EXHIBIT 99.1
WAIVER AND FIFTH AMENDMENT TO
LOAN AGREEMENT
This Waiver and Fifth Amendment to
Loan Agreement (this “ Waiver and Amendment”) is
entered into as of August 1, 2005, by and between COMERICA
BANK (“Bank”), and CLARIENT, INC., a Delaware
corporation, formerly known as Chromavision Medical
Systems, Inc. (“Borrower”).
RECITALS
A. Borrower and Bank are parties to that certain
Loan Agreement dated as of February 13, 2003, as amended from
time to time, including but not limited to that certain First
Amendment to Loan and Security Agreement dated as of
October 21, 2003, that certain Second Amendment to Loan and
Security Agreement dated as of January 22, 2004, that certain
Third Amendment to Loan Agreement dated as of January 31,
2005, and that certain Fourth Amendment to Loan Agreement dated as
of March 11, 2005 (collectively, the
“Agreement”).
B. Borrower is currently in violation of
Section 8.2 of the Agreement due to Borrower’s failure
to obtain Bank’s prior written consent before it changed its
legal name to Clarient, Inc. as required by Section 7.2
of the Loan Agreement (the “Existing Event of
Default”).
C. Borrower has requested that Bank waive the
Existing Event of Default and provide Borrower with a $3,000,000
standby letter of credit facility to support its obligations to the
landlord of Borrower’s new headquarters.
D. Bank is willing to provide the requested
accommodations on the terms and conditions provided
herein.
NOW, THEREFORE, the parties agree as
follows:
1.
Subject to the terms and conditions
set forth in this Waiver and Amendment, Bank hereby waives the
Existing Event of Default. The waiver provided for in this
Section 1 is limited precisely as written and shall not be
deemed to excuse Borrowers’ further performance or compliance
with Sections 8.2 or 7.2, or of any other covenant or term
contained in the Agreement. No delay or omission of Bank to
exercise any right, remedy or power under the Agreement shall
impair such right, remedy or power or be construed to be a waiver
of any default or an acquiescence therein, and single or partial
exercise of any such right, remedy or power shall not preclude
other or further exercise thereof or the exercise of any other
right, remedy or power. No waiver of any term, covenant, or
condition shall be deemed to waive Bank’s right to enforce
such term, covenant or condition at any other time.
2.
The following defined terms in
Section 1.1 of the Agreement hereby are amended or restated as
follows:
“‘Letter of
Credit’ means a standby letter of credit issued by Bank at
Borrower’s request in accordance with
Section 2.2.’
3.
Section 2.2 of the Agreement is
hereby amended to read in full as follows:
“2.2
Letters of Credit
. In reliance on the
representations and warranties of Borrower set forth herein, at any
time and from time to time from the date hereof through the
Business Day immediately prior to the Revolving Maturity
Dat
