Exhibit 10.2


 


SECOND AMENDMENT TO THIRD AMENDED AND RESTATED
CREDIT AGREEMENT


SECOND
AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November
8, 2005 (this “Amendment”), to the Third Amended and Restated Credit
Agreement, dated as of June 30, 2005 (as amended, supplemented or otherwise
modified from time to time, the “Credit Agreement”), by and among
General Electric Capital Corporation, as Agent (in such capacity, “Agent”),
Inverness Medical Innovations, Inc. (“Innovations”), Wampole
Laboratories, LLC and Inverness Medical (UK) Holdings Limited, as borrowers (“Borrowers”),
the other Credit Parties signatory thereto, Merrill Lynch Capital, a division
of Merrill Lynch Business Financial Services Inc., as documentation agent,
co-syndication agent and lender, UBS Securities LLC, as co-syndication agent,
and the lenders signatory thereto from time to time (collectively, the “Lenders”).


W I  T  N  E  S  S
E  T  H


WHEREAS,
Agent and Requisite Lenders have agreed to amend the Credit Agreement in the manner,
and on the terms and conditions, provided for herein.


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


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


2.             Amendment to Credit Agreement. Clause (a) of Annex F to
the Credit Agreement is hereby amended as of the Effective Date (as hereinafter
defined) by deleting the ratio set forth opposite “September 30, 2005” in its
entirety and replacing it with “.68:1.00”.


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


4.             Representations and Warranties. To induce Agent and Requisite Lenders
to enter into this Amendment, the Credit Parties hereby, jointly and severally,
represent and warrant that:


(a)           The execution, delivery and performance by each Credit
Party of this Amendment and the performance of the Credit Agreement, as amended
by this Amendment (the “Amended Credit Agreement”): (i) are within
such Person’s corporate, company or partnership power; (ii) have been (or
will be prior to execution thereof) duly authorized by all necessary corporate,
limited liability company or limited partnership action; (iii) do not
contravene any provision of such Person’s charter, bylaws or equivalent
constitutive documents or partnership or operating agreement, as applicable;
(iv) do not violate any law or regulation, or any order or decree of any
court or Governmental Authority; (v) do not conflict with or result in the
breach or termination of, constitute a default under or accelerate or permit
the acceleration of


 


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any performance required by, any indenture, mortgage,
deed of trust, lease, agreement or other instrument to which such Person is a
party or by which such Person or any of its property is bound; (vi) do not
result in the creation or imposition of any Lien upon any of the property of
such Person, other than a Lien in favor of Agent; and (vii) do not require
the consent or approval of any Governmental Authority or any other Person
except those which will have been duly obtained, made or complied with prior to
the Effective Date.


(b)           This Amendment has been duly executed and delivered by
or on behalf of each of the Credit Parties.


(c)           This Amendment, the Amended Credit Agreement and each
of the other Loan Documents constitutes a legal, valid and binding obligation
of each of the Credit Parties, enforceable against each of them in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
fraudulent conveyance or transfer or other laws affecting creditors’ rights
generally or by equitable principals of general applicability.


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


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


(f)            The representations and warranties of the Credit
Parties contained in the Amended Credit Agreement and each other Loan Document
shall, after giving effect hereto, be true and correct on and as of (i) the
date hereof, and (ii) the Effective Date, in each case, with the same effect as
if such representations and warranties had been made on and as of such date,
except that any such representation or warranty which is expressly made only as
of a specified date need be true only as of such date.


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


6.             Affirmation of Obligations. Each of the Credit Parties hereby
acknowledges, agrees and affirms (a) its obligations under the Credit Agreement
and the other


 


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Loan Documents, including, without limitation, its
guaranty obligations thereunder, (b) that such guaranty shall apply to the
Obligations in accordance with the terms thereof, (c) the grant of the security
interest in all of its assets pursuant to the Loan Documents and (d) that such
liens and security interests created and granted are valid and continuing and
secure the Obligations in accordance with the terms thereof.


7.             Outstanding Indebtedness; Waiver of Claims. Each of Borrowers and the other Credit
Parties hereby acknowledges and agrees that as of November 8, 2005, (a) the
outstanding balance of the European Revolving Loan is $25,000,000, (b) the
outstanding balance of the US Revolving Loan is $56,000,000, (c) the
outstanding balance of the US Term Loan is $0, and (d) the outstanding balance
of European Term Loan is $0. Borrowers and each other Credit Party hereby
waive, release, remise and forever discharge Agent, Lenders and each other
Indemnified Person from any and all claims, suits, actions, investigations,
proceedings or demands arising out of or in connection with the Credit
Agreement (collectively, “Claims”), whether based in contract, tort,
implied or express warranty, strict liability, criminal or civil statute or
common law of any kind or character, known or unknown, which any Borrower or
any other Credit Party ever had, now has or might hereafter have against Agent
or Lenders which relates, directly or indirectly, to any acts or omissions of
Agent, Lenders or any other Indemnified Person on or prior to the Effective
Date, provided, that no Borrower nor any other Credit Party waives any
Claim solely to the extent such Claim relates to Agent’s or any Lender’s gross
negligence or willful misconduct.


8.             Fees and Expenses. Borrowers hereby reconfirm their obligations
pursuant to Section 11.3 of the Credit Agreement to pay and reimburse
Agent for all reasonable costs and expenses (including, without limitation,
reasonable fees of counsel) incurred in connection with the negotiation, preparation,
execution and delivery of this Amendment and all other documents and
instruments delivered in connection herewith..


9.             Effectiveness. Upon satisfaction in full in the judgment of Agent
of each of the following conditions, this Amendment shall be deemed effective
as of September 30, 2005 (the “Effective Date”):


(a)           Amendment. Agent shall have received signature pages to this
Amendment, duly executed and delivered by Agent, Requisite Lenders, and each of
the Credit Parties.


(b)           Payment of Fees and Expenses. Borrowers shall have paid to Agent all
costs, fees and expenses owing in connection with this Amendment and the other
Loan Documents and due to Agent (including, without limitation, reasonable
legal fees and expenses).


(c)           Representations and Warranties. The representations and warranties of
or on behalf of each of the Credit Parties in this Amendment shall be true and
correct on and as of the date hereof and the Effective Date.


(d)           Compliance Certificate. Borrowers shall have delivered to Agent and each
Lender a Compliance Certificate evidencing compliance with each of the
Financial Covenants for the period ended September 30, 2005, after giving
effect to this Amendment.


 


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10.           GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND INTERPRETED
IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.


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


 


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


	
   

  	
  BORROWERS

  
	
   

  	
   

  
	
   

  	
  WAMPOLE
  LABORATORIES, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duane L.
  James

  
	
   

  	
  Name:

  	
  Duane L. James

  
	
   

  	
  Title:

  	
  Treasurer

  



 


	
   

  	
  INVERNESS
  MEDICAL (UK) HOLDINGS LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Scott

  
	
   

  	
  Name:

  	
  David Scott

  
	
   

  	
  Title:

  	
  Chairman

  



 





















 


 


	
   

  	
  AGENT
  AND LENDERS

  
	
   

  	
   

  
	
   

  	
  GENERAL ELECTRIC
  CAPITAL

  
	
   

  	
  CORPORATION, as
  Agent and Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ illegible

  
	
   

  	
   

  	
  Duly Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
  MERRILL LYNCH
  CAPITAL, a division of Merrill Lynch Business Financial Services Inc., as a
  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ illegible

  
	
   

  	
   

  	
  Duly Authorized
  Signatory

  
	
   

  	
   

  
	
   

  	
  UBS AG, CAYMAN
  ISLANDS BRANCH, as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard L.
  Tavrow

  
	
   

  	
   

  	
  Duly Authorized
  Signatory

  
	
   

  	
   

  	
  Director

  Banking Products

  Services, US

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Irja R. Otsa

  
	
   

  	
   

  	
  Duly Authorized
  Signatory

  
	
   

  	
   

  	
  Associate
  Director

  Banking Products

  Services, US

  



 





















 


The
following Persons are signatories to this Amendment in their capacity as Credit
Parties and not as Borrowers.


	
   

  	
  APPLIED BIOTECH,
  INC.

  
	
   

  	
  ADVANTAGE
  DIAGNOSTICS CORPORATION

  
	
   

  	
  FOREFRONT
  DIAGNOSTICS, INC.

  
	
   

  	
  INVERNESS
  MEDICAL INTERNATIONAL HOLDING CORP.

  
	
   

  	
  INVERNESS
  MEDICAL INTERNATIONAL HOLDING CORP. II

  
	
   

  	
  INVERNESS
  MEDICAL, INC.

  
	
   

  	
  INNOVATIONS
  RESEARCH, LLC

  
	
   

  	
  ISCHEMIA
  TECHNOLOGIES, INC.

  
	
   

  	
  IVC INDUSTRIES,
  INC.

  
	
   

  	
  MORPHEUS
  ACQUISITION CORP.

  
	
   

  	
  OSTEX
  INTERNATIONAL, INC.

  
	
   

  	
  SELFCARE
  TECHNOLOGY, INC.

  
	
   

  	
  UNIPATH ONLINE,
  INC.

  
	
   

  	
  BINAX, INC.

  
	
   

  	
  INVERNESS
  MEDICAL — BIOSTAR, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duane L.
  James

  
	
   

  	
  Name:

  	
  Duane L. James

  
	
   

  	
  Title:

  	
  Treasurer,
  Treasurer, Treasurer, Treasurer, Treasurer, Treasurer, Treasurer, Treasurer, Treasurer,
  Treasurer, Treasurer, Treasurer, Treasurer, Vice President, Treasurer, respectively

  



 





















 


	
   

  	
  CAMBRIDGE
  DIAGNOSTICS IRELAND LIMITED

  
	
   

  	
  DMD, DIENSTLEISTUNGEN & VERTRIEB FÜR MEDIZIN UND
  DIAGNOSTIK GMBH

  
	
   

  	
  INVERNESS
  MEDICAL CANADA, INC.

  
	
   

  	
  INVERNESS
  MEDICAL EURASIA LIMITED

  
	
   

  	
  INVERNESS
  MEDICAL FRANCE SAS

  
	
   

  	
  INVERNESS
  MEDICAL GERMANY GMBH

  
	
   

  	
  ORGENICS INTERNATIONAL
  HOLDINGS BV

  
	
   

  	
  SCANDINAVIAN
  MICRO BIODEVICES APS

  
	
   

  	
  STIRLING MEDICAL
  INNOVATIONS LIMITED

  
	
   

  	
  INVERNESS
  MEDICAL SWITZERLAND GMBH

  
	
   

  	
  UNIPATH
  DIAGNOSTICS GMBH

  
	
   

  	
  VIVA DIAGNOSTIKA
  - DIAGNOSTISCHE PRODUKTE GMBH

  
	
   

  	
  INVERNESS
  MEDICAL JAPAN, LTD.

  
	
   

  	
  INVERNESS
  MEDICAL INNOVATIONS, INC.

  
	
   

  	
  INVERNESS
  MEDICAL IBERICA, S.A.

  
	
   

  	
  BOSWELL
  INVESTMENTS, S.L.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Duane L.
  James

  
	
   

  	
  Name:

  	
  Duane L. James

  
	
   

  	
  Title:

  	
  Authorized
  Person, Authorized Person, Authorized Person, Authorized Person, Authorized
  Person, Authorized Person, Authorized Person, Authorized Person, Authorized
  Person, Authorized Person, Authorized Person, Authorized Person, Authorized
  Person, Authorized Person, Treasurer, Authorized Person, Authorized Person
  respectively

  
	
   

  	
   

  	
   

  
	
   

  	
  INVERNESS
  MEDICAL INVESTMENTS, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jay McNamara

  
	
   

  	
  Name:

  	
  Jay McNamara

  
	
   

  	
  Title:

  	
  Assistant
  Secretary

  
	
   

  	
   

  	
   

  
	
   

  	
  INVERNESS
  MEDICAL CANADA, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Doug
  Schaffer

  
	
   

  	
  Name:

  	
  Doug Shaffer

  
	
   

  	
  Title:

  	
  President

  



 





















 


	
   

  	
  UNIPATH LIMITED

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Scott

  
	
   

  	
  Name:

  	
  David Scott

  
	
   

  	
  Title:

  	
  Chairman