FIRST AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT

Exhibit 10.31
FIRST AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT   THIS FIRST AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT (this “ Agreement ”) is entered into on this 3rd day of November, 2008 (the “ Effective Date ”), by and among NEOGENOMICS, INC. , a Florida corporation (“ Borrower ”), NEOGENOMICS, INC. , a Nevada corporation (“ Guarantor ”, together with Borrower, individually, a “ Credit Party ” and collectively, the “ Credit Parties ”) and CAPITALSOURCE FINANCE LLC , a Delaware limited liability company (“ Lender ”) as agent for the lenders to the Credit Agreement. . RECITALS   A. The Credit Parties and Lender have entered into that certain Revolving Credit and Security Agreement, dated as of February 1, 2008 (as may be amended, restated, supplemented or otherwise modified from time to time, the “ Credit Agreement ”).   B. The Credit Parties have requested that Lender agree to make certain amendments to the Credit Agreement. Lender has agreed to this request on the conditions set forth in this Agreement.   C. Pursuant to the terms and conditions of this Agreement, the Credit Parties and the Lender have agreed to amend certain provisions of the Credit Agreement.   NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:   AGREEMENT   ARTICLE I - DEFINITIONS   1.01   Definitions . Capitalized terms used in this Agreement are defined in the Credit Agreement, as amended hereby, unless otherwise stated.   ARTICLE II-WAIVER   2.01   Waiver .   (a) An Event of Default has occurred as a result of the failure of Borrower to maintain Minimum Cash Velocity required by Section 2 of Annex 1 of the Credit Agreement for the period ended June 30, 2008 (the “ Specified Event of Default ”).
   

 
(b) Subject to the conditions contained herein, Lender hereby waives the Specified Event of Default as of the date that it was first discovered by Borrower. Except as expressly set forth herein with respect to the Specified Event of Default, this letter agreement shall not be deemed to be a waiver of any Default or Event of Default. The waivers set forth herein shall not preclude the future exercise of any other right, power, or privilege available to Lender whether under the Agreement, the Loan Documents or otherwise.   (c) The occurrence of the Specified Event of Default shall not be deemed to result in non-compliance with the financial covenants for purposes of Clause (ii) of Section 3 of Annex 1 of the Loan Agreement.   ARTICLE III– AMENDMENT   3.01   Amendment to Section 9.13 of the Credit Agreement . Effective as of the Effective Date, Section 9.13 of the Credit Agreement is hereby amended by deleting “$100,000” and replacing it with “$250,000”.   ARTICLE IV - CONDITIONS PRECEDENT   4.01   Conditions to Effectiveness . The effectiveness of this Agreement against Lender is subject to the satisfaction of the following conditions precedent in a manner satisfactory to Lender in its sole discretion, unless specifically waived in writing by Lender:   Lender shall have received each of the following, each in form and substance satisfactory to Lender, in its sole discretion, and, where applicable, each duly executed by each party thereto, other than Lender:  

  ARTICLE V- RATIFICATIONS, REPRESENTATIONS AND WARRANTIES   5.01   Ratifications . The terms and provisions set forth in this Agreement shall modify and supersede all inconsistent terms and provisions set forth in the Credit Agreement and the Loan Documents, and, except as expressly modified and superseded by this Agreement, the terms and provisions of the Credit Agreement and the Loan Documents are ratified and confirmed and shall continue in full force and effect. The Credit Parties hereby ratify and confirm that the Liens granted under the Credit Agreement secure all obligations and indebtedness now, hereafter or from time to time made by, owing to or arising in favor of Lender pursuant to the Loan Documents (as now, hereafter or from time to time amended). The Credit Parties and Lender agree that the Credit Agreement and the Loan Documents, as amended hereby, shall continue to be legal, valid, binding and enforceable in accordance with their respective terms.
  2

    5.02   Representations and Warranties . The Credit Parties hereby, jointl