Exhibit 10.5
SUBORDINATION AGREEMENT
This SUBORDINATION AGREEMENT (this "Agreement") is made as April 13, 2017 by
PRECIPIO DIAGNOSTICS, LLC, a Delaware limited liability company (the "Debtor")
and TRANSGENOMIC, INC., with its head office located at 12325 Emmet Street,
Omaha, Nebraska 68164 (the "Junior Creditor") for the benefit of WEBSTER BANK,
NATIONAL ASSOCIATION, a national banking association, having an office at 80 Elm
Street, New Haven, Connecticut 06510 (the "Senior Creditor").
WHEREAS, the Debtor desires to borrow from the Junior Creditor, and the Junior
Creditor desires to loan to the Debtor, one or more loans (collectively, the
"Junior Loan") pursuant to a certain Subordinated Promissory Note dated as of
the date hereof (the "Note"), by the Debtor in favor of the Junior Creditor; and
WHEREAS, pursuant to the terms of a certain Loan and Security Agreement dated as
of December 1, 2014 between the Debtor and the Senior Creditor (the "Loan
Agreement"), the Senior Creditor has made, or may hereafter make, advances,
loans or other extensions of credit to Debtor (the "Senior Loan"); and
WHEREAS, in order to induce the Senior Creditor to consent to the Junior Loan to
the Debtor, the Junior Creditor is willing, pursuant to the terms and conditions
of this Agreement, to subordinate (i) Debtor's indebtedness and obligations to
pay monies to the Junior Creditor under the Junior Loan, and any documents,
instruments and/or agreements executed in connection therewith, whether
presently existing or arising in the future (collectively, the "Subordinated
Debt") to all of Debtor's indebtedness and obligations to the Senior Creditor
under the Loan Agreement, and any documents, instruments and/or agreements
executed in connection therewith, whether presently existing or arising in the
future (collectively, the "Senior Debt"), and (ii) all of the Junior Creditor's
Liens (as defined in Section 1 below) securing any obligation to pay any of the
Subordinated Debt, if any, to all of the Liens (as defined in Section 1 below)
in the Debtor's property granted to the Senior Creditor from time to time to
secure the payment and performance of the Senior Debt, including pursuant to the
Loan Agreement;
NOW, THEREFORE, in consideration of the premises set forth herein, and for other
good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1.
The Junior Creditor hereby subordinates any mortgages, pledges,
charges, liens, security interests or other encumbrances (each a "Lien") that
Junior Creditor has, or may have, in any assets and/or property (including
intellectual property) of Debtor with respect to the payment of any of the
Subordinated Debt (the "Junior Liens") to any and all Liens granted to the
Senior Creditor under the Loan Agreement or otherwise to secure the payment and
performance of the Senior Debt. Notwithstanding the respective dates of
attachment or perfection of the Junior Liens of the Junior Creditor and the
Liens of the Senior Creditor, the Liens of the Senior Creditor in any assets
and/or property (including intellectual property) of Debtor, including without
limitation the Collateral (as defined in