EX-10.37




	



Exhibit 10.37 




FOURTH AMENDATORY
AGREEMENT AND WAIVER 
TO CREDIT AGREEMENT 



         
       THIS
FOURTH AMENDATORY AGREEMENT AND WAIVER TO CREDIT AGREEMENT (this “Amendment”)
made as of the 31st day of March, 2003 by and among IMPATH INC. (“Parent”),
IMPATH PREDICTIVE ONCOLOGY, INC., IMPATH-BIS INC., MEDICAL REGISTRY SERVICES, INC.,
IMPATH-BCP, INC., IMPATH-PCRL INC., IMPATH-HDC, INC., IMPATH INFORMATION SERVICES, INC.,
TAMTRON CORPORATION and IMPATH-CSL INC. (each of the foregoing is referred to herein
individually as a “Borrower” and collectively as the “Borrowers”),
FLEET NATIONAL BANK (“Fleet”), THE BANK OF NEW YORK (“BNY”), KEY
CORPORATE CAPITAL INC. (“Key”) and BANK LEUMI USA (“Leumi;” Fleet,
BNY, Key and Leumi, together with each of their successors and assigns, are referred to
herein individually as a “Lender” and collectively as the “Lenders”),
FLEET NATIONAL BANK, as Issuing Lender and FLEET NATIONAL BANK, acting in the manner and
to the extent described in Article IX of the Credit Agreement (in such capacity, the
“Agent”).  



RECITALS:  



         
       A.     The
Borrowers, the Issuing Lender, the Agent and the Lenders entered into a certain
Credit Agreement dated as of June 4, 2001, as amended by a First Amendatory
Agreement to Credit Agreement dated as of September 30, 2001 (the “First
Amendatory Agreement”), a Second Amendatory Agreement to Credit Agreement
dated as of January 16, 2002 (the “Second Amendatory Agreement”) and
a Third Amendatory Agreement to Credit Agreement, Joinder and Assignment
Agreement dated as of October 17, 2002 (the “Third Amendatory Agreement”)
(as so amended, the “Credit Agreement”); and  



        
        B.              The
Borrowers, the Lenders, the Issuing Lender and the Agent wish to amend the
          Credit Agreement as hereinafter set forth.  



                NOW,
THEREFORE, in consideration of the foregoing and for other good and valuable
consideration whose receipt and sufficiency are acknowledged, the Borrowers, the Lenders,
the Issuing Lender and the Agent agree as follows:  



        Section
1. Definitions. Each capitalized term used but not defined in this Amendment
shall have the meaning ascribed to such term in the Credit Agreement.  



        Section
2. Amendments to Credit Agreement.  



        (a)    
A
new definition for “Additional Interest” shall be added to Section
          1.01 of the Credit Agreement in its correct alphabetical order and shall read
in           its entirety as follows:  



















	









	 	        “Additional
Interest” means, for the period beginning July 1, 2003 through and including
September 30, 2003, with respect to Alternate Base Rate Loans and LIBOR Rate Loans that
were outstanding during such period, the difference between (i) the amount of interest
that would have been paid during such period on account of such Loans if interest were
charged at the Applicable Margin set forth in subpart “(b)” of the definition
of Applicable Margin as a result of a Trigger Date, minus (ii) the amount of interest
actually paid on account of such Loans during such period.  







	


        (b)              The
definition of  “Amendment” in Section 1.01 of the Credit Agreement           is
hereby amended and restated in its entirety to read as follows:  










	 	         “Amendment” means
the Second Amendatory Agreement to Credit Agreement dated as of January 16, 2002 by and
among the Borrowers, the Lenders and the Agent.  







	


        (c)              A
new definition for  “Amendment No. 4” shall be added to Section 1.01
          of the Credit Agreement in its correct alphabetical order and shall read in its
          entirety as follows:  











	 	        “Amendment
No. 4”  means that certain Fourth Amendatory Agreementto Credit Agreement
dated as of March 31, 2003 among the Borrowers, the Lenders, the Issuing Lender and the
Agent.  







	


        (d)              The
definition of  “Applicable Margin” in Section 1.01 of the Credit
          Agreement is hereby amended and restated in its entirety to read as follows:  











	 	        “Applicable
Margin” shall be based on the ratio of Total Funded Debt to Pro Forma EBITDA as set
forth in Section 7.03 hereof (except that, for purposes of determining the Applicable
Margin, there shall be no addition to EBITDA on account of the Special Charges) and
means:  







	 	        (a)
                            (i) Prior to October 1,
2003, and (ii) on or after October 1, 2003 with respect                     to each date
that a Trigger Date does not exist, in each case during the
                    applicable periods when such ratio is as set forth below: (1) with
respect to                     Loans that are Alternate Base Rate Loans, the percentage
set forth below under                     the heading “ABR” and adjacent to
such ratio, (2) with respect to                     Loans that are LIBOR Rate Loans, the
percentage set forth below under the                     heading “LIBOR” and
adjacent to such ratio:  






	


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		APPLICABLE
      MARGIN 
		LIBOR
      

    	 	 	ABR
      

    
	                Equal
      to or greater than 2.0 to 1.0	 	2.00	%	    	.000	%
	 	 
	                Less
      than 2.0 to 1.0, but

                           equal
      to or greater than 1.5 to 1.0	 	1.75	%	 	.000	%
	 	 	 	 	 	 	 
	                Less
      than 1.5 to 1.0	 	1.50	%	 	.000	%







	 	        (b)
                            On or after October 1,
2003 with respect to each date that a Trigger Date                     exists, in each
case during the applicable periods when such ratio is as set                     forth
below: (1) with respect to Loans that are Alternate Base Rate Loans, the
                    percentage set forth below under the heading “ABR” and
adjacent to                     such ratio, (2) with respect to Loans that are LIBOR Rate
Loans, the percentage                     set forth below under the heading “LIBOR” and
adjacent to such ratio:  






		APPLICABLE
      MARGIN 
		LIBOR
      

    	 	 	ABR
      

    	 
	                  Equal
      to or greater than 2.0 to 1.0	2.25	%	      	0.25	%
	 
	                  Less
      than 2.0 to 1.0, but

                            equal
      to or greater than 1.5 to 1.0	2.00	%	 	0.25	%
	 
	                  Less
      than 1.5 to 1.0	1.75	%	 	0.25	%






	 	
The
determination of the Total Funded Debt to Pro Forma EBITDA ratio for determination of the
Applicable Margin pursuant to subparagraph “(a)” or “(b)” above shall
be made on a quarterly basis based on an examination of the financial statements of
Borrowers and Subsidiaries which financial statements, whether annual or quarterly, shall
indicate that there exists no Default or Event of Default hereunder. Each determination of
the Total Funded Debt to Pro Forma EBITDA ratio shall be effective as of the first day of
the calendar month following the date on which the financial statements on which such
determination was based were received by the Agent. In the event that financial statements
for the four full fiscal quarters most recently completed prior to such date of
determination have not been delivered to the Agent in compliance with Section 5.08(a) or
5.08(b), then the Agent may determine, in its reasonable judgment, the Total Funded Debt
to Pro Forma EBITDA ratio referred to above that would have been in effect as at such
date, and, consequently, the Applicable Margin in effect for the period commencing on such
date. Notwithstanding the foregoing or anything to the contrary contained in this
Agreement, although the Total Funded Debt to Pro Forma EBITDA ratio shall be determined on
a quarterly basis as described aforesaid, beginning October 1, 2003 and all times
thereafter the Applicable Margin will be determined pursuant to subparagraph
“(a)” or “(b)” above on a daily basis and shall change automatically
without any further notice of any kind upon any and each change thereof as a result of the
occurrence or non-occurrence, as the case may be, of a Trigger Date. 






	


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        (e)              The
definition of “Commitment Fee” in Section 1.01 of the Credit
          Agreement is hereby amended and restated in its entirety to read as follows:  










	 	        “Commitment
Fee” shall be based on the ratio of Total Funded Debt to Pro Forma EBITDA as set
forth in Section 7.03 hereof (except that, for purposes of determining the Commitment
Fee, there shall be no addition to EBITDA on account of the Special Charges) and means a
non-refundable fee equal to the average daily unused portion of the Revolving Facility
Loan Commitment multiplied by (i) at all times when such ratio is equal to or greater
than 2.0 to 1.0, 0.30% and (ii) at all times when such ratio is less than 2.0 to 1.0,
0.25%. The determination of the applicable percentage set forth above shall be made on a
quarterly basis based on an examination of the financial statements of Borrowers and
Subsidiaries, which financial statements, whether annual or quarterly, shall indicate
that there exists no Default or Event of Default hereunder. Each determination of the
Commitment Fee shall be effective as of the first day of the calendar month following the
date on which the financial statements on which such determination was based were
received by the Agent. In the event that financial statements for the four full fiscal
quarters most recently completed prior to such date of determination have not been
delivered to the Agent in compliance with Section 5.08(a) or 5.08(b), then the Agent may
determine, in its reasonable judgment, the ratio referred to above that would have been
in effect as at such date, and, consequently, the Commitment Fee in effect for the period
commencing on such date.  







	


        (f)              The
definition of  “EBITDA” in Section 1.01 of the Credit Agreement is
          hereby amended and restated in its entirety to read as follows:  










	 	        “EBITDA” means
income from continuing operations before interest, taxes, depreciation and amortization
determined in accordance with GAAP. For the purpose only of testing compliance with any
financial covenant in Article VII hereof, “EBITDA” means income from continuing
operations before interest, taxes, depreciation and amortization determined in accordance
with GAAP, plus the Special Charges (it being expressly agreed that for the purpose of
determining the Applicable Margin there shall be no addition to EBITDA on account of the
Special Charges).  







	


        (g)              A
new definition for “Special Charges” shall be added to Section 1.01
          of the Credit Agreement in its correct alphabetical order and shall read in its
          entirety as follows:  










	 	        “Special
Charges” means (i) up to Nine Million Nine Hundred Thousand Dollars ($9,900,000)
directly related to the special charge taken by the Borrowers in their fourth fiscal
quarter of 2002 as a result of an increase in the Borrowers’ provision for bad
debts, (ii) up to Fifteen Million Dollars ($15,000,000) directly relating to a special
software write-down to be taken by the Borrowers in their first fiscal quarter of 2003,
but solely to the extent (and in the amount) such write-down is actually taken by the
Borrowers and (iii) the lesser of (x) Two Million Five Hundred Thousand Dollars
($2,500,000) and (y) up to $2,000,000 on account of losses on sales of equipment actually
and severance costs incurred by the Borrowers on or about June 30, 2003, but solely to
the extent all of same directly relate to Borrowers’ cessation of histology services
and up to $500,000 on account of actual severance costs as a result of the reduction in
force to take place on or about March 31, 2003.  







	


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        (h)              A
new definition for “Trigger Date” shall be added to Section 1.01 of
          the Credit Agreement in its correct alphabetical order and shall read in its
          entirety as follows:  










	 	        “Trigger
Date” means each day on or after October 1, 2003 when the aggregate outstanding
principal balance of Revolving Facility Loans equals or exceeds Thirty Two Million and
00/100 Dollars ($32,000,000.00).  







	


        (i)              Section
2.02 of the Credit Agreement is amended by adding the following           paragraph to
the end thereof, which paragraph shall read in its entirety as           follows:  










	 	        In
addition to the interest and other amounts required to be paid pursuant to this
Agreement, if a Trigger Date did at any time exist on any date during the period
beginning October 1, 2003 through and including October 31, 2003, then, on November 3,
2003, the Borrowers shall pay the full amount of the Additional Interest.  







	


        (j)              Section
5.08 of the Credit Agreement is amended by adding the following new
          subparagraph “(p)” to the end thereof immediately after current
          subparagraph “(o)”, which paragraph shall read in its entirety as
          follows:  










	 	        (p)
       Cash and Marketable Securities Information.
Together with each Borrowing                     Base Certificate furnished pursuant to
the terms of this Agreement, detail as to                     the cash and marketable
securities, on a consolidated basis for all of the                     Borrowers, as of
the last day of the most recent month.  







	


        (k)              Section
7.01 of the Credit Agreement is hereby amended and restated in its           entirety to
read as follows:  










	 	        Section
7.01 Current Ratio. Borrower will not permit the ratio of (a) current assets less
prepaid expenses to (b) the sum of current liabilities (excluding liabilities under any
Term Loan) and, without duplication, the then outstanding principal balance of Revolving
Facility Loans to be less than 1.30 to 1.00.  








	

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        Section
3.     Fixed Charge Coverage Ratio Waiver. Section 7.04 of the Credit Agreement requires that
the Borrowers maintain as at the last day of each fiscal quarter ending on or after
December 30, 2001 a consolidated Fixed Charge Coverage Ratio in a proportion not less
than 1.50 to 1.00 and for the fiscal quarter ending December 31, 2002 the Borrowers
consolidated Fixed Charge Coverage Ratio was approximately 1.37 to 1.00. The Agent, the
Issuing Lender and each Lender hereby agrees to waive compliance with such Section 7.04
of the Credit Agreement, but solely with respect to the fiscal quarter of the Borrowers
ending December 31, 2002 and for that fiscal quarter only. The waiver provided herein is
effective only in this one instance, only with respect to the fiscal quarter of the
Borrowers ending December 31, 2002 and only for the purposes indicated above.  



        Section
4.     Conforming Amendments. The Credit Agreement, the other Loan Documents and all
agreements, instruments and documents executed and delivered in connection with any of
the foregoing, shall each be deemed to be amended and supplemented hereby to the extent
necessary, if any, to give effect to the provisions of this Amendment. Except as so
amended hereby, the Credit Agreement and the other Loan Documents shall remain in full
force and effect in accordance with their respective terms.  



        Section
5.     Acknowledgments, Confirmations and Consent. Each Borrower acknowledges and confirms
that the Liens granted pursuant to the SecurityAgreement to which it is a party
secure the indebtedness, liabilities and obligations of such Borrower to the Lenders, the
Issuing Lender and the Agent under the Credit Agreement as amended by this Amendment, the
Notes and the other Loan Documents, whether or not so stated in each of such Security
Agreements.  



        Section
6.     Guarantees Remain Effective. By their execution of this Amendment in the space
provided below, each Borrower hereby reaffirms its continuing liability under its
respective guarantee in respect of the Credit Agreement as amended hereby and all the
documents, instruments and agreements executed pursuant thereto or in connection
therewith, without offset, defense or counterclaim (any such offset, defense or
counterclaim as may exist on the date hereof being hereby irrevocably waived by each
Borrower).  



        Section
7.     Representations and Warranties. Each Borrower represents and warrants to the Lenders,
the Issuing Lender and the Agent as follows:  



       
         (a)    
After giving effect to this Amendment (i) each of the representations and warranties set forth in
Article IV of the Credit Agreement is true and correct           in all respects
as if made on the date of this Amendment, except for changes in           the ordinary
course of business which, either singly or in the aggregate, are           not materially
adverse to the business or financial condition of any Borrower           and except to
the extent that any of the representations and warranties set           forth in the
Credit Agreement expressly relate to a specific earlier date, as to           which
Borrowers jointly and severally hereby confirm, reaffirm and restate such
          representations and warranties as of such earlier date, and (ii) no Default or
          Event of Default exists.  




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                (b)              Each
Borrower has the power to execute, deliver and perform, and has taken all
          necessary corporate action to authorize the execution, delivery and performance
          of, this Amendment and the other agreements, instruments and documents to be
          executed by it in connection with this Amendment. No consent or approval of any
          Person, no consent or approval of any landlord or mortgagee, no waiver of any
          Lien or right of distraint or other similar right and no consent, license,
          certificate of need, approval, authorization or declaration of, or filing with,
          any governmental authority, bureau or agency is or will be required in
          connection with the execution, delivery or performance by any Borrower, or the
          validity, enforcement or priority, of this Amendment and the other agreements,
          instruments and documents executed in connection with this Amendment.  



                (c)
              The execution, delivery and performance by the
Borrowers of this Amendment and           each of the agreements, instruments and
documents executed in connection with           this Amendment to which a Borrower is a
party will not (i) violate any provision           of law, (ii) conflict with or result
in a breach of any order, writ, injunction,           ordinance, resolution, decree or
other similar document or instrument of any           court or governmental authority,
bureau or agency, domestic or foreign, or the           certificate of incorporation or
by-laws of any Borrower, (iii) create (with or           without the giving of notice or
lapse of time, or both) a default under or           breach of any agreement, bond, note
or indenture to which any Borrower is a           party or by which any Borrower is bound
or any Borrower’s respective           properties or assets is affected, or (iv)
result in the imposition of any Lien           of any nature whatsoever upon any of the
properties or assets owned by or used           in connection with the business of any
Borrower, except for the Liens created           and granted pursuant to the Security
Agreements.  



                (d)              This
Amendment and each of the other agreements, instruments and documents           executed
in connection with this Amendment to which the Borrowers are a party           has been
duly executed and delivered by each Borrower and constitutes the valid           and
legally binding obligation of each Borrower, enforceable in accordance with           its
terms, except as such enforcement may be limited by applicable bankruptcy,
          insolvency, reorganization, moratorium, or other similar laws, now or hereafter
          in effect, relating to or affecting the enforcement of creditors’ rights
          generally and except that the remedy of specific performance and other
equitable           remedies are subject to judicial discretion.  



                (e)              The
only material Subsidiaries of the Borrowers are those Persons who are           indicated
as “Borrowers” on the signature page to this Amendment.  



        Section
8.     Fees. The Borrowers shall pay all the fees required to be paid pursuant to the Credit
Agreement and in addition thereto the Borrowers shall pay to the Agent:  



7 



















	




                (a)              For
the account of each Lender that executes this Amendment, an amendment fee in
          the amount of .20% of each such Lender’s Commitment;  



                (b)              Any
and all fees provided for in any separate agreement for compensation,           payment,
or reimbursement between the Agent and the Borrowers.  



All of the foregoing fees
(collectively the “Amendment Fees”) shall be deemed to be earned and payable
upon the Effective Date. 



        Section
9.    Examination of Books and Records. Each Borrower hereby
agrees that on or before May 15, 2003 the Agent or its designee is authorized to conduct,
at the Borrowers’ expense, an examination of each Borrowers’ books and records
and it shall be an additional Event of Default under the Credit Agreement if the results
of such examination are not satisfactory to the Agent, in the Agent’s reasonable
discretion, after the exercise of its reasonable business judgment.  



        Section
10.    Miscellaneous. 



                (a)              Except
as specifically amended by this Amendment, the Credit Agreement and each           of the
other agreements, instruments and documents executed in connection with           the
Credit Agreement shall remain in full force and effect in accordance with           their
respective terms. The amendments and waiver provided for herein are           limited
precisely as written and apply to the specific subsections of the Credit
          Agreement specified herein and shall not, unless expressly provided for
          otherwise, constitute a consent, waiver or amendment of, or an indication of
the           Issuing Lender’s or the Agent’s or any Lender’s willingness
to           consent to any action requiring consent under any other provisions of the
Credit           Agreement or the same subsection for any other date, time period or
purpose.  



                (b)              THIS
AMENDMENT AND ALL OTHER AGREEMENTS, DOCUMENTS AND INSTRUMENTS EXECUTED AND
          DELIVERED IN CONNECTION WITH THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
          IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS
          EXECUTED IN AND TO BE PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK BY
          RESIDENTS OF SUCH STATE.  



                (c)              The
provisions of this Amendment are severable, and if any clause or provision
          shall be held invalid or unenforceable in whole or in part in any jurisdiction,
          then such invalidity or unenforceability shall affect only such clause,
          provision or part in such jurisdiction and shall not in any manner affect such
          clause, provision or part in any other jurisdiction or any other clause or
          provision in this Amendment in any jurisdiction.  



                (d)              This
Amendment may be signed in any number of counterparts with the same effect           as
if all parties to this Amendment signed the same counterpart.  



8 



















	





                (e)              This
Amendment shall be binding upon and inure to the benefit of each Borrower           and
their respective successors and to the benefit of the Issuing Lender, the
          Agent, the Lenders and their respective successors and assigns. The rights and
          obligations of each Borrower under this Amendment shall not be assigned or
          delegated without the prior written consent of the Lenders, the Issuing Lender
          and the Agent, and any purported assignment or delegation without such consent
          shall be void.  



                (f)              The
Borrowers on a joint and several basis agree to pay the Agent promptly upon
          demand all reasonable expenses, including reasonable fees of outside attorneys
          and paralegals for the Agent, incurred by the Agent in connection with the
          preparation, negotiation and execution of this Amendment and any agreements,
          instruments and documents executed or furnished in connection with this
          Amendment.  



                (g)              With
respect to the matters provided in this Amendment, the Borrowers shall           deliver
to the Agent, the Issuing Lender and the Lenders such other information           and
documentation from the Borrowers or third parties as the Agent, the Issuing
          Lender or the Lenders may reasonably request.  



        Section
11.    Effectiveness of Amendment. This Amendment shall become
effective (the “Effective Date”) upon the satisfaction of each of the following
conditions precedent:  



                (a)              Receipt
by the Agent of counterparts of this Amendment duly signed by each           Borrower,
the Agent, the Issuing Lender and each Lender.  



                (b)              If
requested by the Agent, receipt by the Agent and each Lender of appropriate
          corporate proceedings with respect to each Borrower and the matters addressed
by           this Amendment and the documents, instruments and agreements executed
pursuant           hereto or in connection herewith, and such other certificates,
instruments, and           documents as the Agent or any Lender shall reasonably request.  



                (c)              The
Amendment Fees shall have been paid in full.  



                (d)              Any
and all fees, costs and expenses, including but not limited to, reasonable
          invoiced attorneys fees incurred by the Agent in connection with this Amendment
          and all matters relating thereto shall have been paid in full.  




[signature pages follow]



9 



















	





                IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and
delivered by their respective duly authorized officers as of the date first written
above.  










	 	BORROWERS:


IMPATH INC.
IMPATH PREDICTIVE ONCOLOGY, INC.

IMPATH-BIS INC.                                

MEDICAL REGISTRY SERVICES, INC.                

IMPATH-BCP INC.                                

IMPATH-PCRL INC.                               

IMPATH-HDC, INC.                               

IMPATH INFORMATION SERVICES, INC.              

TAMTRON CORPORATION                            

IMPATH-CSL INC.                                

 






		



 By: /s/ Richard C. Rosenzweig 
       ——————————————

      Name: Richard C. Rosenzweig
       Title: Vice President and General Counsel 
                of each Borrower






	


















	










	 	AGENT, ISSUING LENDER AND LENDERS:


FLEET NATIONAL BANK, as Agent,

     Issuing Lender and a Lender 





		



 By: /s/ Thomas J. Levy 
       ——————————————

      Name: Thomas J. Levy
       Title: Senior Vice President






	


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	 	THE BANK OF NEW YORK, as a Lender







		



 By: /s/ Gina Beyer
       ——————————————

      Name: Gina Beyer
       Title: Vice President






	


-12- 























	 	KEY CORPORATE CAPITAL INC. , as a Lender







		



 By: /s/ Wayne Horvath
       ——————————————

      Name: Wayne Horvath
       Title: Vice President






	


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	 	BANK LEUMI USA, as a Lender







		



 By: /s/ Eric A. Halpern
       ——————————————

      Name: Eric A. Halpern
       Title: FVP




		



 By: /s/ Iris Schechter
       ——————————————

      Name: Iris Schechter
       Title: Vice President






	


-14-