Exhibit 10.2


 


FIFTH
AMENDMENT

TO AMENDED AND RESTATED LOAN AGREEMENT


 


This
Fifth Amendment to Amended and Restated Loan Agreement is entered into as of February 27,
2009 (the “Amendment”) by and between COMERICA BANK (“Bank”) and CLARIENT, INC.
(“Borrower”).


 


RECITALS


 


Borrower
and Bank are parties to that certain Amended and Restated Loan Agreement dated
as of February 28, 2008, as amended by that certain First Amendment and
Waiver to Amended and Restated Loan Agreement dated as of March 14, 2008,
that certain Second Amendment to Amended and Restated Loan Agreement dated as
of March 21, 2008, that certain Third Amendment and Consent to Amended and
Restated Loan Agreement dated as of July 31, 2008, and that certain Fourth
Amendment to Amended and Restated Loan Agreement dated as of January 27,
2009 (as so amended, the “Agreement”). 
The parties desire to amend the Agreement in accordance with the terms
of this Amendment.


 


NOW,
THEREFORE, the parties agree as follows:


 


1.                                       The
following defined term in Section 1.1 of the Agreement is amended to read
as follows:


 


“Revolving Line” means a
credit extension of up to Twelve Million Dollars ($12,000,000) (inclusive of
any amounts outstanding under the Letter of Credit Sublimit).


 


2.                                       Effective
March 31, 2009, the following defined term in Section 1.1 of the
Agreement is amended to read as follows:


 


“Revolving Maturity Date” means March 30, 2010.


 


3.                                       The
following defined terms are added to Section 1.1 of the Agreement to read
as follows:


 


“Capital Lease”
means, with respect to any Person, any lease of any property (whether real,
personal or mixed) by such Person as lessee which would, in accordance with
GAAP, be required to be accounted for as a capital lease on the balance sheet
of such person.


 


“Fixed Charge Coverage Ratio”
means the ratio of (A) EBITDA, to (B) the sum of (i) interest
expense paid in cash with respect to Senior Debt, plus (ii) 
interest expense paid in cash on Subordinated Debt, plus (iii) payments
made under Capital Leases, plus (iv) fees paid to Safeguard
pursuant to the Safeguard Indemnity, plus (v) unfinanced capital
expenditures, plus (vi) taxes paid in cash, all as determined for
Borrower and its Subsidiaries on a consolidated basis in accordance with GAAP,
on a rolling four quarter basis; provided, however, that such
calculation as of the fiscal quarter ending March 31, 2009 shall be for
the most recent fiscal quarterly period ending on such date on a cumulative,
annualized basis; such calculation for the fiscal quarter ending June 30,
2009 shall be for the two (2) most recent fiscal quarterly periods ending
on such date on a cumulative, annualized basis and such calculation for the
fiscal quarter ending September 30, 2009 shall be for the three (3) most
recent fiscal quarterly periods ending on such date on a cumulative, annualized
basis.


 


“Funded Indebtedness”
means, as to any Person at a particular time, without duplication, all of the
following, whether or not included as indebtedness or liabilities in accordance
with GAAP:


 


(a)                                  all obligations for borrowed money, whether
current or long-term (including the Indebtedness under the Gemino Credit
Agreement and the Subordinated Debt) and all obligations of such Person
evidenced by bonds, debentures, notes, loan agreements or other similar
instruments;


 


(b)                                 all purchase money indebtedness;


 


1

















 


(c)                                  the principal portion of all obligations
under conditional sale or other title retention agreements relating to Property
purchased by such Person (other than customary reservations or retentions of
title under agreements with suppliers entered into in the ordinary course of
business);


 


(d)                                 the maximum amount available to be drawn
under letters of credit (including standby and commercial), bankers’
acceptances, bank guaranties, surety bonds and similar instruments;


 


(e)                                  all obligations in respect of the deferred
purchase price of Property or services (other than trade accounts payable in
the ordinary course of business);


 


(f)                                    all indebtedness in respect of Capital
Leases;


 


(g)                                 all preferred stock or other equity interests
providing for mandatory redemptions, sinking fund or like payments prior to the
Maturity Date (as defined under the Gemino Credit Agreement);


 


(h)                                 all Funded Indebtedness of others secured by
(or for which the holder of such Funded Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, Property owned or acquired by such Person, whether
or not the obligations secured thereby have been assumed; and


 


(i)                                     all guarantees with respect to Funded
Indebtedness of the types specified in clauses (a) through (h) above
of another Person.


 


“Gemino Defined
Indebtedness” means, as to any Person at a particular time, without duplication,
all of the following, whether or not included as indebtedness or liabilities in
accordance with GAAP:


 


(a)                                  all
Funded Indebtedness; and


 


(b)                                 all guarantees with respect to outstanding
Indebtedness of the types specified in clause (a) above of any other
Person.


 


“Letter of Credit
Sublimit” means a sublimit for Letters of Credit under the Revolving Line not
to exceed $3,000,000.


 


“LIBOR Addendum” means
that certain Daily Adjusting LIBOR Addendum to Loan Agreement entered into
between Borrower and Bank dated as of even date herewith.


 


“Property” means an
interest of Borrower or its Subsidiaries, or any of them, in any kind of
property or asset, whether real, personal or mixed, or tangible or intangible.


 


“Safeguard” means Safeguard Delaware, Inc.


 


“Safeguard Delaware” means Safeguard Scientifics
(Delaware), Inc.


 


“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
as of even date herewith, among Clarient, Safeguard and Safeguard Delaware.


 


2

















 


“Safeguard Subordinated
Debt” means certain obligations of Borrower to Safeguard and Safeguard Delaware
subject to the Safeguard Subordination Agreement.


 


“Safeguard Subordination
Agreement” means that certain Amended and Restated Subordination Agreement
between Gemino, Safeguard, and Safeguard Delaware, as amended, restated,
supplemented or otherwise modified from time to time.


 


“Senior Debt” shall mean
all Gemino Defined Indebtedness of the Borrower including without limitation
the Indebtedness under the Gemino Credit Agreement, but not including the
Subordinated Debt.


 


“Subordinated Debt” means
debt or other obligations of Borrower that is subordinated to the Obligations
of Borrower to Gemino Healthcare Finance, LLC, including, without limitation,
the Obligations owing to Bank and the Safeguard Subordinated Debt.


 


4.                                       Section 2.1(a) of
the Agreement is amended to read as follows:


 


(a)                                  Advances
Under Revolving Line.


 


(i)                                    Amount.  Subject to and upon the terms and conditions
of this Agreement, Borrower may request and Bank agrees to make Advances in an
aggregate outstanding amount not to exceed the Revolving Line less any amounts
outstanding under the Letter of Credit Sublimit.  Subject to the terms and conditions of this
Agreement, amounts borrowed pursuant to this Section 2.1(a) may be
repaid and reborrowed at any time prior to the Revolving Maturity Date, at
which time all Advances under this Section 2.1(a) shall be
immediately due and payable.  Borrower
may prepay any Advances without penalty or premium.


 


(ii)                                Whenever
Borrower desires an Advance, Borrower will notify Bank by facsimile
transmission or telephone no later than 3:00 p.m. Pacific time, on the
Business Day that the Advance is to be made. 
Each such notification shall be promptly confirmed by a Payment/Advance Form in
substantially the form of Exhibit B
hereto.  Bank is authorized to make
Advances under this Agreement, based upon instructions received from a
Responsible Officer or a designee of a Responsible Officer, or without
instructions if in Bank’s discretion such Advances are necessary to meet
Obligations which have become due and remain unpaid.  Bank shall be entitled to rely on any
telephonic notice given by a person who Bank reasonably believes to be a
Responsible Officer or a designee thereof, and Borrower shall indemnify and
hold Bank harmless for any damages or loss suffered by Bank as a result of such
reliance.  Bank will credit the amount of
Advances made under this Section 2.1(a) to Borrower’s deposit
account.


 


(iii)                            Letter
of Credit Sublimit. Subject to the availability under the Revolving Line,
and in reliance on the representations and warranties of Borrower set forth
herein, at any time and from time to time from the date hereof through the
Business Day immediately prior to the Revolving Maturity Date, Bank shall issue
for the account of Borrower such Letters of Credit as Borrower may request by
delivering to Bank a duly executed letter of credit application on Bank’s
standard form; provided, however, that the outstanding and undrawn amounts
under all such Letters of Credit (i) shall not at any time exceed the
Letter of Credit Sublimit, and (ii) shall be deemed to constitute Advances
for the purpose of calculating availability under the Revolving Line.  Any drawn but unreimbursed amounts under any
Letters of Credit shall be charged as Advances against the Revolving Line.  All Letters of Credit shall be in form and
substance acceptable to Bank in its sole discretion and shall be subject to the
terms and conditions of Bank’s form application and letter of credit
agreement.  Borrower will pay any
standard issuance and other fees that Bank notifies Borrower it will charge for
issuing and processing Letters of Credit.


 


5.                                       Section 2.3(a) of
the Agreement is amended to read as follows:


 


(a)                                  Interest
Rates.  Except as set forth in Section 2.3(b),
the Advances shall be a Base Rate Option Advance or a LIBOR Option Advance as
elected by Borrower in accordance with the terms set 


 


3

















 


forth in the LIBOR
Addendum, and shall bear interest on the outstanding Daily Balance thereof at
the applicable rate as set forth in the LIBOR Addendum.


 


6.                                       Section 6.6
of the Agreement is hereby amended in its entirety to read as follows:


 


6.6                               Accounts.  Borrower shall maintain and shall cause each
of its Subsidiaries to maintain its primary depository, operating, and
investment accounts with Bank and/or Comerica Securities, Inc.; provided,
however, Borrower and its Subsidiaries shall be permitted to maintain accounts
at Citizen’s Bank.


 


7.                                       Section 6.8
of the Agreement is hereby amended in its entirety to read as follows:


 


6.8                               Fixed
Charge Coverage.  A Fixed Charge
Coverage Ratio of at least the following ratios for the respective periods
below:


 


	
  PERIOD ENDING

  	
   

  	
  REQUIRED RATIO

  
	
  3/31/09 (three
  months annualized)

  	
   

  	
  1.00:1.00

  
	
  6/30/09 (six
  months annualized)

  	
   

  	
  1.00:1.00

  
	
  9/30/09 (nine
  months annualized)

  	
   

  	
  1.10:1.00

  
	
  12/31/09
  (rolling four quarters)

  	
   

  	
  1.20:1.00

  



 


8.                                       Exhibit C
attached to the Agreement is replaced with Exhibit C attached
hereto.


 


9.                                       Unless
otherwise defined, all initially capitalized terms in this Amendment shall have
the respective meanings set forth in the Agreement.  The Agreement, as amended hereby, shall be and
remain in full force and effect in accordance with its terms and hereby is
ratified and confirmed in all respects. 
Except as expressly set forth herein, the execution, delivery, and
performance of this Amendment shall not operate as a waiver of, or as an
amendment of, any right, power, or remedy of Bank under the Agreement, as in
effect prior to the date hereof. 
Borrower ratifies and reaffirms the continuing effectiveness of all
promissory notes, guaranties, security agreements, mortgages, deeds of trust,
environmental agreements, and all other instruments, documents and agreements
entered into in connection with the Agreement.


 


10.                                 This
Amendment may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one instrument
(and delivered via facsimile or electronic transmission).


 


11.                                 As
a condition to the effectiveness of this Amendment, Bank shall have received,
in form and substance reasonably satisfactory to Bank, the following:


 


(a)                                  this
Amendment, duly executed by Borrower;


 


(b)                                 an
officer’s certificate of Borrower with respect to incumbency and resolutions
authorizing the execution and delivery of this Amendment;


 


(c)                                  the
LIBOR Addendum, duly executed by Borrower;


 


(d)                                 an
affirmation and amendment of subordination agreement (Safeguard Delaware, Inc.);


 


4

















 


(e)                                  an
affirmation of guaranty (Safeguard Delaware, Inc. and Safeguard
Scientifics (Delaware), Inc.);


 


(f)                                    a
copy of an executed amendment of the existing subordinated credit facility with
Safeguard Delaware, Inc. renewing the terms therein until at least April 1,
2010;


 


(g)                                 an
amendment fee of $10,000, and an amount equal to all Bank Expenses incurred
through the date of this Amendment; and


 


(h)                                 such
other documents, and completion of such other matters, as Bank may reasonably
deem necessary or appropriate.


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 


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IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the first
date above written.


 


	
   

  	
  CLARIENT,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Raymond J. Land

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Raymond
  J. Land, Sr. VP and CFO

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMERICA
  BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Todd A. McDonald

  
	
   

  	
   

  
	
   

  	
  Title:

  	
  Senior
  Vice President

  
					



 


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EXHIBIT C

COMPLIANCE CERTIFICATE


 


TO:                                                                            COMERICA
BANK


 


FROM:                                                         CLARIENT,
INC.


 


The
undersigned authorized officer (the “Officer”) of CLARIENT, INC. hereby
certifies that in accordance with the terms and conditions of the Amended and
Restated Loan Agreement between Borrower and Bank (as amended to date, the “Agreement”),
(i) Borrower is in complete compliance for the period ending
                              
with all required covenants except as noted below and (ii) all
representations and warranties of Borrower stated in the Agreement are true and
correct in all material respects as of the date hereof.  Attached herewith are the required documents
supporting the above certification.  The
Officer further certifies that these are prepared in accordance with Generally
Accepted Accounting Principles (GAAP) and are consistently applied from one
period to the next except as explained in an accompanying letter or footnotes.


 


Please indicate compliance status
by circling Yes/No under “Complies” column.


 


	
  Reporting Covenant

  	
   

  	
  Required

  	
   

  	
  Complies

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Monthly
  financial statements

  	
   

  	
  Monthly within
  30 days

  	
   

  	
  Yes  o

  	
   

  	
  No  o

  	
   

  
	
  Annual (CPA
  Audited)

  	
   

  	
  FYE within 90
  days

  	
   

  	
  Yes  o

  	
   

  	
  No  o

  	
   

  
	
  10K and 10Q

  	
   

  	
  (FYE within 90
  days and FQE within 45 days or as extended by SEC provisions)

  	
   

  	
  Yes  o

  	
   

  	
  No  o

  	
   

  



 


	
  Financial Covenant

  	
   

  	
  Required

  	
   

  	
  Actual

  	
   

  	
  Complies

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fixed Charge
  Coverage

  	
   

  	
  See Agreement

  	
   

  	
    .    :1.00

  	
   

  	
  Yes  o

  	
   

  	
  No  o

  	
   

  



 


 


	
  Comments Regarding Exceptions:
  See Attached.

  	
  BANK USE ONLY

  
	
   

  	
   

  
	
   

  	
  Received
  by:

  	
   

  
	
  Sincerely,

  	
  AUTHORIZED SIGNER

  
	
   

  	
   

  
	
   

  	
  Date:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  Verified:

  	
   

  
	
  SIGNATURE

  	
  AUTHORIZED SIGNER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  Date:

  	
   

  
	
  TITLE

  	
   

  
	
   

  	
  Compliance
  Status

  	
  Yes  o

  	
  No  o

  
	
   

  	
   

  	
   

  
	
  DATE

  	
   

  
									



 


1

















 


Daily
Adjusting LIBOR Addendum To Loan Agreement


 


This Daily Adjusting
LIBOR Addendum to Loan Agreement (this “Addendum”) is entered into as of February 27,
2009 by and between Comerica Bank (“Bank”) and CLARIENT, INC. (“Borrower”).  This Addendum replaces in its entirety the
terms of that certain LIBOR Addendum to Amended and Restated Loan Agreement
dated as of February 28, 2008 and supplements the terms of the Amended and
Restated Loan Agreement dated February 28, 2008, as amended from time to
time, including without limitation, by that certain First Amendment and Waiver
to Amended and Restated Loan Agreement dated as of March 14, 2008, that
certain Second Amendment to Amended and Restated Loan Agreement dated as of March 21,
2008, that certain Third Amendment and Consent to Amended and Restated Loan
Agreement dated as of July 31, 2008, that certain Fourth Amendment to
Amended and Restated Loan Agreement dated as of January 27, 2009, and that
certain Fifth Amendment to Amended and Restated Loan Agreement dated as of the
date hereof (collectively, the “Agreement”).


 


1.                                       Definitions.  As used in this Addendum, the following terms
shall have the following meanings. 
Initially capitalized terms used and not defined in this Addendum shall
have the meanings ascribed thereto in the Agreement.


 


(a)                                  “Applicable
Margin” means 2.40 percent (2.40%) per annum for the Advances.


 


(b)                                 “Business
Day” means any day, other than a Saturday, Sunday or any other day designated
as a holiday under Federal or applicable State statute or regulation, on which
Bank is open for all or substantially all of its domestic and international
business (including dealings in foreign exchange) in Detroit, Michigan and San
Jose, California, and, in respect of notices and determinations relating the
Daily Adjusting LIBOR Rate, also a day on which dealings in dollar deposits are
also carried on in the London interbank market and on which banks are open for
business in London, England.


 


(c)                                  “Daily
Adjusting LIBOR Rate” means, for any day, a per annum interest rate which is
equal to the Applicable Margin, plus the quotient of the following:


 


(1)                                  for
any day, the per annum rate of interest determined on the basis of the rate for
deposits in United States Dollars for a period equal to one (1) month
appearing on Page BBAM of the Bloomberg Financial Markets Information
Service as of 8:00 a.m. (California time) (or as soon thereafter as
practical) on such day, or if such day is not a Business Day, on the
immediately preceding Business Day.  In
the event that such rate does not appear on Page BBAM of the Bloomberg
Financial Markets Information Service (or otherwise on such Service) on any
day, the “Daily Adjusting LIBOR Rate” for such day shall be determined by
reference to such other publicly available service for displaying eurodollar
rates as may be reasonably selected by Bank, or in the absence of such other
service, the “Daily Adjusting LIBOR Rate” for such day shall, instead, be
determined based upon the average of the rates at which Bank is offered dollar
deposits at or about 8:00 a.m. (California time) (or as soon thereafter as
practical), on such day, or if such day is not a Business Day, on the
immediately preceding Business Day, in the interbank eurodollar market in an
amount comparable to the principal amount of the Obligations and for a period
equal to one (1) month;


 


divided
by


 


(2)                                  a
percentage (expressed as a decimal) equal to 1.00 minus the maximum rate on
such day at which Bank is required to maintain reserves on “Euro-currency
Liabilities” as defined in and pursuant to Regulation D of the Board of Governors
of the Federal Reserve System or, if such regulation or definition is modified,
and as long as Bank is required to maintain reserves against a category of
liabilities which includes eurodollar deposits or includes a category of assets
which includes eurodollar loans, the rate at which such reserves are required
to be maintained on such category.


 


(d)                                 “LIBOR
Business Day” means a Business day on which dealings in Dollar deposits may be
carried out in the interbank LIBOR market.


 


1

















 


(e)                                  “LIBOR
Lending Office” means Bank’s office located in the Cayman Islands, British West
Indies, or such other branch of Bank, domestic or foreign, as it may hereafter
designate as its LIBOR Lending Office by notice to Borrower.


 


(f)                                    “Prime
Rate” means the per annum interest rate established by Bank as its prime rate
for its borrowers, as such rate may vary from time to time, which rate is not
necessarily the lowest rate on loans made by Bank at any such time.


 


(g)                                 “Prime-based
Rate” means a per annum interest rate which is equal to the sum of one half of
one percent (0.50%) plus the greater of (i) the Prime Rate; or (ii) 1.75%.


 


2.                                       Interest
Rate Options.  Borrower shall have
the following options regarding the interest rate to be paid by Borrower on
Advances under the Agreement:


 


12.                                 a.                                       A
rate equal to the Daily Adjusting LIBOR Rate (the “LIBOR Option”); or


 


13.                                 b.                                      A
rate equal to the Prime-based Rate (the “Base Rate Option”).


 


3.                                       LIBOR Option Advance. 
The minimum LIBOR Option Advance for any Advance will not be less than
Five Hundred Thousand Dollars ($500,000) for any LIBOR Option Advance.


 


4.                                       Payment
of Interest.  Accrued and unpaid
interest on the unpaid balance of the Obligations outstanding under the
Agreement shall be payable monthly, in arrears, on the thirteenth (13th) day of each month, until
maturity (whether as stated herein, by acceleration, or otherwise).  In the event that any payment under this Addendum becomes due and
payable on any day which is not a Business Day, the due date thereof shall be
extended to the next succeeding Business Day, and, to the extent applicable,
interest shall continue to accrue and be payable thereon during such extension
at the rates set forth in this Addendum. 
Interest accruing hereunder shall be computed on the basis of a
year of 360 days, and shall be assessed for the actual number of days elapsed,
and in such computation, effect shall be given to any change in the applicable
interest rate as a result of any change in the Daily Adjusting LIBOR Rate or,
to the extent applicable, the Prime-based Rate on the date of each such change.


 


5.                                       Bank’s
Records.  The amount and date of each
advance under the Agreement, its applicable interest rate, and the amount and
date of any repayment shall be noted on Bank’s records, which records shall be
conclusive evidence thereof, absent manifest error; provided, however,
any failure by Bank to make any such notation, or any error in any such
notation, shall not relieve Borrower of its obligations to repay Bank all
amounts payable by Borrower to Bank under or pursuant to this Addendum and the
Agreement, when due in accordance with the terms hereof.   For any advance under the Agreement bearing
interest at the Daily Adjusting LIBOR Rate, if Bank shall designate a LIBOR
Lending Office which maintains books separate from those of the rest of Bank,
Bank shall have the option of maintaining and carrying such advance on the
books of such LIBOR Lending Office.


 


6.                                       Selection/Conversion
of Interest Rate Options.  At the
time any Advance is requested under the Agreement and/or Borrower wishes to
select the LIBOR Option for all or a portion of the outstanding principal
balance of the Agreement, Borrower shall give Bank notice specifying  (a) the interest rate option selected by
Borrower;  and (b) the principal
amount subject thereto.  Any such notice
may be given by telephone so long as, with respect to each LIBOR Option
selected by Borrower, Bank receives written confirmation from Borrower not
later than two (2) LIBOR Business Days after such telephone notice is
given.  At any time the Base Rate Option
is in effect, Borrower may convert to the LIBOR Option.


 


7.                                       Default
Interest Rate.  From and after the
occurrence of any Event of Default, and so long as any such Event of Default
remains unremedied or uncured thereafter, the Obligations outstanding under the
Agreement shall bear interest at a per annum rate of five percent (5%) above
the otherwise applicable interest rate hereunder, which interest shall be
payable upon demand.  In addition to the
foregoing, a late payment charge equal to five percent (5%) of each late
payment hereunder may be charged on any payment not received by Bank within ten
(10) calendar days after the payment due date therefor, but acceptance of
payment of any such charge shall not constitute a waiver 


 


2

















 


of any Event of Default under the Agreement.  In no event shall the interest payable under
this Addendum and the Agreement at any time exceed the maximum rate permitted
by law.


 


8.                                       Prepayment.   Borrower may prepay all or part of the
outstanding balance of any Obligations at any time without premium or
penalty.  Any prepayment hereunder shall
also be accompanied by the payment of all accrued and unpaid interest on the
amount so prepaid.  Borrower hereby
acknowledges and agrees that the foregoing shall not, in any way whatsoever,
limit, restrict, or otherwise affect Bank’s right to make demand for payment of
all or any part of the Obligations under the Agreement due on a demand basis in
Bank’s sole and absolute discretion.


 


9.                                       Regulatory
Developments or Other Circumstances Relating to the Daily Adjusting LIBOR Rate.


 


(a)                                  If,
at any time, Bank determines that, (1) Bank is unable to determine or
ascertain the Daily Adjusting LIBOR Rate, or (2) by reason of
circumstances affecting the foreign exchange and interbank markets generally,
deposits in eurodollars in the applicable amounts or for the relative
maturities are not being offered to Bank, or (3) the Daily Adjusting LIBOR
Rate will not accurately or fairly cover or reflect the cost to Bank of
maintaining any of the Obligations under this Addendum at the Daily Adjusting
LIBOR Rate, then Bank shall forthwith give notice thereof to Borrower.  Thereafter, until Bank notifies Borrower that
such conditions or circumstances no longer exist, the Prime-based Rate shall be
the applicable interest rate for all Obligations during such period of time.


 


(b)                                 If,
after the date hereof, the introduction of, or any change in, any applicable
law, rule or regulation or in the interpretation or administration thereof
by any governmental authority charged with the interpretation or administration
thereof, or compliance by Bank (or its LIBOR Lending Office) with any request
or directive (whether or not having the force of law) of any such authority,
shall make it unlawful or impossible for the Bank (or its LIBOR Lending Office)
to make or maintain any Obligations under the Agreement with interest at the
Daily Adjusting LIBOR Rate, Bank shall forthwith give notice thereof to
Borrower.  Thereafter, until Bank
notifies Borrower that such conditions or circumstances no longer exist, the
Prime-based Rate shall be the applicable interest rate for all Obligations
during such period of time.


 


(c)                                  Further,
at any time upon prior written notice to the undersigned, Bank may, in its sole
discretion based upon its good faith belief that the Prime-based Rate is an
appropriate basis for its floating rate loans, suspend use of the Daily
Adjusting LIBOR Rate as the applicable interest rate hereunder, at which time,
the Prime-based Rate shall thereafter be the applicable interest rate for all
Obligations outstanding under the Agreement, unless Bank, in its sole
discretion based upon its good faith belief that the Prime-based Rate is no
longer an appropriate basis for its floating rate loans, rescinds such notice,
in which case, the Daily Adjusting LIBOR Rate shall, upon written notice from
Bank to the undersigned, again be the applicable interest rate for all
Obligations outstanding under the Agreement.


 


(d)                                 If
the adoption after the date hereof, or any change after the date hereof in, any
applicable law, rule or regulation (whether domestic or foreign) of any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by Bank (or its LIBOR
Lending Office) with any request or directive (whether or not having the force
of law) made by any such authority, central bank or comparable agency after the
date hereof: (a) shall subject Bank (or its LIBOR Lending Office) to any
tax, duty or other charge with respect to this Addendum or any Obligations
under the Agreement, or shall change the basis of taxation of payments to Bank
(or its LIBOR Lending Office) of the principal of or interest under this
Addendum or any other amounts due under this Addendum in respect thereof
(except for changes in the rate of tax on the overall net income of Bank or its
LIBOR Lending Office imposed by the jurisdiction in which Bank’s principal
executive office or LIBOR Lending Office is located); or (b) shall impose,
modify or deem applicable any reserve (including, without limitation, any
imposed by the Board of Governors of the Federal Reserve System), special deposit
or similar requirement against assets of, deposits with or for the account of,
or credit extended by Bank (or its LIBOR Lending Office), or shall impose on
Bank (or its LIBOR Lending Office) or the foreign exchange and interbank
markets any other condition affecting this Addendum or the Obligations; and the
result of any of the foregoing is to increase the cost to Bank of maintaining
any part of the Obligations or to reduce the amount of any sum received or
receivable by Bank under this Addendum by an amount deemed by the Bank to be
material, then Borrower shall pay to Bank, within fifteen (15) days of Borrower’s
receipt of written notice from Bank demanding such compensation, 


 


3

















 


such additional
amount or amounts as will compensate Bank for such increased cost or
reduction.  A certificate of Bank,
prepared in good faith and in reasonable detail by Bank and submitted by Bank
to Borrower, setting forth the basis for determining such additional amount or
amounts necessary to compensate Bank shall be conclusive and binding for all
purposes, absent manifest error.


 


(e)                                  In
the event that any applicable law, treaty, rule or regulation (whether
domestic or foreign) now or hereafter in effect and whether or not presently
applicable to Bank, or any interpretation or administration thereof by any
governmental authority charged with the interpretation or administration
thereof, or compliance by Bank with any guideline, request or directive of any
such authority (whether or not having the force of law), including any
risk-based capital guidelines, affects or would affect the amount of capital
required or expected to be maintained by Bank (or any corporation controlling
Bank), and Bank determines that the amount of such capital is increased by or
based upon the existence of any obligations of Bank hereunder or the
maintaining of any Obligations, and such increase has the effect of reducing
the rate of return on Bank’s (or such controlling corporation’s) capital as a
consequence of such obligations or the maintaining of such Obligations to a
level below that which Bank (or such controlling corporation) could have
achieved but for such circumstances (taking into consideration its policies
with respect to capital adequacy), then Borrower shall pay to Bank, within
fifteen (15) days of Borrower’s receipt of written notice from Bank demanding
such compensation, additional amounts as are sufficient to compensate Bank (or
such controlling corporation) for any increase in the amount of capital and
reduced rate of return which Bank reasonably determines to be allocable to the
existence of any obligations of the Bank hereunder or to maintaining any
Obligations.  A certificate of Bank as to
the amount of such compensation, prepared in good faith and in reasonable
detail by the Bank and submitted by Bank to Borrower, shall be conclusive and
binding for all purposes absent manifest error.


 


10.                                 Legal
Effect.  Except as specifically
modified hereby, all of the terms and conditions of the Agreement remain in
full force and effect.


 


11.                                 Conflicts.  As to the matters specifically the subject of
this Addendum, in the event of any conflict between this Addendum and the
Agreement, the terms of this Addendum shall control.


 


IN WITNESS WHEREOF, the
parties have agreed to the foregoing as of the date first set forth above.


 


	
  COMERICA BANK

  	
  CLARIENT, INC.

  
	
   

  	
   

  
	
  By:

  	
  /s/
  Todd A. McDonald

  	
   

  	
  By:

  	
  Raymond
  J. Land

  
	
   

  
	
   

  
	
  Title:

  	
  Senior
  Vice President

  	
   

  	
  Its:

  	
  Senior
  Vice President and Chief Financial Officer

  
								



 


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