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 NOTE, 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 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 PAGE FOLLOWS]
24
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
BORROWER:
CLARIENT, INC.
By:
/s/ Raymond J. Land
Name:
Raymond J. Land
Title:
Sr. V.P. & CFO
LENDER:
SAFEGUARD DELAWARE, INC.
By:
/s/ Brian J. Sisko
Name:
Brian J. Sisko
Title:
Vice President
Second Amended and Restated Senior Subordinated Revolving Credit Agreement
Signature Page
EXHIBIT A
FORM OF NOTE
A-1
EXHIBIT B
FORM OF WARRANT
B-1
EXHIBIT C
FORM OF
BORROWING REQUEST
[DATE]
Reference is made to that certain Second Amended and Restated Senior
Subordinated Revolving Credit Agreement, dated February 27, 2009 (as the same
may be amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), between Clarient, Inc., a Delaware corporation (the
"Borrower"), and Safeguard Delaware, Inc. (the "Lender").
Capitalized terms
used in this Borrowing Request without definition shall have the respective
meanings set forth in the Credit Agreement.
The Borrower hereby notifies Lender of its request for an Advance under and in
accordance with the terms of the Credit Agreement, as follows:
(a)
The date of the proposed Advance shall be [DATE] (the "Advance
Date").
(b)
The principal amount of the proposed Advance shall be
$
.
(c)
After giving effect to such Advance, the Available Amount