CAREVIEW COMMUNICATIONS, INC. 8-K


 


Exhibit
10.35


 





TWENTY-FOURTH
AMENDMENT TO MODIFICATION AGREEMENT


 


This
TWENTY-FOURTH AMENDMENT TO MODIFICATION AGREEMENT (this “Amendment”) is made and entered into as of
May 25, 2021 (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”), 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”), 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”), that certain Fifth Amendment
to Modification Agreement dated as of September 28, 2018 (the “Fifth Modification Amendment”),
that certain Sixth Amendment to Modification Agreement dated as of November 12, 2018 (the “Sixth Modification Amendment”),
that certain Seventh Amendment to Modification Agreement dated as of November 19, 2018 (the “Seventh Modification
Amendment”), that certain Eighth Amendment to Modification Agreement dated as of December 3, 2018 (the “Eighth
Modification Amendment”), that certain Ninth Amendment to Modification Agreement dated as of December 17,
2018 (the “Ninth Modification Amendment”), that certain Tenth Amendment to Modification Agreement dated
as of January 31, 2019 (the “Tenth Modification Amendment”), that certain Eleventh Amendment to Modification
Agreement dated as of February 28, 2019 (the “Eleventh Modification Amendment”), that certain Twelfth
Amendment to Modification Agreement dated as of March 29, 2019 (the “Twelfth Modification Amendment”),
that certain Fourth Amendment to Credit Agreement dated as of April 9, 2019, that certain Thirteenth Amendment to Modification
Agreement dated as of April 29, 2019 (the “Thirteenth Modification Amendment”), that certain Fifth
Amendment to Credit Agreement dated as of May 15, 2019, that certain Fourteenth Amendment to Modification Agreement dated
as of May 15, 2019 (the “Fourteenth Modification Amendment”), that certain Fifteenth Amendment
to Modification Agreement dated as of September 30, 2019 (the “Fifteenth Modification Amendment”),
that certain Sixteenth Amendment to Modification Agreement dated as of November 29, 2019 (the “Sixteenth Modification
Amendment”), that certain Seventeenth Amendment to Modification Agreement dated as of December 31, 2019 (the “Seventeenth
Modification Amendment”), that certain Eighteenth Amendment to Modification Agreement dated as of January 17, 2020
(the “Eighteenth Modification Amendment”), that certain Nineteenth Amendment to Modification Agreement
dated as of January 28, 2020 (the “Nineteenth Modification Amendment”), that certain Twentieth Amendment
to Modification Agreement dated as of April 17, 2020 (the “Twentieth Modification Amendment”);
that certain Twenty-First Amendment to Modification Agreement dated as of September 30, 2020 (the “Twenty-First Modification
Amendment”); that certain Twenty-Second Amendment to Modification Agreement dated as of November 30, 2020 (the “Twenty-Second
Modification Amendment”); and that certain Twenty-Third Amendment to Modification Agreement dated as of January
31, 2021 (the “Twenty-Third 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 First Modification Amendment, the Fifth Modification Amendment, the
Sixth Modification Amendment, the Seventh Modification Amendment, the Eighth Modification Amendment, the Ninth Modification Amendment,
the Tenth Modification Amendment, the Eleventh Modification Amendment, the Twelfth Modification Amendment, the Thirteenth Modification
Amendment, the Fourteenth Modification Amendment, the Fifteenth Modification Amendment, the Sixteenth Modification Amendment,
the Seventeenth Modification Amendment, the Eighteenth Modification Amendment, the Nineteenth Modification Amendment, the Twentieth
Modification Amendment, the Twenty-First Modification Amendment, the Twenty-Second Modification Amendment and the Twenty-Third
Modification Amendment, the parties agreed that the term, “Modification Termination Event” would 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; (c) the Lender’s delivery to Holdings and the Borrower of
a Lender Termination Notice; and (d) May 31, 2021, subject to the Lender’s right, in its sole discretion, to terminate
the Modification Period on July 31, 2018 and May 31, 2021 (with each such date permitted to be extended by the Lender
in its sole discretion).


 


C.            The parties wish to enter into this Amendment to extend the first date referred to in Recital B.(d) above from May 31, 2021
until November 30, 2021.


 


D.            Pursuant to the Modification Agreement, as amended, the parties agreed that subject to the terms and conditions set forth therein,
so long as no Modification Termination Event shall have occurred, the occurrence and continuance of any of the Covered Events
shall not constitute Events of Default from the Effective Date through the end of the Modification Period and, for the avoidance
of doubt, that the Default Rate shall not apply during the Modification Period.


 


E.             Pursuant to the Modification Agreement, as amended by the Ninth Modification Amendment, the Tenth Modification Amendment, the
Eleventh Modification Amendment, the Twelfth Modification Amendment, the Thirteenth Modification Amendment, the Fourteenth Modification
Amendment, the Fifteenth Modification Amendment, the Sixteenth Modification Amendment, the Seventeenth Modification Amendment,
the Eighteenth Modification Amendment, the Nineteenth Modification Amendment, the Twentieth Modification Amendment, the Twenty-First
Modification Amendment, the Twenty-Second Modification Amendment and the Twenty-Third Modification Amendment, the parties agreed
to defer the Borrower’s interest payments that would otherwise be due to Lender on December 31, 2018, March 31,
2019, June 30, 2019, September 30, 2019, December 31, 2019, March 31, 2020, June 30, 2020 and September 30,
2020 until May 31, 2021 (the end of the extended Modification Period as referenced in Recital B above), and to treat
such deferrals of the interest payments as a “Covered Event”.


 






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F.            The parties acknowledge that this Amendment will extend the date of the end of the extended Modification Period referred to in
Recital E above (and the date of the Borrower’s interest payments that would have otherwise been due to Lender on December 31,
2018, March 31, 2019, June 30, 2019, September 30, 2019, December 31, 2019, March 31, 2020, June 30,
2020 and September 30, 2020) from May 31, 2021 until November 30, 2021.


 


G.            Pursuant to the Modification Agreement, as amended by the Twenty-First Modification Amendment, the Twenty-Second Modification
Amendment and the Twenty-Third Modification Amendment, the parties agreed to defer each of (i) the Borrower’s interest
payments that would have otherwise been due under the Credit Agreement on October 7, 2020 and (ii) the Borrower’s
payments for principal and for any other Obligations then outstanding under the Tranche One Loan and the Tranche Three Loan that
would otherwise be due under the Credit Agreement on October 7, 2020 until May 31, 2021 (the end of the extended Modification
Period referred to in Recital F above), and the parties agreed to treat the deferral of such October 7, 2020 payments
as a “Covered Event”.


 


H.           The parties acknowledge that this Amendment will extend the date of the end of the extended Modification Period referred to in
Recital G above (and the date of the Borrower’s payments that would have otherwise been due to Lender on October 7,
2020) from May 31, 2021 until November 30, 2021.


 


I.             Pursuant to the Modification Agreement, as amended by the First Modification Amendment, the Fifth Modification Amendment, the
Sixth Modification Amendment, the Seventh Modification Amendment, the Eighth Modification Amendment, the Ninth Modification Amendment,
the Tenth Modification Amendment, the Eleventh Modification Amendment, the Twelfth Modification Amendment, the Thirteenth Modification
Amendment, the Fourteenth Modification Amendment, the Fifteenth Modification Amendment, the Sixteenth Modification Amendment,
the Seventeenth Modification Amendment, the Eighteenth Modification Amendment, the Nineteenth Modification Amendment, the Twentieth
Modification Amendment, the Twenty-First Modification Amendment, the Twenty-Second Modification Amendment and the Twenty-Third
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 May 31, 2021 (with each such date permitted to be extended by the
Lender in its sole discretion).


 


J.             The parties also wish to enter into this Amendment to extend the date for Lender to terminate the Modification Period from May 31,
2021 until November 30, 2021.


 






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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, the Fifth Modification Amendment, the Sixth Modification
Amendment, the Seventh Modification Amendment, the Eighth Modification Amendment, the Ninth Modification Amendment, the Tenth
Modification Amendment, the Eleventh Modification Amendment, Twelfth Modification Amendment, the Thirteenth Modification Amendment,
the Fourteenth Modification Amendment, the Fifteenth Modification Amendment, the Sixteenth Modification Amendment, the Seventeenth
Modification Amendment, the Eighteenth Modification Amendment, the Nineteenth Modification Amendment, the Twentieth Modification
Amendment, the Twenty-First Modification Amendment, the Twenty-Second Modification Amendment and the Twenty-Third 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) November 30, 2021, subject to the Lender’s right, in its sole discretion, to terminate
the Modification Period on July 31, 2018 and November 30, 2021 (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.”


 





 






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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).


 


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 (except as expressly
waived in Section 1.3 of the Twelfth Modification Amendment with the addition of item (vi) to Recital C as a Covered Event)
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.





 






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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.


 


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.


 






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


 


[Signature
page follows]


 




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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:  	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



 

[Signature
Page to Twenty-Fourth 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:	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



 

[Signature
Page to Twenty-Fourth Amendment to Modification Agreement]

 



     


     


    

 


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


 


	 	TRANCHE
    THREE LENDER:
	 	 
	 	/s/ Steven G. Johnson
	 	Steven G. Johnson (individually)
	 	 
	 	/s/ Dr. James
    Higgins
	 	Dr. James R. Higgins
    (individually)


 


[Signature
Page to Twenty-Fourth Amendment to Modification Agreement]