Exhibit 10.1
FIRST AMENDMENT TO CREDIT
AGREEMENT
This First Amendment to Credit
Agreement (“Amendment”) is made as of this 30
th day of January, 2009, by and among Gemino
Healthcare Finance, LLC (“Lender”) and
Clarient, Inc., Clarient Diagnostic Services, Inc. and
ChromaVision International, Inc. (collectively, the
“Borrowers”).
BACKGROUND
A.
Borrowers and
Lender are parties to a certain Credit Agreement dated
July 31, 2008 (as modified and amended from time to time, the
“Credit Agreement”), pursuant to which Borrowers
established certain financing arrangements with Lender. The
Credit Agreement and all instruments, documents and agreements
executed in connection therewith, or related thereto are referred
to herein collectively as the “Existing Credit
Documents.” All capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Credit
Agreement.
B.
Borrowers have
requested and Lender has agreed to amend the terms and conditions
of the Existing Credit Documents, pursuant to the terms and
conditions of this Amendment.
C.
Borrowers and
Lender desire to set forth their agreement in writing.
NOW THEREFORE, with the foregoing
Background deemed incorporated by reference and for good and
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto, intending to be legally bound,
covenant and agree as follows:
1.
Amendment
. Upon the
effectiveness of this Amendment, the Credit Agreement is hereby
amended in the following manner:
(a)
Section 2.01(d) of
the Credit Agreement is hereby amended and restated as
follows:
(d)
The initial term
of the Credit Facility (“ Initial Term ”) shall
expire on February 27, 2009; provided that, (i) so
long as (A) no Unmatured Event of Default or Event of Default
has occurred and is continuing, (B) no later than
February 13, 2009, Borrowers have delivered to Lender
evidence, in form and substance satisfactory to Lender, that the
First SubDebt Extension has occurred and (C) Borrowers shall
have executed and delivered to Lender such amendments and other
documents required by Lender to amend Section 6.06 hereof,
such amendment to include financial covenants for the period from
January 1, 2009 through January 31, 2010, in form and
substance satisfactory to Lender in its sole discretion, and such
other terms and conditions required by Lender, all in form and
substance satisfactory to Lender, the Initial Term shall be
automatically extended to January 31, 2010 and (ii) so
long as (A) no Unmatured Event of Default or Event of Default
has occurred and is continuing, (B) no later than thirty (30)
days prior to the last day of the Initial Term (as extended
pursuant to Section 2.01(d)(i) above), Borrowers have
delivered to Lender evidence, in form and substance satisfactory to
Lender, that the Second SubDebt Extension has occurred,
and
(C) Borrowers shall
have executed and delivered to Lender such amendments and other
documents required by Lender to amend Section 6.06 hereof,
such amendment to include financial covenants for the period from
January 1, 2010 through January 31, 2011, in form and
substance satisfactory to Lender in its sole discretion, and such
other terms and conditions required by Lender, all in form and
substance satisfactory to Lender, such Initial Term shall be
automatically extended to January 31, 2011. All
Revolving Loans shall be repaid on or before the earlier of the
last day of the Initial Term or upon termination of the Credit
Facility or termination of this Agreement (“ Maturity
Date ”). After the Maturity Date no further
Revolving Loans shall be available from Lender.
(b)
Definition
. The
following definition in Annex 1 to the Credit Agreement is hereby
amended and restated as follows:
“First
SubDebt Extension” means the occurrence prior to
February 13, 2009 of both (i) either (A) the
extension of the maturity date of the Comerica Subordinated Debt to
a date no earlier than February 26, 2010 pursuant to terms,
conditions and documentation, in form and substance satisfactory to
the Lender in its sole discretion, or (B) the replacement or
refinancing of the Comerica Subordinated Debt with Replacement
Subordinated Debt in an amount not less than the outstanding
balance of the Comerica Subordinated Debt (including, without
limitation, principal, accrued interest, fees, costs and
expenses) and with a maturity date no earlier than
February 26, 2010 (“Comerica Replacement Subordinated
Debt”) AND (ii) either (A) the extension of the
maturity date of the Safeguard Subordinated Debt to a date no
earlier than April 1, 2010 pursuant to terms, conditions and
documentation, in form and substance satisfactory to the Lender in
its sole discretion, or (B) the replacement or refinancing of
the Safeguard Subordinated Debt with Replacement Sub
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