EIGHTH AMENDMENT TO CREDIT AGREEMENT
EIGHTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”) is made and entered into as of September 30, 2023 by and among CAREVIEW COMMUNICATIONS, INC., a Nevada corporation (“Holdings”), CAREVIEW COMMUNICATIONS, INC., a Texas corporation and a wholly owned subsidiary of Holdings (the “Borrower”), CAREVIEW OPERATIONS, L.L.C., a Texas limited liability company (the “Subsidiary Guarantor”), PDL INVESTMENT HOLDINGS, LLC (as assignee of PDL BioPharma, Inc.), a Delaware limited liability company (both in its capacity as the lender (“Lender”) and in its capacity as Agent (solely in such capacity as Agent, the “Agent”)) under the Credit Agreement (as defined below), and Steven G. Johnson and Dr. James R. Higgins (each, an individual, for the purpose of acknowledging and agreeing to this Amendment in their collective capacity as the Tranche Three Lender under the Credit Agreement).
RECITALS
A. Reference is made to that certain Credit Agreement dated as of June 26, 2015, among Holdings, the Borrower, the Lender and the Agent (as amended, supplemented or modified as of the date hereof, the “Credit Agreement”); capitalized terms used and not defined in this Amendment shall have the meaning set forth in the Credit Agreement.
B. The parties wish to enter into this Amendment to adjust the interest payment provisions under the Credit Agreement.
NOW, THEREFORE, in consideration of the above premises, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE I.
AMENDMENTS TO CREDIT AGREEMENT
1.1 Amendments to Credit Agreement. Upon satisfaction of the conditions set forth in Section 1.2 hereof, the Credit Agreement shall be amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as follows:
(a) Amendments to Section 2.3.1(a):
(a) The Borrower promises to pay interest on the unpaid principal amount of (i) the Initial Tranche One Loan for the period commencing on the Initial Tranche One Funding Date until such Tranche One Loan is Paid in Full and (ii) the Additional Tranche Three Loan for the period commencing on the Additional Tranche Three Funding Date until such Tranche Three Loan is Paid in Full, in each case at a rate payable in cash per annum equal to 13.5%; provided that (i) after the date of the Fifth Amendment, such rate shall be increased to 15.5% and (iii) after the Seventh Amendment Effective Date, all accrued but unpaid interest (including interest accrued but unpaid prior to the Seventh Amendment Effective Date, but other than interest that is payable on the Maturity Date, in connection with any prepayment of the Tranche One Loans or if an Event of Default exists, which interest shall be paid in cash) accruing on the Tranche One Loans shall be paid-in-kind on each Interest Payment Date occurring after the Seventh Amendment Effective Date by being added to the aggregate principal balance of the Tranche One Loans in arrears on each such Interest Payment Date (all without further action by the Borrower). During the Tranche One Interest-Only Period, the Borrower may elect to pay up to 1.0% per annum of interest on the Tranche One Loan, for each Interest Payment Date occurring during the Tranche One Interest-Only Period, as interest paid-in-kind and such interest paid-in-kind shall be added to the aggregate principal balance of the Tranche One Loan in arrears on such Interest Payment Date. The Borrower shall deliver to the Agent, at least three (3) Business Days prior to the applicable Interest Payment Date, a written notice setting forth (i) its election to pay an amount of interest in the form of PIK Interest, (ii) whether interest on the Tranche One Loan shall take the form of PIK Interest and (iii) the amount of interest that shall constitute PIK Interest on the applicable Interest Payment Date. Any such election shall be deemed to remain in effect until superseded by a subsequent notice delivered as set forth in the preceding sentence or until the Tranche One Interest-Only Period has expired. All interest paid-in-kind pursuant to this Section 2.3.1(a), together with interest paid-in-kind pursuant to Section 2.3.1(c), shall constitute “PIK Interest” hereunder.
(b) Amendments to Section 2.3.1(c):
(c) The Borrower promises to pay interest on the unpaid principal amount of the Tranche Three Loan for the period commencing on the Tranche Three Funding Date, until such Tranche Three Loan is Paid in Full, at a rate payable in cash per annum equal to 15.5%; provided that after the Seventh Amendment Effective Date, all accrued but unpaid interest (including interest accrued but unpaid prior to the Seventh Amendment Effective Date, but other than interest that is payable on the Maturity Date, in connection with any prepayment of the Tranche Three Loans or if an Event of Default exists, which interest shall be paid in cash) accruing on the Tranche Three Loans shall be paid-in-kind on each Interest Payment Date occurring after the Seventh Amendment Effective Date by being added to the aggregate principal balance of the Tranche Three Loans in arrears on each such Interest Payment Date (all without further action by the Borrower).
(c) Amendments to Section 2.3.2(a):
(a) Interest accrued on the Tranche One Loan during the period from the Initial Tranche One Funding Date or the Additional Tranche Three Funding Date, as applicable, until the Maturity Date shall accrue and be payable in cash (subject to Section 2.3.1(a)) quarterly on each Interest Payment Date, in arrears. (provided, however, that PIK Interest, if any, shall accrue and be added to the aggregate principal balance of the corresponding Loans in arrears on such Interest Payment Date), and t To the extent not paid in advance, upon a prepayment of the Tranche One Loan in accordance with Section 2.4 and on the Maturity Date, accrued but unpaid interest shall be paid in each such case, in cash. After the Maturity Date and at any time an Event of Default exists, all accrued interest on the Tranche One Loan shall be payable in cash on demand at the rates specified in Section 2.3.1.
(d) Amendments to Section 2.3.2(c):
(c) Subject to Section 2.7, interest accrued on the Tranche Three Loan during the period from the Tranche Three Funding Date until the Maturity Date shall accrue and be payable in cash (subject to Section 2.7 and 2.3.1(c)) quarterly on each Interest Payment Date, in arrears., and t To the extent not paid in advance, upon a prepayment of the Tranche Three Loan in accordance with Section 2.4 and on the Maturity Date, accrued but unpaid interest shall be paid in each such case, in cash. Subject to Section 2.7, after the Maturity Date and at any time an Event of Default exists, all accrued interest on the Tranche Three Loan shall be payable in cash on demand at the rates specified in Section 2.3.1.
1.2 Conditions to Effectiveness. This Amendment shall become effective on the date that the following condition is satisfied (the “Amendment Effective Date”): receipt by the Agent of counterparts of this Amendment which shall be collectively executed by the Loan Parties, the Lenders and the Agent;
ARTICLE II.
REPRESENTATIONS AND WARRANTIES
In order to induce the Agent and the Lender to enter into this Amendment, each of Holdings, the Borrower and the Subsidiary Guarantor hereby represents and warrants to the Agent and the Lender that as of the date hereof, both prior to and after giving effect to this Amendment:
2.1 Organization. Holdings is a corporation validly existing and in good standing under the laws of the State of Nevada; the Borrower is a corporation validly existing and in good standing under the laws of the State of Texas; and each other Loan Party and each of its Subsidiaries is duly organized, validly existing and in good standing (as applicable) under the laws of the jurisdiction of its incorporation or organization. Each Loan Party has all power and authority and all material governmental approvals required for the ownership and operation of its properties and the conduct of its business as now conducted and as proposed to be conducted and is qualified to do business, and is in good standing (as applicable), in every jurisdiction where, because of the nature of its activities or properties, such qualification is required, except for such jurisdictions where the failure to so qualify could not reasonably be expected to have a Material Adverse Effect.
2.2 Due Authorization. The execution, delivery and performance of this Amendment, and the performance of its obligations under the Credit Agreement, each as amended hereby, have been duly authorized by all necessary action on the part of each Loan Party that is a party hereto.
2.3 No Conflict. The execution, delivery and performance of this Amendment by each Loan Party that is a party hereto and the consummation of the transactions contemplated hereby do not and will not (a) require any consent or approval of, or registration or filing with or any other action by, any Governmental Authority (other than any consent or approval which has been obtained and is in full force and effect), (b) conflict with (i) any provision of material Applicable Law, (ii) the charter, by-laws, limited liability company agreement, partnership agreement or other organizational documents of any Loan Party or (iii) any material agreement, indenture, instrument or other document, or any judgment, order or decree, which is binding upon any Loan Party or any of their respective properties or (c) require, or result in, the creation or imposition of any Lien on any asset of Holdings, the Borrower or any other Loan Party (other than Permitted Liens and Liens in favor of the Agent created pursuant to the Collateral Documents).
2.4 Incorporation of Representations and Warranties from Loan Documents. Each representation and warranty by each Loan Party that is a party hereto contained in the Credit Agreement or in any other Loan Document to which such Loan Party is a party is true and correct in all material respects (without duplication of any materiality qualifier contained therein) as of the date hereof (or as of a specific earlier date if such representation or warranty expressly relates to an earlier date).
2.5 No Default. Both prior to and after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing, and no Default or Event of Default will result from the execution and delivery of this Amendment and the consummation of the transactions contemplated herein.
2.6 Validity; Binding Nature. This Amendment has been duly executed by each Loan Party that is a party hereto, and each of (i) this Amendment, and (ii) the Credit Agreement as amended hereby is the legal, valid and binding obligation of each Loan Party that is a party hereto, enforceable against such Person in accordance with its terms, subject to bankruptcy, insolvency and similar laws affecting the enforceability of creditors’ rights generally and to general principles of equity.
ARTICLE III.
MISCELLANEOUS
3.1 Loan Document. This Amendment is a Loan Document executed pursuant to the Credit Agreement and shall (unless otherwise expressly indicated therein) be construed, administered and applied in accordance with the terms and provisions of the Credit Agreement.
3.2 Effect of Amendment. Except as expressly set forth herein, this Amendment shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect, the rights and remedies of the parties to the Credit Agreement and shall not alter, modify, amend or in any way affect any of the terms or conditions contained therein, all of which are ratified and affirmed in all respects and shall continue in full force and effect. Nothing herein shall be deemed to entitle any Loan Party to any future consent with respect to, or waiver, amendment, modification or other change of, any of the terms or conditions contained in the Credit Agreement in similar or different circumstances. Except as expressly stated herein, the Agent and the Lender reserve all rights, privileges and remedies under the Loan Documents. All references in the Credit Agreement and the other Loan Documents to the Credit Agreement shall be deemed to be references to the Credit Agreement as modified hereby.
3.3 Reaffirmation. Each of Holdings, the Borrower and the Subsidiary Guarantor hereby reaffirms its obligations under each Loan Document to which it is a party. Each of Holdings, the Borrower and the Subsidiary Guarantor hereby further ratifies and reaffirms the validity and enforceability of all of the liens and security interests heretofore granted, pursuant to and in connection with the Guarantee and Collateral Agreement or any other Loan Document, to the Agent, as collateral security for the obligations under the Loan Documents in accordance with their respective terms, and acknowledges that all of such liens and security interests, and all Collateral heretofore pledged as security for such obligations, continue to be and remain collateral for such obligations from and after the date hereof.
3.4 Fees and Expenses. The Borrower agrees to pay within five Business Days of the Amendment Effective Date, by wire transfer of immediately available funds to an account of the Agent designated in writing, reimbursement from the Borrower of all costs and expenses incurred by the Agent and the Lender in connection with this Amendment, including any and all fees payable or owed to Gibson, Dunn & Crutcher LLP in connection with the drafting, negotiation, and execution of this Amendment.
3.5 Counterparts. This Amendment may be executed by the parties hereto in several counterparts, each of which shall be deemed to be an original and all of which shall constitute together but one and the same agreement. Delivery of an executed signature page of this Amendment by facsimile transmission or electronic transmission shall be as effective as delivery of a manually executed counterpart hereof.
3.6 Construction; Captions. Each party hereto hereby acknowledges that all parties hereto participated equally in the negotiation and drafting of this Amendment and that, accordingly, no court construing this Amendment shall construe it more stringently against one party than against the other. The captions and headings of this Amendment are for convenience of reference only and shall not affect the interpretation of this Amendment.
3.7 Successors and Assigns. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns (as permitted under the Credit Agreement).
3.8 GOVERNING LAW. THIS AMENDMENT, THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO, AND ANY CLAIMS OR DISPUTES RELATING THERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).
3.9 Severability. The illegality or unenforceability of any provision of this Amendment or any instrument or agreement required hereunder shall not in any way affect or impair the legality or enforceability of the remaining provisions of this Amendment or any instrument or agreement required hereunder.
3.10 Release of Claims. In consideration of the Lender’s and Agent’s agreements contained in this Amendment, each of Holdings, the Borrower and the Subsidiary Guarantor hereby releases and discharges the Lender and the Agent and their affiliates, subsidiaries, successors, assigns, directors, officers, employees, agents, consultants and attorneys (each, a “Released Person”) of and from any and all other claims, suits, actions, investigations, proceedings or demands, whether based in contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law of any kind or character, known or unknown, which Holdings, the Borrower or the Subsidiary Guarantor ever had or now has against the Agent, any Lender or any other Released Person which relates, directly or indirectly, to any acts or omissions of the Agent, any Lender or any other Released Person relating to the Credit Agreement or any other Loan Document on or prior to the date hereof.
[Signature page follows]
IN WITNESS WHEREOF, each of the parties hereto have caused this Amendment to be duly executed as of the date first above written.
CAREVIEW COMMUNICATIONS, INC.,
a Nevada corporation,
as Holdings
By: /s/ Steven G. Johnson
Name: Steven G. Johnson
Title: President and Chief Executive Officer
CAREVIEW COMMUNICATIONS, INC.,
a Texas corporation,
as Borrower
By: /s/ Steven G. Johnson
Name: Steven G. Johnson
Title: President and Chief Executive Officer
CAREVIEW OPERATIONS, L.L.C.,
a Texas limited liability company,
as Subsidiary Guarantor
By: /s/ Steven G. Johnson
Name: Steven G. Johnson
Title: President and Chief Executive Officer
IN WITNESS WHEREOF, each the parties hereto have caused this Amendment to be duly executed and delivered as of the date first above written.
PDL INVESTMENT HOLDINGS, LLC,
a Delaware limited liability company,
as Agent
By: /s/ Christopher Stone
Name: Christopher Stone
Title: CEO and Secretary
PDL INVESTMENT HOLDINGS, LLC,
a Delaware limited liability company,
as Lender
By: /s/ Christopher Stone
Name: Christopher Stone
Title: CEO and Secretary
IN WITNESS WHEREOF, each of the parties hereto have caused this Amendment to be duly executed and delivered as of the date first above written.
TRANCHE THREE LENDER:
/s/ Steven G. Johnson
Steven G. Johnson (individually)
/s/ Dr. James R. Higgins
Dr. James R. Higgins (individually)