FIRST AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT
Exhibit
10.31
FIRST
AMENDMENT TO REVOLVING CREDIT
AND
SECURITY AGREEMENT
THIS
FIRST AMENDMENT TO REVOLVING CREDIT AND SECURITY AGREEMENT (this “Agreement”)
is
entered into on this 3rd day of November, 2008 (the “Effective
Date”),
by
and among NEOGENOMICS,
INC.,
a
Florida corporation (“Borrower”),
NEOGENOMICS,
INC.,
a
Nevada corporation (“Guarantor”,
together with Borrower, individually, a “Credit
Party”
and
collectively, the “Credit
Parties”)
and
CAPITALSOURCE
FINANCE LLC,
a
Delaware limited liability company (“Lender”)
as
agent for the lenders to the Credit Agreement.
.
RECITALS
A. The
Credit Parties and Lender have entered into that certain Revolving Credit and
Security Agreement, dated as of February 1, 2008 (as may be amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement”).
B. The
Credit Parties have requested that Lender agree to make certain amendments
to
the Credit Agreement. Lender has agreed to this request on the conditions set
forth in this Agreement.
C. Pursuant
to the terms and conditions of this Agreement, the Credit Parties and the Lender
have agreed to amend certain provisions of the Credit Agreement.
NOW,
THEREFORE, in consideration of the premises herein contained and other good
and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties, intending to be legally bound, agree as
follows:
AGREEMENT
ARTICLE
I
- DEFINITIONS
1.01 Definitions.
Capitalized terms used in this Agreement are defined in the Credit Agreement,
as
amended hereby, unless otherwise stated.
ARTICLE
II-WAIVER
2.01 Waiver.
(a) An
Event
of Default has occurred as a result of the failure of Borrower to maintain
Minimum Cash Velocity required by Section 2 of Annex 1 of the Credit Agreement
for the period ended June 30, 2008 (the “Specified
Event of Default”).
(b) Subject
to the conditions contained herein, Lender hereby waives the Specified Event
of
Default as of the date that it was first discovered by Borrower. Except as
expressly set forth herein with respect to the Specified Event of Default,
this
letter agreement shall not be deemed to be a waiver of any Default or Event
of
Default. The waivers set forth herein shall not preclude the future exercise
of
any other right, power, or privilege available to Lender whether under the
Agreement, the Loan Documents or otherwise.
(c) The
occurrence of the Specified Event of Default shall not be deemed to result
in
non-compliance with the financial covenants for purposes of Clause (ii) of
Section 3 of Annex 1 of the Loan Agreement.
ARTICLE
III–
AMENDMENT
3.01 Amendment
to Section 9.13 of the Credit Agreement.
Effective as of the Effective Date, Section
9.13
of the
Credit Agreement is hereby amended by deleting “$100,000” and replacing it with
“$250,000”.
ARTICLE
IV
- CONDITIONS PRECEDENT
4.01 Conditions
to Effectiveness.
The
effectiveness of this Agreement against Lender is subject to the satisfaction
of
the following conditions precedent in a manner satisfactory to Lender in its
sole discretion, unless specifically waived in writing by Lender:
Lender
shall have received each of the following, each in form and substance
satisfactory to Lender, in its sole discretion, and, where applicable, each
duly
executed by each party thereto, other than Lender:
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(i)
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this
Agreement;
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(ii)
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all
other documents Lender may request with respect to any matter relevant
to
this Agreement or the transactions contemplated
hereby.
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ARTICLE
V-
RATIFICATIONS, REPRESENTATIONS AND WARRANTIES
5.01 Ratifications.
The
terms and provisions set forth in this Agreement shall modify and supersede
all
inconsistent terms and provisions set forth in the Credit Agreement and the
Loan
Documents, and, except as expressly modified and superseded by this Agreement,
the terms and provisions of the Credit Agreement and the Loan Documents are
ratified and confirmed and shall continue in full force and effect. The Credit
Parties hereby ratify and confirm that the Liens granted under the Credit
Agreement secure all obligations and indebtedness now, hereafter or from time
to
time made by, owing to or arising in favor of Lender pursuant to the Loan
Documents (as now, hereafter or from time to time amended). The Credit Parties
and Lender agree that the Credit Agreement and the Loan Documents, as amended
hereby, shall continue to be legal, valid, binding and enforceable in accordance
with their respective terms.
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5.02 Representations
and Warranties.
The
Credit Parties hereby, jointly and severally, represent and warrant to Lender
that:
(a) The
representations and warranties made by the Credit Parties (other than those
made
as of a specific date) contained in the Credit Agreement, as amended hereby,
and
each Loan Document are true and correct in all material respects (except that,
for those representations and warranties already qualified by concepts of
materiality, those representations and warranties shall be true and correct
in
all respects) on and as of the date hereof and as of the date of execution
hereof as though made on and as of each such date;
(b) No
Default or Event of Default under the Credit Agreement, as amended hereby,
has
occurred and is continuing, except for the Specified Event of
Default;
(c) No
Borrower has amended its certificate of incorporation or bylaws (or any other
equivalent governing agreement or document), as applicable, since the date
of
the Credit Agreement;
ARTICLE
VI
- MISCELLANEOUS PROVISIONS
6.01 Survival
of Representations and Warranties.
All
representations and warranties made in the Credit Agreement, or any Loan
Document, including, without limitation, any document furnished in connection
with this Agreement, shall survive the execution and delivery of this Agreement
and the Loan Documents, and no investigation by Lender or any closing shall
affect the representations and warranties or the right of Lender to rely upon
them.
6.02 Reference
to Credit Agreement.
Each of
the Credit Agreement and the Loan Documents, and any and all Loan Documents,
documents or instruments now or hereafter executed and delivered pursuant to
the
terms hereof or pursuant to the terms of the Credit Agreement, as amended
hereby, are hereby amended so that any reference in the Credit Agreement and
such Loan Documents to the Credit Agreement shall mean a reference to the Credit
Agreement, as amended hereby.
6.03 Expenses
of Lender.
As
provided in the Credit Agreement, the Credit Parties agree to pay on demand
all
costs and expenses incurred by Lender in connection with the preparation,
negotiation, and execution of this Agreement and the Loan Documents executed
pursuant hereto and any and all amendments, modifications, and supplements
thereto, including, without limitation, the reasonable costs and fees of
Lender’s legal counsel, and all costs and expenses incurred by Lender in
connection with the enforcement or preservation of any rights under the Credit
Agreement, as amended hereby, or any Loan Documents, including, without,
limitation, the reasonable costs and fees of Lender’s legal
counsel.
6.04 Severability.
Any
provision of this Agreement held by a court of competent jurisdiction to be
invalid or unenforceable shall not impair or invalidate the remainder of this
Agreement and the effect thereof shall be confined to the provision so held
to
be invalid or unenforceable.
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6.05 Successors
and Assigns.
This
Agreement is binding upon and shall inure to the benefit of Lender and the
Credit Parties and their respective successors and assigns, except that the
Credit Parties may not assign or transfer any of their rights or obligations
hereunder without the prior written consent of Lender.
6.06 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which when so
executed shall be deemed to be an original, but all of which when taken together
shall constitute one and the same instrument. Any signature delivered by a
party
by facsimile or other electronic transmission shall be deemed to be an original
signature hereto.
6.07 Effect
of Waiver.
No
consent or waiver, express or implied, by Lender to or for any breach of or
deviation from any covenant or condition by the Credit Parties shall be deemed
a
consent to or waiver of any other breach of the same or any other covenant,
condition or duty.
6.08 Headings.
The
headings, captions, and arrangements used in this Agreement are for convenience
only and shall not affect the interpretation of this Agreement.
6.09 Applicable
Law.
THIS
AGREEMENT AND ALL LOAN DOCUMENTS EXECUTED PURSUANT HERETO SHALL BE DEEMED TO
HAVE BEEN MADE AND TO BE PERFORMABLE IN AND SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE CHOICE OF LAW SET FORTH IN THE CREDIT
AGREEMENT.
6.10 Final
Agreement.
THE
CREDIT AGREEMENT AND THE LOAN DOCUMENTS, EACH AS AMENDED HEREBY, REPRESENT
THE
ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF
ON
THE DATE THIS AGREEMENT IS EXECUTED. THE CREDIT AGREEMENT AND THE LOAN
DOCUMENTS, AS AMENDED HEREBY, MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO MODIFICATION, RESCISSION,
WAIVER, RELEASE OR AGREEMENT OF ANY PROVISION OF THIS AGREEMENT SHALL BE MADE,
EXCEPT BY A WRITTEN AGREEMENT SIGNED BY THE CREDIT PARTIES AND
LENDER.
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6.11 Release.
THE
CREDIT PARTIES HEREBY ACKNOWLEDGE THAT THEY HAVE NO DEFENSE, COUNTERCLAIM,
OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT
CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO
REPAY
THE “OBLIGATIONS” OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR NATURE
FROM LENDER. THE CREDIT PARTIES HEREBY VOLUNTARILY AND KNOWINGLY RELEASE AND
FOREVER DISCHARGE LENDER AND LENDERS, AND ANY OF THEIR RESPECTIVE PREDECESSORS,
AGENTS, ATTORNEYS, EMPLOYEES, AFFILIATES, SUCCESSORS AND ASSIGNS, FROM ALL
POSSIBLE CLAIMS, DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES,
AND LIABILITIES WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED,
SUSPECTED OR UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN
EQUITY, ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AGREEMENT
IS
EXECUTED, WHICH THE CREDIT PARTIES MAY NOW OR HEREAFTER HAVE AGAINST LENDER,
OR
ANY OF THEIR RESPECTIVE PREDECESSORS, ATTORNEYS, AGENTS, EMPLOYEES, AFFILIATES,
SUCCESSORS AND ASSIGNS, IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS
ARISE OUT OF CONTRACT, TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE,
AND
ARISING FROM ANY “LOANS”, INCLUDING, WITHOUT LIMITATION, ANY CONTRACTING FOR,
CHARGING, TAKING, RESERVING, COLLECTING OR RECEIVING INTEREST IN EXCESS OF
THE
HIGHEST LAWFUL RATE APPLICABLE, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER
THE CREDIT AGREEMENT OR LOAN DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF
THIS AGREEMENT.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF, this Agreement has been executed and is effective as of the
date first written above.
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BORROWER:
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NEOGENOMICS,
INC.,
a
Florida corporation
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By:
/s/
Xxxxxx X.
Xxxxx
Name:
Xxxxxx
X. Xxxxx
Title:
Acting
Principal Financial Officer
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GUARANTOR:
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NEOGENOMICS,
INC.,
a
Nevada corporation
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By:
/s/
Xxxxxx X.
Xxxxx
Name:
Xxxxxx
X. Xxxxx
Title:
Acting
Principal Financial Officer
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LENDER:
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CAPITALSOURCE
FINANCE LLC, as
agent for the lenders
By:
/s/
Xxxxxx
Xxxxx
Name:
Xxxxxx
Xxxxx
Title:
Authorized
Representative
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