Exhibit 10.28
NINTH AMENDMENT AND CONSENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT
NINTH AMENDMENT AND CONSENT TO THIRD AMENDED AND RESTATED CREDIT
AGREEMENT, dated as of November 10, 2006 (this "Amendment"), to the Third
Amended and Restated Credit Agreement dated as of June 30, 2005 (as amended,
restated, 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 ("US Borrower") and Inverness Medical (UK) Holdings
Limited ("European Borrower", together with US Borrower, collectively,
"Borrowers"), the other Credit Parties signatory thereto, Merrill Lynch Capital,
a division of Merrill Lynch Business Financial Services Inc., as documentation
agent and co-syndication agent, and the lenders signatory thereto from time to
time (collectively, the "Lenders").
WITNESSETH
WHEREAS, Borrowers have informed Agent that Innovations or one of the
other Credit Parties intends to make one or more purchases (collectively, the
"Aztec Investments") of a portion of the common stock (the "Aztec Stock") of a
certain company previously identified to Agent and Lenders and having the
assumed name Aztec ("Aztec") for aggregate consideration not to exceed
$75,000,000;
WHEREAS, Borrowers have further informed Agent that Innovations or one
of the other Credit Parties intends to purchase (the "First Check Acquisition")
100% of the common stock (the "First Check Stock") of First Check Diagnostics,
Inc. ("First Check") payable in an initial amount of $25,000,000 in cash (the
"Initial First Check Payment") plus additional contingent payments based on
future earnings over two years following the Initial First Check Payment if
certain "earnout" targets to be set forth in the related acquisition documents
are met (the "First Check Earnout Payments");
WHEREAS, Borrowers have further informed Agent that Innovations or one
of the other Credit Parties intends to purchase (the "Instant Technologies
Investment") approximately 42% of the common stock (the "Instant Technologies
Stock") of Instant Technologies, Inc. ("Instant Technologies") in an aggregate
amount not to exceed $25,000,000;
WHEREAS, Borrowers have informed Agent that Innovations intends to
make a loan (the "Employee Loan") to an employee of Innovations consistent with
the terms of an offer letter previously provided to Agent, in an amount not to
exceed $220,000, to permit such employee to exercise options to purchase shares
of employee's previous employer required to be exercised following his
termination of employment with such previous employer;
WHEREAS, Borrowers have requested that Agent and Requisite Lenders
consent, and Agent and Requisite Lenders have agreed to consent, to the Aztec
Investments, the First Check Acquisition, the Instant Technologies Investment
and the Employee Loan on the terms and subject to the conditions set forth
herein; and
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WHEREAS, Borrowers have also requested that Agent and Requisite
Lenders amend the Credit Agreement, and Agent and Requisite Lenders have agreed
to amend the Credit Agreement, on the terms and subject to the conditions set
forth 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,
including in the recitals, shall have the meanings ascribed to them in the
Credit Agreement.
2. Amendments to Credit Agreement.
(a) Amendment to Section 3.10 of the Credit Agreement. Section
3.10 of the Credit Agreement is hereby amended, as of the Ninth Amendment
Effective Date (as hereinafter defined), by amending and restating such Section
as follows:
"3.10 Margin Regulations. No Credit Party is engaged, nor will it
engage, principally or as one of its important activities, in the
business of extending credit for the purpose of "purchasing" or
"carrying" any "margin stock" as such terms are defined in Regulation
U of the Federal Reserve Board as now and from time to time hereafter
in effect (such securities being referred to herein as "Margin
Stock"). None of the proceeds of the Loans or other extensions of
credit under this Agreement will be used, directly or indirectly, for
the purpose of purchasing or carrying any Margin Stock (other than to
purchase the Aztec Stock otherwise specifically permitted to be
acquired), for the purpose of reducing or retiring any Indebtedness
that was originally incurred to purchase or carry any Margin Stock or
for any other purpose (other than to purchase the Aztec Stock
otherwise specifically permitted to be acquired) that might cause any
of the Loans or other extensions of credit under this Agreement to be
considered a "purpose credit" within the meaning of Regulations T, U
or X of the Federal Reserve Board. No Credit Party will take or permit
to be taken any action that might cause any Loan Document to violate
any regulation of the Federal Reserve Board."
(b) Amendment to Section 6.1 of the Credit Agreement. Section 6.1
of the Credit Agreement is hereby amended, as of the Ninth Amendment Effective
Date, by amending and restating such Section as follows:
"6.1 Mergers, Subsidiaries, Etc. No Credit Party shall directly or
indirectly, by operation of law or otherwise, (a) merge with,
consolidate with, acquire all or substantially all of the assets or
Stock of, or otherwise combine with or acquire, any Person, except
that (i) any wholly-owned Subsidiary of US Borrower may merge with US
Borrower so long as US Borrower is the survivor thereof, (ii) any
wholly-owned Subsidiary of European Borrower may merge with European
Borrower so long as European Borrower is the survivor thereof, (iii)
any US Credit Party (other than Innovations and US Borrower) may merge
with any other US Credit Party (other than Innovations and US
Borrower), (iv) any European
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Credit Party (other than European Borrower) may merge with any other
European Credit Party (other than European Borrower), and (v)
Innovations, Swissco and Inverness Japan may consummate the
Acquisition in accordance with the Acquisition Agreement or (b) except
for the formation of any Subsidiary or any acquisition of all of the
Stock of any Person (an "Acquisition Subsidiary") solely for the
purpose of consummating an acquisition which is reasonably expected to
be a Permitted Acquisition or for which the Credit Parties are seeking
approval of the Requisite Lenders and provided that (A) prior to the
consummation of such acquisition (I) such Acquisition Subsidiary shall
constitute an Excluded US Subsidiary or Excluded European Subsidiary,
as applicable (and, after consummation of such acquisition, shall
constitute a US Credit Party or European Credit Party, as applicable),
(II) such Acquisition Subsidiary shall hold no assets (other than the
greater of $10,000 and any minimum capital required by law), (III)
such Acquisition Subsidiary shall not conduct any business and (IV) no
Credit Party shall transfer any funds or other assets to such
Acquisition Subsidiary other than capital contributions permitted
under the foregoing clause (II) and as necessary to consummate a
Permitted Acquisition, and (B) such Acquisition Subsidiary shall be
dissolved and the assets of such Acquisition Subsidiary shall be
distributed to a Credit Party if (I) such Permitted Acquisition is not
consummated within 120 days following the formation or acquisition of
such Acquisition Subsidiary, or (II) the Credit Parties do not receive
the consent of Requisite Lenders to such acquisition within 120 days
following the formation or acquisition of such Acquisition Subsidiary,
form any Subsidiary or acquire all or substantially all of the assets
or Stock of any Person without the prior written consent of Requisite
Lenders. Notwithstanding the foregoing, any Credit Party may acquire
all or substantially all of the assets or Stock of any Person (or in
the case of an asset acquisition of substantially all of the assets of
a business line or division of a Person) (the "Target") (in each case,
a "Permitted Acquisition"), subject to the satisfaction of each of the
following conditions:
(i) Agent shall receive at least three (3) Business Days prior written
notice of such proposed Permitted Acquisition together with draft
acquisition documentation in connection with such Permitted
Acquisition, which notice shall include a reasonably detailed
description of such proposed Permitted Acquisition (Agent hereby
agreeing to provide copies of such notice to the Lenders of any such
Permitted Acquisition at the time such entity acquired becomes a
Credit Party under the Credit Agreement, and for assets being acquired
in connection with such Permitted Acquisition, when such assets
constitute Collateral);
(ii) such Permitted Acquisition shall only involve assets comprising a
business, or those assets of a business, of the type engaged in by
Borrowers as of the Closing Date, and which business would not subject
Agent or any Lender to regulatory or third party approvals in
connection with the exercise of its rights and remedies under this
Agreement or any other Loan Documents other than approvals applicable
to the exercise of such rights and remedies with respect to Borrowers
prior to such Permitted Acquisition;
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(iii) such Permitted Acquisition shall be consensual and shall have
been approved by the Target's board of directors or otherwise duly
authorized by the Target;
(iv) no additional Indebtedness, Guaranteed Indebtedness, contingent
obligations or other liabilities (other than the First Check Earnout
Payments) shall be incurred, assumed or otherwise be reflected on a
consolidated balance sheet of the Reporting Credit Parties and Target
after giving effect to such Permitted Acquisition, except ordinary
course trade payables, accrued expenses and other Indebtedness,
Guaranteed Indebtedness, contingent obligations or other liabilities
of the Target to the extent no Default or Event of Default has
occurred and is continuing or would result after giving effect to such
Permitted Acquisition; provided, that any such Indebtedness,
Guaranteed Indebtedness, contingent obligations or other liabilities
(other than ordinary course trade payables and accrued expenses) shall
not exceed $5,000,000 outstanding at any one time in respect of all
Permitted Acquisitions;
(v) the consideration payable in connection with all Permitted
Acquisitions, including all transaction costs, ordinary course trade
payables, accrued expenses and Indebtedness incurred, assumed or
otherwise to be reflected on a consolidated balance sheet of Reporting
Credit Parties and Target after giving effect to such Permitted
Acquisition shall consist solely of (A) common stock, par value $.001
per share of Innovations containing substantially the same rights and
preferences as in effect on the date hereof and/or (B) cash not to
exceed $20,000,000 in the aggregate for all Permitted Acquisitions in
any Fiscal Year; provided, that should the First Check Acquisition,
when and if it closes, constitute a Permitted Acquisition under
Section 6.1 of the Credit Agreement, it shall (without limiting any
other provision of the Credit Agreement or any other Loan Document)
not be restricted by this clause (v) nor shall any cash portion of the
purchase price count against the aggregate cash limitation set forth
in clause (B) of this clause (v);
(vi) the Target shall have positive EBITDA for the trailing
twelve-month period preceding the date of the Permitted Acquisition,
as determined based upon the Target's financial statements for its
most recently completed fiscal year and its most recent interim
financial period completed within 60 days prior to the date of
consummation of such Permitted Acquisition; provided, that if the
consideration payable in connection with such Permitted Acquisition
consists solely of common stock, par value $.001 per share of
Innovations containing substantially the same rights and preferences
as in effect on the date hereof or is less than $5,000,000 in the
aggregate, this condition need not be satisfied;
(vii) the business and assets acquired in such Permitted Acquisition
shall be free and clear of all Liens (other than Permitted
Encumbrances);
(viii) unless the consideration (whether in cash, equity or otherwise)
with respect to all Permitted Acquisitions (other than the First Check
Acquisition) consummated on or after the Ninth Amendment Effective
Date is less than
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$10,000,000 in the aggregate at any time and $5,000,000 in the
aggregate in any Fiscal Year (it being understood that in connection
with the First Check Acquisition, if applicable, the Credit Parties
shall, in any event, be required to comply with this clause (viii)),
within thirty (30) days following the closing of any Permitted
Acquisition, subject to clause (ix) below, Agent will be granted a
first priority perfected Lien (subject to Permitted Encumbrances) in
all assets acquired pursuant thereto (other than with respect to
intellectual property that is not material in which case such Lien
shall be perfected within 60 days following the closing of such
Permitted Acquisition) or in the assets and Stock of the Target and
any Acquisition Subsidiary (other than with respect to intellectual
property that is not material in which case such Lien shall be
perfected within 60 days following the closing of such Permitted
Acquisition), and each Credit Party, any Acquisition Subsidiary and
the Target shall have executed such documents (including, without
limitation, any opinions requested by Agent in connection with
obtaining Collateral in connection with such Permitted Acquisition)
and taken such actions as may be required by Agent in connection
therewith;
(ix) unless the consideration (whether in cash, equity or otherwise)
with respect to all Permitted Acquisitions (other than the First Check
Acquisition) consummated on or after the Ninth Amendment Effective
Date is less than $10,000,000 in the aggregate at any time and
$5,000,000 in the aggregate in any Fiscal Year, within sixty (60) days
following the closing of any Permitted Acquisition in which the Target
or any Acquisition Subsidiary is an entity formed outside of the
United States, Agent will be granted a first priority Lien (subject to
Permitted Encumbrances) in all assets acquired pursuant thereto or in
the assets and Stock of the Target and any Acquisition Subsidiary
(provided, that, in the case of Stock held by a Domestic Subsidiary,
Agent shall be granted a Lien in such Stock under, and subject to any
applicable limitations set forth in, the US Pledge Agreement within
thirty (30) days of the closing of such Permitted Acquisition), and
each Credit Party, any Acquisition Subsidiary and the Target shall
have executed such documents (including, without limitation, any
opinions requested by Agent in connection with obtaining Collateral in
connection with such Permitted Acquisition) and taken such actions as
may be required by Agent in connection therewith; provided, that,
prior to the closing of such Permitted Acquisition, (A) the Borrowers
shall have provided Agent with reasonably detailed written information
as to the procedure required under applicable law for Agent to be
granted a first priority Lien in all such assets along with
confirmation reasonably acceptable to Agent from Borrowers' local
counsel from such jurisdiction that such procedure is correct; (B)
Agent shall have consented in writing to the delay in providing such
Lien; and (C) both before and immediately after giving effect to such
Permitted Acquisition, the European Credit Parties shall have
Accounts, Inventory, Real Property, plant, Equipment and available
cash (not subject to any Lien other than Permitted Encumbrances
(except for Permitted Encumbrances of the type described in clauses
(j) and (k) of the definition thereof)) with a net book value of not
less than $50,000,000;
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(x) notwithstanding the foregoing clause (ix), the Agent may, in its
sole discretion, (I) extend the period to provide the Collateral in
connection with such Permitted Acquisition or (II) elect to waive such
condition with respect to all or a portion of the assets of the Target
or any Acquisition Subsidiary to the extent that (A) the grant of such
first priority perfected Lien, the execution of any such documents or
the performance of any such actions is prohibited by the law of the
jurisdiction of formation of the applicable Credit Party, any
Acquisition Subsidiary or the Target, (B) the Agent determines that,
taking into consideration the costs associated therewith in relation
to the value or importance of such first priority perfected Lien, it
is not in the best interest of both the Lenders and the Credit Parties
to grant such Lien, or (C) the value of the assets or Stock with
respect to any Permitted Acquisition which shall be the subject of any
waiver under this Section 6.1(x) is, in the aggregate, less than
$10,000,000 (or the Equivalent Amount thereof); provided, that Agent
may, at any time and from time to time elect, in its sole discretion,
to enforce the conditions that had been previously waived under this
Section 6.1(x);
(xi) within 30 days following the closing of any Permitted
Acquisition, or, if earlier, the date upon which any Credit Party
files a current report on Form 8-K with the Securities and Exchange
Commission under the Exchange Act which discloses such Permitted
Acquisition and includes the financial information provided for below,
Borrowers shall deliver to Agent, in form and substance reasonably
satisfactory to Agent (Agent hereby agreeing to provide copies of such
documents to the Lenders promptly following receipt thereof), (A) if
such Permitted Acquisition constitutes a merger or consolidation with,
or acquisition of all of the Stock of, any Person, (x) an audited (or,
if not available, unaudited) balance sheet and income statement and,
if available, cash flow statement of the Target for the most recently
completed fiscal year of the Target, and (y) a balance sheet as of the
end of the most recently completed fiscal quarter of the Target and an
income statement and, if available, cash flow statement, in each case,
for the elapsed portion of the fiscal year of the Target to date
ending on the last day of the most recently completed fiscal quarter
of the Target, in each case, which shall be complete and shall fairly
present in all material respects the assets, liabilities, financial
condition and results of operations of the Target in accordance with
GAAP consistently applied, and (B) if such Permitted Acquisition
constitutes the acquisition of all or substantially all of the assets
of any Person and the financial statements described in clause (A)
above are not available, a schedule setting forth the assets acquired
and the book value thereof and, if available, an income statement
reflecting the performance of such assets for the most recently ended
Fiscal Year;
(xii) both before and immediately after giving effect to such
Permitted Acquisition, the Credit Parties shall have aggregate US
Revolving Borrowing Availability, European Revolving Borrowing
Availability and available cash (not subject to any Lien other than
Permitted Encumbrances (except for Permitted Encumbrances of the type
described in clauses (j) and (k) of the definition thereof)) of at
least $10 million (or the Equivalent Amount thereof);
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(xiii) at or prior to the closing of any Permitted Acquisition (other
than the First Check Acquisition if it is consummated on or prior to
March 31, 2007), the Borrowers shall deliver to Agent a certificate of
the Chief Financial Officer, Treasurer or Vice President, Finance, of
Innovations to the effect that: (A) the Credit Parties taken as a
whole (after taking into consideration all rights of contribution and
indemnity the Credit Parties have against Innovations and each other
Subsidiary of Innovations) are Solvent immediately prior to and will
be Solvent upon the consummation of the Permitted Acquisition; (B)
each of the applicable conditions set forth in this Section 6.1 have
been satisfied; (C) on a pro forma basis, no Event of Default shall
have occurred and be continuing or would result after giving effect to
such Permitted Acquisition and the Reporting Credit Parties would have
been in compliance with the financial covenants set forth in Annex F
for the four quarter period reflected in the Compliance Certificate
most recently delivered to Agent pursuant to Annex E prior to the
consummation of such Permitted Acquisition (giving effect to such
Permitted Acquisition and all Loans funded in connection therewith as
if made on the first day of such period); and (D) the Reporting Credit
Parties have completed their due diligence investigation with respect
to the Target and such Permitted Acquisition, which investigation was
conducted in a manner similar to that which would have been conducted
by a prudent purchaser of a comparable business and the results of
which investigation were delivered to Agent and Lenders;
(xiv) on or prior to the date of such Permitted Acquisition, Agent
shall have received copies of the executed acquisition agreement and
related agreements and instruments; and
(xv) at the time of such Permitted Acquisition and after giving effect
thereto, no Default or Event of Default has occurred and is
continuing.
Notwithstanding anything to the contrary contained herein, no Person
(subject to Section 6.1(x)) shall be a Credit Party and such Person
shall be deemed to be an Excluded Subsidiary until the conditions
(irrespective of whether or not the Credit Parties are required to
comply with such conditions) set forth in Section 6.1(viii) or (ix),
as applicable, are satisfied."
(c) Amendment to Section 6.2 of the Credit Agreement. Section
6.2(h) of the Credit Agreement is hereby amended, as of the Ninth Amendment
Effective Date, by deleting such clause (h) where it appears therein and
inserting in lieu thereof the following new clause (h) as follows:
"(h) so long as no Default or Event of Default has occurred and is
continuing before and after giving effect to any investment or loan
referred to in this clause (h) and Administrative Borrower has
provided Agent with at least three (3) Business Days notice of such
investment or loan, the Credit Parties may make and hold additional
investments and loans not otherwise permitted by this Section 6.2,
provided, that (i) the aggregate amount (the amount of each investment
or loan being measured at the time of the investment or loan) of such
investments and
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loans permitted by this clause (h) shall not exceed $25,000,000 (or
the Equivalent Amount thereof) at any one time outstanding, and
provided, further, that if any investment under this clause (h) is in
connection with the purchase of equity, the Credit Parties shall,
within thirty (30) days after such purchase, provide Agent with (A) a
first priority perfected pledge of the equity so purchased, together
with undated powers of transfer executed in blank and (B) upon request
of Agent, a legal opinion in respect of the pledge of such equity in
form and substance satisfactory to Agent;"
3. Amendment to Section 6.3 of the Credit Agreement. Section 6.3 of
the Credit Agreement is hereby amended, as of the Ninth Amendment Effective
Date, by deleting the word "and" before clause (xv) therein and inserting at the
end of clause (xv) the following:
"; and (xvi) Indebtedness specifically permitted under Section 6.1."
4. Amendment to Section 6.7 of the Credit Agreement. Section 6.7 of
the Credit Agreement is hereby amended, as of the Ninth Amendment Effective
Date, by deleting the word "and" before clause (d) therein and inserting at the
end of clause (d) the following:
"; and (e) Liens securing Indebtedness specifically permitted under
Section 6.1(b)(iv); provided, that such Indebtedness shall consist
solely of Capital Leases and purchase money Indebtedness (provided,
further, that such Liens attach only to the assets subject to such
purchase money Indebtedness or Capital Leases and, in the case of
purchase money Indebtedness, such Indebtedness is incurred within 30
days following such purchase and does not exceed 100% of the purchase
price of the subject assets)."
5. Amendment to Article VI of the Credit Agreement. Article VI of the
Credit Agreement is hereby amended, as of the Ninth Amendment Effective Date, by
inserting a new Section 6.23 at the end of such Article as follows:
"6.23 Minimum Excess Availability. At any date of determination, the
Credit Parties shall have aggregate US Revolving Borrowing
Availability, European Revolving Borrowing Availability and available
cash (not subject to any Lien other than Permitted Encumbrances
(except for Permitted Encumbrances of the type described in clauses
(j) and (k) of the definition thereof)) of at least $30,000,000 (or
the Equivalent Amount thereof); provided, that this Section 6.23 shall
have no force or effect on any date of determination when any Credit
Party fails to own any shares of Aztec Stock."
6. Amendment to Annex A of the Credit Agreement. Annex A of the Credit
Agreement is hereby amended, as of the Ninth Amendment Effective Date, by:
(a) amending the definition of "Permitted Encumbrances" by
deleting the word "and" before clause (o) where it appears there and inserting
the following at the end of clause (o):
"; Liens permitted by Section 6.7(e)."
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(b) amending the definition of "Excluded Subsidiaries" by
inserting at the end of such definition the following:
"and any other Subsidiary as contemplated by the last sentence of
Section 6.1."
(c) inserting the following new definitions in Annex A, in the
applicable alphabetical order, as follows:
"Aztec Stock' has the meaning ascribed to it in the Ninth Amendment.
'First Check Acquisition' has the meaning ascribed to it in the Ninth
Amendment.
'Ninth Amendment' means the Ninth Amendment and Consent to Third
Amended and Restated Credit Agreement dated as of November 10, 2006 by
and among Agent, Innovations, Borrowers, the other Credit Parties
signatory thereto, ML Capital and Lenders.
'Ninth Amendment Effective Date' means November 10, 2006."
(d) deleting the definition of "Non-Stock Investments and Loans"
where it appears therein.
7. Aztec Consent. Notwithstanding anything to the contrary contained
in the Credit Agreement (including, without limitation, Section 6.2 therein), as
of the Ninth Amendment Effective Date, Agent and Requisite Lenders hereby
consent to the Aztec Investments; provided, that (a) each Aztec Investment is
consummated pursuant to documentation in form and substance reasonably
satisfactory to Agent, (b) simultaneously with (i) any Aztec Investment, Agent
shall be satisfied that all applicable margin regulations are complied with
(Agent's satisfaction to be assumed by the Credit Parties absent notice to the
contrary from Agent); and (ii) the initial Aztec Investment, each Lender shall
have been provided adequate information so that it and the Credit Parties, as
applicable, may complete and prepare all forms and documentation required under
Regulations T, U or X of the Federal Reserve Board, (c) in connection with the
initial Aztec Investment, Agent shall have received from Borrowers' counsel an
opinion in form and substance satisfactory to Agent confirming that the Aztec
Investments and the use of the Loan proceeds in respect thereof do not violate
Regulations T, U or X of the Federal Reserve Board, (d) Agent receives within
thirty (30) days of each Aztec Investment a first priority perfected pledge of
the Aztec Stock purchased with respect to such investment and, if applicable,
any related certificates thereto, together with undated powers of transfer
executed in blank (the "Aztec Pledge"), (e) if applicable, Agent receives within
thirty (30) days of the initial Aztec Investment a legal opinion in respect of
the control agreement to which the applicable Aztec Stock shall be credited to
the effect that such control agreement is effective under applicable law to
perfect the security interest of the Agent by control in such Aztec Stock, which
opinion shall be in form and substance satisfactory to Agent, and (f) if any
Aztec Investment occurs after March 31, 2007, at the consummation thereof, the
Borrowers shall deliver to Agent a certificate of the Chief Financial Officer,
Treasurer or Vice President, Finance, of Innovations to the effect that on a pro
forma basis, no Event of Default shall have occurred and be continuing or would
result after giving effect to such Aztec Investment occurring after March 31,
2007 and the Reporting Credit Parties would have been in compliance
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with the financial covenants set forth in Annex F of the Credit Agreement for
the four quarter period reflected in the Compliance Certificate most recently
delivered to Agent pursuant to Annex E of the Credit Agreement prior to the
consummation of such Aztec Investment (giving effect to such Aztec Investment
and all Loans funded in connection therewith as if made on the first day of such
period).
8. Aztec Waiver. Notwithstanding anything to the contrary contained in
Sections 1.3(b)(ii) or (iii) of the Credit Agreement, Agent and Requisite
Lenders hereby waive, as of the Ninth Amendment Effective Date, the requirement
that the Credit Parties apply the proceeds of any sale of Aztec Stock to prepay
the Loans pursuant to Sections 1.3(c)(i) and (ii), as applicable; provided, that
upon the sale of Aztec Stock by any Credit Party, the proceeds of such sale
shall be applied as follows: first, by US Borrower to pay interest then due and
payable on the US Swing Line Loan until paid in full; second, by US Borrower to
prepay the principal balance of the US Swing Line Loan until paid in full;
third, by US Borrower to pay interest then due and payable on US Revolving
Credit Advances until paid in full; fourth, by US Borrower to prepay the US
Revolving Credit Advances and Swap Obligations on a ratable basis based on the
amount of such US Revolving Credit Advances then outstanding and such Eligible
Swap Obligations then due and payable until paid in full; fifth, by European
Borrower to pay interest then due and payable on the European Swing Line Loan
until paid in full; sixth, by European Borrower to prepay the principal balance
of the European Swing Line Loan until paid in full, seventh, by European
Borrower to pay interest then due and payable on European Revolving Credit
Advances until paid in full; eighth, by European Borrower to prepay European
Revolving Credit Advances until paid in full; and any excess shall be returned
to Borrowers.
9. Instant Technologies Investment. Notwithstanding anything to the
contrary contained in the Credit Agreement (including, without limitation,
Section 6.2 therein), as of the Ninth Amendment Effective Date, Agent and
Requisite Lenders hereby consent to the Instant Technologies Investment pursuant
to documentation in form and substance reasonably satisfactory to Agent;
provided, that Agent receives within thirty (30) days of the Instant
Technologies Investment (a) a first priority perfected pledge of the Instant
Technologies Stock purchased with respect to such investment and, if applicable,
any related certificates thereto, together with undated powers of transfer
executed in blank, (b) at the request of Agent, a legal opinion in respect of
such pledge confirming Agent's perfected security interest, which opinion shall
be in form and substance satisfactory to Agent, and (c) if such Instant
Technologies Investment occurs after March 31, 2007, at the consummation
thereof, the Borrowers shall deliver to Agent a certificate of the Chief
Financial Officer, Treasurer or Vice President, Finance, of Innovations to the
effect that on a pro forma basis, no Event of Default shall have occurred and be
continuing or would result after giving effect to such Instant Technologies
Investment and the Reporting Credit Parties would have been in compliance with
the financial covenants set forth in Annex F of the Credit Agreement for the
four quarter period reflected in the Compliance Certificate most recently
delivered to Agent pursuant to Annex E of the Credit Agreement prior to the
consummation of such Instant Technologies Investment (giving effect to such
Instant Technologies Investment and all Loans funded in connection therewith as
if made on the first day of such period).
10. Acknowledgement regarding In Vitro Technologies. Agent and
Requisite Lenders hereby acknowledge and agree that the terms and conditions of
Section 6.1 of the Credit
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Agreement, as amended hereby, shall apply to the acquisition of In Vitro
Technologies and that such acquisition shall be considered a Permitted
Acquisition under the Credit Agreement, subject to compliance with such amended
terms and conditions.
11. Employee Loan Consent. Notwithstanding anything to the contrary in
the Credit Agreement (including, without limitation, Sections 6.2 and 6.4(b),
Agent and Requisite Lenders hereby consent, as of the Ninth Amendment Effective
Date, to the Employee Loan.
12. Consent to Wachovia Lease Transaction. As of the Ninth Amendment
Effective Date, Lenders hereby consent to Agent releasing any security interest
and Lien, if any, which may have attached to the equipment attached hereto as
Exhibit A under the Wachovia Lease Transaction as more fully described in the
Eight Amendment and Consent to Third Amended and Restated Credit Agreement dated
as of October 30, 2006 by and among Agent, Innovations, Borrowers, the other
Credit Parties signatory thereto, ML Capital and the Lenders signatory thereto.
13. 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.
14. 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 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 Ninth Amendment Effective Date.
(b) This Amendment has been duly executed and delivered by or on
behalf of each of the Credit Parties.
(c) This Amendment and the Amended Credit Agreement 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,
11
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 Ninth Amendment 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.
15. 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, (b) the acknowledgements, consents and agreements of the Agent and
Requisite Lenders set forth herein shall be limited strictly as written and
shall not constitute an acknowledgement, consent or agreement to any transaction
not specifically described in connection with any such consent and/or agreement,
and (c) 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.
16. Affirmation of Obligations. Each of the Credit Parties hereby
acknowledges, agrees and affirms (a) its obligations under the Credit Agreement
and the other 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.
17. Outstanding Indebtedness; Waiver of Claims. Each of Borrowers and
the other Credit Parties hereby acknowledges and agrees that as of November 10,
2006, (a) the outstanding balance of the European Revolving Loan is $0, (b) the
outstanding balance of the US Revolving Loan is $0, (c) the outstanding balance
of the US Term Loan is $44,887,500, and (d)
12
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 Ninth
Amendment 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.
18. 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.
19. Amendment Fee. To induce Agent and Lenders to enter into this
Amendment, Borrowers hereby agree to pay to Agent, for the benefit of those
Lenders which provide consent hereto no later than 3:00pm EST, Friday, November
10, 2006, an amendment fee in the amount of $155,000 (to be allocated among
Agent and such Lenders on a ratable basis) in immediately available funds,
payable on the Ninth Amendment Effective Date.
20. Effectiveness. Upon satisfaction in full in the judgment of Agent
of each of the following conditions, this Amendment shall be deemed effective as
of November 10, 2006 (the "Ninth Amendment Effective Date"):
(a) Amendment. Agent shall have received four (4) original
signature pages to this Amendment, duly executed and delivered by Agent,
Requisite Lenders, and each of the Credit Parties.
(b) Payment of 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.
(d) First Check Acquisition Documents. Agent shall have received
copies of the draft First Check Acquisition term sheet and any other
documentation in connection therewith in existence on the date hereof.
21. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
13
22. 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.
[SIGNATURE PAGES FOLLOW]
14
IN WITNESS WHEREOF, this Amendment has been duly executed as of the date
first written above.
BORROWERS
WAMPOLE LABORATORIES, LLC
INVERNESS MEDICAL (UK) HOLDINGS LIMITED
By: /s/ David Teitel
------------------------------------
Name: David Teitel
Title: Vice President, Authorized
Signatory
AGENT AND LENDERS
GENERAL ELECTRIC CAPITAL CORPORATION,
as Agent and a Lender
By: /s/ Andrew Moore
------------------------------------
Duly Authorized Signatory
MERRILL LYNCH CAPITAL, a division of
Merrill Lynch Business Financial
Services Inc., as a Lender
By: /s/ Mathew R. Lank
------------------------------------
Duly Authorized Signatory
LASALLE BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ David Bacon
------------------------------------
Name: David Bacon
Title: FVP
MARATHON SPECIAL OPPORTUNITY CLO I,
LTD., as a Lender
By: Marathon Asset Management, LLC, its
Portfolio Manager and Authorized
Signatory
By: /s/ Louis T. Hanover
------------------------------------
Name: Louis T. Hanover
Title: Authorized Signatory
DRYDEN IV - LEVERAGED LOAN CDO 2003,
as a Lender
By: Prudential Investment Management,
Inc., as Collateral Manager
By: /s/ Stephen J. Collins
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
DRYDEN V - LEVERAGED LOAN CDO 2003, as a
Lender
By: Prudential Investment Management,
Inc., as Collateral Manager
By: /s/ Stephen J. Collins
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
DRYDEN VII - LEVERAGED LOAN CDO 2004, as
a Lender
By: Prudential Investment Management,
Inc., as Collateral Manager
By: /s/ Stephen J. Collins
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
DRYDEN VIII - LEVERAGED LOAN CDO 2005,
as a Lender
By: Prudential Investment Management,
Inc., as Collateral Manager
By: /s/ Stephen J. Collins
------------------------------------
Name: Stephen J. Collins
Title: VP
Dryden XVI - Leveraged Loan CDO 2006
By: Prudential Investment Management,
Inc., as Collateral Manager
By: /s/ Stephen J. Collins
------------------------------------
Name: Stephen J. Collins
Title: VP
The following Persons are signatories to this Amendment in their capacity
as Credit Parties and not as Borrowers.
INVERNESS MEDICAL INNOVATIONS, INC.
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.
INNOVACON, INC.
OSTEX INTERNATIONAL, INC.
SELFCARE TECHNOLOGY, INC.
BINAX, INC.
INVERNESS MEDICAL - BIOSTAR, INC.
UNIPATH ONLINE, INC.
RICH HORIZONS INTERNATIONAL LIMITED
CAMBRIDGE DIAGNOSTICS IRELAND LIMITED
DMD, DIENSTLEISTUNGEN & VERTRIEB FUR
MEDIZIN UND DIAGNOSTIK GMBH
INVERNESS MEDICAL CANADA, INC.
INVERNESS MEDICAL EURASIA LIMITED
INVERNESS MEDICAL FRANCE SAS
INVERNESS MEDICAL GERMANY GMBH
SCANDINAVIAN MICRO BIODEVICES APS
STIRLING MEDICAL INNOVATIONS LIMITED
INVERNESS MEDICAL SWITZERLAND GMBH
UNIPATH DIAGNOSTICS GMBH
INVERNESS MEDICAL DEUTSCHLAND GMBH
INVERNESS MEDICAL JAPAN, LTD.
INVERNESS MEDICAL IBERICA, S.A.
INVERNESS MEDICAL SPAIN, S.L.U.
UNIPATH LIMITED
IVD MANAGEMENT LIMITED
INVERNESS MEDICAL INVESTMENTS, LLC
By: /s/ David Teitel
------------------------------------
Name: David Teitel
Title: Vice President - Finance, Vice
President - Finance, Vice President -
Finance, Vice President - Finance,
President, President, Vice President -
Finance, Vice President - Finance, Vice
President - Finance, Vice President -
Finance, Vice President - Finance, Vice
President - Finance, Vice President -
Finance, Vice President - Finance, Vice
President - Finance, Vice President -
Finance, Vice President, 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, Authorized
Person, Authorized Person, Manager,
respectively