Exhibit 10.1


 


WAIVER AGREEMENT


 


This Waiver Agreement
(this “Agreement”) is entered into this 29th day of April, 2022 by and between WESTERN ALLIANCE BANK, an
Arizona corporation (“Bank”), and ISPECIMEN INC., a Delaware corporation (“Borrower”) whose address is
450 Bedford Street, Lexington, Massachusetts 02420.


 


Recitals


 


A.            Among
other indebtedness which may be owing by Borrower to Bank, Borrower is indebted to Bank pursuant to, among other documents, that certain
Loan and Security Agreement, dated as of August 13, 2021 by and between Borrower and Bank (as may be amended, modified, supplemented,
or restated from time to time, the “Loan and Security Agreement”). Hereinafter, all indebtedness owing by Borrower to Bank
shall be referred to as the “Indebtedness” and the Loan and Security Agreement and any and all other documents executed by
Borrower in favor of Bank shall be referred to as the “Existing Documents.”


 


B.            Borrower
has requested that Bank waive the Stated Event of Default (as defined below).


 


C.            Bank
has agreed to waive the Stated Event of Default (as defined below), subject to the conditions and in reliance upon the representations
and warranties set forth below.


 


Agreement


 


NOw,
Therefore, in consideration of the foregoing recitals and other good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, and intending to be legally bound, the parties hereto agree as follows:


 


1.            DEFINITIONS.
Capitalized terms used but not defined in this Agreement shall have the meanings given to them in the Loan and Security Agreement.


 


2.            WAIVER.
Bank hereby waives Borrower’s existing default under the Loan and Security Agreement by virtue of Borrower’s failure to comply
with the Maximum Trailing Three- Month EBDA Deviation covenant set forth in Section 6.8(a) thereof for the trailing three (3) month
period ending March 31, 2022 (the “Stated Event of Default”). Bank’s waiver of the Stated Event of Default shall
apply only to the foregoing specific period. Borrower hereby acknowledges and agrees that except as specifically provided herein, nothing
in this section or anywhere in this Agreement shall be deemed or otherwise construed as a waiver by Bank of any of its rights and remedies
pursuant to the Loan Documents, applicable law or otherwise.


 


3.            CONSISTENT
CHANGES. The Existing Documents are each hereby amended wherever necessary to reflect the changes described above.


 


4.            CONTINUING
VALIDITY. Borrower understands and agrees that in modifying the existing Indebtedness, Bank is relying upon Borrower’s
representations, warranties, and agreements, as set forth in the Existing Documents. Except as expressly modified pursuant to this
Agreement, the terms of the Existing Documents remain unchanged and in full force and effect. Bank’s agreement to
modifications to the existing Indebtedness pursuant to this Agreement in no way shall obligate Bank to make any future modifications
to the Indebtedness. Nothing in this Agreement shall constitute a satisfaction of the Indebtedness. It is the intention of Bank and
Borrower to retain as liable parties all makers and endorsers of Existing Documents, unless the party is expressly released by Bank
in writing. No maker, endorser, or guarantor will be released by virtue of this Agreement. The terms of this paragraph apply not
only to this Agreement, but also to any subsequent loan and security modification agreements.


 






     


     


    

 


5.
            RELEASE BY BORROWER:




 


5.1            FOR
GOOD AND VALUABLE CONSIDERATION, Borrower hereby forever relieves, releases, and discharges Bank and its present or former employees,
officers, directors, agents, representatives, attorneys, and each of them, from any and all claims, debts, liabilities, demands, obligations,
promises, acts, agreements, costs and expenses, actions and causes of action, of every type, kind, nature, description or character whatsoever,
whether known or unknown, suspected or unsuspected, absolute or contingent, arising out of or in any manner whatsoever connected with
or related to facts, circumstances, issues, controversies or claims existing or arising from the beginning of time through and including
the date of execution of this Agreement (collectively “Released Claims”). Without limiting the foregoing, the Released Claims
shall include any and all liabilities or claims arising out of or in any manner whatsoever connected with or related to the Loan Documents,
the recitals hereto, any instruments, agreements or documents executed in connection with any of the foregoing or the origination, negotiation,
administration, servicing and/or enforcement of any of the foregoing.


 


5.2            In
furtherance of this release, Borrower expressly acknowledges and waives any and all rights under Section 1542 of the California Civil
Code, which provides as follows:


 


“A general
release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the
time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or
released party.” (Emphasis added.)


 


5.3            By
entering into this release, Borrower recognizes that no facts or representations are ever absolutely certain and it may hereafter discover
facts in addition to or different from those which it presently knows or believes to be true, but that it is the intention of Borrower
hereby to fully, finally and forever settle and release all matters, disputes and differences, known or unknown, suspected or unsuspected;
accordingly, if Borrower should subsequently discover that any fact that it relied upon in entering into this release was untrue, or that
any understanding of the facts was incorrect, Borrower shall not be entitled to set aside this release by reason thereof, regardless of
any claim of mistake of fact or law or any other circumstances whatsoever. Borrower acknowledges that it is not relying upon and has not
relied upon any representation or statement made by Bank with respect to the facts underlying this release or with regard to any of such
party’s rights or asserted rights.


 


5.4            This
release may be pleaded as a full and complete defense and/or as a cross-complaint or counterclaim against any action, suit, or other
proceeding that may be instituted, prosecuted or attempted in breach of this release. Borrower acknowledges that the release contained
herein constitutes a material inducement to Bank to enter into this Agreement, and that Bank would not have done so but for Bank’s
expectation that such release is valid and enforceable in all events.




 






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5.5            Borrower
hereby represents and warrants to Bank, and Bank is relying thereon, as follows:


 


(a)            Except
as expressly stated in this Agreement, neither Bank nor any agent, employee or representative of Bank has made any statement or representation
to Borrower regarding any fact relied upon by Borrower in entering into this Agreement.


 


(b)            Borrower
has made such investigation of the facts pertaining to this Agreement and all of the matters appertaining thereto, as it deems necessary.


 


 (c)            The terms of this Agreement are contractual and not a mere recital.




 


(d)            This
Agreement has been carefully read by Borrower, the contents hereof are known and understood by Borrower, and this Agreement is signed
freely, and without duress, by Borrower.


 


(e)            Borrower
represents and warrants that it is the sole and lawful owner of all right, title and interest in and to every claim and every other matter
which it releases herein, and that it has not heretofore assigned or transferred, or purported to assign or transfer, to any person, firm
or entity any claims or other matters herein released. Borrower shall indemnify Bank, defend and hold it harmless from and against all
claims based upon or arising in connection with prior assignments or purported assignments or transfers of any claims or matters released
herein.


 


6.            CHOICE
OF LAW AND VENUE; JURY TRIAL WAIVER; REFERENCE PROVISION. This Agreement constitutes a “Loan Document” as defined and
set forth in the Loan and Security Agreement, and is subject to Sections 11 and 12 of the Loan and Security Agreement, which are incorporated
by reference herein.


 


7.            PAYMENT
OF BANK EXPENSES. Borrower agrees to promptly pay all Bank Expenses incurred by Bank in connection with this Agreement.


 


8.            NOTICE
OF FINAL AGREEMENT. BY SIGNING THIS DOCUMENT EACH PARTY REPRESENTS AND AGREES THAT: (A) THIS WRITTEN AGREEMENT REPRESENTS THE
FINAL AGREEMENT BETWEEN THE PARTIES, (B) THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES, AND (C) THIS WRITTEN AGREEMENT
MAY NOT BE CONTRADICTED BY EVIDENCE OF ANY PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OR UNDERSTANDINGS OF THE PARTIES.


 






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9.            EFFECTIVENESS.
This Agreement shall be deemed effective upon (a) the due execution and delivery to Bank of this Agreement by each party hereto
and (b) Borrower’s payment to Bank of Bank’s legal fees and expenses incurred in connection with this Agreement.
This Agreement may be executed in any number of counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.


 


[Signature page follows.]


 






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IN
Witness Whereof, the parties hereto have caused this Agreement to be duly executed and delivered as of the date first written
above.


 


	BANK	 	BORROWER
	 	 	 
	WESTERN ALLIANCE
    BANK, AN ARIZONA CORPORATION	 	ISPECIMEN INC.
	 	 	 
	By:	/s/ Christine
    Egitto    	 	By: 	/s/ Tracy Curley        
	Name: Christine
    Egitto	 	Name: Tracy Curley 
	Title:   Director	 	Title:   Chief Financial
    Officer




 


NY:2372845