all applicable domestic and
foreign income taxes (including any tax on or based upon net income, or gross
income, or income as specially defined, or earnings, or profits, or selected
items of income, earnings or profits) and all applicable domestic and foreign
gross receipts, sales, use, ad valorem, transfer, franchise, license,
withholding, payroll, employment, excise, severance, stamp, occupation, premium,
environmental, property or windfall profits taxes, alternative or add-on minimum
taxes, customs duties or other taxes, fees, assessments or charges of any kind
whatsoever, together with any interest and any penalties, additions to tax or
additional amounts imposed by any taxing authority (domestic or foreign) on such
Person and (ii) any liability for the payment of any amount of the type
described in the immediately preceding clause (i) as a result of being a
"transferee" (within the meaning of Section 6901 of the Code or any other
applicable law) of another Person or a member of an affiliated, consolidated or
combined group.
"Warrants" means, collectively, the Commitment Fee Warrants, the Continuance Fee
Warrants and the Prior Facility Warrants.
2.
LOANS TO BORROWER; ISSUANCE OF WARRANTS.
2.1.
Advances.
(A)
GENERALLY.
SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT
AND THE SUBORDINATION AGREEMENTS, INCLUDING WITHOUT LIMITATION RECEIPT OF THE
DELIVERIES SPECIFIED IN SECTION 3.2 AND THE OTHER CONDITIONS SPECIFIED IN
SECTION 3.3, LENDER SHALL ADVANCE FUNDS TO BORROWER (EACH SUCH ADVANCE,
INDIVIDUALLY, AN "ADVANCE", AND ALL SUCH ADVANCES, THE "ADVANCES") BY WIRE
TRANSFER OF IMMEDIATELY AVAILABLE FUNDS VIA FEDERAL RESERVE SYSTEM TO:
Recipient Bank:
Comerica Bank
11512 El Camino Real
Suite 350B
San Diego, CA 92130
858 509-2399
Contact - Hang Landrum
ABA#:
121137522
Account Name:
Clarient, Inc. - Money Market
Account#:
1892035252
6
(B)
ADVANCE PROCEDURES.
(I)
SUBJECT TO AND UPON THE TERMS AND CONDITIONS OF THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION THE CONDITIONS SPECIFIED IN SECTION 3.3, BORROWER
MAY REQUEST AN ADVANCE, IN A MINIMUM PRINCIPAL AMOUNT OF ONE MILLION DOLLARS
($1,000,000) (OR THE TOTAL REMAINING COMMITMENT, IF LESS), UP TO AN AGGREGATE
OUTSTANDING AMOUNT FOR ALL ADVANCES NOT TO EXCEED THE COMMITMENT.
SUBJECT TO
THE TERMS AND CONDITIONS OF THIS AGREEMENT, AMOUNTS BORROWED PURSUANT TO THIS
SECTION 2.1 MAY BE REPAID AND REBORROWED AT ANY TIME PRIOR TO THE MATURITY DATE,
AT WHICH TIME ALL ADVANCES THEN OUTSTANDING SHALL BE IMMEDIATELY DUE AND
PAYABLE.
(II)
WHENEVER BORROWER DESIRES AN ADVANCE, BORROWER WILL NOTIFY LENDER
BY FACSIMILE TRANSMISSION OR EMAIL NO LATER THAN 2:00 P.M. EASTERN TIME, NOT
LESS THAN TWO (2) BUSINESS DAYS PRIOR TO THE BUSINESS DAY ON WHICH THE ADVANCE
IS TO BE FUNDED.
EACH SUCH NOTIFICATION SHALL BE IN THE FORM OF A BORROWING
REQUEST IN SUBSTANTIALLY THE FORM OF EXHIBIT C HERETO.
LENDER SHALL WIRE THE
AMOUNT OF ADVANCES MADE UNDER THIS SECTION 2.1(B) TO THE WIRE ADDRESS SET FORTH
IN SECTION 2.1(A), OR TO SUCH OTHER WIRE ADDRESS AS BORROWER HAS ADVISED LENDER
IN WRITING IN CONNECTION WITH SUCH BORROWING REQUEST.
(C)
ADVANCES UNDER PRIOR MEZZANINE FACILITY.
OUTSTANDING AMOUNTS OWED
PURSUANT TO (AND AS