Exhibit 10.2


 


QUIDEL CORPORATION


 


FOURTH AMENDMENT TO CREDIT AGREEMENT


 


This FOURTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is dated as of September 27, 2007 and entered
into by and among QUIDEL CORPORATION, a Delaware corporation (“Borrower”), the financial institutions listed on the
signature pages hereof (“Lenders”), and BANK OF AMERICA, N.A., a
national banking association, as agent for Lenders (in such capacity,  “Agent”), and, for purposes of Section 5
hereof, each of the Guarantors listed on the signature pages hereof (“Guarantors”), and is made with reference to that certain
Credit Agreement dated as of January 31, 2005, as amended to the date hereof by
that certain Limited Waiver of Credit Agreement dated as of May 10, 2005, as
further amended by that certain First Amendment to Credit Agreement dated as of
June 24, 2005, as further amended by that certain Second Amendment to Credit
Agreement dated as of September 1, 2005, and as further amended by that certain
Third Amendment to Credit Agreement dated as of April 5, 2007 (as so
amended, the “Credit Agreement”), by and among
Borrower, Lenders and Agent.  Capitalized
terms used herein without definition shall have the same meanings herein as set
forth in the Credit Agreement.


 


RECITALS


 


WHEREAS, Borrower and Lenders desire to
amend the Credit Agreement as set forth below;


 


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


 


Section 1.              AMENDMENT
TO THE CREDIT AGREEMENT


 


The
Credit Agreement is hereby amended in its entirety to read in full as set forth
on Exhibit A hereto.


 


Section 2.              CONDITIONS
TO EFFECTIVENESS


 


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


 


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


 


(i)            A
good standing certificate of Borrower from the Secretary of State of the State
of Delaware, dated a recent date prior to the Fourth Amendment Effective Date;


 

















 


(ii)           A
certificate, dated as of the Fourth Amendment Effective Date, of its corporate
secretary or an assistant secretary of Borrower, certifying that there have
been no changes in its Certificate of Incorporation and its Bylaws from the
form of Certificate of Incorporation and Bylaws previously delivered to
Lenders;


 


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


 


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


 


(v)           Executed
copies of this Amendment executed by Borrower and each Guarantor.


 


B.            On
or before the Fourth Amendment Effective Date, Borrower shall pay to counsel to
Agent all outstanding Attorney Costs owing to counsel to Agent (including
Attorney Costs incurred in connection with this Amendment).


 


C.            On
or before the Fourth Amendment Effective Date, all corporate and other
proceedings taken or to be taken in connection with the transactions
contemplated hereby and all documents incidental thereto not previously found
acceptable by Agent, acting on behalf of Lenders, and its counsel shall be
satisfactory in form and substance to Agent and such counsel, and Agent and
such counsel shall have received all such counterpart originals or certified
copies of such documents as Agent may reasonably request.


 


Section 3.              BORROWER’S
REPRESENTATIONS AND WARRANTIES


 


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


 


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


 


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


 


C.            No
Conflict.  The execution and delivery
by each Loan Party of this Amendment and the performance by such Loan Party of
the Amended Agreement and the other Loan Documents do not and will not (i)
violate any provision of any law or any governmental rule or regulation
applicable to such Loan Party or any of its Subsidiaries, the Certificate or
Articles of Incorporation or Bylaws of such Loan Party or any of its
Subsidiaries or any order, judgment or 


 


2

















 


decree of any
court or other agency of government binding on such Loan Party or any of its
Subsidiaries, (ii) conflict with, result in a breach of or constitute (with due
notice or lapse of time or both) a default under any Contractual Obligation of
such Loan Party or any of its Subsidiaries, (iii) result in or require the
creation or imposition of any Lien upon any of the properties or assets of such
Loan Party or any of its Subsidiaries, or (iv) require any approval of
stockholders or any approval or consent of any Person under any Contractual
Obligation of such Loan Party or any of its Subsidiaries.


 


D.            Governmental
Consents.  The execution and delivery
by Borrower and Guarantors of this Amendment and the performance by Borrower
and Guarantors of the Amended Agreement and the other Loan Documents do not and
will not require any registration with, consent or approval of, or notice to,
or other action to, with or by, any federal, state or other governmental
authority or regulatory body.


 


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


 


F.             Incorporation
of Representations and Warranties From Credit Agreement.  The representations and warranties contained
in Section 5 of the Credit Agreement are and will be true, correct and
complete in all material respects on and as of the Fourth Amendment Effective
Date to the same extent as though made on and as of that date, except to the
extent such representations and warranties specifically relate to an earlier
date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.


 


G.            Absence
of Default.  No event has occurred
and is continuing or will result from the consummation of the transactions
contemplated by this Amendment that would constitute a Default or an Event of
Default.


 


Section 4.              COLLATERAL


 


A.            Termination.  As of the Fourth Amendment Effective Date, (i)
the Security Agreement, Control Agreements and any and all other agreements,
instruments and documents in effect as of the Fourth Amendment Effective Date pursuant
to which Liens are granted or purported to be granted to Agent in Collateral
securing all or part of the Obligations will be automatically terminated and of
no further force and effect and (ii) all Liens granted by the Loan Documents to
secure the Obligations under the Credit Agreement and other Loan Documents in
effect as of the Fourth Amendment Effective Date will be automatically
terminated and released and of no further force and effect without any further
action by Agent or Lenders.


 


B.            Deliveries
by Agent.  As soon as practicable
after the Fourth Amendment Effective Date, Agent (a) shall deliver to Borrower
(i) a UCC-3 termination statement with respect to each UCC-1 financing statement
filed in connection with Loan Documents (and Agent and each Lender hereby
authorize Borrower to file such UCC-3 termination statements on behalf 


 


3

















 


of the Agent and
the Lenders), and (ii) each original certificate (or an affidavit of loss with
respect thereto) set forth on Schedule I hereto and (b) will execute terminations
of the Control Agreements and such other documents and instruments and take
such other actions, in each case as required under Law to release any remaining
Liens on the Collateral.


 


Section 5.              MISCELLANEOUS


 


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


 


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


 


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


 


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


 


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


 


C.            Headings.  Section and subsection headings in
this Amendment are included herein for convenience of reference only and shall
not constitute a part of this Amendment for any other purpose or be given any
substantive effect.


 


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


 


E.             Counterparts;
Effectiveness.  This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. 
This Amendment (other than the provisions of 


 


4

















 


Section 1
hereof, the effectiveness of which is governed by Section 2 hereof) shall
become effective upon the execution of a counterpart hereof by Borrower and all
Lenders and receipt by Borrower and Agent of written or telephonic notification
of such execution and authorization of delivery thereof.  This Amendment is an amendment of the Credit
Agreement and is not an amendment and restatement of the Credit Agreement.


 


Section 6.              ACKNOWLEDGEMENT
AND CONSENT BY GUARANTORS


 


Each
Guarantor hereby acknowledges that it has read this Amendment and consents to
the terms thereof, and hereby confirms and agrees that, notwithstanding the
effectiveness of this Amendment, the obligations of each Guarantor under its
applicable Guaranty shall not be impaired or affected and the applicable
Guaranty are, and shall continue to be, in full force and effect and is hereby
confirmed and ratified in all respects. 
Each Guarantor further agrees that nothing in the Credit Agreement, this
Amendment or any other Loan Document shall be deemed to require the consent of
such Guarantor to any future amendment to the Credit Agreement.


 


5

















 


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


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  QUIDEL
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John M.
  Radak

  	
   

  
	
   

  	
  Name: John M.
  Radak

  
	
   

  	
  Title: Chief
  Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  PACIFIC BIOTECH,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John M.
  Radak

  	
   

  
	
   

  	
  Name: John M.
  Radak

  
	
   

  	
  Title: Secretary
  & Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  METRA BIOSYSTEMS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John M.
  Radak

  	
   

  
	
   

  	
  Name: John M.
  Radak

  
	
   

  	
  Title: Secretary
  & Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OSTEO SCIENCES
  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John M.
  Radak

  	
   

  
	
   

  	
  Name: John M.
  Radak

  
	
   

  	
  Title: Secretary
  & Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LITMUS CONCEPTS,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John M.
  Radak

  	
   

  
	
   

  	
  Name: John M.
  Radak

  
	
   

  	
  Title: Secretary
  & Treasurer

  



 


[Signature Page to Fourth
Amendment]


 

















 


	
   

  	
  BANK OF AMERICA, N.A., as Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Geoffrey C.
  Wilson

  	
   

  
	
   

  	
  Name: Geoffrey
  C. Wilson

  
	
   

  	
  Title: Vice
  President

  



 


[Signature Page to Fourth
Amendment]


 

















 


	
   

  	
  BANK OF AMERICA, N.A., as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Geoffrey C.
  Wilson

  	
   

  
	
   

  	
  Name: Geoffrey
  C. Wilson

  
	
   

  	
  Title: Vice
  President

  



 


[Signature Page to Fourth
Amendment]


 

















 


EXHIBIT A


 


CREDIT AGREEMENT


 


See
Attached


 

















 


SCHEDULE I


 


ORIGINAL
CERTIFICATES


 


	
  COMPANY

  	
   

  	
  HOLDER

  	
   

  	
  CERTIFICATE

  NO.

  	
   

  	
  SHARES

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Litmus Concepts,
  Inc.

  	
   

  	
  Quidel Corporation

  	
   

  	
  C-1

  	
   

  	
  1,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Metra
  Biosystems, Inc.

  	
   

  	
  Quidel Corporation

  	
   

  	
  C-1

  	
   

  	
  1,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Osteo Sciences
  Corporation

  	
   

  	
  Metra Biosystems, Inc.

  	
   

  	
  C-1

  	
   

  	
  100

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Pacific Biotech,
  Inc.

  	
   

  	
  Quidel Corporation

  	
   

  	
  C-1

  	
   

  	
  100