Careview Communications, Inc. 8-K





 Exhibit 10.11


SIXTH AMENDMENT TO MODIFICATION AGREEMENT


This SIXTH AMENDMENT
TO MODIFICATION AGREEMENT (this “Amendment”) is made and entered into as of November 12, 2018
(the “Amendment Effective Date”), 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”), and 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).


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”),
including pursuant to that certain First Amendment to Credit Agreement dated as of October 7, 2015, that certain Modification
Agreement dated as of February 2, 2018 (the “Modification Agreement”), that certain Second Amendment
to Credit Agreement dated as of February 23, 2018 (the “Second Amendment”), that certain Amendment to
Modification Agreement dated as of May 31, 2018 (the “First Modification Amendment”), that certain Second
Amendment to Modification Agreement dated as of June 14, 2018 (the “Second Modification Amendment”),
that certain Third Amendment to Modification Agreement dated as of June 28, 2018 (the “Third Modification Amendment”),
that certain Third Amendment to Credit Agreement dated as of July 13, 2018, that certain Fourth Amendment to Modification
Agreement dated as of August 31, 2018 (the “Fourth Modification Amendment”) and that certain Fifth Amendment
to Modification Agreement dated as of September 28, 2018 (the “Fifth Modification Amendment”));
capitalized terms used and not defined in this Amendment shall have the meaning set forth in the Credit Agreement.


B.                



Pursuant to the Modification Agreement, as amended by the Second Amendment, the parties agreed that the Borrower shall obtain
(i) at least $2,050,000 in net cash proceeds from the issuance of Capital Stock (other than Disqualified Stock) or Debt on
or prior to February 23, 2018 (which obligation Borrower satisfied by Holdings’ issuance of Debt pursuant to that certain
Eighth Amendment to Note and Warrant Purchase Agreement dated as of February 23, 2018) and (ii) an additional $3,000,000 in
net cash proceeds from the issuance of Capital Stock (other than Disqualified Stock) or Debt on or prior to May 31, 2018 (resulting
in aggregate net cash proceeds of at least $5,050,000).


 


C.                



Pursuant to the First Modification Amendment, as amended by the Second Modification Amendment, the Third Modification Amendment,
the Fourth Modification Amendment and the Fifth Modification Amendment, the parties agreed, among other things, to provide that
the Borrower shall satisfy its obligation to obtain financing referenced in B. above by obtaining: (i) at least $2,050,000
in net cash proceeds from the issuance of Capital Stock (other than Disqualified Capital Stock) or Debt on or prior to February
23, 2018; and (ii) an additional (A) $750,000 in net cash proceeds from the issuance of Capital Stock (other than Disqualified
Capital Stock) or Debt on or prior to July 13, 2018 and (B) $750,000 in net cash proceeds from the issuance of Capital
Stock (other than Disqualified Capital Stock) or Debt on or prior to November 12, 2018 (resulting in aggregate net cash proceeds
of $3,550,000).




    	 



    	 



    







D.               



The parties wish to enter into this Amendment to extend the period referred to in C.(ii)(B) above from “November 12,
2018” until November 19, 2018.





E.                



Pursuant to the Modification Agreement, as amended by the First Modification Amendment and the Fifth Modification Amendment,
the parties also agreed that the Lender shall have a right to terminate the Modification Period (as defined in the Modification
Agreement) on July 31, 2018 and November 12, 2018 (with each such date permitted to be extended by the Lender in its sole discretion).





F.                 



The parties also wish to enter into this Amendment to extend the date for Lender to terminate the Modification Period from
November 12, 2018 until November 19, 2018.


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 MODIFICATION AGREEMENT


Upon the Amendment
Effective Date:


1.1


Modification
Period. Section 2 of the Modification Agreement, as amended by the First Modification Amendment and the Fifth Modification Amendment,
is amended and restated in its entirety as follows:


“2.     


Modification
Period. Subject to the terms and conditions set forth herein, so long as no Modification Termination Event (as defined below)
shall have occurred, each of the Agent and the Lender agrees that the occurrence and continuance of any of the Covered Events shall
not constitute Events of Default from the Effective Date through the earliest to occur of any Modification Termination Event (the
“Modification Period”) and, for the avoidance of doubt, that the Default Rate shall not apply during the Modification
Period. As used herein, “Modification Termination Event” shall mean the earliest to occur of: (a) the occurrence of
any Event of Default under any Loan Documents that does not constitute a Covered Event; (b) the occurrence of any Agreement Event
of Default (as defined below); (c) the Lender’s delivery to Holdings and the Borrower of a Lender Termination Notice (as
defined below); and (d) December 31, 2018, subject to the Lender’s right, in its sole discretion, to terminate the Modification
Period on July 31, 2018 and November 19, 2018 (with each such date permitted to be extended by the Lender in its sole
discretion). Notwithstanding any other provision of this Modification Agreement or any other Loan Document, all principal and interest
otherwise due to Lender through the end of the Modification Agreement shall be due and payable at the end of the Modification Period
and if not paid in full in Cash at that time shall bear interest at the Default Rate from and after the end of the Modification
Period.”




    	 	2	 



     

    




1.2             



Deadline for Raising Monies. The first sentence of Section 5(a) of the Modification Agreement, as previously
amended by the Second Amendment, the First Modification Amendment, the Second Modification Amendment, the Third Modification Amendment,
the Fourth Modification Amendment, and the Fifth Modification Amendment, is amended and restated in its entirety as follows:


“(a)


The Borrower shall obtain: (i) at least $2,050,000 in net cash proceeds from the issuance of Capital Stock (other than Disqualified
Capital Stock) or Debt on or prior to February 23, 2018; and (ii) an additional (A) $750,000 in net cash proceeds from
the issuance of Capital Stock (other than Disqualified Capital Stock) or Debt on or prior to July 13, 2018 and (B) $750,000
in net cash proceeds from the issuance of Capital Stock (other than Disqualified Capital Stock) or Debt on or prior to November
19, 2018 (resulting in aggregate net cash proceeds of $3,550,000); provided that all such Debt described in clauses (i) and
(ii) shall be subordinated to the Loans under the Credit Agreement on terms satisfactory to the Lender in its sole discretion.”


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 Modification Agreement and 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).




    	 	3	 



     

    




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 Modification Agreement, the Credit Agreement or in any other Modification Document
or 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, (ii) the Modification Agreement as amended hereby and (iii) 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             



Modification and Loan Document. This Amendment is a Modification Document and 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.




    	 	4	 



     

    




3.3             



Reaffirmation. Each of Holdings, the Borrower and the Subsidiary Guarantor hereby reaffirms its obligations
under each Modification Document and 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.






    	 	5	 



     

    



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 Modification Agreement or Credit Agreement or any other Modification
Document or Loan Document on or prior to the date hereof.


[Signature page follows]


 




    	 	6	 



     

    

 


IN WITNESS WHEREOF, the
parties hereto have caused this Amendment to be executed as of the date first above written.


 


	 	CAREVIEW COMMUNICATIONS, INC.,

a Nevada corporation,

as Holdings 
	 	 
	 	 
	 	By:	/s/ Steven G. Johnson
	 	 	Name:

                                                                              Title:
	 Steven G. Johnson
President and Chief Executive Officer
	 	 
	 	 
	 	CAREVIEW COMMUNICATIONS, INC.,

a Texas corporation,

as Borrower
	 	 
	 	 
	 	By:	/s/ Steven G. Johnson
	 	 	Name:

                                                                              Title:
	 Steven G. Johnson
President and Chief Executive Officer
	 	 
	 	 
	 	CAREVIEW OPERATIONS, L.L.C.,

a Texas limited liability
company,

as Subsidiary Guarantor 
	 	 
	 	 
	 	By:	/s/ Steven G. Johnson
	 	 	Name:

                                                                              Title:
	 Steven G. Johnson
President and Chief Executive Officer


 


 





[Signature Page to Sixth Amendment to Modification
Agreement]












    	 



    	 



    

 


IN WITNESS WHEREOF,
the parties hereto have caused this Amendment to be executed as of the date first above written.


 

	 	PDL INVESTMENT HOLDINGS, LLC,

a Delaware limited liability company,

as Agent 
	 	 
	 	 
	 	By:	/s/ Christopher Stone
	 	 	Name:

                                                                              Title:
	 Christopher Stone
CEO and Treasurer
	 	 
	 	 
	 	PDL INVESTMENT HOLDINGS, LLC,

a Delaware limited liability company,

as Lender
	 	 
	 	 
	 	By:	/s/ Christopher Stone
	 	 	Name:

                                                                              Title:
	 Christopher Stone
CEO and Treasurer
	 	 


 


 


 





[Signature Page to Sixth Amendment to Modification
Agreement]