Exhibit 10.6


 


AMENDED
AND RESTATED SUBORDINATION AGREEMENT


 


Dated: February 27, 2009


 


	
  To:

  	
  Gemino Healthcare Finance, LLC

  	
   

  
	
   

  	
  One International Plaza, Suite 220

  	
   

  
	
   

  	
  Philadelphia, PA 19113

  	
   

  



 


To induce Gemino Healthcare Finance, LLC (“Lender”) to establish a credit
facility for making loans and extending credit from time to time for the
benefit of Clarient, Inc. (“Clarient”), Clarient Diagnostic Services, Inc.,
ChromaVision International, Inc., and such other Persons joined to the
Credit Agreement as “Borrowers” from time to time (collectively with Clarient,
the “Borrowers” and each individually referred to as a “Borrower”) pursuant to
the terms of that certain Credit Agreement among Borrowers and Lender dated as
of even date herewith (as amended, extended, modified, supplemented, restated
or replaced from time to time, the “Credit Agreement”), Safeguard Delaware, Inc.,
Safeguard Scientifics, Inc. and Safeguard Scientifics (Delaware), Inc.
(collectively and individually as context requires, “Undersigned”) hereby agrees
as follows:


 


1.                                       The
payment of any and all Subordinated Debt is expressly subordinated to the
Senior Debt to the extent and in the manner set forth in this Subordination
Agreement.  The term “Subordinated Debt”
means all indebtedness, liabilities, and obligations of Borrowers, or any of
them, now existing or hereafter arising, to the Undersigned including but not
limited to: (i) obligations of Borrowers, or any of them, to the
Undersigned pursuant to that certain Second Amended and Restated Senior Subordinated
Revolving Credit Agreement dated February 27, 2009 between Clarient and
Safeguard Delaware, Inc. (“Safeguard”) (as amended hereafter solely as
permitted pursuant to this Agreement, the “Subordinated Credit Agreement”) and
that certain Second Amended and Restated Revolving  Credit Note dated February 27, 2009
executed by Clarient in favor of Safeguard 
(collectively with the Subordinated Credit Agreement, “SubDebt Loan
Agreements”), (ii) put, repurchase, redemption and other monetary
obligations of Borrowers, or any of them, to the Undersigned pursuant to those
certain Common Stock Purchase Warrants described on Exhibit A attached
hereto (collectively, “Warrants”) and that certain Amended and Restated
Registration Rights Agreement dated February 27, 2009 among Clarient and
the Undersigned (“Registration Rights Agreement”), (iii) obligations of
Borrowers, or any of them, to the Undersigned pursuant to that certain Amended
and Restated Reimbursement and Indemnity Agreement dated January 17, 2007
executed by Clarient in favor of Safeguard and Safeguard Scientifics (Delaware), Inc.
(as amended by that certain First Amendment to Amended and Restated
Reimbursement and Indemnity Agreement dated March 6, 2007 among Clarient,
Safeguard and Safeguard Scientifics (Delaware), Inc., that certain Second
Amendment to Amended and Restated Reimbursement and Indemnity Agreement dated March 14,
2008 among Clarient, Safeguard and Safeguard Scientifics (Delaware), Inc.,
and that certain Third Amendment to Amended and Restated Reimbursement and
Indemnity Agreement dated February 27, 2009 among Clarient, Safeguard and
Safeguard Scientifics (Delaware), Inc., “Reimbursement Agreement” and
together with the SubDebt Loan Agreements, Warrants, Registration Rights
Agreement, “SubDebt Agreements”) and (iv) any other obligations owing by
Borrowers, or any of them, now or hereafter to the Undersigned (other than
voting or other corporate governance rights arising by virtue of the
Undersigned’s (or any of its affiliates’) equity interest in Clarient); provided,
however, that Registration Expenses (as defined in the Registration
Rights Agreement) shall not constitute Subordinated Debt.  The term “Senior Debt” means any and all
Obligations of Borrowers to Lender under, in connection with, or in any


 

















 


way related to (including debtor-in-possession financing), the Credit
Agreement (including, without limitation, any interest accruing thereon after
maturity or after the filing of any petition in bankruptcy, or the commencement
of any insolvency, reorganization or like proceeding relating to any Borrower,
whether or not a claim for post-filing or post-petition interest is allowed in
such proceeding).  All capitalized terms
not defined herein shall have the meaning set forth in the Credit Agreement.


 


2.                                       Until
the Senior Debt is indefeasibly paid in full and all of Lender’s obligations to
Borrowers have been terminated under the Credit Agreement, Borrowers shall not
pay, and Undersigned shall not accept, any payments of any kind associated with
Subordinated Debt (including, without limitation, principal payments (at
maturity or otherwise), prepayments, interest payments, dividends,
distributions, fees and expenses); provided that, Borrowers may pay, and the
Undersigned may accept: (A) (i) reimbursement of reasonable costs,
fees and actual out-of-pocket expenses and other charges incurred by the
Undersigned in connection with Affiliate Transactions (as defined below), and (ii) reimbursement
of reasonable actual out-of-pocket expenses incurred by the Undersigned in
connection with, and payable pursuant to, the SubDebt Loan Agreements (as in
effect on the date hereof) and (B) so long as no Unmatured Event of
Default or Event of Default has occurred (that has not been waived in writing
by Lender), and so long as no Unmatured Event of Default or Event of Default
would result from the making of such payment, (i) one or more payments
pursuant to Section 2.7(b) of the Subordinated Credit Agreement, so
long as to the extent such payment arises in connection with a  Capital Transaction (as defined in the
Subordinated Credit Agreement) or Liquidity Event (as defined in the
Subordinated Credit Agreement), no Unmatured Event of Default or Event of
Default would result after giving effect to such Capital Transaction (as
defined in the Subordinated Credit Agreement) or such Liquidity Event (as
defined in the Subordinated Credit Agreement), and (ii) regularly
scheduled payments of the accrued and unpaid “usage fee” set forth in Section 2(b) of
the Reimbursement Agreement in an aggregate amount not to exceed $750,000 in
any fiscal year; provided further that, immediately prior to making any
payments set forth in subsection (B) above, Borrowers shall deliver to
Lender an officer’s certificate, in form and substance satisfactory to Lender,
prepared and executed by the chief financial officer of Borrowers certifying
that no Unmatured Event of Default or Event of Default has occurred (that has
not been waived in writing by Lender) and no Unmatured Event of Default or Event
of Default would result from the making of such payment and setting forth such
financial and other information that Lender may require, including, without
limitation, evidence of proforma compliance with Section 6.06 of the
Credit Agreement.


 


For the purposes hereof, “Affiliate Transactions” shall mean the
provision of services by or through the Undersigned and/or its affiliates (and
their respective employees and agents) to Borrowers, or relating to the
Undersigned’s equity interest in Clarient, in connection with the business and
management of Borrowers, including temporary assignment or seconding of
professional staff and management.


 


3.                                       (a)                                  Any
payments on the Subordinated Debt (including, without limitation, prepayments)
received by the Undersigned, other than as expressly permitted pursuant to
paragraph 2 above, shall be held in trust for Lender and the Undersigned will
forthwith turn over any such payments in the form received, properly endorsed,
to Lender to be applied to the Senior Debt as determined by Lender in
accordance with the Credit Agreement.


 


2

















 


(b)                                 Except as expressly
set forth in this Subordination Agreement, nothing shall limit or affect the
issuance the Warrants, the issuance of Clarient’s common stock in connection
with any exercise of the Warrants, or any adjustment contemplated by the
anti-dilution provisions with respect to the Warrants, or the rights of the
Undersigned or its successors and assigns under the Registration Rights Agreement
(as in effect on the date hereof) or the bona fide sale or transfer of the
Warrants or Clarient’s common stock issuable upon the exercise thereof by the
Undersigned or its successors or assigns.


 


4.                                       Borrowers
shall not grant to the Undersigned and the Undersigned shall not take or obtain
any lien on or security interest in any of Borrowers’ property, now owned or
hereafter acquired or created, without Lender’s prior written consent; provided
however, subject to the terms hereof and upon Lender’s prior written consent to
the documentation and terms and conditions thereof (which shall be in form and
substance satisfactory to Lender in its sole discretion), Clarient may grant to
Safeguard a lien on certain assets of Clarient as specifically listed on Exhibit B
hereto (“Safeguard Collateral”).  The
Undersigned acknowledges and agrees that the Safeguard Collateral does not
extend to the Collateral and to the extent that any portion of such Safeguard
Collateral includes or might be interpreted or deemed to comprise a portion of
the Collateral, the Undersigned hereby expressly releases any such Safeguard
Collateral from the lien of the Undersigned.  
The Undersigned covenants and agrees that it shall not take or accept
any additional liens or security interest in any property of Borrowers, whether
now owned or hereafter acquired, as security for the Subordinated Debt, other
than the liens on the Safeguard Collateral.  
Until such time as the Senior Debt shall have been indefeasibly paid in
full and any commitment to make Advances under the Credit Agreement has
terminated and in addition to the restrictions contained in paragraph 5 hereof,
the Undersigned shall not take any action to foreclose, enforce or realize upon
the Safeguard Collateral or exercise any right or remedy to enforce or collect
the Safeguard Collateral.


 


5.                                       (a) The
Undersigned agrees that it will not make any assertion or claim in any action,
suit or proceeding of any nature whatsoever in any way challenging the
priority, validity or effectiveness of the claims, liens and security interests
held by or granted to Lender under and in connection with the Credit Agreement,
or any amendment, extension, replacement thereof or any related agreement,
instrument or document between Lender and Borrowers.


 


(b) Lender agrees that it will not make any assertion or claim in
any action, suit or proceeding of any nature whatsoever in any way challenging
the priority, validity or effectiveness of the liens and security interests
held by or granted to Undersigned on the Safeguard Collateral under and in
connection with the SubDebt Loan Agreements.


 


6.                                       The
Undersigned will not commence any action or proceeding of any kind against any
Borrower to recover all or any part of the Subordinated Debt not paid when due
and shall at no time join with any creditor, in bringing any proceeding against
any Borrower under any liquidation, conservatorship, bankruptcy,
reorganization, rearrangement, or other insolvency law now or hereafter
existing, unless and until the Senior Debt shall be indefeasibly paid in full
and all of Lender’s obligations to Borrowers have been terminated under the
Credit Agreement. Without limiting the foregoing, the Undersigned shall not
take any action or exercise any rights, remedies or powers in respect of any
Subordinated Debt (or with respect to any property of Borrowers, including,
without limitation, the Safeguard Collateral) or exercise any other right,
remedy or power at law or in equity that the Undersigned may otherwise possess
to collect any of the Subordinated 


 


3

















 


Debt or realize upon any
property of Borrowers, including, without limitation, the Safeguard Collateral,
including, without limitation, exercise of any right of setoff.  Subject to the foregoing, the Undersigned may
accelerate the amount of the Subordinated Debt upon the occurrence of (i) the
acceleration of the Senior Debt; and (ii) the filing of a petition under
the Bankruptcy Code by Borrowers.


 


7.                                       In
the event of any liquidation, conservatorship, bankruptcy, reorganization,
rearrangement, or other insolvency proceeding of any Borrower, the Undersigned
shall not be entitled to received any money, dividend or  other assets in  any such proceeding on account of the
Subordinated Debt unless and until the Senior Debt shall be indefeasibly paid
in full (including without limitation interest owing to Lender after the
commencement of a bankruptcy proceeding at the rate specified in the Credit
Agreement, whether or not such interest is an allowable claim in such
proceeding) and all of Lender’s obligations to Borrowers under the Credit
Agreement have been terminated.  The
Undersigned will at Lender’s request file any claims, proofs of claim, or other
instruments of similar character necessary to enforce the obligations of
Borrowers in respect of the Subordinated Debt and will hold in trust for Lender
and pay over to Lender in the same form received, to be applied on the Senior
Debt as determined by Lender, any and all money, dividends or other assets received
in any such proceedings on account of the Subordinated Debt.  Lender may, as attorney-in-fact for the
Undersigned, take such action on behalf of the Undersigned and the Undersigned
hereby appoints Lender as attorney-in-fact for the Undersigned to demand, sue
for, collect, and receive any and all such money, dividends or other assets and
give acquittance therefore and to file any claim, proof of claim or other
instrument of similar character and to take such other proceedings in Lender’s
name or in the name of the Undersigned, as Lender may deem necessary or
advisable for the enforcement of this Agreement.  The Undersigned will execute and deliver to
Lender such other and further powers of attorney or other instruments as either
reasonably may request in order to accomplish the foregoing.


 


8.                                       The
Undersigned and Borrowers shall not amend or modify the SubDebt Agreements in
any manner whatsoever without the prior written consent of Lender which consent
shall not be unreasonably conditioned, withheld or delayed; provided that, the
prior written consent of Lender in its sole and absolute discretion shall be
required for any amendment or modification to any SubDebt Agreements that would
(directly or indirectly):  (i) increase the maximum principal amount of
the Subordinated Debt, (ii) increase the rate of interest on any of the
Subordinated Debt, (iii) increase any fees, costs or expenses payable in
conjunction with the SubDebt Agreements or include any fees or expenses in any
amendment or waiver of any of the SubDebt Agreements, (iv) change to an
earlier date any date upon which regularly scheduled payments of principal or
interest on the Subordinated Debt (including, without limitation, any maturity
date) under and pursuant to the terms of the SubDebt Agreements are due, (v) add
or make more restrictive any event of default or any covenant with respect to
the Subordinated Debt, (vi) amend or modify Section 2.7 of the
Subordinated Credit Agreement, (vii) amend or modify Section 2(b) of
the Reimbursement Agreement in any way that increases or accelerates
payment obligations of Borrowers to the Undersigned, or (viii) amend or modify the definition of Capital Transaction set
forth in the Subordinated Credit Agreement; provided that so long as such
amendment or modification to the definition of Capital Transaction does not
decrease the threshold of $1,000,000 contained in such definition, Lender’s
consent to such amendment or modification shall not be unreasonably
conditioned, withheld or delayed.  Notwithstanding
the foregoing, the Undersigned may transfer the SubDebt Agreements expressly
subject to the terms of this Agreement and in compliance with paragraph 10
hereof, upon prior notice to, but without any prior consent of, Lender.


 


4

















 


9.                                       Lender,
and (to the extent applicable) Borrowers, may at any time and from time to
time, without the consent of or notice to the Undersigned, without incurring
responsibility to the Undersigned and without impairing or releasing any of
Lender’s rights, or any of the obligations of the Undersigned hereunder:


 


(a)                                  Change
the amount, manner, place or terms of payment or change or extend the time of
payment of or renew, increase, decrease or alter the Senior Debt, or any part
thereof, or amend, supplement or replace the Credit Agreement and/or any Loan
Documents in any manner or enter into or amend, supplement or replace in any
manner any other agreement relating to the Senior Debt;


 


(b)                                 Sell,
exchange, release or otherwise deal with all or any part of any property at any
time pledged or mortgaged by any party to secure or securing the Senior Debt or
any part thereof;


 


(c)                                  Release
anyone liable in any manner for the payment or collection of the Senior Debt
(including, without limitation, any guarantor);


 


(d)                                 Exercise
or refrain from exercising any rights against Borrower, any guarantor or others
(including the Undersigned); and


 


(e)                                  Apply
sums paid by any party to the Senior Debt in any order or manner as determined
by Lender in accordance with the Credit Agreement.


 


10.                                 The
Undersigned shall advise each future holder of all or any part of the
Subordinated Debt that the Subordinated Debt is subordinated to the Senior Debt
in the manner and to the extent provided herein.  The Undersigned represents that no part of
the Subordinated Debt or any instrument evidencing the same has been
transferred or assigned and the Undersigned will not transfer or assign, except
to Lender, any part of the Subordinated Debt while any Senior Debt remains
outstanding, unless such transfer or assignment is made expressly subject to
this Agreement.  Upon Lender’s request,
the Undersigned will in the case of any Subordinated Debt which is not
evidenced by any instrument cause the same to be evidenced by an appropriate instrument
or instruments, and place thereon and on any and all instruments evidencing the
Subordinated Debt a legend in such form as Lender may determine to the effect
that the indebtedness evidenced thereby is subordinated and subject to the
prior payment in full of all Senior Debt pursuant to this Subordination
Agreement, as well as deliver copies of all such instruments to Lender.


 


11.                                 This
Subordination Agreement contains the entire agreement between the parties
regarding the subject matter hereof and may be amended, supplemented or
modified only by written instrument executed by Lender, and the Undersigned.


 


12.                                 The
Undersigned represents and warrants that neither the execution or delivery of
this Subordination Agreement nor fulfillment of nor compliance with the terms
and provisions hereof will conflict with, or result in a breach of the terms,
conditions, or provisions of or constitute


 


5

















 


a default under any agreement or instrument to which the Undersigned or
any of the Undersigned’s assets is now subject.


 


13.                                 This
Subordination Agreement may be assigned by Lender, in connection with any
assignment or transfer of any portion of the Senior Debt.


 


14.                                 This
Subordination Agreement shall be binding upon the Undersigned and Lender, and
the Undersigned’s and Lender’s 
successors, representatives and assigns.


 


15.                                 Except
as provided in paragraph 2 above, Borrowers agree that Borrowers will not make
any payment on any of the Subordinated Debt, or take any other action in
contravention of the provisions of this Subordination Agreement, and the
Undersigned, by signing below acknowledge and consent to such agreement on
behalf of Borrowers.


 


16.                                 This
Subordination Agreement, and all matters arising hereunder or related hereto,
shall in all respects be interpreted, construed and governed by the substantive
laws of the Commonwealth of Pennsylvania. 
The Undersigned (i) submits to the jurisdiction of the Courts of
the Commonwealth of Pennsylvania or the United States District Court for the
Eastern District of Pennsylvania for the purposes of resolving any controversy
relating thereto and (ii) waives the
right to a jury trial for the purpose of resolving any controversy hereunder or
enforcing or defending any rights or claim hereunder or in connection herewith,
whether sounding in contract, tort or otherwise.


 


[Remainder of Page Intentionally
Left Blank]


 


6

















 


IN WITNESS WHEREOF, the
Undersigned have executed this agreement as of the date first written above.


 


	
  Address for notices:

  	
  SAFEGUARD DELAWARE, INC.

  
	
  Safeguard Delaware, Inc.

  	
   

  	
   

  
	
  Safeguard Scientifics (Delaware), Inc.

  	
  By:

  	
      /s/ Brian J. Sisko

  
	
  1105 N. Market St.

  	
  Name:

  	
  Brian J. Sisko

  
	
  Suite 1300

  	
  Title:

  	
  Vice President

  
	
  Wilmington, DE 19801

  	
   

  	
   

  
	
  Attn:  Chief Financial Officer

  	
   

  	
   

  
	
  Fax:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  With a copy (which shall not constitute
  notice) to:

  	
  SAFEGUARD SCIENTIFICS, INC.

  
	
  Safeguard Scientifics, Inc.

  	
   

  
	
  435 Devon Park Drive, Building 800

  	
  By:

  	
      /s/ Brian J. Sisko

  
	
  Wayne, PA 19087

  	
  Name:

  	
  Brian J. Sisko

  
	
  Attn: General Counsel

  	
  Title:

  	
  Vice President

  
	
  Facsimile: 610.482.9105

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  SAFEGUARD SCIENTIFICS (DELAWARE), INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ Brian J. Sisko

  
	
   

  	
  Name:

  	
  Brian J. Sisko

  
	
   

  	
  Title:

  	
  Vice President

  



 


Intending to be legally bound, each of the
Borrowers consent and agree to the terms of the Subordination Agreement as of
the date first above written:


 


	
  CLARIENT, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
         /s/
  Ron Andrews

  	
   

  
	
  Name:

  	
  Ron Andrews

  	
   

  
	
  Title:

  	
  Chief Executive Officer

  	
   

  
	
   

  	
   

  	
   

  
	
  CLARIENT DIAGNOSTIC SERVICES, INC.

  	
   

  
	
   

  	
   

  
	
  By:

  	
          /s/
  Ron Andrews

  	
   

  
	
  Name:

  	
  Ron Andrews

  	
   

  
	
  Title:

  	
  Chief Executive Officer

  	
   

  



 


[Signatures
Continue on Following Page]


 


[Signature Page to Amended and Restated Subordination Agreement]


 


S-1

















 


	
  CHROMAVISION INTERNATIONAL, INC.

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
  /s/ Ron Andrews

  	
   

  
	
  Name:

  	
  Ron Andrews

  	
   

  
	
  Title:

  	
  Chief Executive Officer

  	
   

  
	
   

  	
   

  	
   

  
	
  Approved:

  	
   

  
	
  GEMINO HEALTHCARE FINANCE, LLC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
       /s/ Miriam
  Gallagher

  	
   

  
	
  Name:

  	
  Miriam
  Gallagher

  	
   

  
	
  Title:

  	
  Senior
  Portfolio Manager

  	
   

  
						



 


[Signature Page to Amended and Restated Subordination Agreement]


 


S-2

















 


EXHIBIT A


WARRANTS


 


1.                                       Common
Stock Purchase Warrant (50,000 shares of common stock) dated August 1,
2005 executed by Clarient in favor of Safeguard;


 


2.                                       Common
Stock Purchase Warrant (801,000 shares of common stock) dated November 9,
2005 executed by Clarient in favor of Safeguard;


 


3.                                       Common
Stock Purchase Warrant (549,000 shares of common stock) dated December 14,
2005 executed by Clarient in favor of Safeguard;


 


4.                                       Common
Stock Purchase Warrant (50,000 shares of common stock) dated June 19, 2006
executed by Clarient in favor of Safeguard;


 


5.                                       Common
Stock Purchase Warrant (624,306 shares of common stock) dated September 22,
2006 executed by Clarient in favor of Safeguard;


 


6.                                       Amended
and Restated Common Stock Purchase Warrant (166,667 shares of common stock)
dated April 18, 2007 executed by Clarient in favor of Safeguard;


 


7.                                       Common
Stock Purchase Warrant (62,500 shares of common stock) dated March, 2007 executed
by Clarient in favor of Safeguard;


 


8.                                       Warrant
(975,000 shares of common stock) dated August 28, 2002 executed by
Clarient (f/k/a Chromavision Medical Systems, Inc.) in favor of Safeguard;


 


9.                                       Common
Stock Purchase Warrant (500,000 shares of common stock) dated February 27,
2009 executed by Clarient in favor of Safeguard;


 


10.                                 Each
Common Stock Purchase Warrant issued by Clarient in favor of Safeguard in
accordance with Section 2.8(b) of the Subordinated Credit Agreement
as in effect on the date hereof; and


 


11.                                 Each
Common Stock Purchase Warrant issued by Clarient in favor of Safeguard in
accordance with Section 2.8(c) of the Subordinated Credit Agreement
as in effect on the date hereof.


 

















 


EXHIBIT B


SAFEGUARD COLLATERAL


 


All of Clarient’s now owned or
hereafter acquired inventory of every description which is held by Clarient for
sale or lease or is furnished by Clarient under any contract of service or is
held by Clarient as raw materials, work in process or materials used or consumed
in a business, wherever located, and as the same may now and hereafter from
time to time be constituted.


 


All of Clarient’s now owned or hereafter
acquired machinery, equipment, computer equipment, tools, tooling, furniture,
fixtures, goods, supplies, materials, work in process, whether now owned or
hereafter acquired, together with all additions, parts, fittings, accessories,
special tools, attachments, and accessions now and hereafter affixed thereto
and/or used in connection therewith, all replacements thereof and substitutions
therefore.


 


Notwithstanding anything herein to the
contrary, the Undersigned shall not have a security interest in (a) the
Collateral (as defined in the Credit Agreement), (b) any property that
constitutes hazardous waste, or (c) any lease, license, contract permit or
agreement to the extent that such grant of a security interest is prohibited by
or constitutes a breach or default under such lease, license, contract, permit
or agreement, except to the extent that such term in such lease, license,
contract, permit or agreement providing for such prohibition, breach or default
is ineffective under applicable law (including, without limitation, sections
9-406, 9-407, 9-408 or 9-409 of the UCC); provided, however, that the limitation
in the foregoing clause shall not affect, limit, restrict or impair the grant
by any Borrower of a security interest pursuant to this Agreement in any
Account or any money or other amounts due or to become due under any such
lease, license, contract, permit or agreement or in the Proceeds from the sale
or disposition of any such lease, license, contract, permit or agreement; and
provided, further, that the limitation in the foregoing clause (d) shall
be applicable only for so long as a grant of a security interest in any such
lease, license, contract permit or agreement is prohibited by or constitutes a
breach or default under such lease, license, contract, permit or agreement.