Exhibit 10.5


 


FIRST AMENDMENT AND CONSENT


TO


SECOND AMENDED AND RESTATED


SENIOR SUBORDINATED
REVOLVING CREDIT AGREEMENT


 


THIS
FIRST AMENDMENT AND CONSENT TO SECOND AMENDED AND RESTATED SENIOR SUBORDINATED
REVOLVING CREDIT AGREEMENT (this “First Amendment”)
is made and entered into March 26, 2009, by and among CLARIENT, INC, a
Delaware corporation (“Borrower”),
and SAFEGUARD DELAWARE, INC., a Delaware corporation (the “Lender”).  Capitalized terms used but not defined herein
shall have the meanings given to them in that certain Second Amended and
Restated Senior Subordinated Revolving Credit Agreement (the “Agreement”) dated February 27,
2009, by and between Borrower and Lender.


 


WHEREAS,
Borrower anticipates the initial closing of a Capital Transaction on March 24,
2009 (the “Oak Transaction”),
pursuant to which Borrower will issue to Oak Investment Partners XII, Limited
Partnership (“Oak”),
shares of Borrower’s Series A Convertible Preferred Stock, par value $0.01
per share (the “Series A Preferred
Stock”); and


 


WHEREAS,
the Oak Transaction contemplates the issuance and sale of such shares of Series A
Preferred Stock to Oak in two or more closings, the proceeds of which are
anticipated to be sufficient to fully repay any remaining Outstanding Amounts
under the Agreement; and


 


WHEREAS,
in light of the Oak Transaction the Borrower and Lender desire to modify
certain terms of the Agreement.


 


NOW, THEREFORE, in consideration of the
premises and mutual covenants and obligations hereafter set forth and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:


 


1.               Consents and Waivers.  Lender hereby consents to Borrower entering
into the Oak Transaction (including the termination of the Comerica Agreement),
and waives the application of Section 2.7(b)(iv) as to the initial
closing of the Oak Transaction.  For the
avoidance of doubt, this consent and waiver does not extend to any other
closing pursuant to the Oak Transaction, or any other Capital Transaction.  Lender hereby further consents to Borrower
entering into that certain Registration Rights Agreement with Oak dated of even
date herewith (the “Oak
Registration Rights Agreement”) in connection with the
Oak Transaction and hereby (i) waives, in accordance with that certain
Amended and Restated Registration Rights Agreement, dated February 27,
2009, between Borrower and certain Affiliates of Lender (the “Existing Registration Rights Agreement”),
any right granted under the Existing Registration Rights Agreement to have any
of the Lender’s or its Affiliates’ Registrable Shares registered and/or sold
under the Registration Statement (as defined in the Oak Registration Rights
Agreement), except as set forth in Section 8(c)(ii) of the Oak
Registration Rights Agreement and (ii) consents to the granting of
piggyback registration rights to Oak and its permitted transferees as set forth
in Section 8(c)(i) of the Oak Registration Rights Agreement..


 


2.               Prepayment.  Borrower shall remit to Lender $14,000,000
from the proceeds of the initial closing of the Oak Transaction, which amount
shall constitute a prepayment of Outstanding Amounts under the Agreement.


 

















 


3.               Amendment of Commitment.  Effective upon receipt of the payment
specified in Section 2 hereof, the definition of “Commitment” in the
Agreement shall be amended and restated to read in its entirety as follows:


 


“Commitment”  means the maximum aggregate
principal amount  which may be borrowed
hereunder (inclusive of those amounts borrowed under the Prior Mezzanine
Facility), being, as of the date hereof, $10,000,000.


 


4.               Amendment of Section 2.7(b)(v).  Effective upon the termination of the
Comerica Agreement, the first sentence of Section 2.7(b)(v) of the Agreement
shall be amended and restated to read in its entirety as follows:


 


“Borrower shall at all times
maximize its borrowings under the Gemino Capital Facility.”


 


Except
as expressly set forth above, no amendment, consent or waiver is intended by
Borrower or Lender.  This First 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 and the same
instrument.


 


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


 


	
  LENDER:

  	
   

  	
  BORROWER:

  
	
   

  	
   

  	
   

  
	
  SAFEGUARD
  DELAWARE, INC.

  	
   

  	
  CLARIENT, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Peter J. Boni

  	
   

  	
  By:

  	
  /s/
  Ronald A. Andrews

  
	
  Name:

  	
  Peter
  J. Boni

  	
   

  	
  Name:

  	
  Ronald
  A. Andrews

  
	
  Title:

  	
  President

  	
   

  	
  Title:

  	
  Chief
  Executive Officer