Exhibit 10.1


 


FIFTH AMENDMENT TO AMENDED AND RESTATED
CREDIT AGREEMENT


 


This Fifth Amendment
to Amended and Restated Credit Agreement (this “Amendment”) dated as of September 30, 2016, is by and
among EVERYDAY HEALTH, INC., a Delaware corporation (“EDH”) EVERYDAY HEALTH MEDIA, LLC,
a Delaware limited liability company (“EDH Media”), MEDPAGE TODAY, L.L.C., a New Jersey
limited liability company (“MedPage” and together with EDH, EDH Media, and MedPage, individually and
collectively, jointly and severally, the “Borrower”), DOCTORDIRECTORY.COM, LLC, a Delaware
limited liability company (“DoctorDirectory”), CAMBRIDGE BIOMARKETING GROUP, LLC, a Delaware
limited liability company (“Cambridge”), TEA LEAVES HEALTH, LLC, a Georgia limited liability
company (“Tea Leaves”, and together with DoctorDirectory and Cambridge, individually and collectively,
jointly and severally, the “Guarantor”), the several banks and other financial institutions or entities
party to this Amendment as a “Lender” hereunder (each a “Lender” and, collectively, the
“Lenders”), SILICON VALLEY BANK (“SVB”), as administrative agent
and collateral agent for the Lenders (in such capacities, the “Administrative Agent”), SVB,
as the Issuing Lender (as defined in the Credit Agreement referred to below), and SVB, as the Swingline Lender
(as defined in the Credit Agreement referred to below).


 


WITNESSETH:


 


WHEREAS, the
parties hereto are party to that certain Amended and Restated Credit Agreement dated as of November 10, 2014, as amended by that
certain First Amendment to Amended and Restated Credit Agreement and Consent dated as of March 19, 2015, by that certain Second
Amendment to Amended and Restated Credit Agreement dated as of March 31, 2015, by that certain Third Amendment to Amended and
Restated Credit Agreement dated as of August 21, 2015, and by that certain Fourth Amendment to Amended and Restated Credit Agreement
dated as of February 26, 2016 (as the same may be further amended, modified, supplemented or restated and in effect from time
to time, the “Credit Agreement”); and


 


WHEREAS, the
Borrower has requested, and the Borrower, the Required Lenders and the Administrative Agent have agreed to modify and amend certain
terms and conditions of the Credit Agreement.


 


NOW, THEREFORE,
for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:


 


1.            Capitalized
Terms. All capitalized terms used herein and not otherwise defined shall have the same meaning herein as in the Credit Agreement.


 


2.            Amendment
to Section 7.1 of the Credit Agreement.


 


		(a)	The table contained in Section 7.1(a) of the Credit Agreement is hereby amended by deleting “1.75:1.00”
for the covenant level corresponding to the quarter ending September 30, 2016 and inserting “1.50:1.00” in lieu thereof.



 




    	 	 	 



     


    

  


		(b)	The table contained in Section 7.1(b) of the Credit Agreement is hereby amended by deleting “2.75:1.00” for the covenant level corresponding to the quarter ending September 30, 2016 and inserting “3.00:1.00”
in lieu thereof.



 


3.            Conditions
Precedent to Effectiveness. This Amendment shall not be effective until each of the following conditions precedent have been
fulfilled to the satisfaction of and in form and substance satisfactory to, as applicable, the Administrative Agent (such date,
the “Fifth Amendment Effective Date”):


 


(a)           This
Amendment and each other Loan Document required to be executed in connection herewith shall have been duly executed and delivered
by the respective parties hereto. The Administrative Agent shall have received a fully executed copy hereof and thereof.


 


(b)           The
Borrower shall have paid to the Administrative Agent all fees required to be paid under the Loan Documents. The Administrative
Agent shall disburse such fees to the parties entitled to such fees promptly after receipt thereof.


 


(c)           All
necessary consents and approvals to this Amendment shall have been obtained by the Loan Parties.


 


(d)           After
giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.


 


(e)           After
giving effect to this Amendment, the representations and warranties herein and in the Credit Agreement and the other Loan Documents
shall be (i) to the extent qualified by materiality, true and correct in all respects, and (ii) to the extent not qualified by
materiality, true and correct in all material respects, in each case on and as of the date hereof, as though made on such date
(except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations
and warranties shall have been true and correct in all material respects as of such earlier date).


 


4.            Representations
and Warranties. Each Loan Party hereby represents and warrants to the Administrative Agent and the Lenders as follows:


 


(a)           This
Amendment is, and each other Loan Document to which it is or will be a party, when executed and delivered by each Loan Party that
is a party thereto, will be the legally valid and binding obligation of such Loan Party, enforceable against such Loan Party in
accordance with its respective terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium
or similar laws relating to or limiting creditors’ rights generally and equitable principals (whether enforcement is sought
by proceedings in equity or at law).


 


(b)        Its
representations and warranties set forth in this Amendment, the Credit Agreement, as amended by this Amendment and after giving
effect hereto, and the other Loan Documents to which it is a party are (i) to the extent qualified by materiality, true and correct
in all respects and (ii) to the extent not qualified by materiality, true and correct in all material respects, in each case, on
and as of the date hereof, as though made on such date (except to the extent that such representations and warranties relate solely
to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects
as of such earlier date).


 




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(c)           The
execution and delivery by each Loan Party of this Amendment, the performance by such Loan Party of its obligations hereunder and
the performance of the Borrower under the Credit Agreement, as amended by this Amendment, (i) have been duly authorized by all
necessary organizational action on the part of such Loan Party and (ii) will not (A) violate any provisions of the certificate
of incorporation or formation or organization or by-laws or limited liability company agreement or limited partnership agreement
of such Loan Party or (B) constitute a violation by such Loan Party of any applicable material Requirement of Law.


 


5.            Each
Loan Party acknowledges that the Administrative Agent and the Lenders have acted in good faith and have conducted in a commercially
reasonable manner their relationships with each Loan Party in connection with this Amendment and in connection with the other Loan
Documents. Each Loan Party understands and acknowledges that the Administrative Agent and the Lenders are entering into this Amendment
in reliance upon, and in partial consideration for, the above representations, warranties, and acknowledgements, and agrees that
such reliance is reasonable and appropriate.


 


6.            Payment
of Costs and Expenses. The Borrower shall pay to the Administrative Agent all reasonable costs and out-of-pocket expenses of
every kind in connection with the preparation, negotiation, execution and delivery of this Amendment and any documents and instruments
relating hereto or thereto (which costs include, without limitation, the reasonable and documented fees and expenses of any attorneys
retained by the Administrative Agent).


  


7.            Choice
of Law. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. Each party hereto submits to the exclusive jurisdiction
of the State and Federal courts in the Southern District of the State of New York; provided, however, that nothing in the Credit
Agreement, as amended by this Amendment, or this Amendment, shall be deemed to operate to preclude the Administrative Agent or
any Lender from bringing suit or taking other legal action in any other jurisdiction to realize on the Collateral or any other
security for the Obligations, or to enforce a judgment or other court order in favor of such Agent or such Lender. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF
OR BASED UPON THIS AMENDMENT, THE OTHER LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION, INCLUDING CONTRACT, TORT, BREACH OF DUTY
AND ALL OTHER CLAIMS. EACH PARTY HERETO ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP,
THAT EACH HAS ALREADY RELIED ON THIS WAIVER IN ENTERING INTO THIS AMENDMENT, AND THAT EACH WILL CONTINUE TO RELY ON THIS WAIVER
IN ITS RELATED FUTURE DEALINGS. EACH PARTY HERETO FURTHER WARRANTS AND REPRESENTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.


 




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8.            Counterpart
Execution. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts,
each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute
but one and the same Amendment. Delivery of an executed counterpart of this Amendment by telefacsimile or by e-mail transmission
of an Adobe file format document (also known as a PDF file) shall be equally as effective as delivery of an original executed counterpart
of this Amendment. Any party delivering an executed counterpart of this Amendment by telefacsimile or by e-mail transmission of
an Adobe file format document (also known as a PDF file) also shall deliver an original executed counterpart of this Amendment
but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of
this Amendment.


 


9.            Effect
on Loan Documents.


 


(a)          The
amendments and consent set forth herein shall be limited precisely as written and shall not be deemed (a) to be a forbearance,
waiver, or modification of any other term or condition of the Credit Agreement or of any Loan Documents or to prejudice any right
or remedy which the Administrative Agent may now have or may have in the future under or in connection with the Loan Documents;
(b) to be a consent to any future consent or modification, forbearance, or waiver to the Credit Agreement or any other Loan Document,
or to any waiver of any of the provisions thereof; or (c) to limit or impair the Administrative Agent’s right to demand strict
performance of all terms and covenants as of any date. Each Loan Party hereby ratifies and reaffirms its obligations under the
Credit Agreement and the other Loan Documents to which it is a party and agrees that none of the consents or modifications to the
Credit Agreement set forth in this Amendment shall impair such Loan Party’s obligations under the Loan Documents or the Administrative
Agent’s rights under the Loan Documents. Each Loan Party hereby further ratifies and reaffirms the validity and enforceability
of all of the Liens heretofore granted, pursuant to and in connection with the Guarantee and Collateral Agreement or any other
Loan Document to the Administrative Agent on behalf and for the benefit of the Secured Parties, as collateral security for the
obligations under the Loan Documents, in accordance with their respective terms, and acknowledges that all of such Liens, and all
collateral heretofore pledged as security for such obligations, continues to be and remain collateral for such obligations from
and after the date hereof. Each Loan Party acknowledges and agrees that the Credit Agreement and each other Loan Document is still
in full force and effect and acknowledges as of the date hereof that such Loan Party has no defenses to enforcement of the Loan
Documents. Each Loan Party waives any and all defenses to enforcement of the Credit Agreement as amended hereby and each other
Loan Documents that might otherwise be available as a result of this Amendment of the Credit Agreement. To the extent any terms
or provisions of this Amendment conflict with those of the Credit Agreement or other Loan Documents, the terms and provisions of
this Amendment shall control.


 


(b)          To
the extent that any terms and conditions in any of the Loan Documents shall contradict or be in conflict with any terms or conditions
of the Credit Agreement, after giving effect to this Amendment, such terms and conditions are hereby deemed modified or amended
accordingly to reflect the terms and conditions of the Credit Agreement as modified or amended hereby.


 




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(c)          This
Amendment is a Loan Document.


 


10.          Entire
Agreement. This Amendment constitutes the entire agreement between the Loan Parties and the Lenders pertaining to the subject
matter contained herein and supersedes all prior agreements, understandings, offers and negotiations, oral or written, with respect
hereto and no extrinsic evidence whatsoever may be introduced in any judicial or arbitration proceeding, if any, involving this
Amendment. All of the terms and provisions of this Amendment are hereby incorporated by reference into the Credit Agreement, as
applicable, as if such terms and provisions were set forth in full therein, as applicable. All references in the Credit Agreement
to “this Agreement”, “hereto”, “hereof’, “hereunder” or words of like import shall
mean the Credit Agreement as amended hereby.


 


11.          Release.
Each of the Borrower and each Guarantor may have certain Claims against the Released Parties, as those terms are defined below,
regarding or relating to the Credit Agreement or the other Loan Documents. The Administrative Agent, the Lenders, the Lead Arranger,
the Co-Lead Arranger, the Issuing Lender, the Swingline Lender, the Borrower and the Guarantors desire to resolve each and every
one of such Claims in conjunction with the execution of this Amendment and thus each of the Borrower and each Guarantor makes the
releases contained in this Section 11. In consideration of the Administrative Agent and the Lenders entering into this Amendment,
each of the Borrower and each Guarantor hereby fully and unconditionally releases and forever discharges each of the Administrative
Agent, the Lenders, the Issuing Lender, the Swingline Lender and their respective directors, officers, employees, subsidiaries,
branches, affiliates, attorneys, agents, representatives, successors and assigns and all persons, firms, corporations and organizations
acting on any of their behalves (collectively, the “Released Parties”), of and from any and all claims, allegations,
causes of action, costs or demands and liabilities, of whatever kind or nature, from the beginning of the world to the date on
which this Amendment is executed, whether known or unknown, liquidated or unliquidated, fixed or contingent, asserted or unasserted,
foreseen or unforeseen, matured or unmatured, suspected or unsuspected, anticipated or unanticipated, which the Borrower or any
Guarantor has, had, claims to have had or hereafter claims to have against the Released Parties by reason of any act or omission
on the part of the Released Parties, or any of them, occurring prior to the date on which this Amendment is executed, including
all such loss or damage of any kind heretofore sustained or that may arise as a consequence of the dealings among the parties up
to and including the date on which this Amendment is executed, including the administration or enforcement of the Loans, the Obligations,
the Credit Agreement or any of the Loan Documents (collectively, all of the foregoing, the “Claims”). Each of
the Borrower and each Guarantor represents and warrants that it has no knowledge of any claim by it against the Released Parties
or of any facts or acts of omissions of the Released Parties which on the date hereof would be the basis of a claim by the Borrower
or any Guarantor against the Released Parties which is not released hereby. Each of the Borrower and each Guarantor represents
and warrants that the foregoing constitutes a full and complete release of all Claims.


 


12.          Severability.
The provisions of this Amendment are severable, and if any clause or provision shall be held invalid or unenforceable in whole
or in part in any jurisdiction, then such invalidity or unenforceability shall affect only such clause or provision, or part thereof,
in such jurisdiction and shall not in any manner affect such clause or provision in any other jurisdiction, or any other clause
or provision in this Amendment in any jurisdiction.


 




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In
Witness Whereof, the parties hereto have caused this Amendment to be duly executed and delivered by their proper and
duly authorized officers as of the day and year first above written.


 


	 	BORROWER:
	 	 
	 	EVERYDAY HEALTH, INC.
	 	 
	 	By:	/s/ Alan Shapiro


 


	 	Name:	Alan Shapiro


 


	 	Title:	EVP & General Counsel


 


	 	EVERYDAY HEALTH MEDIA, LLC
	 	 	 
	 	By:	/s/ Alan Shapiro


 


	 	Name:	Alan Shapiro


 


	 	Title:	EVP & General Counsel


 


	 	MEDPAGE TODAY, L.L.C.
	 	 	 
	 	By:	/s/ Alan Shapiro


 


	 	Name:	Alan Shapiro


 


	 	Title:	President


 


Fifth Amendment to Amended and Restated
Credit Agreement


 




    	 	 	 



     


    

  


	 	GUARANTOR:
	 	 
	 	DOCTORDIRECTORY.COM, LLC
	 	 	 
	 	By:	/s/ Alan Shapiro


 


	 	Name:	Alan Shapiro


 


	 	Title:	President


 


	 	CAMBRIDGE BIOMARKETING GROUP, LLC
	 	 	 
	 	By:	/s/ Alan Shapiro


 


	 	Name:	Alan Shapiro


 


	 	Title:	President


 


	 	TEA LEAVES HEALTH, LLC
	 	 	 
	 	By:	/s/ Alan Shapiro


 


	 	Name:	Alan Shapiro


 


	 	Title:	President


 


Fifth Amendment to Amended and Restated
Credit Agreement


 




    	 	 	 



     


    

  


	 	SILICON VALLEY BANK,
	 	as Administrative Agent, as a Lender, as Issuing Lender and as Swingline Lender
	 	 	 
	 	By:	/s/ Mickey Swift


 


	 	Name:	Mickey Swift


 


	 	Title:	Vice President


 


Fifth Amendment to Amended and Restated
Credit Agreement


 




    	 	 	 



     


    

  


	 	COMERICA BANK,
	 	as a Lender
	 	 	 
	 	By:	/s/ John Benetti



	 	Name:	John Benetti



	 	Title: 	SVP


 


Fifth Amendment to Amended and Restated
Credit Agreement


 




    	 	 	 



     


    

  


	 	SUNTRUST BANK,
	 	as a Lender
	 	 	 
	 	By:	/s/ Cynthia W. Burton



	 	Name:	Cynthia W. Burton



	 	Title:	Director


 


Fifth Amendment to Amended and Restated
Credit Agreement


 




    	 	 	 



     


    

  


	 	CIT FINANCE LLC,
	 	as a Lender
	 	 	 
	 	By:	/s/ Kevin Cullen



	 	Name:	Kevin Cullen



	 	Title:	Managing Director


 


Fifth Amendment to Amended and Restated
Credit Agreement


 




    	 	 	 



     


    

  


	 	STIFEL BANK & TRUST,
	 	as a Lender
	 	 	 
	 	By:	/s/ Matthew L. Diehl



	 	Name:	Matthew L. Diehl



	 	Title:	Senior
    Vice President


 


Fifth Amendment to Amended and Restated
Credit Agreement