any Senior Obligations to enforce the subordination provisions herein shall at
any time in any way be prejudiced or impaired by any act or failure to act on the part of any
Grantor or by any act or failure to act, in good faith, by any such holder, or by any noncompliance
by any Grantor with the terms hereof, regardless of any knowledge thereof which any such holder may
have or be otherwise charged with.




[SIGNATURE PAGES FOLLOW]





28











 





     IN WITNESS WHEREOF, each of the undersigned has caused this Guaranty and Security
Agreement to be duly executed and delivered as of the date first above written.




	 	 	 	 	 
	 	BORROWER 



ALERE INC.,

     as Grantor

 	 
	 	By:  	/s/ David Teitel
 	 
	 	 	Name:  	David Teitel 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



[SIGNATURE PAGE TO GUARANTY AND SECURITY AGREEMENT FOR ALERE INC. CREDIT AGREEMENT]





 









 





     The following Persons are signatories to this Guaranty and Security Agreement in their
capacity as Grantors.



	 	 	 

	ALERE GENETICS, INC.

ALERE HEALTH IMPROVEMENT COMPANY

ALERE HEALTH SYSTEMS, INC.

ALERE HEALTH, LLC

ALERE HEALTHCARE OF ILLINOIS, INC.

ALERE HOME MONITORING, INC.

ALERE INTERNATIONAL HOLDING CORP.

ALERE MEDICAL, INC.

ALERE NEWCO, INC.

ALERE NEWCO II, INC.

ALERE NORTH AMERICA, INC.

ALERE OF NEW YORK, INC.

ALERE SAN DIEGO, INC.

ALERE SCARBOROUGH, INC.

ALERE US HOLDINGS, LLC

ALERE WELLBEING, INC.

ALERE WELLOLOGY, INC.

ALERE WOMEN’S AND CHILDREN’S HEALTH, LLC

	 	AMEDITECH INC.

BINAX, INC.

BIOSITE INCORPORATED

CHOLESTECH CORPORATION

FIRST CHECK DIAGNOSTICS CORP.

FIRST CHECK ECOM, INC.

HEMOSENSE, INC.

INNOVACON, INC.

INSTANT TECHNOLOGIES, INC.

INVERNESS MEDICAL, LLC

IVC INDUSTRIES, 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.,

as Grantors.






	 	 	 	 	 
	 	 	 
	 	By:  	                         /s/ David A. Teitel
 	 
	 	 	Name:  	David A. Teitel 	 
	 	 	 	 
	 



	 	 	 

	 

	 	Title (respectively): [Vice President & Treasurer, Vice
President, Finance, Vice President & Treasurer, Vice
President & Treasurer, Vice President, Finance, Vice
President, Finance, President, Vice President & Treasurer,
President, President, Vice President, Finance, Vice
President, Finance, Vice President, Finance, Vice
President, Finance, President, Vice President, Finance &
Treasurer, Vice President, Finance, Vice President,
Finance, General Manager, Vice President, Finance, Vice
President, Finance, Vice President, Finance & Chief
Financial Officer, Vice President, Finance, Vice
President, Treasurer, Vice President, Finance, Vice
President, Finance, Vice President, Finance, Vice
President, Vice President, Finance, Vice President,
Finance, Vice President, Finance & Treasurer, Vice
President, Finance, Vice President, Finance, President,
Vice President, Chief Financial Officer and Treasurer ]






[SIGNATURE PAGE TO GUARANTY AND SECURITY AGREEMENT FOR ALERE INC. CREDIT AGREEMENT]




 









 





	 	 	 	 	 
	 	(continued):



ALERE TOXICOLOGY SERVICES, INC.

LABORATORY SPECIALISTS OF AMERICA, INC.

SCIENTIFIC TESTING LABORATORIES, INC.,

as Grantors.

 	 
	 	By:  	/s/ Ellen V. Chiniara
 	 
	 	 	Name:  	Ellen V. Chiniara 	 
	 	 	Title (respectively): [Secretary, Secretary, Secretary] 	 
	 



[SIGNATURE PAGE TO GUARANTY AND SECURITY AGREEMENT FOR ALERE INC. CREDIT AGREEMENT]





 









 





	 	 	 	 	 
	 	ACCEPTED AND AGREED

as of the date first above written:



GENERAL ELECTRIC CAPITAL CORPORATION,

as Administrative Agent

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



[SIGNATURE PAGE TO GUARANTY AND SECURITY AGREEMENT FOR ALERE INC. CREDIT AGREEMENT]








 









 








ANNEX 1

TO

GUARANTY AND SECURITY AGREEMENT1




FORM OF PLEDGE AMENDMENT



     This PLEDGE AMENDMENT, dated as of __________ __, 20__, is delivered pursuant to Section
8.6 of the Guaranty and Security Agreement, dated as of June 30, 2011, by Alere Inc. (the
“Borrower”), the undersigned Grantor and the other Affiliates of the Borrower from time to
time party thereto as Grantors in favor of General Electric Capital Corporation, as administrative
agent and collateral agent for the Secured Parties referred to therein (the “Guaranty and
Security Agreement”). Capitalized terms used herein without definition are used as defined in
the Guaranty and Security Agreement.



     The undersigned hereby agrees that this Pledge Amendment may be attached to the Guaranty and
Security Agreement and that the Pledged Collateral listed on Annex 1-A to this Pledge
Amendment shall be and become part of the Collateral referred to in the Guaranty and Security
Agreement and shall secure all of the Obligations of the Loan Parties on the terms set forth
therein.



     The undersigned hereby represents and warrants that each of the representations and warranties
contained in Sections 4.1, 4.2, and 4.5 of the Guaranty and Security
Agreement is true and correct on and as of the date hereof with respect to the undersigned and the
Pledged Collateral on Annex 1-A to this Pledge Amendment as if made on and as of such date.



	 	 	 	 	 
	 	[GRANTOR]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



GUARANTY AND SECURITY AGREEMENT

ALERE INC.




 









 








Annex 1-A




PLEDGED STOCK



	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	NUMBER OF
	 	 	 	 	 	 	 	 	SHARES,
	 	 	 	 	 	 	 	 	UNITS OR
	ISSUER	 	CLASS	 	CERTIFICATE NO(S).	 	PAR VALUE	 	INTERESTS
	 	 	 	 	 	 	 	 	 





PLEDGED DEBT INSTRUMENTS 




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 	 	PRINCIPAL
	ISSUER	 	DESCRIPTION OF DEBT	 	CERTIFICATE NO(S).	 	FINAL MATURITY	 	AMOUNT
	 	 	 	 	 	 	 	 	 





GUARANTY AND SECURITY AGREEMENT

ALERE INC.




 









 








	 	 	 	 	 
	 	ACKNOWLEDGED AND AGREED

as of the date first above written:



GENERAL ELECTRIC CAPITAL CORPORATION

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



GUARANTY AND SECURITY AGREEMENT

ALERE INC.




 









 








ANNEX 2

TO

GUARANTY AND SECURITY AGREEMENT




FORM OF JOINDER AGREEMENT




     This JOINDER AGREEMENT, dated as of _________ __, 20__, is delivered pursuant to Section
8.6 of the Guaranty and Security Agreement, dated as of June 30, 2011, by Alere Inc. (the
“Borrower”) and the Affiliates of the Borrower from time to time party thereto as Grantors
in favor of the General Electric Capital Corporation, as administrative agent and collateral agent
for the Secured Parties referred to therein (the “Guaranty and Security Agreement”).
Capitalized terms used herein without definition are used as defined in the Guaranty and Security
Agreement.



     By executing and delivering this Joinder Agreement, the undersigned, as provided in
Section 8.6 of the Guaranty and Security Agreement, hereby becomes a party to the Guaranty
and Security Agreement as a Grantor thereunder with the same force and effect as if originally
named as a Grantor therein and, without limiting the generality of the foregoing, the undersigned
(i) as collateral security for the prompt and complete payment and performance when due (whether at
stated maturity, by acceleration or otherwise) of the Secured Obligations, hereby mortgages,
pledges and hypothecates to the Administrative Agent, for the benefit of the Secured Parties, and
grants to the Administrative Agent, for the benefit of the Secured Parties, a lien on and security
interest in, all of its right, title and interest in, to and under the Collateral on the terms set
forth in the Guaranty and Security Agreement of the undersigned and expressly assumes all
obligations and liabilities of a Grantor thereunder and (ii) hereby unconditionally and irrevocably
guarantees, as primary obligor and not merely as surety, the full and punctual payment when due,
whether at stated maturity or earlier, by reason of acceleration, mandatory prepayment or otherwise
in accordance with any Loan Document, of all the Guaranteed Obligations on the terms set forth in
the Guaranty and Security Agreement. The undersigned hereby agrees to be bound as a Grantor for
the purposes of the Guaranty and Security Agreement.



     The information set forth in Annex 1-A is hereby added to the information set forth in
Schedules 1 through 7 to the Guaranty and Security Agreement. By acknowledging and
agreeing to this Joinder Agreement, the undersigned hereby agree that this Joinder Agreement may be
attached to the Guaranty and Security Agreement and that the Pledged Collateral listed on Annex
1-A to this Joinder Amendment shall be and become part of the Collateral referred to in the
Guaranty and Security Agreement and shall secure all Secured Obligations of the Loan Parties on the
terms set forth in the Guaranty and Security Agreement.



     The undersigned hereby represents and warrants that each of the representations and warranties
contained in Article IV of the Guaranty and Security Agreement (as amended to reflect the
inclusion of the information set forth in Annex 1-A in Schedules 1 through
7 to the Guaranty and Security Agreement) applicable to it is true and correct with respect
to it on and as of the date hereof as if made on and as of such date (except for any
representations and warranties made as of an earlier date in which case such representations and
warranties shall be true and correct as of such earlier date).



     IN WITNESS WHEREOF, the undersigned has caused this Joinder Agreement to be duly executed and
delivered as of the date first above written.



GUARANTY AND SECURITY AGREEMENT

ALERE INC.




A2-1 









 





	 	 	 	 	 
	 	[ADDITIONAL GRANTOR] 

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



GUARANTY AND SECURITY AGREEMENT

ALERE INC.





A2-2 









 








	 	 	 	 	 
	 	ACKNOWLEDGED AND AGREED

as of the date first above written:





[EACH GRANTOR PLEDGING

ADDITIONAL COLLATERAL]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	GENERAL ELECTRIC CAPITAL CORPORATION

as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



GUARANTY AND SECURITY AGREEMENT

ALERE INC.









A2-3 









 








ANNEX 3

TO

GUARANTY AND SECURITY AGREEMENT




FORM OF INTELLECTUAL PROPERTY SECURITY AGREEMENT



          THIS INTELLECTUAL PROPERTY SECURITY AGREEMENT, dated as of June 30, 2011, is made by each of
the entities listed on the signature pages hereof (each a “Grantor” and, collectively, the
“Grantors”), in favor of General Electric Capital Corporation (“GE Capital”), as
administrative agent and collateral agent (in such capacity, together with its successors and
permitted assigns, the “Administrative Agent”) for the Lenders and the L/C Issuers and each
other Secured Party (as defined in the Credit Agreement referred to below).




W I T N E S S E T H:




          WHEREAS, pursuant to the Credit Agreement, dated as of June 30, 2011 (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit Agreement”), among the
Borrower, the Lenders and the L/C Issuers from time to time party thereto and Administrative Agent,
the Lenders and the L/C Issuers have severally agreed to make extensions of credit to the Borrower
upon the terms and subject to the conditions set forth therein;




          WHEREAS, each Grantor has agreed, pursuant to a Guaranty and Security Agreement of dated as
of June 30, 2011 herewith in favor of the Administrative Agent (the “Guaranty and Security
Agreement”), to guarantee the Obligations (as defined in the Credit Agreement) of the other
Loan Parties; and




          WHEREAS, all of the Grantors are party to the Guaranty and Security Agreement pursuant to
which the Grantors are required to execute and deliver this Intellectual Property Security
Agreement.




          NOW, THEREFORE, in consideration of the premises and to induce the Lenders, the L/C Issuers
and the Administrative Agent to enter into the Credit Agreement and to induce the Lenders and the
L/C Issuers to make or continue to make their respective extensions of credit to the Borrower
thereunder, each Grantor hereby agrees with the Administrative Agent as follows:





     Section 1. Defined Terms. Capitalized terms used herein without definition
are used as defined in the Guaranty and Security Agreement.



     Section 2. Grant of Security Interest in Intellectual Property Collateral.
Each Grantor, as collateral security for the prompt and complete payment and performance when due
(whether at stated maturity, by acceleration or otherwise) of the Secured Obligations on the terms
set forth in the Loan Documents, hereby mortgages, pledges and hypothecates to the Administrative
Agent, for the benefit of the Secured Parties, and grants to the Administrative Agent, for the
benefit of the Secured Parties, a Lien on and security interest in, all of its right, title and
interest in, to and under the following Collateral of such Grantor (the “Intellectual Property
Collateral”):



          (a) Copyrights.





          (i) all of its Copyrights and registrations and applications for registration thereof
and all registered IP Licenses and applications therefor providing for



A3-1 









 






the grant to such Grantor of any right under any Copyright, including, without
limitation, those referred to on Schedule 1A hereto;




     (ii) all renewals, reversions and extensions of the foregoing;




     (iii) all income, royalties, proceeds and Liabilities at any time due or payable or
asserted under and with respect to any of the foregoing, including, without limitation, all
rights to sue and recover at law or in equity for any past, present and future
infringement, misappropriation, dilution, violation or other impairment thereof, other
than, in the case of clauses (i) through (iii), with respect to Excluded Property.



        (b) Patents.





     (i) all of its registered Patents and applications for registration thereof and all
registered IP Licenses and applications therefor providing for the grant to such Grantor of
any right under any Patent, including, without limitation, those referred to on
Schedule 1B hereto;




     (ii) all reissues, reexaminations, continuations, continuations-in-part, divisionals,
renewals and extensions of the foregoing;




     (iii) all income, royalties, proceeds and Liabilities at any time due or payable or
asserted under and with respect to any of the foregoing, including, without limitation, all
rights to sue and recover at law or in equity for any past, present and future
infringement, misappropriation, dilution, violation or other impairment thereof, other
than, in the case of clauses (i) through (iii), with respect to Excluded Property.



        (c) Trademarks.





     (i) all of its Trademarks and applications for registration thereof and all registered
IP Licenses and applications therefor providing for the grant to such Grantor of any right
under any Trademark, including, without limitation, those referred to on Schedule
1C hereto;




     (ii) all renewals and extensions of the foregoing;




     (iii) all goodwill of the business connected with the use of, and symbolized by, each
such Trademark; and




     (iv) all income, royalties, proceeds and Liabilities at any time due or payable or
asserted under and with respect to any of the foregoing, including, without limitation, all
rights to sue and recover at law or in equity for any past, present and future
infringement, misappropriation, dilution, violation or other impairment thereof, other
than, in the case of clauses (i) through (iii), with respect to Excluded Property.



     Section 3. Guaranty and Security Agreement. The security interest granted
pursuant to this Intellectual Property Security Agreement is granted in conjunction with the
security interest granted to the Administrative Agent pursuant to the Guaranty and Security
Agreement and each Grantor hereby acknowledges and agrees that the rights and remedies of the
Administrative Agent with respect to the security interest in the Intellectual Property Collateral



A3-2 









 




made and granted hereby are more fully set forth in the Guaranty and Security Agreement, the
terms and provisions of which are incorporated by reference herein as if fully set forth herein.




     Section 4. Grantor Remains Liable. Each Grantor hereby agrees that, anything
herein to the contrary notwithstanding, such Grantor shall assume full and complete responsibility
for the prosecution, defense, enforcement or any other necessary or desirable actions in connection
with such Grantor’s Intellectual Property Collateral and IP Licenses subject to a security interest
hereunder.



     Section 5. Counterparts. This Intellectual Property Security Agreement may be
executed in any number of counterparts and by different parties in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Signature pages may be detached from multiple separate
counterparts and attached to a single counterpart.



     Section 6. Governing Law. This Intellectual Property Security Agreement 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.



[SIGNATURE PAGES FOLLOW]




A3-3 









 





ANNEX 3

TO

GUARANTY AND SECURITY AGREEMENT




     IN WITNESS WHEREOF, each Grantor has caused this Intellectual Property Security Agreement
to be executed and delivered by its duly authorized officer as of the date first set forth above.



	 	 	 	 	 
	 	BORROWER





ALERE INC.,

     as Grantor

 	 
	 	By:  	 	 
	 	 	Name:  	David Teitel 	 
	 	 	Title:  	Chief Financial Officer 	 
	 



[SIGNATURE PAGE TO INTELLECTUAL PROPERTY SECURITY AGREEMENT]





 









 









     The following Persons are signatories to this Intellectual Property Security Agreement in
their capacity as Grantors.



	 	 	 

	ALERE GENETICS, INC.

ALERE HEALTH IMPROVEMENT COMPANY

ALERE HEALTH SYSTEMS, INC.

ALERE HEALTH, LLC

ALERE HEALTHCARE OF ILLINOIS, INC.

ALERE HOME MONITORING, INC.

ALERE INTERNATIONAL HOLDING CORP.

ALERE MEDICAL, INC.

ALERE NEWCO, INC.

ALERE NEWCO II, INC.

ALERE NORTH AMERICA, INC.

ALERE OF NEW YORK, INC.

ALERE SAN DIEGO, INC.

ALERE SCARBOROUGH, INC.

ALERE US HOLDINGS, LLC

ALERE WELLBEING, INC.

ALERE WELLOLOGY, INC.

ALERE WOMEN’S AND CHILDREN’S HEALTH, LLC

	 	AMEDITECH INC.

BINAX, INC.

BIOSITE INCORPORATED

CHOLESTECH CORPORATION

FIRST CHECK DIAGNOSTICS CORP.

FIRST CHECK ECOM, INC.

HEMOSENSE, INC.

INNOVACON, INC.

INSTANT TECHNOLOGIES, INC.

INVERNESS MEDICAL, LLC

IVC INDUSTRIES, 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.,

as Grantors.






	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	David A. Teitel 	 
	 	 	 	 
	 



	 	 	 

	 

	 	Title (respectively): [Vice President & Treasurer, Vice
President, Finance, Vice President & Treasurer, Vice
President & Treasurer, Vice President, Finance, Vice
President, Finance, President, Vice President & Treasurer,
President, President, Vice President, Finance, Vice
President, Finance, Vice President, Finance, Vice
President, Finance, President, Vice President, Finance &
Treasurer, Vice President, Finance, Vice President,
Finance, General Manager, Vice President, Finance, Vice
President, Finance, Vice President, Finance & Chief
Financial Officer, Vice President, Finance, Vice
President, Treasurer, Vice President, Finance, Vice
President, Finance, Vice President, Finance, Vice
President, Vice President, Finance, Vice President,
Finance, Vice President, Finance & Treasurer, Vice
President, Finance, Vice President, Finance, President,
Vice President, Chief Financial Officer and Treasurer ]






[SIGNATURE PAGE TO INTELLECTUAL PROPERTY SECURITY AGREEMENT]






 









 








	 	 	 	 	 
	 	(continued):



ALERE TOXICOLOGY SERVICES, INC.

LABORATORY SPECIALISTS OF AMERICA, INC.

SCIENTIFIC TESTING LABORATORIES, INC.,

as Grantors.

 	 
	 	By:  	 	 
	 	 	Name:  	Ellen V. Chiniara 	 
	 	 	Title (respectively): [Secretary, Secretary, Secretary] 	 
	 



[ACKNOWLEDGEMENT OF GRANTOR FOR INTELLECTUAL PROPERTY SECURITY AGREEMENT]







A3-2 









 








	 	 	 	 	 
	 	ACCEPTED AND AGREED

as of the date first above written:


GENERAL ELECTRIC CAPITAL CORPORATION,

     as Administrative Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[ACKNOWLEDGEMENT OF GRANTOR FOR INTELLECTUAL PROPERTY SECURITY AGREEMENT]





A3-3 









 








SCHEDULE 1A

TO

INTELLECTUAL PROPERTY SECURITY AGREEMENT





	A.	 	REGISTERED COPYRIGHTS
	 
	 	 	[Include Owner, Registration Number and Date]
	 
	B.	 	COPYRIGHT APPLICATIONS
	 
	 	 	[Include Owner, Application Number and Date]
	 
	C.	 	REGISTERED IP LICENSES AND ANY APPLICATIONS THEREFOR
	 
	 	 	[Include complete legal description of agreement (name of agreement, parties and date)]





[INTELLECTUAL PROPERTY SECURITY AGREEMENT]




A3-I





 









 








SCHEDULE 1B

TO

INTELLECTUAL PROPERTY SECURITY AGREEMENT





	A.	 	REGISTERED PATENTS
	 
	 	 	[Include Owner, Registration Number and Date]
	 
	B.	 	PATENT APPLICATIONS
	 
	 	 	[Include Owner, Application Number and Date]
	 
	C.	 	REGISTERED IP LICENSES AND ANY APPLICATIONS THEREFOR
	 
	 	 	[Include complete legal description of agreement (name of agreement, parties and date)]





[INTELLECTUAL PROPERTY SECURITY AGREEMENT]




A3-II



 









 





SCHEDULE 1C

TO

INTELLECTUAL PROPERTY SECURITY AGREEMENT





	D.	 	REGISTERED TRADEMARKS
	 
	 	 	[Include Owner, Registration Number and Date]
	 
	E.	 	TRADEMARK APPLICATIONS
	 
	 	 	[Include Owner, Application Number and Date]
	 
	F.	 	REGISTERED IP LICENSES AND ANY APPLICATIONS THEREFOR
	 
	 	 	[Include complete legal description of agreement (name of agreement, parties and date)]





[INTELLECTUAL PROPERTY SECURITY AGREEMENT]




A3-III