INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON OR ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS AGREEMENT OR THE NOTE OR COLLATERAL SECURITY DOCUMENTS OR
ANY COURSE OF CONDUCT, COURSE OF DEALING,
22
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF LENDER.
THIS PROVISION IS A
MATERIAL INDUCEMENT FOR LENDER'S ENTERING INTO THIS AGREEMENT.
9.
LENDER REPRESENTATIONS.
9.1.
LENDER REPRESENTATIONS.
LENDER REPRESENTS AND WARRANTS TO THE BORROWER AS
FOLLOWS:
(A)
LENDER IS ACQUIRING THE WARRANTS AND THE
NOTES, AND (IF AND WHEN IT EXERCISES THE WARRANTS) IT WILL ACQUIRE THE SHARES OF
COMMON STOCK UNDERLYING THE WARRANTS (THE "WARRANT SHARES" AND, TOGETHER WITH
THE WARRANTS AND THE NOTES, THE "SECURITIES"), FOR ITS OWN ACCOUNT FOR
INVESTMENT AND NOT WITH A VIEW TO, OR FOR SALE IN CONNECTION WITH, ANY
DISTRIBUTION THEREOF, NOR WITH ANY PRESENT INTENTION OF DISTRIBUTING OR SELLING
THE SAME; AND THE LENDER HAS NO PRESENT OR CONTEMPLATED AGREEMENT, UNDERTAKING,
ARRANGEMENT, OBLIGATION, INDEBTEDNESS OR COMMITMENT PROVIDING FOR THE
DISPOSITION THEREOF.
(B)
LENDER HAS MADE SUCH INQUIRY CONCERNING THE
BORROWER AND ITS BUSINESS AND PERSONNEL AS IT HAS DEEMED APPROPRIATE AND HAS HAD
THE OPPORTUNITY TO DISCUSS, ASK QUESTIONS AND RECEIVE ANSWERS WITH RESPECT TO
THE BORROWER'S BUSINESS, MANAGEMENT AND FINANCIAL AFFAIRS WITH THE BORROWER'S
MANAGEMENT; AND LENDER HAS SUFFICIENT KNOWLEDGE AND EXPERIENCE IN FINANCE AND
BUSINESS THAT IT IS CAPABLE OF EVALUATING THE RISKS AND MERITS OF ITS FUNDING OF
THE NOTE AND PURCHASE OF THE WARRANTS.
(C)
LENDER ACKNOWLEDGES THAT THE SECURITIES
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT AND MUST BE HELD INDEFINITELY
UNLESS SUBSEQUENTLY REGISTERED UNDER THE SECURITIES ACT OR AN EXEMPTION FROM
SUCH REGISTRATION IS AVAILABLE.
[SIGNATURE PAGES FOLLOW]
23
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
BORROWER:
CLARIENT, INC.
By:
/s/ James Agnello
Name: James Agnello
Title:
Senior Vice President and Chief
Financial Officer
LENDER:
SAFEGUARD DELAWARE, INC.
By:
/s/ Steven J. Feder
Name: Steven J. Feder
Title: Vice President
Senior Subordinated Revolving Credit Agreement
Signature Page
EXHIBIT A
FORM OF NOTE
A-1
EXHIBIT B-1
FORM OF COMMITMENT FEE WARRANT
($.01 Exercise Price)
B-1-1
EXHIBIT B-2
FORM OF COMMITMENT FEE WARRANT
(Discounted Market Price)
B-2-1
EXHIBIT B-3
FORM OF USAGE FEE WARRANT
B-3-1
EXHIBIT C
FORM OF BORROWING REQUEST
C-1