THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT

Exhibit 10.35

THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT

THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 22, 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”), Xxxxxxx Laboratories, LLC and Inverness Medical (UK) Holdings Limited, as borrowers (“Borrowers”), the other Credit Parties signatory thereto, Xxxxxxx Xxxxx Capital, a division of Xxxxxxx Xxxxx 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 (including in the Recitals) shall have the meanings ascribed to them in the Credit Agreement.

2. Amendment to Credit Agreement. The Credit Agreement is hereby amended as of the Effective Date (as hereinafter defined) as follows:

(a) Section 6.6 of the Credit Agreement is hereby amended by deleting such provision in its entirety and inserting the following in lieu thereof:

“6.6 Guaranteed Indebtedness. No Credit Party shall create, incur, assume or permit to exceed any Guaranteed Indebtedness except (a) by endorsement of instruments or items of payment for deposit to the general account of any Credit Party, (b) for Guaranteed Indebtedness incurred for the benefit of any other Credit Party if the primary obligation is expressly permitted by this Agreement, and (c) Innovations may guaranty obligations of Inverness Medical (Shanghai) Co., Ltd. to suppliers in the ordinary course of business; provided that all such guaranties are unsecured and the obligations guarantied by all such guaranties do not exceed (i) $4,000,0000 in the aggregate at any time less (ii) the value of all assets at such time, other than the value of Inverness Medical (Shanghai) Co., Ltd., owned by the Credit Parties or any of the Excluded Subsidiaries (other than Inverness Medical (Shanghai) Co., Ltd.) and located in China.”

(b) Section 6.20 of the Credit Agreement is hereby amended by deleting the word “and” preceding clause (viii) in the first sentence thereof and inserting the following and the end of such sentence:

“(ix) providing guaranties to the extent permitted by Section 6.6 hereof; and (x) such other activities as may be consented to from time to time by Agent and Requisite Lenders in writing”.

(c) Section 6.21 of the Credit Agreement is hereby amended by deleting such provision in its entirety and inserting the following in lieu thereof:

“6.21 Collateral in China. At no time shall the aggregate value of all assets, other than the value of Inverness Medical (Shanghai) Co., Ltd., owned by the Credit Parties or any of the Excluded Subsidiaries (other than Inverness Medical (Shanghai) Co., Ltd. and located in China exceed (a) $4,000,000 in the aggregate at any time less (b) the aggregate value of any guaranties issued by Innovations pursuant to Section 6.6 hereof.”

(d) Annex E of the Credit Agreement is hereby amended by inserting the following at the end of such Annex:

“(q) Innovations Guaranties. To Agent and Lenders, at the time of delivery of the quarterly financial statements pursuant to clause (b) of this Annex E, a schedule setting forth the amount of the obligations guarantied by Innovations as contemplated by Section 6.6(c) of the Credit Agreement as of the last day of the applicable Fiscal Quarter.”

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 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 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 21, 2005, (a) the outstanding balance of the European Revolving Loan is $29,000,000, (b) the outstanding balance of the US Revolving Loan is $60,000,000, (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 November 22, 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.

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.

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

	BORROWERS
	XXXXXXX LABORATORIES, LLC


\
	By:	/s/ Xxxxx X. Xxxxx
	Name:		Xxxxx X. Xxxxx
	Title:		Treasurer



	INVERNESS MEDICAL (UK) HOLDINGS LIMITED



	By:		/s/ Xxxxx Xxxxx
	Name:		Xxxxx Xxxxx
	Title:		Director

AGENT AND LENDERS

GENERAL ELECTRIC CAPITAL
CORPORATION, as Agent and Lender



By:	/s/ Illegible
		Duly Authorized Signatory



XXXXXXX XXXXX CAPITAL, a division of Xxxxxxx Xxxxx Business Financial Services Inc.,
as a Lender



By:		/s/ Illegible
		Duly Authorized Signatory



UBS AG, CAYMAN ISLANDS BRANCH, as a Lender



By:		/s/ Xxxxxxx X. Xxxxxx
		Duly Authorized Signatory



By:		/s/ Xxxx X. Xxxx
		Duly Authorized Signatory

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/ Xxxxx X. Xxxxx
Name:		Xxxxx X. Xxxxx
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, X.X.
	XXXXXXX INVESTMENTS, S.L.



	By:	/s/ Xxxxx X. Xxxxx
		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/ Xxx XxXxxxxx
	Name:		Xxx XxXxxxxx
	Title:		Assistant Secretary


	INVERNESS MEDICAL CANADA, INC.


	By:	/s/ Xxxx Xxxxxxx
	Name:		Xxxx Xxxxxxx
	Title:		President

UNIPATH LIMITED


By:	/s/ Xxxxx Xxxxx
Name:		Xxxxx Xxxxx
Title:		Managing Director

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THIRD AMENDMENT TO THIRD AMENDED AND RESTATED CREDIT AGREEMENT

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