Exhibit 99.1
FOURTH AMENDMENT AND WAIVER
TO LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT AND
WAIVER TO LOAN AND SECURITY AGREEMENT (this “
Agreement ”) is made effective as of October 30, 2007,
by and among CLARIENT, INC. , a Delaware corporation
(“ Clarient ”) and CLARIENT DIAGNOSTIC
SERVICES, INC. , a Delaware corporation (“ CDS
”; Clarient and CDS, each a “ Company ”,
and collectively, the “ Companies ”), and
GENERAL ELECTRIC CAPITAL CORPORATION , a Delaware
corporation (the “ Lender ”), as lender under
the Loan Agreement described below.
W I T
N E S S E T
H:
WHEREAS , Lender
and the Companies are parties to that certain Loan and Security
Agreement, dated as of September 29, 2006, by and among Clarient,
CDS, the other credit parties signatory thereto from time to time,
and Lender, as amended pursuant to that certain Consent and First
Amendment to Loan and Security Agreement, dated as of January 17,
2007, that certain Consent and Second Amendment to Loan and
Security Agreement, dated as of March 6, 2007 and that certain
Third Amendment to Loan and Security Agreement, dated as of March
14, 2007 (as further amended, restated, supplemented, replaced,
extended, renewed, rolled-over, refunded or otherwise modified from
time to time prior to the date hereof, the “ Loan
Agreement ”); and
WHEREAS , the
Companies have requested a waiver of certain Events of Default
arising under the Loan Agreement due to the non-compliance of the
Companies with the provisions thereunder, and subject to the terms
and conditions set forth herein, the Lender is willing to waive
certain provisions of the Loan Agreement as more specifically set
forth herein.
WHEREAS , the
parties hereto are willing to make certain amendments to the Loan
Agreement as more particularly set forth herein, subject to the
terms and conditions hereof.
NOW, THEREFORE, in
consideration of the premises, the covenants and agreements
contained herein, and other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties
do hereby agree as follows:
1.
Definitions . All capitalized terms used herein but not
otherwise defined herein shall have the meanings given such terms
in the Loan Agreement.
2.
Waiver .
(a)
Waiver of Specified
Defaults . As of the date
hereof, certain Events of Default exist due to (i) the failure of
the Borrowers to maintain minimum Operating Cash Requirements
coverage for the months ending July 31, 2007 and September 30, 2007
as required pursuant to subpart (b)( i) of Annex X of
the Loan Agreement, and (ii) the failure of Clarient to
maintain the minimum Net Worth for the period from August 1, 2007
through the date hereof as required pursuant to subpart (c)
of Annex X of the Loan Agreement (each of the Events of
Default set forth in clauses (i) through (ii) above, a
“ Specified Default
” and collectively,
the
“ Specified
Defaults ”). In reliance upon the
representations, warranties and covenants of the Credit Parties
contained in this Agreement, and subject to the terms and
conditions of this Agreement and any documents or instruments
executed or delivered in connection herewith, Lender hereby waives
the Specified Defaults.
(b)
No Other Waivers; Reservation of Rights .
(i)
Lender has not waived, nor is this Agreement waiving, (i) any
Default or Event of Default which may be continuing on the date
hereof (other than the Specified Defaults to the extent expressly
set forth herein) or (ii) any Default or Event of Default which may
hereafter arise (whether the same as or similar to the Specified
Defaults or otherwise).
(ii)
Lender reserves the right, in its discretion, to exercise any or
all of its rights and remedies under the Loan Agreement and the
other Loan Documents as a result of any Default or Event of Default
(other than the Specified Defaults to the extent expressly set
forth herein) which may be continuing on the date hereof or any
Default or Event of Default (other than the Specified Defaults to
the extent expressly set forth herein) which may occur after the
date hereof, and nothing in this Agreement, and no delay on the
part of Lender in exercising any such right or remedy, shall be
construed as a waiver of any such right or remedy.
3.
Amendments to Loan Agreement .
Subject to the
terms and conditions of this Agreement, including without
limitation the conditions precedent set forth in Section 5 hereof,
the Loan Agreement is hereby amended as follows:
(a)
Section 1.1 of the Loan Agreement is amended by inserting
the following new defined term in the appropriate alphabetical
order:
““ Fourth Amendment Date ” means
October 30, 2007.”
(b)
Section 3.1 of the Loan Agreement is hereby amended and
replaced by deleting Section 3.1 in its entirety and by
inserting, in lieu thereof, the following new Section 3.1:
“ Section 3.1.
Generally . As security for the payment and performance
of (1) all Obligations, including, without limitation: (a)
indebtedness evidenced under the Note, repayment of Revolving
Loans, advances and other extensions of credit, all interest, fees
and charges owing by Borrowers (including, without limitation, the
Termination Fee) and all other liabilities and obligations of every
kind or nature whatsoever of the Credit Parties to Lender, whether
now existing or hereafter incurred, joint or several, matured or
unmatured, direct or indirect, primary or secondary, related or
unrelated, due or to become due, including, without limitation, any
extensions, modifications, substitutions, increases and renewals
thereof, and whether incurred or arising before or after the filing
of any proceeding by or against Borrowers under the United States
Bankruptcy Code (including, without limitation, any interest,
fees,
1
expenses and other
amounts accruing after the commencement of any such proceeding
without regard to whether or not such interest is an allowed claim
in such proceeding), (b) the payment of all amounts advanced by
Lender to preserve, protect, defend, and enforce its rights under
this Agreement and in the following property in accordance with the
terms of this Agreement, and (c) the payment of all expenses
incurred by Lender in connection therewith, and (2) all
indebtedness, interest, fees, charges, liabilities and other
obligations owing by Borrowers to Lender under or with respect to
the LSF Documents, each Credit Party hereby assigns and grants to
Lender a continuing Lien on and security interest in, upon and to
all assets and personal property of such Borrower, including,
without limitation, the following property whether now owned or
hereafter acquired or arising (the “ Collateral ”):
(i)
all of such Credit Party’s Accounts, and all of such Credit
Party’s money, contract rights, chattel paper, documents,
deposit accounts, operating accounts, bank accounts, securities,
investment property and instruments with respect thereto, and all
of such Credit Party’s rights, remedies, security, Liens and
supporting obligations, in, to and in respect of the foregoing,
including, without limitation, rights of stoppage in transit,
replevin, repossession and reclamation and other rights and
remedies of an unpaid vendor, lienor or secured party, guaranties
or other contracts of s
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