Exhibit 10.1
SECOND AMENDMENT TO CREDIT
AGREEMENT
This Second Amendment to Credit
Agreement (“Amendment”) is made as of this 27th day of
February, 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)
The definitions of “Applicable
Margin,” “Default Rate,” “Safeguard
Indemnity,” “Safeguard Loan Documents,”
“Safeguard Subordination Agreement” and “Senior
Debt” set forth in Annex I to the Credit Agreement are hereby
by amended and restated as follows:
“ Applicable Margin
” means the spread over the LIBOR Rate equal to
6.00%.
“ Default Rate ”
means five percent (5.0%) above the Interest Rate otherwise
applicable on the Revolving Loans.
“ Safeguard Indemnity
” means that certain Amended and Restated Reimbursement and
Indemnity Agreement dated January 17, 2007 executed by
Clarient in favor of Safeguard and Safeguard Delaware, as amended
by that certain First Amendment to Amended and Restated
Reimbursement and Indemnity Agreement dated March 6, 2007
among Clarient, Safeguard and Safeguard Delaware, that certain
Second Amendment to Amended and Restated Reimbursement and
Indemnity Agreement dated March 14, 2008 among Clarient,
Safeguard and Safeguard Delaware and that certain Third Amendment
to Amended and Restated Reimbursement and Indemnity Agreement dated
February 27, 2009 among Clarient, Safeguard and Safeguard
Delaware.
“
Safeguard Loan Documents ” mean, collectively and
individually as context requires, that certain Second Amended and
Restated Senior Subordinated Revolving Credit Agreement dated
February 27, 2009 between Clarient and Safeguard, that certain
Second Amended and Restated Revolving Credit Note executed by
Clarient in favor of Safeguard dated February 27, 2009, those
certain Warrants (as defined in the Safeguard Subordination
Agreement), that certain Amended and Restated Registration Rights
Agreement dated February 27, 2009 among Clarient, Safeguard,
Safeguard Scientifics, Inc. and Safeguard Delaware and the
Safeguard Indemnity, each as amended, restated, supplemented or
otherwise modified from time to time to the extent that such
amendments, restatements, supplements or modification are permitted
pursuant to the Safeguard Subordination Agreement.
“
Safeguard Subordination Agreement ” means that certain
Amended and Restated Subordination Agreement dated as of
February 27, 2009 executed by Safeguard and Safeguard Delaware
in favor of Lender, as amended, restated, supplemented or otherwise
modified from time to time.
“ Senior
Debt ” means all Indebtedness of Borrowers including
without limitation the Obligations hereunder, but not including the
Subordinated Debt.
(b)
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 January 31, 2010; provided that, 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, 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, in form and
substance satisfactory to Lender in its sole discretion, to amend
such 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.
(c)
Section 6.06
of the Credit Agreement is hereby amended and restated as
follows:
6.06
Financial Covenants
. Borrowers shall perform and comply
with
2
each of the following financial
covenants as reflected and computed from their financial
statements:
(a)
Borrowers shall maintain, at all
times, a Fixed Charge Coverage Ratio, measured quarterly at the end
of each fiscal quarter, of not less than (i) 1.0 to 1.0 as of
the fiscal quarter ending March 31, 2009, (ii) 1.0 to 1.0
as of the fiscal quarter ending June 30, 2009, (iii) 1.10
to 1.0 as of the fiscal quarter ending September 30, 2009 and
(iv) 1.20 to 1.0 as of the fiscal quarter
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