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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 any indebtedness of Borrower to
Bank; and such indebtedness of Borrower to such Guarantor shall be
collected, enforced and received b
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