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,