Exhibit 10.2


 


THIRD AMENDMENT
AND CONSENT

TO AMENDED AND RESTATED LOAN AGREEMENT


 


This Third
Amendment and Consent to Amended and Restated Loan Agreement is entered into as
of July 31, 2008 (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, and that certain
Second Amendment to Amended and Restated Loan Agreement dated as of March 21,
2008 (as so amended, the “Agreement”). 
Borrower proposes to incur additional indebtedness (the “Additional Debt”)
pursuant to a Credit Agreement among between Gemino Healthcare Finance, LLC (“Gemino”),
Borrower and other borrowers named therein, dated as of July 31, 2008 (as
amended, restated, supplemented or otherwise modified from time to time, the “Gemino
Credit Agreement”).  Borrower has
requested that Bank consent to the incurrence and repayment of the Additional
Debt, and Bank has agreed to do so in accordance with this Amendment.  Additionally, the parties desire to further
amend the Agreement in accordance with the terms of this Amendment.


 


NOW, THEREFORE,
the parties agree as follows:


 


1.                                      Upon
the effectiveness of this Amendment, Bank (i) consents to Borrower
entering into the Gemino Credit Agreement and the incurrence of the Additional
Debt pursuant thereto; (ii) consents to the liens granted by Borrower to
Gemino pursuant to the Gemino Credit Agreement; (iii) notwithstanding Section 7.11
of the Agreement, hereby consents to the Borrower agreeing to include a “negative
pledge” covenant in the Gemino Credit Agreement;  (iv) notwithstanding Section 6.6 of
the Agreement, hereby consents to Borrower and its Subsidiaries’ moving their
lockbox operations and related accounts currently maintained at Bank (including
Account Nos. 1893118115 and 1892036953) to another institution in accordance
with the Gemino Credit Agreement and (v) notwithstanding Section 7.9
of the Agreement, hereby consents to the amendment by Borrower and Safeguard
Delaware, Inc. (“Safeguard”) of that certain Amended and Restated Senior
Subordinated Revolving Credit Agreement dated March 14, 2008 (“Safeguard
Senior Credit Agreement”), which amends the Safeguard Senior Credit Agreement
by, among other things, allowing Borrower to enter into the Gemino Credit
Agreement to replace a portion of the amounts Safeguard advanced to Borrower to
pay off its obligations to GE Capital. 
Bank waives any default or event of default under the Agreement
resulting from Borrower’s incurrence of the Additional Debt and its execution
of the Gemino Credit Agreement, including the moving of accounts set forth in
clause (iv) above.  Bank
acknowledges that the Additional Debt shall be deemed “Permitted Indebtedness”
under the Agreement and the liens granted by Borrower pursuant to the Gemino
Credit Agreement shall be deemed “Permitted Liens” under the Agreement.


 


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


 


“EBITDA” means,
for any period, the sum of (i) net
income of Borrower and its Subsidiaries for such period, plus (ii) amounts
deducted in the calculation of such net income for (A) interest expense, (B) charges
against income for foreign, federal, state and local taxes, (C) depreciation
and amortization, and (D) stock based compensation, all determined on a
consolidated basis for Borrower and its Subsidiaries in accordance with GAAP.


 


“Gemino Credit Agreement” means that certain Credit Agreement by and
among Gemino Healthcare Finance, LLC, Borrower, Clarient Diagnostic Services, Inc.,
and ChromaVision International, Inc., dated as of July 31, 2008 (as
amended, restated, supplemented or otherwise modified from time to time).


 


3.                                      Clause
(d) of the definition of Permitted Indebtedness is hereby amended in its
entirety to read as follows:


 

















 


(d)                                Subordinated
Debt, and Indebtedness under the Gemino Credit Agreement; and


 


4.                                      Clause
(d) of the definition of Permitted Liens is hereby amended in its entirety
to read as follows:


 


(d)                                Liens
upon or in any accounts receivable or inventory of Borrower or any of its
Subsidiaries, and Liens securing the obligations of Borrower and its
Subsidiaries under the Gemino Credit Agreement; and


 


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


 


6.8                              EBITDA.  Borrower to maintain minimum EBITDA on a
cumulative, year to date basis for periods set forth below, of at least the
stated amount, in each case measured quarterly at the end of each fiscal
quarter:


 


	
  Period

  	
   

  	
  Minimum
  EBITDA

  
	
   

  	
   

  	
   

  
	
  For the period from 1/01/08 – 9/30/08

  	
   

  	
  $ 2,000,000

  
	
  For the period from 1/01/08 – 12/31/08

  	
   

  	
  $ 2,900,000

  
	
  Thereafter

  	
   

  	
  as may be re-set based
  on Borrower’s Board-approved plan for FYE 2009

  



 


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


 


7.                                      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.


 


8.                                      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).


 


9.                                      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
affirmation and amendment to subordination agreement (Safeguard Delaware, Inc.);


 


(c)                                  an
affirmation of guaranty (Safeguard Delaware, Inc.);


 


(d)                                 an
amount equal to all Bank Expenses incurred through the date of this Amendment;
and


 


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


 


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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: Chief Financial
  Officer and Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  COMERICA BANK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Todd A. McDonald

  
	
   

  	
   

  
	
   

  	
  Title: SVP