Exhibit 10.46
FIRST AMENDMENT TO
SUBORDINATED PROMISSORY NOTES
This First Amendment to Subordinated Promissory Notes (this
"AMENDMENT") is entered into as of November 14, 2003 by and between Inverness
Medical Innovations, Inc., a Delaware corporation (the "BORROWER") and the
lenders whose names are set forth on the signature pages hereto (the "LENDERS").
RECITALS
WHEREAS, the Borrower, the Lenders and certain other parties entered
into that certain Subordinated Note and Warrant Purchase Agreement dated as of
September 20, 2002 (the "PURCHASE AGREEMENT").
WHEREAS, pursuant to the Purchase Agreement, the Borrower issued
Subordinated Promissory Notes, dated September 20, 2002 (the "NOTES"), in an
aggregate principal amount of $20 million to the Lenders.
WHEREAS, the Borrower entered into that certain Credit Agreement, dated
as of November 14, 2002, among the Borrower, Xxxxxxx Laboratories, Inc.,
Inverness Medical (UK) Holdings Limited, General Electric Capital Corporation,
as administrative agent, Keybank National Association, as documentation agent,
GECC Capital Markets Group, Inc., as lead arranger, and certain other credit
parties and lenders signatory thereto (the "CREDIT AGREEMENT").
WHEREAS, the Credit Agreement was amended and restated as of August 27,
2003 in connection with the Borrower's acquisition of Applied Biotech, Inc.
("ABI"), and the Borrower incurred an additional $13.4 million of indebtedness
under the Credit Agreement, as amended and restated, to finance the Borrower's
acquisition of ABI.
WHEREAS, the Credit Agreement, as previously amended and restated, was
amended and restated as of September 30, 2003 in connection with the Borrower's
acquisition of certain assets relating to several product lines of Xxxxxx
Laboratories (the "ABBOTT ASSETS"), and the Borrower incurred an additional
$55.0 million of indebtedness under the Credit Agreement, as amended and
restated, to finance the Borrower's acquisition of these assets.
WHEREAS, the $68.4 million of indebtedness incurred by the Borrower to
finance the acquisitions of ABI and the Abbott Assets constitutes "Senior
Obligations" within the meaning of Section 3(a)(iv)(B) of the Notes.
WHEREAS, the Borrower may enter into one or more new debt transactions
whereby it would repay some or all of its outstanding indebtedness under the
Credit Agreement, as amended and restated, using the net proceeds from the new
debt transactions.
WHEREAS, the Borrower and the Lenders desire to amend the Notes in
order to reflect their intention that the term "Senior Obligations" under the
Notes includes indebtedness incurred to redeem, repay or refinance indebtedness
constituting Senior Obligations within the meaning of Section 3(a)(iv)(B) of the
Notes.
WHEREAS, all capitalized terms used but not defined in this Amendment
shall have the meanings ascribed to such terms in the Notes.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Amendment, and intending to be legally bound, the Borrower and the Lenders
hereby agree as follows:
SECTION 1. AMENDMENT
1.1. Clause (B) of the first sentence of Section 2(a)(iv) of each
of the Notes that currently reads as follows:
"[The term "Senior Obligations" shall mean]. . . (B) any
indebtedness of the Borrower incurred to finance the
Borrower's acquisition (by merger, consolidation, stock
purchase or otherwise) of a Person or the Borrower's
acquisition of all or substantially all of the assets of a
Person or all or substantially all of the assets of a division
or line of business of a Person."
is amended and restated such that clause (B) of the first sentence of Section
2(a)(iv) of each of the Notes reads as follows:
"[The term "Senior Obligations" shall mean]. . . (B) (i) any
indebtedness of the Borrower incurred after September 20, 2002
to finance the Borrower's acquisition (by merger,
consolidation, stock purchase or otherwise) of a Person or the
Borrower's acquisition of all or substantially all of the
assets of a Person or all or substantially all of the assets
of a division or line of business of a Person and (ii) any
indebtedness of the Borrower incurred to redeem, repay or
refinance any indebtedness described in clause (i) above or
this clause (ii)."
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1.2. All other terms and conditions of the Notes shall be unchanged
and remain in full force and effect.
1.3. Pursuant to Section 8 of the Notes, the Lenders hereby consent
to the amendment set forth in Sections 1.1 of this Amendment and, for the
avoidance of doubt, acknowledge that such amendment is intended to apply to all
of the Notes, not only the Notes held by the Lenders.
SECTION 2. REPRESENTATIONS, WARRANTIES AND COVENANTS
2.1. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE BORROWER. The
Borrower represents and warrants to, and covenants with, the Lenders that (i)
the Borrower has full right, power, authority and capacity to enter into this
Amendment and has taken all necessary action to authorize the execution,
delivery and performance of this Amendment, (ii) the Borrower is duly organized,
validly existing and in good standing under the laws of the State of Delaware,
and (iii) upon the execution and delivery of this Amendment, this Amendment
shall constitute a valid and binding obligation of the Borrower enforceable in
accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except as
enforceability may be subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
2.2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE LENDERS. Each
Lender represents and warrants to, and covenants with, the Borrower that (i)
such Lender has full right, power, authority and capacity to enter into this
Amendment and has taken all necessary action to authorize the execution,
delivery and performance of this Amendment, (ii) if such Lender is an entity,
such Lender is duly organized, validly existing and in good standing under the
laws of its jurisdiction of organization, and (iii) upon the execution and
delivery of this Amendment, this Amendment shall constitute a valid and binding
obligation of such Lender enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' and contracting
parties' rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
SECTION 3. MISCELLANEOUS
3.1. EFFECTIVENESS. This Amendment is subject to, and will only
become effective upon, (i) Lenders holding greater than 50% of the aggregate
principal amount outstanding under the Notes signing this Amendment, and (ii)
the Borrower obtaining the prior written consent of the Senior Agent, as defined
in the Subordination Agreement, to this Amendment. The Borrower will notify the
Lenders of the date on which this Amendment becomes effective.
3.2. GOVERNING LAW. This Amendment shall be governed by, and
construed and enforced in accordance with, the substantive laws of The
Commonwealth of Massachusetts
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without regard to its principles of conflicts of laws. Any dispute arising out
of or relating to this Amendment shall be filed and prosecuted in any court of
competent subject matter jurisdiction located in Massachusetts. The Borrower and
the Lenders hereby consent to the personal jurisdiction of such courts over
them, stipulate to the convenience, fairness and efficiency of proceeding in
such courts, and covenant not to assert any objection to proceeding in such
courts based on any alleged lack of jurisdiction or any alleged inconvenience,
unfairness or inefficiency of such courts.
3.3. COUNTERPARTS. This Amendment may be executed in multiple
counterparts, each of which shall constitute an original but all of which shall
constitute but one and the same instrument. One or more counterparts of this
Amendment may be delivered via facsimile transmission, with the intention that
they shall have the same effect as an original counterpart hereof.
3.4. COMPLETE AGREEMENT. This Amendment, together with the Notes,
as amended by this Amendment, constitutes the entire contract among the parties
relating to the subject matter hereof and supersedes any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof.
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IN WITNESS WHEREOF, the undersigned executed this Amendment as of the
day and year first above written.
BORROWER:
INVERNESS MEDICAL INNOVATIONS, INC.
By: /s/ Xxxxxxxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Chief Financial Officer
[BORROWER SIGNATURE PAGE]
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IN WITNESS WHEREOF, the undersigned executed this Amendment as of the
day and year first above written.
*See Schedule of Lender Signatories below
-----------------------------------------------
[Name of Lender]
By:
--------------------------------------------
Name:
Title:
[LENDER SIGNATURE PAGE]
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Schedule of Lender Signatories
LENDER
Xxxxx Xxxxxxxxx
AJAC Partnership
Xxxx X. Xxxxxxxxx
Xxxx X. Xxxx
Xxxxxxx Logging Co., Inc.
Xxxx and Xxxxx Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxx Xxxxxxx, PSRP/RO
Xxxxx X. Xxxxxx
Xxxx Xxxxx
Brookside Institute for Psychotherapy Employees
Retirement Plan, Xxxxx X. Xxxxx, Trustee
Xxxxx Xxxx, MPPP
Xxxxx X. Male
Xxxxx XxXxxxxxx
Xxxxx Xxxxxxxxx
Xxxxxxx Xxxxx
Xxxxxxx and Xxxxxx Xxxxxxxx, PSRP, Trustees
Xxxxxxx X. Xxx
Xxxxx X. Xxxxxx
DAC Associates Trust U/A/D 11/21/83 As Amended 7/01/02
Xxxxx X. Xxxxxx
Xxxxx Xxxxxx, Defined Ben.
Xxxxx X. Link
Xxxx X. Xxxxxx, Xx.
Xxxxxxx Xxxxxxxx and Xxxxxx Xxxxxxxx
Xxxxx X. Xxxxxxxx, MD and Xxxxxx X. Xxxxxxx, MD PCPSRP,
Xxxxx X. Xxxxxxxx and Xxxxxx X. Xxxxxxx,
Trustees
Dermatology Associates of Concord, Inc. Profit Sharing
Retirement PlanTerry Xxxxxx Trustee
Xxxxx Xxxxxx
Xxxxxxxxx Xxxxxxxxxxx
Xxxxxxx Xxxxxxx
Xxxxxx X. Xxxxxxxxxx Testamentary Trust, Xxxx X.
Xxxxxxxxxx TTEE
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Trustee Xxxxxx X. Xxxxx Money
Purchase Pension Plan
Xxxxxx X. Xxxxxxx, MD PSRP A/C Xxxxxx X. Xxxxxxx (RO)
Xxxxxx X. Xxxxxxx, Trustee
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Xxxxx X. Xxxxxx, Xx. 1995 Trust U/A/D 6/27/95, Xxxxx X.
Xxxxxx, Xx. and Xxxxxxxx X. Xxxxxx, TTEE
Xxxxxx X. and Xxxxxxx X. Xxxxxx Trust U/A DTD 1/26/96,
Xxxxxx X. and Xxxxxxx X. Xxxxxx, Trustees
Xxxxxx X. Xxxxxxxxx Xx.
Everest Properties II, LLC Money Purchase Revision Plan
FBO Xxxxxx Kohorest
Xxxx Xxx Xxxx
First Trust A83Corporation, Trustee FBO Xxxx Xxxxx, Xx.
XXX+A133
First Trust Corporation Trustee FBO Xxxxx Xxxxxxxxx, XXX
First Trust Corporation Trustee FBO Xxxxxx Xxxxxxx XXX
First Trust Corporation Trustee FBO Xxxxxxx Xxxxxx Friend
XXX
First Trust Corporation, FBO Xxxxxx XxXxxx, Xx. - XXX
First Trust Corporation, Trustee FBO Xxx X. Xxxx - XXX
Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxx Grandchildren Trust, Xxxxxxx Xxxxx, Trustee
Guy E. and Xxxxxx X. Xxxxxx
Xxx X. Xxxxx
Xxxxx X. Xxxxxxx
Xxxxx and Xxxxxxxx Xxxxxx
Xxxxx X. and Xxxxx X. Xxxxxxxx
Xxx Xxxxxxxxxx
Xxxxxx-Xxxxx Xxxxxx
Xxxxxxxx X. Xxxxxx
Xxxx X. Xxxxx
Xxxx X. Xxxxx
Xxxx X. Xxxx
Xxxx X. Xxxxxx
Xxxxxxxx Xxxxx
Xxxx Xxxxx
Xxxxxx X. Xxxxx, Xx.
Xxxxxxx X. Mahesh
Xxxxxxxx Xxxxx
Xxxxxx X. Xxxxxxxxx
XxXxx Xxxxxxxx
Xxxxxx Xxxxx, Money Purchse Pension Plan, Xxxxxx X. Xxxxx
and Jidth X. Xxxxx, Trustees
Lexington Medical Associates, Inc. MPPP/ PSRP Transfer
accts., Xxxxxxx Xxxxxxx, Trustee
Xxxxx Xxxxxxxx
Xxxxxxxx Xxxxxxx
Xxxxxx Anesthesiology, PSRP
Xxxxxxxx X. Xxxxxx
Xxxxxxxx Xxxxx
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Xxxxx Xxxx
Xxxxx Xxxxxxxx XxXxxxxx
Xxxx and Xxxxxx Parent
Xxxx Xxxxxxxxxx
Xxxx Xxxxxx
Xxxx Xxxxx
Xxxxxxxx Living Trust UTA dated 03/11/99, Xxxxxxx X.
Xxxxxxxx and Xxxxxxx Xxxxxxxx, Trustees
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxxx and Xxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxxx
Xxxxxxx Xxxxxx
Xxxx X. Xxxx
Xxxxxxx X. Xxxxxx, Esq. Profit Sharing Plan U/A 1/15/85,
Xxxxxxxx Xxxxxx, Trustee
Xxxxxxx X. Xxxxxxx, Productions, Money Purchase Pension
Xxxxxxx Xxxxxxx, Trustee
Xxxxxxxx Xxxxxxx
Xxxxxxx and Xxxxx X. Xxxxxxx
Xxxx X. Van Wallegham
Xxxxx X. Xxxxx
Xxxxx X. Xxxxxx
Xxxxx Xxxxxxx
Xxxxxxx X. Page, PSRP
Retirement Accounts, Inc., Trustee FBO Xxxxx X. Xxxxxxxx
XXX
Retirement Accounts, Inc., Trustee FBO Xxxxxx X. Xxxxxx
XXX
Retirement Accounts, Inc., Trustee FBO Xxxxx X. Xxxxxx
XXX
Retirement Accounts, Inc., Trustee FBO Xxxxx X. Xxxx XXX
Retirement Accounts, Inc., Trustee FBO Xxxxxx Xxxxx XXX
Retirement Accounts, Inc., Trustee FBO Xxxxxxx XxXxx
XXX
Retirement Accounts, Inc., Trustee FBO Xxxx X. Xxxxx XXX
Retirement Accounts, Inc., Trustee FBO Xxxxxxx Xxxxxxx
XXX
Retirement Accounts, Inc., Trustee FBO Xxxxx X. Xxxxx XXX
Retirement Accounts, Inc., Trustee FBO Xxxxxxx Xxxxxxxx
XXX
Retirement Accounts, Inc., Trustee FBO Xxxxxx Xxxxxxx
XXX
Retirement Accounts, Inc., Trustee FBO Xxxxxxx X. Xxxx
XXX
Retirement Accounts, Inc., Trustee Inc. FBO Xxxxxxx X.
Xxxxxxx XXX
Retirement Accounts, Inc., Trustee Inc. FBO Xxxxxx XxXxx
Retirement Accounts, Inc., Trustee Inc. FBO Xxxxx
Xxxxxxxxxx
Retirement Accounts, Inc., Trustee Inc. FBO Xxxxxxx
XxXxxxxxx
Retirement Accounts, Inc., Trustee Inc., FBO Xxxxx X.
Xxxxxxxxx XXX
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Xxxxxxx and Xxxxxx Xxxxxxxx
Xxxxxxx and Xxxxxxxx Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxxx, Profit Sharing Trust, Xxxxxx X. Xxxxxxx,
Trustee
Xxxxxx Xxxx
Xxxxxx X. Xxxxxxxxx
Xxxx and Xxxxxx Xxxxxxxx
Xxxxxxxxx Family Ventures, LLC
Xxx X. Xxxx Revocable Trust, DTD 08/08/98, Xxx X. Xxxx
Trustee
Xxxxxx X. Xxxxxxxx Self-Employed Retirement Plan,
Xxxxxx Xxxxxxxx, Trustee
Xxxx X. Xxxxxxx 2002 Trust, Xxxx Xxxxxxxxx, Trustee
Xxxx Xxxxxxx
Xxxxxx Xxxxxx
Xxxxxxx X. Xxxxxxxxxx, Profit Sharing Retirement Plan,
Xxxxxxx X. Xxxxxxxxxx, Trustee
Xxxxxx Xxxxxxx, Money Purchase Pension Plan, Xxxxxx
Xxxxxxx, Trustee
Xxxxxx X. Xxxxxxxx
Xxx Xxxx Xxxxx
Xxxxx Xxx Xxxx 1998 Revocable Trust DTD 04/24/98,
Xxxxx Xxx Xxxx, Trustee
Xxxxxxx Eye Associates PC, PSRP, Xxxxxx Xxxxxxx, TTEE
The Cardiovascular Specialists, LCC MPPP FBO Xxxxx
Xxxxxx, Xxxxxx Xxxxxx Trustee
The Cardiovascular Specialists, LLC MPPP FBO Xxxxxx
Xxxxxx, Xxxxxx Xxxxxx Trustee
Xxxxxx X. Xxxx
Xxxxxx Xxxxxxx and Xxxx Xxxxxxx
US Boston Corp. PSRP U/A DTD 10/1/84, Xxxx Xxxxxxxxx,
Trustee A/C Xxxx Xxxxxxxxx
Xxxx X.X.Xxxxxxx
Xxxxxx Xxxxxxx, MPPP
Xxxxxxx X. Xxxxxxx Revocable 1996 Revocable Trust U/A/D
03/26/96, Xxxxxxx X. Xxxxxxx Trustee
Xxxxxxx Xxxxxxxxxx, III, Money Purchase Pension Plan,
Xxxxxxx Xxxxxxxxxx, III, Trustee
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