due in
conjunction with such payment or other fees due hereunder, as the case may be.
8.12.
Time of Day.
All time of day restrictions imposed herein shall be
calculated using Delaware local time.
23
8.13.
WAIVER OF JURY TRIAL.
EACH OF THE PARTIES HERETO HEREBY KNOWINGLY,
VOLUNTARILY, AND 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, 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]
24
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/ Brian J. Sisko
Name:
Brian J. Sisko
Title:
Vice President
Amended and Restated Senior Subordinated Revolving Credit Agreement
Signature Page