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