CareView Communications, Inc. 8-K


 

Exhibit 10.52


 


SECOND AMENDMENT TO

SUBORDINATION AND INTERCREDITOR AGREEMENT


SECOND AMENDMENT
TO SUBORDINATION AND INTERCREDITOR AGREEMENT (this “Amendment”), dated as of July 10, 2018, among CAREVIEW COMMUNICATIONS,
INC., a Nevada corporation (“Holdings”), CAREVIEW COMMUNICATIONS, INC., a Texas corporation and a wholly-owned
subsidiary of Holdings (the “Borrower”), PDL INVESTMENT HOLDINGS, LLC, a Delaware limited liability company
(as assignee of PDL BioPharma, Inc.), in its capacity as lender under the Credit Agreement defined below (in such capacity, the
“Lender”) and in its capacity as agent (in such capacity, the “Agent”) under the Credit Agreement
defined below, and the Required Second Lien Claimholders (as defined in the Intercreditor Agreement defined below).


W I T N E S S E T H


WHEREAS Holdings,
the Borrower, the Lender and the Agent have entered into that certain Credit Agreement dated as of June 26, 2015 (as amended, the
“Credit Agreement”) pursuant to which the Lender made a term loan to the Borrower in the original aggregate
principal amount of $20,000,000;


WHEREAS Holdings
and the Note Investors (as defined in the Intercreditor Agreement defined below) have entered into that certain Note and Warrant
Purchase Agreement dated as of April 21, 2011 (as amended, the “NWPA”) pursuant to which Holdings issued to
the Note Investors senior secured convertible notes (the “NWPA Notes”) and warrants to purchase Holdings’
common stock (the “NWPA Warrants”);


WHEREAS the Agent
and the Note Investors have entered into that certain Subordination and Intercreditor Agreement dated as of June 26, 2015 (as amended
by that certain Consent and Amendment to Note and Warrant Purchase Agreement and Subordination and Intercreditor Agreement dated
as of February 2, 2018, among Holdings, Borrower, the Lender, the Agent and the Note Investors, the “Intercreditor Agreement”)
pursuant to which the Note Investors agreed to the payment and lien subordination of obligations owed to the Note Investors under
the NWPA to obligations owed to the Lender and the Agent under the Credit Agreement;


WHEREAS, the Borrower
has requested, and the Agent and Required Second Lien Claimholders have agreed, to amend the Intercreditor Agreement as set forth
herein.


NOW, THEREFORE,
in consideration of the agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:


Article
I.

DEFINITIONS


1.1       


Definitions.
Unless otherwise defined herein or the context otherwise requires, terms used in this Amendment, including its preamble and recitals,
have the meanings provided in the Intercreditor Agreement.


 




    	 		 



    	 



    

 


Article
II.

AMENDMENT TO INTERCREDITOR AGREEMENT


2.1   


Amendment
to Section 5.1(b). Subject to Section 4.1 of this Amendment, Section 5.1(b) of the Intercreditor Agreement is hereby amended
and restated in its entirety as follows:


“(b) 


If
in connection with any sale, lease, exchange, transfer or other disposition of any Collateral (collectively, a “Disposition”)
permitted under the terms of both the First Lien Loan Documents and the Second Lien Loan Documents (other than in connection with
the exercise of PDL’s remedies in respect of the Collateral provided for by the First Lien Loan Documents), PDL releases
for itself or on behalf of any of the First Lien Claimholders any of its Liens on any part of the Collateral or releases any Grantor
from its guaranty of the First Lien Obligations in connection with the sale of the stock, or substantially all the assets, of the
Borrower or the applicable Grantor other than (A) in connection with the Discharge of First Lien Obligations and (B) after the
occurrence and during the continuance of any Event of Default under the Note Purchase Agreement, then the Liens, if any, of the
Second Lien Claimholders on such Collateral and the obligations of such Grantor under its guaranty of the Second Lien Obligations
shall be automatically, unconditionally and simultaneously released; provided that the net proceeds from any Disposition
are applied to repay Obligations under the Credit Agreement to the extent required thereby. The foregoing notwithstanding, in the
event that PDL consents to any Disposition of all or any portion of the hospital assets of any Grantor that is Collateral (including
a sale of any Grantor all or substantially all of the assets of which are hospital assets) (but other than in connection with the
exercise of PDL’s remedies in respect of the Collateral provided for by the First Lien Loan Documents) (a “Hospital
Disposition”), and PDL releases for itself or on behalf of any of the First Lien Claimholders any of its Liens on any
part of such hospital assets that are Collateral or releases any Grantor from its guaranty of the First Lien Obligations in connection
with a Hospital Disposition, then the Liens, if any, of the Second Lien Claimholders on such hospital assets and the obligations
of any such Grantor under its guaranty of the Second Lien Obligations shall be automatically, unconditionally and simultaneously
released; provided that the net proceeds from any Hospital Disposition are applied first, to repay Obligations under
the Credit Agreement until paid in full, second, up to the next $5,000,000 of such net proceeds may be retained by the Borrower
for working capital purposes, and third, all remaining net proceeds shall be applied to repay the Second Lien Obligations
in accordance with the priorities set forth in the NWPA and NWPA Notes. The Second Lien Claimholders shall promptly execute and
deliver to PDL, the Borrower or the applicable Grantor such termination statements, releases and other documents as PDL, the Borrower
or the applicable Grantor may reasonably request to effectively confirm any such release contemplated herein.”


Article
III.

MISCELLANEOUS


3.1   


Reaffirmation
of Intercreditor Agreement. Each of Agent and the Note Investors party hereto hereby acknowledges and reaffirms its respective
obligations, duties and covenants under the Intercreditor Agreement, as modified hereby.


3.2       


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.


3.3       


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. This Amendment shall, unless otherwise expressly indicated herein, be construed, administered
and applied in accordance with the terms and provisions of the Intercreditor Agreement.


 




    	 	2	 



    	 



    

 


3.4       


Successors
and Assigns. This Amendment shall be binding upon and inure to the benefit of the Note Investors and the other parties hereto
and their respective successors and assigns (as permitted under the Credit Agreement and the Intercreditor Agreement).


3.5       


Governing
Law. This Amendment, the rights and obligations of the NOTE INVESTORS AND THE OTHER 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). 


3.6       


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.


[Signature page follows]


 




    	 	3	 



    	 



    

IN WITNESS WHEREOF,
each of the parties hereto has caused this Amendment to be duly executed and delivered as of the date first above written.


 


	 	HOLDINGS:
	 	 
	 	CAREVIEW COMMUNICATIONS, INC., 
	 	a Nevada corporation
	 	 
	 	 
	 	By:	s/ Steven G. Johnson
	 	Name: 	Steven G. Johnson
	 	Title: 	President and Chief Executive Officer
	 	 
	 	 
	 	BORROWER:
	 	 
	 	CAREVIEW COMMUNICATIONS, INC.,
	 	a Texas corporation
	 	 
	 	 
	 	By:	/s/ Steven G. Johnson
	 	Name: 	Steven G. Johnson
	 	Title: 	President and Chief Executive Officer
	 	 
	 	 
	 	LENDER:
	 	 
	 	PDL INVESTMENT HOLDINGS, LLC
	 	 
	 	 
	 	By: 	/s/ Christopher Stone
	 	Name:  	Christopher Stone 
	 	Title:  	CEO
	 	 
	 	 
	 	AGENT:
	 	 
	 	PDL INVESTMENT HOLDINGS, LLC
	 	 
	 	 
	 	By:	/s/ Christopher Stone
	 	Name:  	Christopher Stone
	 	Title:  	CEO


 


 


 


[Signature Page to Second Amendment to Subordination
and Intercreditor Agreement]


 




    	 



    	 



    






	 	NOTE INVESTORS:
	 	 	 
	 	HealthCor Partners Fund, L.P.
	 	By:   HealthCor Partners Management L.P., as Manager
	 	By:   HealthCor Partners Management, G.P., LLC, as General Partner
	 	 	 
	 	By:	/s/ Jeffrey C. Lightcap
	 	Name: 	Jeffrey C. Lightcap
	 	Title: 	Senior Managing Director


 


	 	Address:	HealthCor Partners
	 	 	1325 Avenue of Americas, 27th Floor
	 	 	New York, NY 10019
	 	 	 




 


	 	HealthCor Hybrid Offshore Master Fund, L.P.
	 	By:   HealthCor Hybrid Offshore G.P., LLC, as General Partner
	 	 	 
	 	By:	 /s/ Joseph P. Healey
	 	Name: 	Joseph P. Healey
	 	Title: 	Trustee


 


	 	Address:	HealthCor Partners
	 	 	1325 Avenue of Americas, 27th Floor
	 	 	New York, NY 10019
	 	 	 



 


 


 


[Signature Page to Second Amendment to Subordination
and Intercreditor Agreement]


 




    	 



    	 



    




 

	 	NOTE INVESTORS:
	 	 
	 	/s/ Allen Wheeler
	 	Allen Wheeler
	 	 
	 	 
	 	/s/ Steven Johnson
	 	Steven Johnson
	 	 
	 	 
	 	/s/ Dr. James R. Higgins
	 	Dr. James R. Higgins


  


 


 


[Signature Page to Second Amendment to Subordination
and Intercreditor Agreement]


 




    	 



    	 



    






	 	NOTE INVESTORS:
	 	 
	 	Raymond James & Assoc. Inc., not in its corporate capacity but solely as Custodian of the Individual Retirement Account of Sandra K. McRee.  Further, all representations, warranties and covenants (including indemnities) set forth herein are being made by Sandra K. McRee, not Raymond James & Assoc. Inc.
	 	 
	 	 
	 	By:	/s/ Marguerite Shoro
	 	Name:  	Marguerite Shoro
	 	Title:  	Authorized Signer/Custodian
	 	 
	 	 
	 	 
	 	/s/ Sandra K. McRee
	 	Sandra K. McRee



 


 


 


[Signature Page to Second Amendment to Subordination
and Intercreditor Agreement]


 




    	 



    	 



    



	 	NOTE INVESTORS:
	 	 
	 	/s/ Stephen Berkley
	 	Stephen Berkley
	 	 
	 	 
	 	/s/ Alexandra Berkley
	 	Alexandra Berkley
	 	 
	 	 
	 	/s/ Steven B. Epstein
	 	Steven B. Epstein
	 	 
	 	 
	 	/s/ Deborah L. Epstein
	 	Deborah L. Epstein
	 	 
	 	 
	 	/s/ Jason Peter Epstein
	 	Jason Peter Epstein
	 	 
	 	 
	 	/s/ Gregory Harris Epstein
	 	Gregory Harris Epstein
	 	 
	 	 
	 	/s/ David Epstein
	 	David Epstein



 


 


 


[Signature Page to Second Amendment to Subordination
and Intercreditor Agreement]


 




    	 



    	 



    



	 	NOTE INVESTORS:
	 	 
	 	/s/ Juliann Martin
	 	Juliann Martin
	 	 
	 	 
	 	/s/ Jason Thompson
	 	Jason Thompson



 


 


	 	Thompson Family Investments, LLC
	 	 
	 	 
	 	By:	/s/ Jason Thompson
	 	Name:	Jason Thompson
	 	Title:	Manager



 


 


	 	Rockwell Holdings I, LLC
	 	 
	 	 
	 	By:	/s/ Matthew Bluhm
	 	Name: 	Matthew Bluhm
	 	Title: 	Managing Member








 


 


 


[Signature Page to Second Amendment to Subordination
and Intercreditor Agreement]


 




    	 



    	 



    

 


	 	NOTE INVESTORS:
	 	 
	 	/s/ Irwin Leiber
	 	Irwin Leiber
	 	 
	 	 
	 	/s/ Joseph P. Healey
	 	Joseph P. Healey
	 	 
	 	 
	 	/s/ Arthur B. Cohen
	 	Arthur B. Cohen


 


 


	 	SJ2, LLC
	 	 
	 	 
	 	By:	/s/ Michael Mashaal
	 	Name:  	Michael Mashaal
	 	Title:  	Manager
	 	 
	 	 
	 	The Joseph P. Healey 2011 Family Trust
	 	 
	 	 
	 	By: 	/s/ Joseph L. Dowling
	 	Name: 	Joseph L. Dowling
	 	Title: 	Trustee



 


 


 


[Signature Page to Second Amendment to Subordination
and Intercreditor Agreement]


 




    	 



    	 



    



	 	NOTE INVESTORS:
	 	 
	 	PENSCO TRUST COMPANY LLC, not in its corporate capacity but solely as Custodian of the Individual Retirement Account of Jeffrey C. Lightcap
	 	 
	 	 
	 	By:	/s/ Cody Alford
	 	Name: 	Cody Alford
	 	Title: 	Authorized Signor


 


 


	 	/s/ Jeffrey C. Lightcap
	 	Jeffrey C. Lightcap


 


 


	 	Jeffrey C. Lightcap & Jane Lightcap Minor’s Present Interest Trust dated March 20th, 1997 F/B/O Bradford C. Lightcap
	 	 
	 	 
	 	By:	/s/ Ira Schwartz
	 	Name: 	Ira Schwartz
	 	Title: 	Trustee
	 	 
	 	 
	 	Jeffrey C. Lightcap & Jane Lightcap Minor’s Present Interest Trust dated March 20th, 1997 F/B/O Brian R. Lightcap
	 	 
	 	 
	 	By:	/s/ Ira Schwartz
	 	Name: 	Ira Schwartz
	 	Title: 	Trustee
	 	 
	 	 
	 	Jeffrey C. Lightcap & Jane Lightcap Minor’s Present Interest Trust dated March 20th, 1997 F/B/O Megan M. Lightcap
	 	 
	 	 
	 	By:	/s/ Ira Schwartz
	 	Name: 	Ira Schwartz
	 	Title: 	Trustee






 


 


 


[Signature Page to Second Amendment to Subordination
and Intercreditor Agreement]