CRVW 8-K
CareView Communications Inc (CRVW)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 25, 2021
CAREVIEW COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
| Nevada | 000-54090 | 95-4659068 |
(State or other jurisdiction of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
405 State Highway 121, Suite B-240, Lewisville, TX 75067
(Address of principal executive offices and Zip Code)
(972) 943-6050
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered |
| N/A |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230-405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter). Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
TABLE OF CONTENTS
| Page | ||
| Item 1.01 | Entry into a Material Definitive Agreement | 3 |
| Item 9.01 | (d) Exhibits | 12 |
2
Item 1.01 Entry into a Material Definitive Agreement.
Twenty-Fourth Amendment to Modification Agreement
Modification Agreement to Credit Agreement
As previously reported by CareView Communications, Inc. (the “Company”) in our Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on February 5, 2018, the Company, CareView Communications, Inc., a Texas corporation and a wholly owned subsidiary of the Company (the “Borrower”), CareView Operations, L.L.C., a Texas limited liability company and a wholly owned subsidiary of the Borrower (the “Subsidiary Guarantor”), and PDL Investment Holdings, LLC (as assignee of PDL BioPharma, Inc.), in its capacity as administrative agent and lender (the “Lender”) under the Credit Agreement (the “Credit Agreement”) dated as of June 26, 2015, as amended, by and among the Company, the Borrower and the Lender, entered into a Modification Agreement on February 2, 2018, effective as of December 28, 2017 (the “Modification Agreement”), with respect to the Credit Agreement in order to modify certain provisions of the Credit Agreement and Loan Documents (as defined in the Credit Agreement) to prevent an Event of Default (as defined in the Credit Agreement) from occurring.
Under the Modification Agreement, the parties agreed that (i) the Borrower would not make the principal payment due under the Credit Agreement on December 31, 2017 until the end of the Modification Period (as defined below), (ii) the Borrower would not pay the principal installments due at the end of each calendar quarter during the Modification Period and (iii) because the Borrower’s Liquidity (as defined in the Credit Agreement) was anticipated to fall below $3,250,000, the Liquidity required during the Modification Period would be lowered to $2,500,000 (collectively, the “Covered Events”). The Lender agreed that the occurrence and continuance of any of the Covered Events will not constitute Events of Default for a period (the “Modification Period”) from December 28, 2017 through the earliest to occur of (a) any Event of Default under any Loan Documents that does not constitute a Covered Event, (b) any event of default under the Modification Agreement, (c) the Lender’s election, in its sole discretion, to terminate the Modification Period on May 31, 2018 or September 30, 2018 (with each such date permitted to be extended by the Lender in its sole discretion) by delivering a written notice to the Borrower on or prior to such date, or (d) December 31, 2018.
In consideration of the Lender’s entry into the Modification Agreement, the Company and the Borrower agreed, among other things, that the Borrower would obtain (i) at least $2,250,000 in net cash proceeds from the issuance of Capital Stock (other than Disqualified Capital Stock) or Debt (each such term as defined in the Credit Agreement) on or prior to February 23, 2018 and (ii) an additional $3,000,000 in net cash proceeds from the issuance of Capital Stock (other than Disqualified Capital Stock) or Debt on or prior to May 31, 2018 (resulting in aggregate net cash proceeds of at least $5,250,000).
Second Amendment to Credit Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on February 26, 2018, the Company, the Borrower and the Lender entered into a Second Amendment to Credit Agreement (the “Credit Agreement Amendment”) on February 23, 2018, pursuant to which, among other things, the parties agreed to amend the Modification Agreement to provide that the Borrower could satisfy its obligations under the Modification Agreement to obtain financing 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 $3,000,000 in net cash proceeds from the issuance of Capital Stock (other than Disqualified Capital Stock) or Debt on or prior to May 31, 2018 (resulting in aggregate net cash proceeds of at least $5,050,000).
First Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on June 4, 2018, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into an Amendment to Modification Agreement (the “First Modification Agreement Amendment”) on May 31, 2018, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and September 30, 2018 (with each such date permitted to be extended by the Lender in its sole discretion); and that the Borrower could satisfy its obligations under the Modification Agreement to obtain financing 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 June 15, 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 at least $3,550,000).
3
Second Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on June 15, 2018, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into a Second Amendment to Modification Agreement (the “Second Modification Agreement Amendment”) on June 14, 2018, pursuant to which the parties agreed to further amend the Modification Agreement to provide that the Borrower could satisfy its obligations under the Modification Agreement to obtain financing 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 (rather than June 15, 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 at least $3,550,000).
Third Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on July 5, 2018, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into a Third Amendment to Modification Agreement (the “Third Modification Agreement Amendment”) on June 28, 2018, pursuant to which the parties agreed to further amend the Modification Agreement to provide that the Borrower could satisfy its obligations under the Modification Agreement to obtain financing 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 (rather than 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 at least $3,550,000).
Fourth Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on September 5, 2018, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into a Fourth Amendment to Modification Agreement (the “Fourth Modification Agreement Amendment”) on August 31, 2018, pursuant to which the parties agreed to further amend the Modification Agreement to provide that the Borrower could satisfy its obligations under the Modification Agreement to obtain financing 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 September 30, 2018 (rather than August 31, 2018) (resulting in aggregate net cash proceeds of at least $3,550,000).
Fifth Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on October 4, 2018, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into a Fifth Amendment to Modification Agreement (the “Fifth Modification Agreement Amendment”) on September 28, 2018, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and November 12, 2018 (with each such date permitted to be extended by the Lender in its sole discretion); that the Borrower could satisfy its obligations under the Modification Agreement to obtain financing 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 (rather than September 30, 2018) (resulting in aggregate net cash proceeds of at least $3,550,000); and that the Liquidity required during the Modification Period would be lowered to $1,825,000 from $2,500,000.
4
Sixth Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on November 16, 2018, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into a Sixth Amendment to Modification Agreement (the “Sixth Modification Agreement Amendment”) on November 12, 2018, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and November 19, 2018 (with each such date permitted to be extended by the Lender in its sole discretion); and that the Borrower could satisfy its obligations under the Modification Agreement to obtain financing 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 19, 2018 (rather than November 12, 2018) (resulting in aggregate net cash proceeds of at least $3,550,000).
Seventh Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on November 21, 2018, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into a Seventh Amendment to Modification Agreement (the “Seventh Modification Agreement Amendment”) on November 19, 2018, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and December 3, 2018 (with each such date permitted to be extended by the Lender in its sole discretion); and that the Borrower could satisfy its obligations under the Modification Agreement to obtain financing 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 December 3, 2018 (rather than November 19, 2018) (resulting in aggregate net cash proceeds of at least $3,550,000).
Eighth Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on December 6, 2018, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into an Eighth Amendment to Modification Agreement (the “Eighth Modification Agreement Amendment”) on December 3, 2018, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and December 17, 2018 (with each such date permitted to be extended by the Lender in its sole discretion); that the Borrower could satisfy its obligations under the Modification Agreement to obtain financing 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 December 17, 2018 (rather than December 3, 2018) (resulting in aggregate net cash proceeds of at least $3,550,000); and that the Liquidity required during the Modification Period would be lowered to $1,525,000 from $1,825,000.
5
Ninth Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on December 21, 2018, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into a Ninth Amendment to Modification Agreement (the “Ninth Modification Agreement Amendment”) on December 17, 2018, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and January 31, 2019 (with each such date permitted to be extended by the Lender in its sole discretion); that the Borrower could satisfy its obligations under the Modification Agreement to obtain financing 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 January 31, 2019 (rather than December 17, 2018) (resulting in aggregate net cash proceeds of at least $3,550,000); that the Liquidity required during the Modification Period would be lowered to $750,000 from $1,525,000; and that the Borrower’s interest payment that would otherwise be due to Lender on December 31, 2018 would be deferred until January 31, 2019 (the end of the extended Modification Period) and that such deferral would be an additional Covered Event.
Tenth Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on February 5, 2019, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into a Tenth Amendment to Modification Agreement (the “Tenth Modification Agreement Amendment”) on January 31, 2019, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and February 28, 2019 (with each such date permitted to be extended by the Lender in its sole discretion); that the Borrower could satisfy its obligations under the Modification Agreement to obtain financing 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 February 28, 2019 (rather than January 31, 2019) (resulting in aggregate net cash proceeds of at least $3,550,000); and that the Borrower’s interest payment that would otherwise be due to Lender on December 31, 2018 would be deferred until February 28, 2019 (the end of the extended Modification Period) and that such deferral would be a Covered Event.
Eleventh Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on March 4, 2019, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into an Eleventh Amendment to Modification Agreement (the “Eleventh Modification Agreement Amendment”) on February 28, 2019, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and March 31, 2019 (with each such date permitted to be extended by the Lender in its sole discretion); that the Borrower could satisfy its obligations under the Modification Agreement to obtain financing 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 March 31, 2019 (rather than February 28, 2019) (resulting in aggregate net cash proceeds of at least $3,550,000); and that the Borrower’s interest payment that would otherwise be due to Lender on December 31, 2018 would be deferred until March 31, 2019 (the end of the extended Modification Period) and that such deferral would be a Covered Event.
Twelfth Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on April 2, 2019, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into a Twelfth Amendment to Modification Agreement (the “Twelfth Modification Agreement Amendment”) on March 29, 2019, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and April 30, 2019 (with each such date permitted to be extended by the Lender in its sole discretion); that the Borrower could satisfy its obligations under the Modification Agreement to obtain financing 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 April 30, 2019 (rather than March 31, 2019) (resulting in aggregate net cash proceeds of at least $3,550,000); and that the Borrower’s interest payments that would otherwise be due to Lender on December 31, 2018 and on March 31, 2019 would be deferred until April 30, 2019 (the end of the extended Modification Period) and that such deferrals would be a Covered Event. The parties also agreed that any breaches by the Company or the Borrower of the minimum cash balance requirement formerly set forth in the HealthCor Note and Warrant Purchase Agreement, as amended, that occurred on or prior to March 27, 2019 would be permanently waived and would not constitute Events of Default under a Loan Document so long as such breaches had been waived under the HealthCor Note and Warrant Purchase Agreement, as amended, and as such, that any such breaches would be a Covered Event.
6
Fourth Amendment to Credit Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on April 15, 2019, the Company, the Borrower and the Lender entered into a Fourth Amendment to Credit Agreement (the “Fourth Credit Agreement Amendment”) on April 9, 2019, and in connection with the Fourth Credit Agreement Amendment, the Borrower executed an Amended and Restated Tranche One Term Note in the principal amount of $20,000,000 to the Lender (the “Amended Tranche One Term Note”), pursuant to which the parties agreed, among other things, to amend the note from registered to unregistered form.
Thirteenth Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on May 1, 2019, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into a Thirteenth Amendment to Modification Agreement (the “Thirteenth Modification Agreement Amendment”) on April 29, 2019, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and May 15, 2019 (with each such date permitted to be extended by the Lender in its sole discretion); that the Borrower could satisfy its obligations under the Modification Agreement to obtain financing 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 May 15, 2019 (rather than April 30, 2019) (resulting in aggregate net cash proceeds of at least $3,550,000); and that the Borrower’s interest payments that would otherwise be due to Lender on December 31, 2018 and on March 31, 2019 would be deferred until May 15, 2019 (the end of the extended Modification Period) and that such deferrals would be a Covered Event.
Fourteenth Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on May 20, 2019, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into a Fourteenth Amendment to Modification Agreement (the “Fourteenth Modification Agreement Amendment”) on May 15, 2019, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and September 30, 2019 (with each such date permitted to be extended by the Lender in its sole discretion); that the Borrower could satisfy its obligations under the Modification Agreement to obtain financing 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) $1,000,000 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) $250,000 in net cash proceeds from the issuance of Capital Stock (other than Disqualified Capital Stock) or Debt on or prior to May 15, 2019 (resulting in aggregate net cash proceeds of at least $3,300,000); that the Liquidity required during the Modification Period would be lowered to $0 from $750,000; and that the Borrower’s interest payments that would otherwise be due to Lender on December 31, 2018, March 31, 2019 and June 30, 2019 would be deferred until September 30, 2019 (the end of the extended Modification Period) and that such deferrals would be a Covered Event.
7
Fifth Amendment to Credit Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on May 20, 2019, the Company, the Borrower, the Lender (in its capacity as administrative agent and lender), Steven G. Johnson, individually, and Dr. James R. Higgins, individually (Mr. Johnson and Dr. Higgins, collectively, the “Tranche Three Lenders”) entered into a Fifth Amendment to Credit Agreement on May 15, 2019 (the “Fifth Credit Agreement Amendment”), pursuant to which the parties agreed to amend the Credit Agreement to, among other things, (i) provide for a new tranche of term loan, the Tranche Three Loan, in the aggregate principal amount of $200,000, from the Tranche Three Lenders (the “Tranche Three Loan”), with a maturity date of October 7, 2020 (the fifth anniversary of the funding date of the Tranche One Loan (as defined in the Credit Agreement)), with outstanding borrowings bearing interest at the rate of 15.5% per annum, payable quarterly in arrears (subject to the terms of the Modification Agreement, as amended), and with payment of the Tranche Three Loan and any other Obligations (as defined in the Credit Agreement) incurred in connection with the Tranche Three Loan subordinated and subject in right and time of payment to the Payment in Full (as defined in the Credit Agreement) of the Tranche One Loan and any other Obligations incurred in connection with the Tranche One Loan, to the extent and in the manner set forth in the Credit Agreement; (ii) increase the interest rate for outstanding borrowings under the Tranche One Loan, effective as of the date of the Fifth Credit Agreement Amendment, from 13.5% per annum to 15.5% per annum, payable quarterly in arrears (subject to the terms of the Modification Agreement, as amended); and (iii) provide for the issuance of the Twelfth Amendment Supplemental Closing Note pursuant to the Note and Warrant Purchase Agreement dated April 21, 2011, as amended, by and among the Company, HealthCor Partners Fund, LP, HealthCor Hybrid Offshore Master Fund, LP and the other investors party thereto (the “Purchase Agreement”).
Also, as previously reported in our Current Report on Form 8-K filed with the SEC on May 20, 2019, upon the execution of the Fifth Credit Agreement Amendment on May 15, 2019, (i) the Borrower borrowed the Tranche Three Loan and issued to the Tranche Three Lenders term notes in the aggregate principal amount of $200,000, payable in accordance with the terms of the Credit Agreement (the “Tranche Three Term Notes”), $150,000 from Mr. Johnson and $50,000 from Dr. Higgins, and (ii) the Company issued a warrant for the purchase of 250,000 shares of Common Stock, with an exercise price per share equal to $0.03 (subject to adjustment as described therein) and an expiration date of May 15, 2029 (the “Tranche Three Loan Warrant”), to Dr. Higgins in connection with his Tranche Three Loan. Mr. Johnson declined to be issued a Tranche Three Loan Warrant. Mr. Johnson is our Chief Executive Officer, President, Secretary and Treasurer and is one of our directors. Dr. Higgins is one of our directors.
Fifteenth Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on October 4, 2019, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into a Fifteenth Amendment to Modification Agreement (the “Fifteenth Modification Agreement Amendment”) on September 30, 2019, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and November 30, 2019 (with each such date permitted to be extended by the Lender in its sole discretion); and that the Borrower’s interest payments that would otherwise be due to Lender on December 31, 2018, March 31, 2019, June 30, 2019, and September 30, 2019 would be deferred until November 30, 2019 (the end of the extended Modification Period) and that such deferrals would be a Covered Event.
Sixteenth Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on December 5, 2019, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into a Sixteenth Amendment to Modification Agreement (the “Sixteenth Modification Agreement Amendment”) on November 29, 2019, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and December 31, 2019 (with each such date permitted to be extended by the Lender in its sole discretion); and that the Borrower’s interest payments that would otherwise be due to Lender on December 31, 2018, March 31, 2019, June 30, 2019, and September 30, 2019 would be deferred until December 31, 2019 (the end of the extended Modification Period) and that such deferrals would be a Covered Event.
8
Seventeenth Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on January 7, 2020, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into a Seventeenth Amendment to Modification Agreement (the “Seventeenth Modification Agreement Amendment”) on December 31, 2019, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and January 17, 2020 (with each such date permitted to be extended by the Lender in its sole discretion); and that 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, and December 31, 2019 would be deferred until January 17, 2020 (the end of the extended Modification Period) and that such deferrals would be a Covered Event.
Eighteenth Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on January 23, 2020, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into an Eighteenth Amendment to Modification Agreement (the “Eighteenth Modification Agreement Amendment”) on January 17, 2020, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and January 28, 2020 (with each such date permitted to be extended by the Lender in its sole discretion); and that 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, and December 31, 2019 would be deferred until January 28, 2020 (the end of the extended Modification Period) and that such deferrals would be a Covered Event.
Nineteenth Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on February 3, 2020, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into a Nineteenth Amendment to Modification Agreement (the “Nineteenth Modification Agreement Amendment”) on January 28, 2020, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and (i) April 30, 2020 (provided that Borrower obtained at least $600,000 in cash proceeds from the issuance of Capital Stock (other than Disqualified Capital Stock) or Debt subordinated to the Tranche One Loan (as defined in the Credit Agreement) pursuant to the terms of the Intercreditor Agreement (as defined in the Credit Agreement) on or prior to February 11, 2020) or (ii) February 11, 2020 (if Borrower had not obtained such cash proceeds by such date) (with each such date permitted to be extended by the Lender in its sole discretion); and that 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, and March 31, 2020 would be deferred until the end of the extended Modification Period (but with respect to the March 31, 2020 interest payment, such payment would be deferred only in the event that the end of the extended Modification Period was April 30, 2020 rather than February 11, 2020; otherwise the Borrower would make the interest payment due under the Credit Agreement on March 31, 2020), and that such deferrals would be a Covered Event.
As previously reported in our Current Report on Form 8-K filed with the SEC on February 10, 2020, the proceeds of the Company’s issuance of the Thirteenth Amendment Supplemental Closing Note (as defined in the Purchase Agreement) and the borrowing of the Additional Tranche Three Loan (as defined below) by the Borrower on February 6, 2020 satisfied the condition to obtain at least $600,000 in cash proceeds and the Modification Period was extended through April 30, 2020.
9
Sixth Amendment to Credit Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on February 10, 2020, the Company, the Borrower, the Lender (in its capacity as administrative agent and lender) and the Tranche Three Lenders entered into a Sixth Amendment to Credit Agreement (the “Sixth Credit Agreement Amendment”) on February 6, 2020, pursuant to which the parties agreed to amend the Credit Agreement to, among other things, (i) provide for additional funding under the Tranche Three Loan, in the aggregate principal amount of $500,000, from the Tranche Three Lenders (the “Additional Tranche Three Loan”, and together with the Tranche Three Loan, the “Tranche Three Loans”), with a maturity date of October 7, 2020 (the fifth anniversary of the funding date of the Tranche One Loan (as defined in the Credit Agreement)), with outstanding borrowings bearing interest at the rate of 15.5% per annum, payable quarterly in arrears (subject to the terms of the Modification Agreement, as amended), and with payment of the Additional Tranche Three Loan and any other Obligations (as defined in the Credit Agreement) incurred in connection with the Additional Tranche Three Loan subordinated and subject in right and time of payment to the Payment in Full (as defined in the Credit Agreement) of the Tranche One Loan and any other Obligations incurred in connection with the Tranche One Loan, to the extent and in the manner set forth in the Credit Agreement; and (ii) provide for the issuance of the Thirteenth Amendment Supplemental Closing Note pursuant to the Purchase Agreement.
Also on February 6, 2020, upon the execution of the Sixth Credit Agreement Amendment, (i) the Borrower borrowed the Additional Tranche Three Loan and issued to the Tranche Three Lenders term notes in the aggregate principal amount of $500,000, payable in accordance with the terms of the Credit Agreement (the “Additional Tranche Three Term Notes”), $250,000 from Mr. Johnson and $250,000 from Dr. Higgins, and (ii) the Company issued a warrant for the purchase of 1,000,000 shares of Common Stock, with an exercise price per share equal to $0.01 (subject to adjustment as described therein) and an expiration date of February 6, 2030 (the “Additional Tranche Three Loan Warrant”), to Dr. Higgins in connection with his Additional Tranche Three Loan. Mr. Johnson declined to be issued an Additional Tranche Three Loan Warrant.
Twentieth Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on April 27, 2020, the Company, the Borrower, the Subsidiary Guarantor and the Lender entered into a Twentieth Amendment to Modification Agreement (the “Twentieth Modification Agreement Amendment”) on April 17, 2020, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and September 30, 2020 (with each such date permitted to be extended by the Lender in its sole discretion); and that 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 and June 30, 2020 would be deferred until September 30, 2020 (the end of the extended Modification Period), and that such deferrals would be a Covered Event.
Twenty-First Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on October 6, 2020, the Company, the Borrower, the Subsidiary Guarantor, the Lender and the Tranche Three Lenders entered into a Twenty-First Amendment to Modification Agreement (the “Twenty-First Modification Agreement Amendment”) on September 30, 2020, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and November 30, 2020 (with each such date permitted to be extended by the Lender in its sole discretion); and that the Borrower’s (i) interest payments that would otherwise be due under the Credit Agreement on December 31, 2018, March 31, 2019, June 30, 2019, September 30, 2019, December 31, 2019, March 31, 2020, June 30, 2020, September 30, 2020 and October 7, 2020 and (ii) payments for principal and for any other Obligations then outstanding under the Tranche One Loan and the Tranche Three Loans that would otherwise be due under the Credit Agreement on October 7, 2020, would each be deferred until November 30, 2020 (the end of the extended Modification Period), and that such deferrals would be a Covered Event.
10
Twenty-Second Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on December 4, 2020, the Company, the Borrower, the Subsidiary Guarantor, the Lender and the Tranche Three Lenders entered into a Twenty-Second Amendment to Modification Agreement (the “Twenty-Second Modification Agreement Amendment”) on November 30, 2020, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and January 31, 2021 (with each such date permitted to be extended by the Lender in its sole discretion); and that the Borrower’s (i) interest payments that would otherwise be due under the Credit Agreement on December 31, 2018, March 31, 2019, June 30, 2019, September 30, 2019, December 31, 2019, March 31, 2020, June 30, 2020, September 30, 2020 and October 7, 2020 and (ii) payments for principal and for any other Obligations then outstanding under the Tranche One Loan and the Tranche Three Loans that would otherwise be due under the Credit Agreement on October 7, 2020, would each be deferred until January 31, 2021 (the end of the extended Modification Period).
Twenty-Third Amendment to Modification Agreement
As previously reported in our Current Report on Form 8-K filed with the SEC on February 4, 2021, the Company, the Borrower, the Subsidiary Guarantor, the Lender and the Tranche Three Lenders entered into a Twenty-Third Amendment to Modification Agreement (the “Twenty-Third Modification Agreement Amendment”) on January 31, 2021, pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and May 31, 2021 (with each such date permitted to be extended by the Lender in its sole discretion); and that the Borrower’s (i) interest payments that would otherwise be due under the Credit Agreement on December 31, 2018, March 31, 2019, June 30, 2019, September 30, 2019, December 31, 2019, March 31, 2020, June 30, 2020, September 30, 2020 and October 7, 2020 and (ii) payments for principal and for any other Obligations then outstanding under the Tranche One Loan and the Tranche Three Loans that would otherwise be due under the Credit Agreement on October 7, 2020, would each be deferred until May 31, 2021 (the end of the extended Modification Period).
Twenty-Fourth Amendment to Modification Agreement
On May 25, 2021, the Company, the Borrower, the Subsidiary Guarantor, the Lender and the Tranche Three Lenders entered into a Twenty-Fourth Amendment to Modification Agreement (the “Twenty-Fourth Modification Agreement Amendment”), pursuant to which the parties agreed to amend the Modification Agreement to provide that the dates on which the Lender may elect, in the Lender’s sole discretion, to terminate the Modification Period would be July 31, 2018 and November 30, 2021 (with each such date permitted to be extended by the Lender in its sole discretion); and that the Borrower’s (i) interest payments that would otherwise be due under the Credit Agreement on December 31, 2018, March 31, 2019, June 30, 2019, September 30, 2019, December 31, 2019, March 31, 2020, June 30, 2020, September 30, 2020 and October 7, 2020 and (ii) payments for principal and for any other Obligations then outstanding under the Tranche One Loan and the Tranche Three Loans that would otherwise be due under the Credit Agreement on October 7, 2020, would each be deferred until November 30, 2021 (the end of the extended Modification Period).
The foregoing descriptions of the Credit Agreement, the Modification Agreement, the Credit Agreement Amendment, the Fourth Credit Agreement Amendment, the Amended Tranche One Term Note, the Fifth Credit Agreement Amendment, the Tranche Three Term Note, the Sixth Credit Agreement Amendment, the Additional Tranche Three Term Note, the First Modification Agreement Amendment, the Second Modification Agreement Amendment, the Third Modification Agreement Amendment, the Fourth Modification Agreement Amendment, the Fifth Modification Agreement Amendment, the Sixth Modification Agreement Amendment, the Seventh Modification Agreement Amendment, the Eighth Modification Agreement Amendment, the Ninth Modification Agreement Amendment, the Tenth Modification Agreement Amendment, the Eleventh Modification Agreement Amendment, the Twelfth Modification Agreement Amendment, the Thirteenth Modification Agreement Amendment, the Fourteenth Modification Agreement Amendment, the Fifteenth Modification Agreement Amendment, the Sixteenth Modification Agreement Amendment, the Seventeenth Modification Agreement Amendment, the Eighteenth Modification Agreement Amendment, the Nineteenth Modification Agreement Amendment, the Twentieth Modification Agreement Amendment, the Twenty-First Modification Agreement Amendment, the Twenty-Second Modification Agreement Amendment, the Twenty-Third Modification Agreement Amendment and the Twenty-Fourth Modification Agreement Amendment are qualified, in their entirety, by reference to each such agreement, copies of which are attached as exhibits to this Current Report on Form 8-K and are incorporated by reference in response to this Item 1.01.
11
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits:
| Exhibit No. | Date | Document |
| 10.01 | 06/26/15 | Credit Agreement between the Company and PDL BioPharma, Inc.(1) |
| 10.02 | 10/07/15 | First Amendment to Credit Agreement between the Company and PDL BioPharma, Inc.(2) |
| 10.03 | 02/02/18 | Modification Agreement by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(3) |
| 10.04 | 02/23/18 | Second Amendment to Credit Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, and PDL Investment Holdings, LLC(4) |
| 10.05 | 05/31/18 | Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(5) |
| 10.06 | 06/14/18 | Second Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(6) |
| 10.07 | 06/28/18 | Third Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(7) |
| 10.08 | 07/13/18 | Third Amendment to Credit Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, and PDL Investment Holdings, LLC(8) |
| 10.09 | 08/31/18 | Fourth Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(9) |
| 10.10 | 09/28/18 | Fifth Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(10) |
| 10.11 | 11/12/18 | Sixth Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(11) |
| 10.12 | 11/19/18 | Seventh Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(12) |
| 10.13 | 12/03/18 | Eighth Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(13) |
| 10.14 | 12/17/18 | Ninth Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(14) |
| 10.15 | 01/31/19 | Tenth Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(15) |
12
| 10.16 | 02/28/19 | Eleventh Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(16) |
| 10.17 | 03/29/19 | Twelfth Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(17) |
| 10.18 | 04/09/19 | Fourth Amendment to Credit Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, and PDL Investment Holdings, LLC(18) |
| 10.19 | 04/09/19 | Amended and Restated Tranche One Term Note in the principal amount of $20 million issued to PDL BioPharma, Inc.(18) |
| 10.20 | 04/29/19 | Thirteenth Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(19) |
| 10.21 | 05/15/19 | Fourteenth Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(20) |
| 10.22 | 05/15/19 | Fifth Amendment to Credit Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, PDL Investment Holdings, LLC, Steven G. Johnson and Dr. James R. Higgins(20) |
| 10.23 | 05/15/19 | Form of Tranche Three Term Note(20) |
| 10.24 | 09/30/19 | Fifteenth Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(21) |
| 10.25 | 11/29/19 | Sixteenth Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(22) |
| 10.26 | 12/31/19 | Seventeenth Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(23) |
| 10.27 | 01/17/20 | Eighteenth Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(24) |
| 10.28 | 01/28/20 | Nineteenth Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(25) |
| 10.29 | 02/06/20 | Sixth Amendment to Credit Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, PDL Investment Holdings, LLC, Steven G. Johnson and Dr. James R. Higgins(26) |
| 10.30 | 02/06/20 | Form of Additional Tranche Three Term Note(26) |
| 10.31 | 04/17/20 | Twentieth Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, and PDL Investment Holdings, LLC(27) |
| 10.32 | 09/30/20 | Twenty-First Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, PDL Investment Holdings, LLC, Steven G. Johnson and Dr. James R. Higgins(28) |
| 10.33 | 11/30/20 | Twenty-Second Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, PDL Investment Holdings, LLC, Steven G. Johnson and Dr. James R. Higgins(29) |
13
| 10.34 | 1/31/21 | Twenty-Third Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, PDL Investment Holdings, LLC, Steven G. Johnson and Dr. James R. Higgins(30) |
| 10.35 | 5/25/21 | Twenty-Fourth Amendment to Modification Agreement, by and among the Company, CareView Communications, Inc., a Texas corporation, CareView Operations, L.L.C., a Texas limited liability company, PDL Investment Holdings, LLC, Steven G. Johnson and Dr. James R. Higgins(*) |
| (1) | Filed with the Current Report on Form 8-K filed with the SEC on June 30, 2015. | ||
| (2) | Filed with the Current Report on Form 8-K filed with the SEC on October 13, 2015. | ||
| (3) | Filed with the Current Report on Form 8-K filed with the SEC on February 5, 2018. | ||
| (4) | Filed with the Current Report on Form 8-K filed with the SEC on February 26, 2018. | ||
| (5) | Filed with the Current Report on Form 8-K filed with the SEC on June 4, 2018. | ||
| (6) | Filed with the Current Report on Form 8-K filed with the SEC on June 15, 2018. | ||
| (7) | Filed with the Current Report on Form 8-K filed with the SEC on July 5, 2018. | ||
| (8) | Filed with the Current Report on Form 8-K filed with the SEC on July 16, 2018. | ||
| (9) | Filed with the Current Report on Form 8-K filed with the SEC on September 5, 2018. | ||
| (10) | Filed with the Current Report on Form 8-K filed with the SEC on October 4, 2018. | ||
| (11) | Filed with the Current Report on Form 8-K filed with the SEC on November 16, 2018. | ||
| (12) | Filed with the Current Report on Form 8-K filed with the SEC on November 21, 2018. | ||
| (13) | Filed with the Current Report on Form 8-K filed with the SEC on December 6, 2018. | ||
| (14) | Filed with the Current Report on Form 8-K filed with the SEC on December 21, 2018. | ||
| (15) | Filed with the Current Report on Form 8-K filed with the SEC on February 5, 2019. | ||
| (16) | Filed with the Current Report on Form 8-K filed with the SEC on March 4, 2019. | ||
| (17) | Filed with the Annual Report on Form 10-K filed with the SEC on March 29, 2019 | ||
| (18) | Filed with the Current Report on Form 8-K filed with the SEC on April 15, 2019. | ||
| (19) | Filed with the Current Report on Form 8-K filed with the SEC on May 1, 2019. | ||
| (20) | Filed with the Current Report on Form 8-K filed with the SEC on May 20, 2019. | ||
| (21) | Filed with the Current Report on Form 8-K filed with the SEC on October 4, 2019. | ||
| (22) | Filed with the Current Report on Form 8-K filed with the SEC on December 5, 2019. | ||
| (23) | Filed with the Current Report on Form 8-K filed with the SEC on January 7, 2020. | ||
| (24) | Filed with the Current Report on Form 8-K filed with the SEC on January 23, 2020. | ||
| (25) | Filed with the Current Report on Form 8-K filed with the SEC on February 3, 2020. | ||
| (26) | Filed with the Current Report on Form 8-K filed with the SEC on February 10, 2020. | ||
| (27) | Filed with the Current Report on Form 8-K filed with the SEC on April 27, 2020. | ||
| (28) | Filed with the Current Report on Form 8-K filed with the SEC on October 6, 2020. | ||
| (29) | Filed with the Current Report on Form 8-K filed with the SEC on December 4, 2020. | ||
| (30) | Filed with the Current Report on Form 8-K filed with the SEC on February 4, 2021. | ||
| * | Filed herewith. |
14
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: May 27, 2021 | CAREVIEW COMMUNICATIONS, INC. | |
| By: | /s/ Steven G. Johnson | |
| Steven G. Johnson | ||
| Chief Executive Officer | ||
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”.
2
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.
3
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.”
4
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.
5
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.
6
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]
7
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]