|
Exhibit 10.2
THIRD AMENDED AND RESTATED UNCONDITIONAL
GUARANTY
(Safeguard Scientifics (Delaware), Inc.)
(Safeguard Delaware, Inc.)
For and in consideration of the loan by COMERICA BANK ("Bank")
to CLARIENT, INC., a Delaware corporation, formerly known as
Chromavision Medical Systems, Inc. ("Borrower"), which loan is made
pursuant to a Loan Agreement dated as of February 13, 2003, as
amended from time to time, including but not limited to that
certain First Amendment to Loan and Security Agreement dated as of
October 21, 2003, that certain Second Amendment to Loan and
Security Agreement dated as of January 22, 2004, that certain Third
Amendment to Loan Agreement dated as of January 31, 2005, that
certain Fourth Amendment to Loan Agreement dated as of March 11,
2005, that certain Waiver and Fifth Amendment to Loan Agreement
dated as of August 1, 2005, that certain Sixth Amendment to Loan
Agreement dated as of February 28, 2006, and that certain Seventh
Amendment to Loan Agreement of even date herewith (collectively,
the "Agreement"), and acknowledging that Bank would not enter into
the Agreement without the benefit of this Third Amended and
Restated Guaranty (the "Guaranty"), the undersigned guarantors
("Guarantors") hereby unconditionally and irrevocably guaranty the
prompt and complete payment of all amounts that Borrower owes to
Bank and performance by Borrower of the Agreement and any other
agreements between Borrower and Bank, as amended from time to time
(collectively referred to as the "Agreements"), in strict
accordance with their respective terms. All terms used
without definition in this Guaranty shall have the meaning assigned
to them in the Agreement.
1.
If Borrower does not pay any amount or perform its
obligations in strict accordance with the Agreements, Guarantors
shall immediately pay all amounts due thereunder (including,
without limitation, all principal, interest, and fees) and
otherwise to proceed to complete the same and satisfy all of
Borrower’s obligations under the Agreements; provided
that Guarantors’ aggregate liability hereunder shall be
limited to the maximum principal amount of Twelve Million Dollars
($12,000,000), plus all amounts incurred in enforcement of this
Guaranty.
2.
If there is more than one guarantor, the obligations
hereunder are joint and several, and whether or not there is more
than one guarantor, the obligations hereunder are independent of
the obligations of Borrower and any other person or entity, and a
separate action or actions may be brought and prosecuted against
each Guarantor whether action is brought against Borrower or
whether Borrower be joined in any such action or actions.
Each Guarantor waives the benefit of any statute of limitations
affecting its liability hereunder or the enforcement thereof, to
the extent permitted by law. Each Guarantor’s liability
under this Guaranty is not conditioned or contingent upon the
genuineness, validity, regularity or enforceability of the
Agreements.
3.
Each Guarantor authorizes Bank, without notice or
demand and without affecting its liability hereunder, but subject
to the limitations set forth in Paragraph 1 above, from time to
time to (a) renew, extend, or otherwise change the terms of the
Agreements or any part thereof; (b) take and hold security for the
payment of this Guaranty or the Agreements, and exchange, enforce,
waive and release any such security; and (c) apply such security
and direct the order or manner of sale thereof as Bank in its sole
discretion may determine.
4.
Each Guarantor waives any right to require Bank to
(a) proceed against Borrower, any other guarantor or any other
person; (b) proceed against or exhaust any security held from
Borrower; or (c) pursue any other remedy in Bank’s power
whatsoever. Bank may, at its election, exercise or decline or
fail to exercise any right or remedy it may have against Borrower
or any security held by Bank, including without limitation the
right to foreclose upon any such security by judicial or
nonjudicial sale, without affecting or impairing in any way the
liability of either Guarantor hereunder. Each Guarantor
waives any defense arising by reason of any disability or other
defense of Borrower or by reason of the cessation from any cause
whatsoever of the liability of Borrower (other than indefeasible
payment in full of the Obligations). Each Guarantor waives
any setoff, defense or counterclaim that Borrower may have against
Bank (other than the defense that all Obligations have been
indefeasibly paid in full). Each Guarantor waives any defense
arising out of the absence, impairment or loss of any right of
reimbursement or subrogation or any other rights against
Borrower. Until all of the amounts that Borrower owes to Bank
under the Agreements have been paid in full, each Guarantor shall
have no right of subrogation or reimbursement, contribution or
other rights against Borrower, and until such time, each Guarantor
waives any right to enforce any remedy that Bank now has or may
hereafter have against Borrower. Each Guarantor waives
all
presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor,
and notices of acceptance of this Guaranty and of the existence,
creation, or incurring of new or additional indebtedness.
Each Guarantor assumes the responsibility for being and keeping
itself informed of the financial condition of Borrower and of all
other circumstances bearing upon the risk of nonpayment of any
indebtedness or nonperformance of any obligation of Borrower,
warrants to Bank that it will keep so informed, and agrees that
absent a request for particular information by a Guarantor, Bank
shall not have any duty to advise such Guarantor of information
known to Bank regarding such condition or any such
circumstances. Each Guarantor waives the benefits of
California Civil Code sections 2799, 2808, 2809, 2810, 2815,
2819, 2820, 2821, 2922, 2838, 2839, 2845, 2847, 2848, 2849, 2850,
2899 and 3433.
5.
Guarantors acknowledges that, to the extent
Guarantors have or may have certain rights of subrogation or
reimbursement against Borrower for claims arising out of this
Guaranty, those rights may be impaired or destroyed if Bank elects
to proceed against any real property security of Borrower by
non-judicial foreclosure. That impairment or destruction
could, under certain judicial cases and based on equitable
principles of estoppel, give rise to a defense by a Guarantor
against its obligations under this Guaranty. Each Guarantor
waives that defense and any others arising from Bank’s
election to pursue non-judicial foreclosure. Without limiting
the generality of the foregoing, each Guarantor waives any and all
benefits and defenses under California Code of Civil Procedure
Sections 580a, 580b, 580d and 726, to the extent they are
applicable.
6.
If Borrower becomes insolvent or is adjudicated
bankrupt or files a petition for reorganization, arrangement,
composition or similar relief under any present or future provision
of the United States Bankruptcy Code, or if such a petition is
filed against Borrower, and in any such proceeding some or all of
any indebtedness or obligations under the Agreements are terminated
or rejected or any obligation of Borrower is modified or abrogated,
or if Borrower’s obligations are otherwise avoided for any
reason, each Guarantor agrees that such Guarantor’s liability
hereunder shall not thereby be affected or modified and such
liability shall continue in full force and effect as if no such
action or proceeding had occurred. This Guaranty shall
continue to be effective or be reinstated, as the case may be, if
any payment must be returned by Bank upon the insolvency,
bankruptcy or reorganization of Borrower, any Guarantor, any other
guarantor, or otherwise, as though such payment had not been
made.
7.
Any indebtedness of Borrower now or hereafter held
by either Guarantor is hereby subordinated to
|
