SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

Exhibit 10.6

SECOND AMENDMENT TO

AMENDED AND RESTATED CREDIT AGREEMENT

THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”), dated as of November 14, 2017, is entered into by and among XXXXXX XXXXXX, INC., a New York Corporation (“Borrower”), each of the undersigned financial institutions (individually each a “Lender” and collectively “Lenders”) and SWK FUNDING LLC, a Delaware limited liability company, in its capacity as administrative agent for the other Lenders (in such capacity, “Agent”).

RECITALS

WHEREAS, Borrower, Agent and Lenders entered into that certain Amended and Restated Credit Agreement, dated as of May 11, 2017, which amended and restated that certain Credit Agreement, dated as of April 17, 2015, by and among the Borrower, Agent and Lenders (as amended by that certain First Amendment to Amended and Restated Credit Agreement, dated as of August 8, 2017, and as the same may be further amended, modified or restated from time to time, being hereinafter referred to as the “Credit Agreement”; capitalized terms used in this Amendment are defined in the Credit Agreement unless otherwise stated); and

WHEREAS, Borrower, Agent and Lenders desire and are willing, to amend the Credit Agreement as set forth below.

AGREEMENT

NOW, THEREFORE, in consideration of the premises herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, agree as follows:

ARTICLE I

Limited Waiver

1.1 Borrower has failed to comply with Section 7.13.2 of the Credit Agreement in that Borrower permitted the Aggregate Revenue for the six (6) consecutive month period ending on the last Business Day of September 2017 to be less than $26,000,000, which failure constitutes an Event of Default under Section 8.1.4 of the Credit Agreement (the “Specified Default”). Agent and Lenders hereby waive the Specified Default effective as of the Second Amendment Effective Date.

1.2    Except as specifically set forth above in relation to the Specified Default, nothing contained in this Amendment or any other communication between Agent, any Lender, Borrower or any other Loan Party shall be a waiver of any past, present or future violation, Default or Event of Default of Borrower under the Credit Agreement or any Loan Document. Agent and each Lender hereby expressly reserves any rights, privileges and remedies under the Credit Agreement and each

1

Loan Document that Lender may have with respect to any violation, Default or Event of Default, and any failure by Agent or any Lender to exercise any right, privilege or remedy as a result of the violations set forth above shall not directly or indirectly in any way whatsoever either (i) impair, prejudice or otherwise adversely affect the rights of Agent or any Lender, except as set forth herein, at any time to exercise any right, privilege or remedy in connection with the Credit Agreement or any Loan Document, (ii) amend or alter any provision of the Credit Agreement or any Loan Document or any other contract or instrument or (iii) constitute any course of dealing or other basis for altering any obligation of Borrower or any rights, privilege or remedy of Agent or any Lender under the Credit Agreement or any Loan Document or any other contract or instrument. Nothing in this Amendment shall be construed to be a consent by Agent or any Lender to any prior, existing or future violations of the Credit Agreement or any Loan Document.

1.3    Borrower is hereby notified that irrespective of (i) any waivers or consents previously granted by Agent or any Lender regarding the Credit Agreement and the Loan Documents (including, for the avoidance of doubt, the waiver specifically set forth above in relation to the Specified Default), (ii) any previous failures or delays of Agent or any Lender in exercising any right, power or privilege under the Credit Agreement or the Loan Documents or (iii) any previous failures or delays of Agent or any Lender in the monitoring or in the requiring of compliance by Borrower with the duties, obligations and agreements of Borrower in the Credit Agreement and the Loan Documents, Borrower will be expected to comply strictly with its duties, obligations and agreements under the Credit Agreement and the Loan Documents.

ARTICLE II

Amendments to Credit Agreement

Amendment to Section 2.7(b). Effective as of the Second Amendment Effective Date, Section 2.7(b) of the Credit Agreement is amended and restated in its entirety to read as follows:

“(b) Exit Fee and Second Amendment Fee.

(i)     Upon the earlier to occur of (i) the Maturity Date, or (ii) full repayment of the Loan and all other Obligations, whether as a result of the application of Net Cash Proceeds from any Disposition, the contractual acceleration of the Loan hereunder, an acceleration of the Loan by Agent in accordance with this Agreement or otherwise, Borrower shall pay an exit fee to Agent, for the benefit of Lenders, in an amount equal to seven percent (7.0%) multiplied by the aggregate principal amount of the Closing Date Term Loan advanced hereunder and the amount of the Revolving Loan Commitment.

(ii)    In addition to the foregoing Exit Fee payable in connection with the Closing Date Term Loan and Revolving Loan Comittment as set forth above, upon the full repayment of the August 2017 Term Loan, whether as a result of the contractual acceleration and acceleration by Agent in accordance with this Agreement or otherwise (the “August 2017 Term Loan Repayment Date”), Borrower shall pay an additional exit fee (“2017 Exit Fee”) to Agent, for the benefit of Lenders,

2

in an amount equal to (x) if such repayment occurs on or prior to November 30, 2017, seven percent (7.0%) multiplied by the aggregate principal amount of the August 2017 Term Loan, or (y) if such repayment occurs after November 30, 2017, fourteen percent (14.0%) multiplied by the aggregate principal amount of the August 2017 Term Loan; provided, however, that as it relates solely to the 2017 Exit Fee, such fee may, at the election of Borrower, be capitalized into the Loan on the date of any such repayment, and the outstanding principal balance of the Loan shall be increased by an amount equal to such 2017 Exit Fee that would otherwise be due on such repayment date with no further action by Agent, Lenders or Borrower

(ii)    In addition to the amounts payable pursuant to subsections (i) and (ii) set forth above, and in consideration for the waiver and other financial accomodations made by Agent pursuant to that certain Second Amendment to Amended and Restated Credit Agreement dated as of November 14, 2017, Borrower shall pay to Agent, on the August 2017 Term Loan Repayment Date, an amendment fee in the amount of $50,000, which fee shall be deemed fully earned and non-refundable as of November 14, 2017.”

ARTICLE III

Conditions Precedent

Conditions Precedent. The effectiveness of this Amendment is subject to the satisfaction of the following conditions precedent in a manner satisfactory to Agent, unless specifically waived in writing by Agent in its sole discretion (the date on which all such conditions are satisfied or waived referred to herein as the “Second Amendment Effective Date”):

A.    Agent shall have received: this Amendment and the Reaffirmation of the Amended and Restated Guarantee and Collateral Agreement, duly executed by all parties thereto.

B.    Agent shall have received payment, for the benefit of Lenders, of all unpaid interest that has accrued on the August 2017 Term Loan through October 15, 2017.

C.    The representations and warranties contained herein and in the Credit Agreement and the other Loan Documents, as each is amended hereby, shall be true and correct as of the date hereof, as if made on the date hereof, except for such representations and warranties as are by their express terms limited to a specific date.

D.    All corporate proceedings taken in connection with the transactions contemplated by this Amendment and all documents, instruments and other legal matters incident thereto shall be satisfactory to Agent.

3

E.    Agent shall have received payment of all costs and expenses due and owing by Borrower on or prior to the date hereof (including, without limitation, all legal fees of Agent’s counsel).

ARTICLE IV

Ratifications, Representations and Warranties

4.1    Ratifications. The terms and provisions set forth in this Amendment shall modify and supersede all inconsistent terms and provisions set forth in the Credit Agreement and the other Loan Documents, and, except as expressly modified and superseded by this Amendment, the terms and provisions of the Credit Agreement and the other Loan Documents are ratified and confirmed and shall continue in full force and effect. Borrower, Lenders and Agent agree that the Credit Agreement and the other Loan Documents, as amended hereby, shall continue to be legal, valid, binding and enforceable in accordance with their respective terms. Borrower agrees that this Amendment is not intended to and shall not cause a novation with respect to any or all of the Obligations.

4.2    Representations and Warranties. Borrower hereby represents and warrants to Agent and Lenders that (a) the execution, delivery and performance of this Amendment, the amended and restated warrant referred to in Section 3.1 above and any and all other Loan Documents executed and/or delivered in connection herewith have been authorized by all requisite action (as applicable) on the part of Borrower and will not violate the organizational documents of Borrower; (b) Borrower’s directors have authorized the execution, delivery and performance of this Amendment, the warrant referred to in Section 3.1 above and any and all other Loan Documents executed and/or delivered in connection herewith; (c) the representations and warranties contained in the Credit Agreement, as amended hereby, and any other Loan Document are true and correct on and as of the date hereof and on and as of the date of execution hereof as though made on and as of each such date (except to the extent such representations and warranties expressly relate to an earlier date); (d) [Reserved]; (e) Except as it relates to the Specified Default, Borrower is in full compliance in all material respects with all covenants and agreements contained in the Credit Agreement and the other Loan Documents, as amended hereby; and (f) except as disclosed to Agent, Borrower has not amended its organizational documents since the date of the Credit Agreement.

ARTICLE V

4

Miscellaneous Provisions

5.1    Survival of Representations and Warranties. All representations and warranties made in the Credit Agreement or any other Loan Document, including, without limitation, any document furnished in connection with this Amendment, shall survive the execution and delivery of this Amendment and the other Loan Documents, and no investigation by Agent or any Lender or any closing shall affect the representations and warranties or the right of Agent and each Lender to rely upon them.

5.2    Reference to Credit Agreement. Each of the Credit Agreement and the other Loan Documents, and any and all other Loan Documents, documents or instruments now or hereafter executed and delivered pursuant to the terms hereof or pursuant to the terms of the Credit Agreement, as amended hereby, are hereby amended so that any reference in the Credit Agreement and such other Loan Documents to the Credit Agreement shall mean a reference to the Credit Agreement, as amended hereby.

5.3    Expenses of Agent. As provided in the Credit Agreement, Borrower agrees to pay on demand all costs and expenses incurred by Agent, or its Affiliates, in connection with the preparation, negotiation, and execution of this Amendment and the other Loan Documents executed pursuant hereto and any and all amendments, modifications, and supplements thereto, including, without limitation, the reasonable costs and fees of legal counsel, and all costs and expenses incurred by Agent and each Lender in connection with the enforcement or preservation of any rights under the Credit Agreement, as amended hereby, or any other Loan Documents, including, without, limitation, the reasonable costs and fees of legal counsel.

5.4    Severability. Any provision of this Amendment held by a court of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of this Amendment and the effect thereof shall be confined to the provision so held to be invalid or unenforceable.

5.5    Successors and Assigns. This Amendment is binding upon and shall inure to the benefit of Agent and each Lender and Borrower and their respective successors and assigns, except that Borrower may not assign or transfer any of its rights or obligations hereunder without the prior written consent of Agent.

5.6    Counterparts. This Amendment may be executed in one or more counterparts, each of which when so executed shall be deemed to be an original, but all of which when taken together shall constitute one and the same instrument. This Amendment may be executed by facsimile or electronic (.pdf) transmission, which facsimile or electronic (.pdf) signatures shall be considered original executed counterparts for purposes of this Section 5.6, and each party to this Amendment agrees that it will be bound by its own facsimile or electronic (.pdf) signature and that it accepts the facsimile or electronic (.pdf) signature of each other party to this Amendment.

5.7    Effect of Waiver. No consent or waiver, express or implied, by Agent to or for any breach of or deviation from any covenant or condition by Borrower shall be deemed a consent to or waiver of any other breach of the same or any other covenant, condition or duty.

5

5.8    Headings. The headings, captions, and arrangements used in this Amendment are for convenience only and shall not affect the interpretation of this Amendment.

5.9    Applicable Law. THE TERMS AND PROVISIONS OF SECTIONS 10.17 (GOVERNING LAW) AND 10.18 (FORUM SELECTION; CONSENT TO JURISDICTION) OF THE CREDIT AGREEMENT ARE HEREBY INCORPORATED HEREIN BY REFERENCE, AND SHALL APPLY TO THIS AMENDMENT MUTATIS MUTANDIS AS IF FULLY SET FORTH HEREIN.

5.10    Final Agreement. THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS, EACH AS AMENDED HEREBY, REPRESENT THE ENTIRE EXPRESSION OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF ON THE DATE THIS AMENDMENT IS EXECUTED. THE CREDIT AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS AMENDED HEREBY, MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES. NO MODIFICATION, RESCISSION, WAIVER, RELEASE OR AMENDMENT OF ANY PROVISION OF THIS AMENDMENT SHALL BE MADE, EXCEPT BY A WRITTEN AGREEMENT SIGNED BY BORROWER AND AGENT.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

6

IN WITNESS WHEREOF, this Amendment has been executed and is effective as of the date first above‑written.

BORROWER:

XXXXXX XXXXXX, INC.,

a New York corporation

By:    /s/ Xxxxx X. Xxxxxx    

Name: Xxxxx X. Xxxxxx

Title: Chief Executive Officer

AGENT AND LENDER:

SWK FUNDING LLC,
as Agent and a Lender By:     SWK Holdings Corporation,

its sole Manager

By:     /s/ Xxxxxxx Xxxxx    

Name:     Xxxxxxx Xxxxx

Title:     Chief Executive Officer

REAFFIRMATION OF

AMENDED AND RESTATED GUARANTEE AND COLLATERAL AGREEMENT

The undersigned (the “Guarantor”) each hereby acknowledges and agrees to the amendments of the Credit Agreement contained in this Second Amendment to Amended and Restated Credit Agreement, dated as of November 14, 2017 (the “Amendment”), and acknowledges and reaffirms its obligations owing to Agent and the Lenders under that certain Amended and Restated Guarantee and Collateral Agreement, dated as of May 11, 2017 (the “Guarantee Agreement”) and any of the other Loan Documents to which it is a party, and agrees that such Guarantee and Loan Documents are and shall remain in full force and effect. Although Guarantor has been informed of the matters set forth herein and has acknowledged and agreed to same, Guarantor understands that Agent and Lenders have no obligation to inform Guarantor of such matters in the future or to seek Guarantor’s acknowledgement or agreement to future amendments or waivers, and nothing herein shall create such a duty.

[Signatures Follow]

XXXXXX XXXXXX, INC.,

a New York corporation

By:    /s/ Xxxxx X. Xxxxxx    

Name:    Xxxxx X. Xxxxxx

Title:    Chief Executive Officer

PROVANT HEALTH SOLUTIONS, LLC,

a Rhode Island limited liability company

By:    /s/ Xxxxx X. Xxxxxx    

Name:    Xxxxx X. Xxxxxx

Title:    Chief Executive Officer

XXXXXX WELLNESS, LLC,

a Kansas limited liability company

By:    /s/ Xxxxx X. Xxxxxx    

Name:    Xxxxx X. Xxxxxx

Title:    Chief Executive Officer

ACCOUNTABLE HEALTH SOLUTIONS, LLC,

a Kansas limited liability company

By:    /s/ Xxxxx X. Xxxxxx    

Name:    Xxxxx X. Xxxxxx

Title:    Chief Executive Officer

XXXXXX INFORMATION SERVICES, INC.,

a New Jersey corporation

By:    /s/ Xxxxx X. Xxxxxx    

Name:    Xxxxx X. Xxxxxx

Title:    Chief Executive Officer

XXXXXX DISTRIBUTION SERVICES, LLC,

a New Jersey limited liability company

By: Xxxxxx Xxxxxx, Inc.,

its Manager
By:    /s/ Xxxxx X. Xxxxxx    

Name:    Xxxxx X. Xxxxxx

Title:    Chief Executive Officer

XXXXXX KIT SERVICES, LLC,

a Kansas limited liability company

By: Xxxxxx Xxxxxx, Inc.,

its sole Member
By:    /s/ Xxxxx X. Xxxxxx    

Name:    Xxxxx X. Xxxxxx

Title:    Chief Executive Officer