Exhibit 10.1


 


FIRST
AMENDMENT TO CREDIT AGREEMENT


 


This First Amendment to
Credit Agreement (“Amendment”) is made as of this 30th day of January, 2009, by and among Gemino
Healthcare Finance, LLC (“Lender”) and Clarient, Inc., Clarient Diagnostic
Services, Inc. and ChromaVision International, Inc.  (collectively, the “Borrowers”).


 


BACKGROUND


 


A.                                   Borrowers
and Lender are parties to a certain Credit Agreement dated July 31, 2008
(as modified and amended from time to time, the “Credit Agreement”), pursuant
to which Borrowers established certain financing arrangements with Lender.  The Credit Agreement and all instruments,
documents and agreements executed in connection therewith, or related thereto
are referred to herein collectively as the “Existing Credit Documents.”  All capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Credit Agreement.


 


B.                                     Borrowers
have requested and Lender has agreed to amend the terms and conditions of the
Existing Credit Documents, pursuant to the terms and conditions of this
Amendment.


 


C.                                     Borrowers
and Lender desire to set forth their agreement in writing.


 


NOW THEREFORE, with the
foregoing Background deemed incorporated by reference and for good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
parties hereto, intending to be legally bound, covenant and agree as follows:


 


1.                                       Amendment.  Upon the effectiveness of this
Amendment, the Credit Agreement is hereby amended in the following manner:


 


(a)                                  Section 2.01(d) of the Credit
Agreement is hereby amended and restated as follows:


 


(d)                                 The initial term of the Credit Facility (“Initial
Term”) shall expire on February 27, 2009; provided that, (i) so
long as (A) no Unmatured Event of Default or Event of Default has occurred
and is continuing,  (B) no later
than February 13, 2009, Borrowers have delivered to Lender evidence, in
form and substance satisfactory to Lender, that the First SubDebt Extension has
occurred and (C) Borrowers shall have executed and delivered to Lender
such amendments and other documents required by Lender to amend Section 6.06
hereof, such amendment to include financial covenants for the period from January 1,
2009 through January 31, 2010, in form and substance satisfactory to
Lender in its sole discretion, and such other terms and conditions required by
Lender, all in form and substance satisfactory to Lender, the Initial Term
shall be automatically extended to January 31, 2010 and (ii) so long
as (A) no Unmatured Event of Default or Event of Default has occurred and
is continuing, (B) no later than thirty (30) days prior to the last day of
the Initial Term (as extended pursuant to Section 2.01(d)(i) above),
Borrowers have delivered to Lender evidence, in form and substance satisfactory
to Lender, that the Second SubDebt Extension has occurred, and 


 





















 


(C) Borrowers
shall have executed and delivered to Lender such amendments and other documents
required by Lender to amend Section 6.06 hereof, such amendment to include
financial covenants for the period from January 1, 2010 through January 31,
2011, in form and substance satisfactory to Lender in its sole discretion, and
such other terms and conditions required by Lender, all in form and substance
satisfactory to Lender, such Initial Term shall be automatically extended to January 31,
2011.  All Revolving Loans shall be
repaid on or before the earlier of the last day of the Initial Term or upon
termination of the Credit Facility or termination of this Agreement (“Maturity
Date”).  After the Maturity Date no
further Revolving Loans shall be available from Lender.


 


(b)                                 Definition.  The following definition in
Annex 1 to the Credit Agreement is hereby amended and restated as follows:


 


“First
SubDebt Extension” means the occurrence prior to February 13, 2009 of both
(i) either (A) the extension of the maturity date of the Comerica
Subordinated Debt to a date no earlier than February 26, 2010 pursuant to
terms, conditions and documentation, in form and substance satisfactory to the
Lender in its sole discretion, or (B) the replacement or refinancing of
the Comerica Subordinated Debt with Replacement Subordinated Debt in an amount
not less than the outstanding balance of the Comerica Subordinated Debt
(including, without limitation, principal, accrued interest, fees, costs and
expenses)  and with a maturity date no
earlier than February 26, 2010 (“Comerica Replacement Subordinated Debt”)
AND (ii) either (A) the extension of the maturity date of the
Safeguard Subordinated Debt to a date no earlier than April 1, 2010
pursuant to terms, conditions and documentation, in form and substance
satisfactory to the Lender in its sole discretion, or (B) the replacement
or refinancing of the Safeguard Subordinated Debt with Replacement Subordinated
Debt in an amount not less than the outstanding balance of the Safeguard
Subordinated Debt (including, without limitation, principal, accrued interest,
fees, costs and expenses) and with a maturity date no earlier than April 1,
2010 (“Safeguard Replacement Subordinated Debt”).


 


2.                                       Consent.  Upon the effectiveness of this
Amendment, Lender hereby consents to Borrower entering into an amendment to the
Comerica Loan Documents, in form and substance satisfactory to Lender in its
sole discretion and substantially in the form attached hereto as Exhibit A
(the “Comerica Amendment”), evidencing an extension of the maturity date of the
Comerica Subordinated Debt to a date no earlier than March 26, 2009.


 


3.                                       Representations and Warranties.  Each
Borrower represents and warrants to Lender 
that:


 


(a)                                  All warranties and representations made to
Lender under the Credit Agreement and the Existing Credit Documents are true
and correct as of the date hereof (except as to such 


 


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warranties and representations which are as of a specific date, which
warranties and representations are true and correct as of such date).


 


(b)                                 The execution and delivery by such Borrower
of this Amendment the performance by it of the transactions herein contemplated
(i) are and will be within its powers, (ii) have been authorized by
all necessary organizational action, and (iii) are not and will not be in
contravention of any order of any court or other agency of government, of law
or any other indenture, agreement or undertaking to which any Borrower is a
party or by which the property of such Borrower is bound, or be in conflict
with, result in a breach of, or constitute (with due notice and/or lapse of
time) a default under any such indenture, agreement or undertaking or result in
the imposition of any lien, charge or encumbrance of any nature on any of the
properties of such Borrower.


 


(c)                                  This Amendment and any assignment,
instrument, document, or agreement executed and delivered in connection
herewith, is valid, binding and enforceable in accordance with its respective
terms.


 


(d)                                 No Event of Default or Unmatured Event of
Default has occurred and is continuing under the Credit Agreement or any of the
other Existing Credit Documents.


 


4.                                       Effectiveness Conditions.  This
Amendment shall be effective upon completion of the following conditions
precedent (all documents and other items to be in form and substance
satisfactory to Lender and Lender’s counsel):


 


(a)                                  Execution and delivery by Borrowers of this
Amendment;


 


(b)                                 Delivery by Borrowers of the fully executed
Comerica Amendment, along with (i) a copy of the written consent to such
amendment from Safeguard Delaware, Inc. and Safeguard Scientifics
(Delaware), Inc.  (collectively, “Safeguard”)
required pursuant to Section 1(c) of the Amended and Restated
Reimbursement and Indemnity Agreement dated January 17, 2007 among
Clarient, Inc. and Safeguard, as amended, and (ii) evidence that all
conditions to the effectiveness of such amendment have been satisfied, all on
terms and conditions satisfactory to Lender;


 


(c)                                  Delivery by Borrowers of certified copies of
resolutions of each Borrower’s board of directors, general partners, members or
managers, as applicable, authorizing the execution of this Amendment and each
document required to be delivered by any Section hereof;


 


(d)                                 No Unmatured Event of Default or Event of
Default shall have occurred and be continuing under the Loan Documents;


 


(e)                                  Payment by Borrowers of any and all costs,
fees and expenses of Lender (including, attorneys’ fees) in connection with
this Amendment and the transaction contemplated hereby; and


 


(f)                                    Execution and/or delivery by Borrowers of all
agreements, instruments and documents requested by Lender to effectuate and
implement the terms hereof and the Loan Documents.


 


5.                                       Confirmation of Indebtedness. 
Borrowers hereby acknowledge and confirm that as of the close of
business on January 20, 2009, Borrowers are indebted to Lender, without
defense, setoff, 


 


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claim or counterclaim, under the Loan
Documents, in the aggregate principal amount of $4,457,112.74 plus all fees,
costs and expenses (including attorneys’ fees) incurred to date in connection
with the Loan Documents.


 


6.                                       Ratification of Existing Credit Documents. 
Except as expressly set forth herein, all of the terms and conditions of
the Credit Agreement and Existing Credit Documents are hereby ratified and
confirmed and continue unchanged and in full force and effect.  All references to the Credit Agreement shall
mean the Credit Agreement  as modified by
this Amendment.


 


7.                                       Security Interest. 
Borrowers hereby confirm and agree that all security interests and liens
granted to Lender continue to be perfected, first priority liens and remain in
full force and effect and shall continue to secure the Obligations.  All Collateral remains free and clear of any
liens other than liens in favor of Lender and Permitted Liens.  Nothing herein contained is intended to in
any way impair or limit the validity, priority, and extent of Lender’s existing
security interest in and liens upon the Collateral.


 


8.                                       Governing Law.  This
Amendment, and all matters arising out of or relating to this Amendment, shall
be governed by and construed in accordance with the Laws of the Commonwealth of
Pennsylvania, without giving effect to principles of conflicts of Laws, and
shall be construed without the aid of any canon, custom or rule of law
requiring construction against the draftsman.


 


9.                                       Release. As further consideration for Lender’s agreement to grant the
accommodations set forth herein, each Borrower hereby waives and releases and
forever discharges Lender and its officers, directors, attorneys, agents and
employees from any liability, damage, claim, loss or expense of any kind that
Borrowers, or any of them, may have against Lender arising out of or relating
to the Obligations, this Amendment or the Loan Documents.


 


10.                                 Counterparts.  This
Amendment may be executed in any number of counterparts, each of which when so
executed shall be deemed to be an original, and such counterparts together
shall constitute one and the same respective agreement.  Signature by facsimile or PDF shall bind the
parties hereto.


 


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IN
WITNESS WHEREOF, the parties have executed this Amendment the day and year
first above written.


 


	
  BORROWERS:

  	
  CLARIENT,
  INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ronald A. Andrews, Jr.

  
	
   

  	
  Name:

  	
  Ronald
  A. Andrews, Jr.

  
	
   

  	
  Title:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  CLARIENT
  DIAGNOSTIC SERVICES, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ronald A. Andrews, Jr.

  
	
   

  	
  Name:

  	
  Ronald
  A. Andrews, Jr.

  
	
   

  	
  Title:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  CHROMAVISION
  INTERNATIONAL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Ronald A. Andrews, Jr.

  
	
   

  	
  Name:

  	
  Ronald
  A. Andrews, Jr.

  
	
   

  	
  Title:

  	
  Chief
  Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  LENDER:

  	
  GEMINO
  HEALTHCARE FINANCE, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Miriam P. Gallagher

  
	
   

  	
  Name:

  	
  Miriam
  P. Gallagher

  
	
   

  	
  Title:

  	
  Senior
  Portfolio Manager

  
						



 


[SIGNATURE PAGE TO FIRST      AMENDMENT
TO CREDIT AGREEMENT]