Exhibit 10.1


 


FOURTH AMENDMENT AND JOINDER TO CREDIT AGREEMENT


 


This Fourth Amendment
and Joinder to Credit Agreement (“Amendment”) is made as of this 21st day of
December, 2009, by and among Gemino Healthcare Finance, LLC (“Lender”) and
Clarient, Inc., Clarient Diagnostic Services, Inc. and ChromaVision
International, Inc.  (collectively,
the “Existing Borrowers”) and Applied Genomics, Inc. (“Joining Borrower”
and together with the Existing Borrowers, the “Borrowers” and each individually
referred to as a “Borrower”).


 


BACKGROUND


 


A.            Existing 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 “Loan Documents.”  All capitalized
terms not otherwise defined herein shall have the meanings ascribed thereto in
the Credit Agreement.


 


B.            Borrowers have informed Lender that on the date hereof
Clarient has entered into the AG Acquisition Documents, pursuant to which
Clarient has consummated the AG Acquisition. Borrowers have requested, pursuant
to Section 7.01 of the Agreement, that Lender consent to the AG
Acquisition and Lender has agreed to provide such consent subject to the terms
and conditions hereof.


 


C.            As a result of the AG Acquisition, Joining Borrower has
become affiliated with Existing Borrowers and, in recognition of the benefits
and privileges thereunder, Joining Borrower and Existing Borrowers have
requested that Joining Borrower be permitted to join into the Loan Documents as
if an original signatory thereto and Lender has so consented subject to the
terms and conditions hereof


 


D.            Existing Borrowers have requested and Lender has agreed
to join the Joining Borrower as a joint and several co-Borrower and to amend
the terms and conditions of the Loan Documents pursuant to the terms and
conditions of this Amendment.


 


E.             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.                                       Consent.  Upon the
effectiveness of this Amendment and in reliance upon Borrowers’
representations, warranties and covenants contained herein and subject to the
terms and conditions of this Amendment, Lender hereby consents to the AG
Acquisition.  This consent shall not be
deemed a consent to the breach by the Borrowers of any covenants or agreements
contained in the Credit Agreement with respect to any other transaction or
matter or a consent to any waiver or modification of any other term or
condition of the Credit Agreement. 
Borrowers agree that the consent set forth in this Amendment shall not
be deemed (a) to be a consent to any waiver or modification of any other
term or condition of the Credit Agreement, or (b) to prejudice any right
or remedy that Lender may now have or may in the future have under or in
connection with the Credit agreement other than with respect to the matter for
which this consent has been provided. 
The consent described herein shall not alter, affect, release or
prejudice in any way any of Borrowers’ obligations under the Credit Agreement
(including, 


 

















 


without limitation, the Obligations), each of which
are ratified and confirmed.  This
Amendment shall not obligate Lender to provide any further consent to any
waiver or modification of any other term or condition of the Credit Agreement
or prejudice any right or remedy that Lender may now or hereafter have under or
in connection with the Credit Agreement. 
This consent shall not be construed as a course of conduct on the part
of Lender upon which Borrowers may rely at any time in the future.  Borrowers expressly waive any right to assert
any claim to such effect at any time.


 


2.                                       Joinder.


 


(a)                                  Upon the effectiveness of this Amendment,
Joining Borrower joins in as, assumes the obligations and liabilities of,
adopts the obligations, liabilities and role of, and becomes, a Borrower under
the Loan Documents, the Amended and Restated Revolving Note and all other Loan
Documents.  All references to Borrowers
contained in the Loan Documents are hereby deemed for all purposes to also
refer to and include Joining Borrower as a Borrower and Joining Borrower hereby
agrees to comply with all of the terms and conditions of the Loan Documents as
if Joining Borrower were an original signatory thereto.


 


(b)                                 Without limiting the generality of the
provisions of subparagraph (a) above, Joining Borrower hereby becomes
liable, on a joint and several basis, along with all other Borrowers, for all
Obligations, including, without limitation, all existing and future Loans and
other liabilities and obligations incurred at any time by any one or more
Borrowers under the Loan Documents, as amended hereby or as may be hereafter
amended, modified, supplemented or replaced.


 


3.                                       Amendment.  Upon the
effectiveness of this Amendment, the Credit Agreement are hereby respectively
amended in the following manner:


 


(a)                                  Annex I to the Credit Agreement is hereby
amended by inserting the following definitions:


 


“AG Acquisition” shall mean the acquisition by
Clarient of Applied Genomics, Inc. by means of the merger of Clarient
Acquisition Corporation, a Delaware corporation and wholly-owned subsidiary of
Clarient, with and into Applied Genomics, Inc., with Applied Genomics, Inc.
surviving the merger as a wholly-owned subsidiary of Clarient.


 


“AG Acquisition Documents” shall mean that
certain Agreement and Plan of Merger and Reorganization, dated as of December 21,
2009, by and among Clarient, Clarient Acquisition Corporation, Applied
Genomics, Inc, certain stockholders of Applied Genomics, Inc. and Robert
S. Seitz as representative of the stockholders of Applied Genomics, Inc.,
and all other certificates, agreements, documents or other instruments executed
and delivered in connection therewith.


 


(b)                                 The Schedules to the Credit Agreement
(other than Schedule 1.01) are hereby amended and restated by the Schedules
attached hereto as Exhibit A (“Amended and Restated Schedules”).


 


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


 


(a)                                  Except as set forth on the Amended and
Restated Schedules attached hereto, all warranties and representations made to
Lender under the Credit Agreement and the Loan Documents are true and correct
as of the date hereof (except as to such 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 Amended and Restated Revolving Note, the
Commercial Depository Agreement and Governmental Depository Agreement, and 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, the Amended and Restated
Revolving Note, 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 Loan Documents.


 


(e)                                  Lender has received true, correct and
complete copies of the AG Acquisition Documents (including all exhibits,
schedules and disclosure letters referred to therein or delivered pursuant
thereto, if any) and all amendments thereto, waivers relating thereto and other
side letters or agreements affecting the terms thereof.  No such documents or agreements have been
amended or supplemented, nor have any of the provisions thereof been waived
except pursuant to a written agreement or instrument which has heretofore been
delivered to Lender.  The AG Acquisition
has been consummated in accordance with the AG Acquisition Documents and
applicable law.


 


5.                                       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)                                 Execution and delivery by Borrowers of
the Amended and Restated Revolving Note;


 


(c)                                  Execution and delivery by Borrowers and
Lockbox Bank of the Governmental Depository Agreement and Commercial Depository
Agreements;


 


(d)                                 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, the
Amended and Restated Revolving Note, and each document required to be delivered
by any Section hereof;


 


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(e)                                  Delivery by Borrowers of Joining Borrower’s
state certified Certificate of Incorporation and Bylaws, certified by the
secretary of Joining Borrower;


 


(f)                                    Delivery by Borrowers of incumbency
certificates for Joining Borrower identifying all Authorized Officers with
specimen signatures;


 


(g)                                 Receipt of Uniform Commercial Code
financing statement, judgment and state and federal tax lien searches against
Joining Borrower showing no Liens on any of the Collateral (other than Liens
released contemporaneously with the effectiveness of this Amendment);


 


(h)                                 Delivery by Borrowers of copies of the
accreditations, licenses, certifications required by Section 5.03 of the
Credit Agreement with respect to Joining Borrower;


 


(i)                                     Delivery by Borrowers of an opinion
letter from Borrowers’ counsel regarding such matters as Lender may require in
its sole discretion;


 


(j)                                     Delivery by Borrowers of an Officer’s
Closing Certificate;


 


(k)                                  Delivery by Borrowers of payoff letters
and releases from all Persons having a security interest or other interest in
the Collateral (except for Permitted Liens), together with all UCC-3
termination or partial releases or mortgage satisfactions necessary to
terminate each such Person’s interests in the Collateral;


 


(l)                                     Delivery by Borrowers of the Amended and
Restated Schedules;


 


(m)                               Delivery by Borrowers for Joining
Borrower of copies of insurance policies or certificates of insurance on an
Acord 27 form evidencing liability and casualty insurance meeting the
requirements set forth in the Loan Documents, including, without limitation,
naming Lender as lender’s loss payee (as to property and casualty coverage) and
additional insured (as to liability coverage);


 


(n)                                 Delivery by Borrowers to Lender of true,
correct and complete copies of the AG Acquisition Documents;


 


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


 


(p)                                 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


 


(q)                                 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.


 


6.                                       Confirmation of Indebtedness. 
Borrowers hereby acknowledge and confirm that as of the close of
business on December 18, 2009, Borrowers are indebted to Lender, without
defense, setoff, claim or counterclaim, under the Loan Documents, in the aggregate
principal amount of $5,152,277.91  plus all fees, costs and expenses (including attorneys’
fees) incurred to date in connection with the Loan Documents.


 


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7.                                       Ratification of Loan Documents. 
Except as expressly set forth herein, all of the terms and conditions of
the Credit Agreement and Loan 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.  All references to the Revolving Note shall
mean the Amended and Restated Revolving Note.


 


8.                                       Collateral. 
To secure the payment, promptly when due, and the punctual performance,
of all of the Obligations, and satisfaction by Borrowers of all covenants and
undertakings contained in the Credit Agreement and the Loan Documents, each
Existing Borrower reconfirms the prior grant of the security interest in and
lien upon and to, all of its right, title and interest in and to the Collateral
(including as set forth below), whether now owned or hereafter acquired,
created or arising and wherever located and Joining Borrower hereby assigns and
grants to Lender a security interest in, and a right of setoff against, any and
all right, title and interest of such Borrower in and to all of the following,
whether now owned or existing or owned, acquired or arising hereafter: (i) all
accounts, Payment Intangibles, Instruments and other rights to receive payments
of Borrower (including without limitation the Accounts), whether now existing
or hereafter arising or acquired, (ii) all General Intangibles (including
without limitation, contract rights and Intellectual Property), Chattel Paper,
Documents, Supporting Obligations, Letter of Credit Rights, Commercial Tort
Claims set forth on Schedule 2.13 to the Credit Agreement, remedies, guarantees
and collateral evidencing, securing or otherwise relating to or associated with
the property in subpart (i) above, including without limitation all rights
of enforcement and collection, (iii) all Commercial Lockboxes, all
Government Lockboxes, all Collection Accounts and other deposit accounts into
which any of the Collections or Advances are deposited, all funds received
thereby or deposited therein, and any checks or instruments from time to time
representing or evidencing the same, (iv) all books and records of
Borrowers evidencing or relating to or associated with any of the foregoing, (v) all
information and data compiled or derived by Borrowers with respect to any of
the foregoing (other than any such information and data subject to legal
restrictions of patient confidentiality), and (vi) all collections,
Accessions, receipts and Proceeds derived from any of the foregoing.


 


9.                                       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.


 


10.                                 CONSENT TO JURISDICTION.  EACH BORROWER AND LENDER HEREBY IRREVOCABLY
CONSENT TO THE NONEXCLUSIVE JURISDICTION OF, AND VENUE IN, ANY STATE OR FEDERAL
COURT LOCATED IN THE COMMONWEALTH OF PENNSYLVANIA IN ANY AND ALL ACTIONS AND
PROCEEDINGS WHETHER ARISING HEREUNDER OR UNDER ANY OTHER AGREEMENT OR
UNDERTAKING.  BORROWERS WAIVE ANY
OBJECTION TO IMPROPER VENUE AND FORUM NON-CONVENIENS TO PROCEEDINGS IN ANY SUCH
COURT OR COURTS AND ALL RIGHTS TO TRANSFER FOR ANY REASON.  EACH BORROWER IRREVOCABLY AGREES TO SERVICE
OF PROCESS BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED TO THE ADDRESS OF THE
APPROPRIATE PARTY SET FORTH HEREIN.


 


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11.                                 WAIVER OF JURY TRIAL.  EACH BORROWER AND LENDER HEREBY WAIVE ANY AND
ALL RIGHTS IT MAY HAVE TO A JURY TRIAL IN CONNECTION WITH ANY LITIGATION
COMMENCED BY OR AGAINST LENDER WITH RESPECT TO RIGHTS AND OBLIGATIONS OF THE
PARTIES HERETO OR UNDER THE LOAN DOCUMENTS, WHETHER SOUNDING IN TORT, CONTRACT
OR OTHERWISE.


 


12.                                 Certain Borrower Acknowledgments and
Agreements.


 


(a)                                  Each Borrower acknowledges that it will
enjoy significant benefits from the business conducted by the other Borrowers
because of, inter alia, their combined ability to bargain with other Persons
including, without limitation, their ability to receive the Credit Facility on
favorable terms granted by the Credit Agreement and other Loan Documents which
would not have been available to an individual Borrower acting alone.  Each Borrower has determined that it is in
its best interest to procure the Credit Facility which each Borrower may
utilize directly and which receive the credit support of the other Borrowers as
contemplated by the Credit Agreement and the other Loan Documents.


 


(b)                                 Lender has advised Borrowers that it is
unwilling to enter into this Amendment, the Credit Agreement and the other Loan
Documents and make available the Credit Facility extended hereby to any
Borrower unless each Borrower agrees, among other things, to be jointly and
severally liable for the due and proper payment of the Obligations of each
Borrower under this Amendment, the Credit Agreement and the other Loan
Documents. Each Borrower has determined that it is in its best interest and in
pursuit of its purposes that it so induce Lender to extend credit pursuant to
the Credit Agreement and the other documents executed in connection therewith (i) because
of the desirability to each Borrower of the Credit Facility, the interest rates
and the modes of borrowing available hereunder, (ii) because each Borrower
may engage in transactions jointly with other Borrowers and (iii) because
each Borrower may require, from time to time, access to funds under the Credit
Agreement for the purposes herein set forth.


 


(c)                                  Each Borrower has determined that it has
and, after giving effect to the transactions contemplated by the Credit
Agreement, this Amendment and the other Loan Documents (including, without
limitation, the inter-Borrower arrangement set forth in this Section 12)
will have, assets having a fair saleable value in excess of the amount required
to pay its probable liability on its existing debts as they fall due for
payment and that the sum of its debts is not and will not then be greater than
all of its Property at a fair valuation, that such Borrower has, and will have,
access to adequate capital for the conduct of its business and the ability to
pay its debts from time to time incurred in connection therewith as such debts
mature and that the value of the benefits to be derived by such Borrower from
the access to funds under this Agreement (including, without limitation, the
inter-Borrower arrangement set forth in this Section 12) is reasonably
equivalent to the obligations undertaken pursuant hereto.


 


(d)                                 Borrower Representative (on behalf of
each Borrower) shall maintain records specifying (i) all Obligations
incurred by each Borrower, (ii) the date of such incurrence, (iii) the
date and amount of any payments made in respect of such Obligations and (iv) all
inter-Borrower obligations pursuant to this Section 12. Borrower
Representative shall make copies of such records available to Lender, upon
request.


 


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13.                                 Maximum Amount of Joint and Several
Liability.   Notwithstanding any provisions of the Credit
Agreement or this Amendment to the contrary, it is the intent of the parties
hereto that the primary and secondary nature of the liabilities of the
Borrowers, and the security interests granted by the Borrowers to secure the
Obligations directly incurred by any Borrower not constitute a fraudulent
conveyance under Section 548 of Chapter 11 of Title 11 of the
United States Code (11 U.S.C. § 101, et seq.), as amended, or a fraudulent
conveyance or fraudulent transfer under the applicable provisions of any
fraudulent conveyance, fraudulent transfer or similar law of any state, nation
or other governmental unit, as in effect from time to time or otherwise be
rendered invalid or unenforceable due to the nature of the joint and several
liability.  Accordingly,  Lender and Borrowers agree that if the
Obligations of any Borrower, or any security interests granted by such Borrower
securing the Obligations would, but for the application of this sentence,
constitute a fraudulent conveyance or fraudulent transfer under Applicable Law,
or would otherwise render such Borrower’s Obligations or the security interests
granted herein invalid or unenforceable, the Obligations of such Borrower
hereunder, as well as the security interests securing such Obligations, shall
be valid and enforceable only to the maximum extent that would not cause such
Obligations or security interests to constitute a fraudulent conveyance or
fraudulent transfer under Applicable Law or otherwise result in such invalidity
or unenforceability; provided however that each Borrower’s Obligations shall be
presumptively valid and enforceable to their fullest extent in accordance with
the terms hereof or thereof, as if this Section 13 were not a part of this
Agreement.


 


14.                                 Authorization of Borrower Representative
by Borrowers.


 


(a)                                  Each Borrower hereby irrevocably
authorizes Borrower Representative to give notices, make requests, make
payments, receive payments and notices, give receipts and execute agreements,
make agreements or take any other action whatever on behalf of such Borrower
under and with respect to any Loan Document and each Borrower shall be bound
thereby.  This authorization is coupled
with an interest and shall be irrevocable, and Lender may rely on any notice,
request, information supplied by Borrower Representative, every document
executed by Borrower Representative, every agreement made by Borrower
Representative or other action taken by Borrower Representative in respect of
Borrowers or any thereof as if the same were supplied, made or taken by any or
all Borrowers.  Without limiting the
generality of the foregoing, the failure of one or more Borrowers to join in
the execution of any writing in connection herewith shall not, unless the
context clearly requires, relieve any such Borrower from obligations in respect
of such writing.


 


(b)                                 Borrowers acknowledge that the credit
provided under the Credit Agreement is on terms more favorable than any
Borrower acting alone would receive and that each Borrower benefits directly
and indirectly from all Advances thereunder. 
Each Borrower, shall be jointly and severally liable for all
Obligations, regardless of, inter alia, which Borrower requested (or received
the proceeds of) a particular Advance.


 


15.                                 Joint and Several Liability.  The Revolving Loans made to the Borrowers
shall be deemed jointly funded to, and received by, all of the Borrowers.  Each Borrower jointly and severally agrees to
pay, and shall be joint and severally liable for the payment and performance
of, all Obligations directly incurred by any other Borrower, regardless of
whether such Borrower actually receives the proceeds of the indebtedness
governed hereby or the benefit of any other extensions of credit
hereunder.  Each Borrower acknowledges
and agrees that the joint and several liability of the Borrowers is provided as
an inducement to Lender to provide loans and other financial accommodations to
the Borrowers, and that each such Revolving Loan or other financial
accommodation shall be deemed to 


 


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have
been done or extended by Lender in consideration of, and in reliance upon, the
joint and several liability of the Borrowers. The joint and several liability
of each Borrower hereunder is absolute, unconditional and continuing,
regardless of the validity or enforceability of any of the Obligations, or the
fact that a security interest or lien in any Collateral may not be enforceable
or subject to equities or defenses or prior claims in favor of others, or may
be invalid or defective in any way and for any reason.  Each Borrower hereby waives:  (a) all notices to which such Borrower
may be entitled as a co-obligor with respect to the Obligations, including
notice of (i) acceptance of this Amendment or the Credit Agreement, (ii) the
making of Revolving Loans or other financial accommodations under this
Agreement, or the creation or existence of the Obligations, and (iii) presentment,
demand, protest, notice of protest and notice of non-payment; and (b) all
defenses based on (i) any modification (or series of modifications) of the
Credit Agreement, the other Loan Documents, that may create a substituted
contract, or that may fundamentally alter the risks imposed on such Borrower
hereunder, (ii) the release of any other Borrower from its duties under
the Credit Agreement and the other Loan Documents, or the extension of the time
of performance of any other Borrower’s duties hereunder or thereunder, (iii) the
taking, releasing, impairment or abandonment of any Collateral, or the
settlement, release or compromise of the Obligations or any other Borrower’s
liabilities with respect to all or any portion of the Obligations, or (iv) any
other act (or any failure to act) that fundamentally alters the risks imposed
on such Borrower by virtue of its joint and several liability hereunder.  It is the intent of each Borrower by this
paragraph to waive any and all suretyship defenses available to such Borrower
with respect to the Obligations, whether or not specifically enumerated
above.  Borrowers acknowledge that the
credit provided under the Credit Agreement is on terms more favorable than any
Borrower acting alone would receive and that each Borrower benefits directly
and indirectly from the Revolving Loans made hereunder.  Each Borrower shall be jointly and severally
liable for all Obligations regardless of, inter alia, which Borrower received
proceeds of the Revolving Loans.


 


16.                                 WARRANT OF ATTORNEY TO CONFESS JUDGMENT.


 


(a)                                  Acknowledgment of Warrant of Attorney. 
THE FOLLOWING PARAGRAPH SETS FORTH A GRANT OF AUTHORITY FOR ANY ATTORNEY
TO CONFESS JUDGMENT AGAINST THE BORROWERS. 
IN GRANTING THIS WARRANT OF ATTORNEY TO CONFESS JUDGMENT AGAINST THE
BORROWERS, FOLLOWING CONSULTATION WITH (OR DECISION NOT TO CONSULT) SEPARATE
COUNSEL FOR THE BORROWERS AND WITH KNOWLEDGE OF THE LEGAL EFFECT HEREOF, THE
BORROWERS HEREBY KNOWINGLY, INTENTIONALLY, VOLUNTARILY, INTELLIGENTLY AND
UNCONDITIONALLY WAIVE ANY AND ALL RIGHTS ANY OF THEM HAS OR MAY HAVE TO
PRIOR NOTICE AND AN OPPORTUNITY FOR HEARING UNDER THE RESPECTIVE CONSTITUTIONS
AND LAWS OF THE UNITED STATES OF AMERICA, COMMONWEALTH OF PENNSYLVANIA, OR
ELSEWHERE INCLUDING, WITHOUT LIMITATION, A HEARING PRIOR TO GARNISHMENT AND
ATTACHMENT OF THE BORROWERS’ BANK ACCOUNTS AND OTHER ASSETS.  THE BORROWERS ACKNOWLEDGE AND UNDERSTAND THAT
BY ENTERING INTO THIS AMENDMENT CONTAINING A CONFESSION OF JUDGMENT CLAUSE THAT
THE BORROWERS ARE EACH VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY GIVING UP ANY
AND ALL RIGHTS, INCLUDING CONSTITUTIONAL RIGHTS, THAT ANY BORROWER HAS OR MAY HAVE
TO NOTICE AND A HEARING BEFORE JUDGMENT CAN BE ENTERED AGAINST ANY BORROWER AND
BEFORE THE BORROWERS’ ASSETS, INCLUDING, WITHOUT LIMITATION, THEIR BANK
ACCOUNTS, MAY BE GARNISHED, LEVIED, EXECUTED UPON AND/OR ATTACHED.  THE BORROWERS UNDERSTAND THAT ANY SUCH 


 


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GARNISHMENT, LEVY,
EXECUTION AND/OR ATTACHMENT SHALL RENDER THE PROPERTY GARNISHED, LEVIED,
EXECUTED UPON OR ATTACHED IMMEDIATELY UNAVAILABLE TO THE OBLIGORS.  IT IS SPECIFICALLY ACKNOWLEDGED BY THE
BORROWERS THAT THE LENDER HAS RELIED ON THIS WARRANT OF ATTORNEY AND THE RIGHTS
WAIVED BY THE OBLIGORS HEREIN IN CONSENTING TO THIS AMENDMENT AND AS AN
INDUCEMENT TO GRANT THE ACCOMMODATIONS OUTLINED HEREIN TO THE BORROWERS.


 


(b)                                 WARRANT OF ATTORNEY TO CONFESS JUDGMENT -
Money.  THE BORROWERS, AND EACH OF THEM, HEREBY
AUTHORIZE AND EMPOWER, UPON AN EVENT OF DEFAULT HEREUNDER, AND/OR UNDER THE
OTHER LOAN DOCUMENTS, ANY ATTORNEY OF ANY COURT OF RECORD OR THE PROTHONOTARY
OR CLERK OF ANY COUNTY IN THE COMMONWEALTH OF PENNSYLVANIA, OR IN ANY
JURISDICTION WHERE PERMITTED BY LAW, OR THE CLERK OF ANY UNITED STATES DISTRICT
COURT, TO APPEAR FOR THE BORROWERS IN ANY AND ALL ACTIONS WHICH MAY BE
BROUGHT HEREUNDER, AND/OR UNDER THE OTHER LOAN DOCUMENTS, AND ENTER AND CONFESS
JUDGMENT AGAINST THE BORROWERS, JOINTLY AND SEVERALLY, IN FAVOR OF THE LENDER
OR ITS ASSIGNEE FOR THE ENTIRE AMOUNT OF THE INDEBTEDNESS THEN DUE AND
OUTSTANDING UNDER THE TERMS OF THE CREDIT AGREEMENT, AND/OR UNDER THE TERMS OF
THE OTHER LOAN DOCUMENTS, TOGETHER WITH ATTORNEYS’ FEES EQUAL TO FIFTEEN
PERCENT (15%) OF THE FOREGOING SUMS THEN DUE AND OWING, BUT IN NO EVENT LESS
THAN FIVE THOUSAND ($5,000.00) DOLLARS, ALL WITH OR WITHOUT DECLARATION,
WITHOUT PRIOR NOTICE, WITHOUT STAY OF EXECUTION AND WITH RELEASE OF ALL
PROCEDURAL ERRORS AND THE RIGHT TO ISSUE EXECUTIONS FORTHWITH.  TO THE EXTENT PERMITTED BY LAW, EACH OF THE
BORROWERS WAIVES THE RIGHT OF INQUISITION ON ANY REAL ESTATE LEVIED ON,
VOLUNTARILY CONDEMNS THE SAME, AUTHORIZES THE PROTHONOTARY OR CLERK TO ENTER
UPON THE WRIT OF EXECUTION THIS VOLUNTARY CONDEMNATION AND AGREES THAT SUCH
REAL ESTATE MAY BE SOLD ON A WRIT OF EXECUTION; AND ALSO WAIVES ANY RELIEF
FROM ANY APPRAISEMENT, STAY OR EXEMPTION LAW OF ANY STATE NOW IN FORCE OR
HEREAFTER ENACTED.  IF COPIES OF THE
CREDIT AGREEMENT AND/OR THE OTHER LOAN DOCUMENTS VERIFIED BY AFFIDAVIT OF ANY
REPRESENTATIVE OF THE LENDER SHALL HAVE BEEN FILED IN SUCH ACTION, IT SHALL NOT
BE NECESSARY TO FILE THE ORIGINALS THEREOF AS A WARRANT OF ATTORNEY, ANY
PRACTICE OR USAGE TO THE CONTRARY NOTWITHSTANDING.  THE AUTHORITY HEREIN GRANTED TO CONFESS
JUDGMENT SHALL NOT BE EXHAUSTED BY ANY SINGLE EXERCISE THEREOF, BUT SHALL
CONTINUE AND MAY BE EXERCISED FROM TIME TO TIME AS OFTEN AS THE LENDER
SHALL FIND IT NECESSARY AND DESIRABLE AND AT ALL TIMES UNTIL FULL PAYMENT OF
ALL AMOUNTS DUE HEREUNDER, AND/OR UNDER THE OTHER LOAN DOCUMENTS.  THE LENDER MAY CONFESS ONE OR MORE
JUDGMENTS IN THE SAME OR DIFFERENT JURISDICTIONS FOR ALL OR ANY PART OF
THE INDEBTEDNESS OR OBLIGATIONS ARISING HEREUNDER, AND/OR UNDER THE OTHER LOAN
DOCUMENTS, WITHOUT REGARD TO WHETHER JUDGMENT HAS THERETOFORE BEEN CONFESSED ON
MORE THAN ONE OCCASION FOR THE SAME INDEBTEDNESS OR OBLIGATIONS.  IN THE EVENT THAT ANY JUDGMENT CONFESSED
AGAINST THE BORROWERS IS STRICKEN OR OPENED UPON 


 


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APPLICATION BY OR
ON BEHALF OF ANY OF THE BORROWERS FOR ANY REASON, THE LENDER IS HEREBY
AUTHORIZED AND EMPOWERED TO AGAIN APPEAR FOR AND CONFESS JUDGMENT AGAINST THE
OBLIGORS FOR ANY PART OR ALL OF THE INDEBTEDNESS DUE AND OWING TO THE
LENDER HEREUNDER, AND/OR UNDER THE OTHER LOAN DOCUMENTS.


 


(c)                                  WARRANT OF ATTORNEY TO CONFESS JUDGMENT —
General Provisions.  IN ANY ACTION OR PROCEEDING DESCRIBED IN SECTION 16
HEREIN OR IN CONNECTION THEREWITH, IF COPIES OF THE CREDIT AGREEMENT AND/OR THE
OTHER LOAN DOCUMENTS ARE THEREIN VERIFIED BY THE LENDER OR SOMEONE ACTING FOR
THE LENDER TO BE TRUE AND CORRECT COPIES OF THE CREDIT AGREEMENT AND/OR THE
OTHER LOAN DOCUMENTS (AND SUCH COPIES SHALL BE CONCLUSIVELY PRESUMED TO BE TRUE
AND CORRECT BY VIRTUE OF SUCH VERIFICATION), THEN IT SHALL NOT BE NECESSARY TO
FILE THE ORIGINAL OF THE CREDIT AGREEMENT AND/OR THE OTHER LOAN DOCUMENTS, ANY
STATUTE, RULE OF COURT OF LAW, CUSTOM OR PRACTICE TO THE CONTRARY
NOTWITHSTANDING.  THE BORROWERS HEREBY
RELEASE TO THE LENDER, ANYONE ACTING FOR THE LENDER AND ALL ATTORNEYS WHO MAY APPEAR
FOR THE BORROWERS, ALL ERRORS IN PROCEDURE REGARDING THE ENTRY OF JUDGMENT OR
JUDGMENTS BY CONFESSION OR OTHERWISE BY VIRTUE OF THE WARRANTS OF ATTORNEY
CONTAINED IN THIS AMENDMENT AND/OR THE OTHER LOAN DOCUMENTS, AND ALL LIABILITY
THEREFOR.  THE RIGHT TO ENTER JUDGMENT OR
JUDGMENTS BY CONFESSION OR OTHERWISE BY VIRTUE OF THE WARRANTS OF ATTORNEY
CONTAINED IN THIS AMENDMENT AND/OR THE OTHER LOAN DOCUMENTS, AND TO ENFORCE ALL
OF THE OTHER PROVISIONS OF THE AFORESAID DOCUMENTS MAY BE EXERCISED BY ANY
ASSIGNEE OF THE LENDER’S RIGHT, TITLE AND INTEREST IN THIS AMENDMENT AND/OR THE
OTHER LOAN DOCUMENTS IN SUCH ASSIGNEE’S OWN NAME, ANY STATUTE, RULE OF COURT OR
LAW, CUSTOM OR PRACTICE TO THE CONTRARY NOTWITHSTANDING.


 


17.                                 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.


 


18.                                 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.


 


	
  EXISTING BORROWERS:

  	
  CLARIENT, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Michael R. Rodriguez

  
	
   

  	
  Name:

  	
  Michael R. Rodriguez

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  CLARIENT DIAGNOSTIC SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael R. Rodriguez

  
	
   

  	
  Name:

  	
  Michael R. Rodriguez

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
  CHROMAVISION INTERNATIONAL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael R. Rodriguez

  
	
   

  	
  Name:

  	
  Michael R. Rodriguez

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
  JOINING BORROWER:

  	
  APPLIED GENOMICS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael R. Rodriguez

  
	
   

  	
  Name:

  	
  Michael R. Rodriguez

  
	
   

  	
  Title:

  	
  Senior Vice President and Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  LENDER:

  	
  GEMINO HEALTHCARE FINANCE, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Miriam P. Gallagher

  
	
   

  	
  Name:

  	
  Miriam P. Gallagher

  
	
   

  	
  Title:

  	
  Senior Portfolio Manager

  



 


[SIGNATURE PAGE TO FOURTH
AMENDMENT AND JOINDER TO CREDIT AGREEMENT]


 


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EXHIBIT
A


 


Amended
and Restated Schedules