Careview Communications, Inc. 8-K


 


Exhibit 10.08


 


THIRD AMENDMENT TO MODIFICATION AGREEMENT


This THIRD AMENDMENT
TO MODIFICATION AGREEMENT (this “Amendment”) is made and entered into as of June 28, 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”)), and that certain Second Amendment to Modification Agreement dated
as of June 14, 2018 (the “Second 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 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 3, 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 August 31, 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) above from “July 3, 2018” until “July 13,
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.

AMENDMENT TO MODIFICATION AGREEMENT


Upon the Amendment
Effective Date:


1.1       


Covenants. The
first sentence of Section 5(a) of the Modification Agreement, as previously amended by the Second Amendment, the First Modification
Amendment and the Second 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 August 31,
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).




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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.


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 Third 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/ Chris Stone
	 	 	Name:  	Chris Stone
	 	 	Title:  	CEO
	 	 
	 	PDL INVESTMENT HOLDINGS, LLC,
	 	a Delaware limited liability company,
	 	as Lender
	 	 
	 	By:	/s/ Chris Stone
	 	 	Name:  	Chris Stone
	 	 	Title:  	CEO


 


 


 


[Signature Page to Third Amendment to Modification
Agreement]