AMENDMENT NUMBER FIVE TO CREDIT AGREEMENT AND CONSENT
Exhibit 10.6
AMENDMENT NUMBER FIVE TO CREDIT AGREEMENT AND CONSENT
THIS AMENDMENT NUMBER FIVE TO CREDIT AGREEMENT AND CONSENT (this “Amendment”), dated as of February 22, 2021, is entered into by and among SHARECARE, INC., a Delaware corporation (“Parent”), the Subsidiaries of Parent identified on the signature pages hereof as “Borrowers” (such Subsidiaries, together with Parent, are referred to hereinafter each individually as a “Borrower” and individually and collectively, jointly and severally, “Borrowers”), the lenders identified on the signature pages hereof (such lenders, and the other lenders party to the below-defined Credit Agreement, together with their respective successors and permitted assigns, each individually, a “Lender”, and collectively, the “Lenders”), and XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as administrative agent for the Lenders and the Bank Product Providers (in such capacity, together with its successors and assigns in such capacity, “Agent”), and in light of the following:
W I T N E S S E T H
WHEREAS, Borrowers, Lenders, and Agent are parties to that certain Credit Agreement, dated as of March 9, 2017 (as amended, restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, Borrowers have informed Agent that Parent has entered into that certain Agreement and Plan of Merger, dated as of January 25, 2021 (such Agreement and Plan of Merger, a copy of which is attached hereto as Exhibit A, the “Xxx.xx Merger Agreement”), by and among Xxx.xx Incorporated, a Delaware corporation (the “Target”), Parent, Project Delta Merger Sub I, Inc., a Delaware corporation and a wholly-owned Subsidiary of Parent (“Merger Sub I”), Project Delta Merger Sub II, Inc., a Delaware corporation and a wholly-owned Subsidiary of Parent (“Merger Sub II”), Xxxxxx Xx Xxxxxxx (“Xx Xxxxxxx”), and Fortis Advisors LLC, a Delaware limited liability company, as the Target’s stockholders’ agent (the “Stockholders’ Agent”), pursuant to which (i) Merger Sub I will merge with and into the Target (the “First Merger”), with the Target being the immediately surviving entity and becoming a wholly-owned Subsidiary of Parent as a result of the First Merger, and (ii) immediately after the effectiveness of the First Merger, the Target will merge with and into Merger Sub II (the “Second Merger” and, together with the First Merger, the “Designated Transaction”), with Merger Sub II continuing as the surviving entity in the Second Merger and as a wholly-owned Subsidiary of Parent; and
WHEREAS, Borrowers have requested that Agent and Lenders consent to consummation of the Designated Transaction and make certain amendments to the Credit Agreement in connection therewith, and Agent and Lenders are willing to so consent subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:
1. Defined Terms. All initially capitalized terms used herein (including the preamble and recitals hereof) without definition shall have the meanings ascribed thereto in the Credit Agreement, as amended hereby.
2. Amendments to Credit Agreement. Subject to the satisfaction (or waiver in writing by Agent) of the conditions precedent set forth in Section 4 hereof, the Credit Agreement shall be amended as follows:
(a) Section 1.1 of the Credit Agreement is hereby amended and modified by amending and restating, or adding (as applicable), each of the following defined terms in appropriate alphabetical order:
“Xx Xxxxxxx Subordinated Note” means that certain Subordinated Promissory Note, dated February 22, 2021, in the original principal amount of $14,000,000, issued by Parent in favor of Xxxxxx Xx Xxxxxxx.
“Xxx.xx” means (i) upon consummation of the First Merger until consummation of the Second Merger, Xxx.xx Incorporated, a Delaware corporation and a wholly-owned subsidiary of Parent, and (ii) from and after consummation of the Second Merger, Project Delta Merger Sub II, Inc., a Delaware corporation and a wholly-owned Subsidiary of Parent; provided, that after the Fifth Amendment Date, it is expected that the name of Project Delta Merger Sub II, Inc. will be changed to Sharecare AI, Inc.
“Xxx.xx Letter of Credit” has the meaning set forth in clause (z) of the definition of “Permitted Indebtedness”.
“Xxx.xx Merger Agreement” means the “Xxx.xx Merger Agreement” as that term is defined in the Fifth Amendment.
“Fifth Amendment” means that certain Amendment Number Five and Consent, dated as of February 22, 2021, among Borrowers, the Lenders party thereto, and Agent.
“Fifth Amendment Date” means the “Amendment Effective Date” as that term is defined in the Fifth Amendment.
“First Merger” means the “First Merger” as term is defined in the Fifth Amendment.
“Mergers” means the First Merger and the Second Merger.
“Second Merger” means the “Second Merger” as term is defined in the Fifth Amendment.
(b) Section 1.1 of the Credit Agreement is hereby amended and modified by (i) deleting the word “and” at the end of clause (w) of the definition of “Permitted Indebtedness”, (ii) re-lettering clause (x) in such definition as clause (aa), and (iii) inserting the following after clause (w) in such definition:
“(x) unsecured Indebtedness of Parent in respect of the Xx Xxxxxxx Subordinated Note in an aggregate principal amount not to exceed $14,000,000 incurred contemporaneously with the consummation of the First Merger, so long as such Indebtedness is subordinated in right of payment to the Obligations on terms and conditions satisfactory to Agent,
(y) unsecured Indebtedness of Xxx.xx in an aggregate outstanding amount not to exceed $262,885.53 and incurred prior to the Fifth Amendment Date in respect of unpaid Simple Agreements for Future Tokens (SAFTs) issued to investors between 2017 and 2018,
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(z) during the period from the Fifth Amendment Date to May 1, 2021, Indebtedness of Xxx.xx in respect of that certain Irrevocable Standby Letter of Credit No. 390001335 established by Community Bank of the Bay in favor of Waverley Residential LLC, in the amount of up to $400,000, as amended October 12, 2018, September 19, 2019, and November 5, 2020 (the “Xxx.xx Letter of Credit”), and”
(c) Section 1.1 of the Credit Agreement is hereby amended and modified by (i) deleting the word “and” at the end of clause (w) of the definition of “Permitted Liens”, (ii) re-lettering clause (x) in such definition as clause (y), and (iii) inserting the following after clause (w) in such definition:
“(x) Liens on that certain $400,000 Business 12-23 Month Certificate of Deposit No. 300000163 issued by Community Bank of the Bay to Xxx.xx and renewed on November 1, 2020, solely to the extent securing the Xxx.xx Letter of Credit, and”
(d) Section 6.6(a) of the Credit Agreement is hereby amended and modified by amending and restating clause (vii) thereof in its entirety as follows:
“(vii) make any payment on account of (A) the Indebtedness under the Xx Xxxxxxx Subordinated Note prior to the payment in full of the Obligations, or (B) any other Indebtedness that has been contractually subordinated in right of payment to the Obligations if such payment is not permitted at such time under subordination terms and conditions applicable thereto, or”
(e) Section 6.6(b)(i) of the Credit Agreement is hereby amended and modified by amending and restating clause (F) thereof in its entirety as follows:
“(F) (x) the Xx Xxxxxxx Subordinated Note if the effect thereof, either individually or in the aggregate, could reasonably be expected to be adverse to the interests of the Lenders (it being understood, without limiting the generality of the foregoing, that any amendment, modification or change with respect to the subordination provisions thereof shall be deemed adverse to the interests of the Lenders) and (y) any other Indebtedness that has been contractually subordinated in right of payment to the Obligations to the extent permitted by the subordination agreements relative to such Indebtedness,”
3. Consent and Extension.
(a) The provisions of the Credit Agreement and the other Loan Documents to the contrary notwithstanding, subject to the satisfaction (or waiver in writing by Agent) of the conditions precedent set forth in Section 4 hereof, Agent and the Lenders hereby consent to the consummation of the Mergers in accordance with the terms and subject to the conditions set forth in the Xxx.xx Merger Agreement; provided that (i) the cash purchase consideration payable in respect of such Acquisition shall not exceed $15,000,000 in the aggregate (it being understood that any payment in respect of the Xx Xxxxxxx Subordinated Note after the date hereof shall be excluded when determining whether the foregoing dollar limitation would be exceeded), (ii) there shall have been no amendments, modifications or supplements to the Xxx.xx Merger Agreement that are (individually or in the aggregate) adverse to the interests of Agent or any member of the Lender Group other than with the consent of Agent, and (iii) after giving effect to this Amendment, the Mergers shall qualify as a Permitted Acquisition and satisfy all of the conditions set forth in the definition of Permitted Acquisition under the Credit Agreement (except as set forth in clause (j) of such definition).
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(b) On December 16, 2020, Parent formed a new wholly-owned Subsidiary, Sharecare Xxxxxxx, LLC, a Delaware limited liability company (“SC-Xxxxxxx”), and on January 13, 2021, Merger Sub I and Merger Sub II were formed as new wholly-owned Subsidiaries of Parent. Pursuant to Section 5.11 of the Credit Agreement, within 30 days of the formation or acquisition of any direct or indirect Domestic Subsidiary of Parent or any other Loan Party, Parent or such Loan Party is required to provide to Agent a joinder to the Guaranty and Security Agreement executed by such new Domestic Subsidiary, together with certain other documents, agreements and instruments with respect to such new Domestic Subsidiary to the extent required by Section 5.11 of the Credit Agreement (collectively, the “Subsidiary Joinder Documents”). The provisions of the Credit Agreement and the other Loan Documents to the contrary notwithstanding, subject to the satisfaction (or waiver in writing by Agent) of the conditions precedent set forth in Section 4 hereof, Agent and the Lenders hereby consent to the extension of the deadline to provide the Subsidiary Joinder Documents with respect to each of SC-Xxxxxxx, Merger Sub I and Merger Sub II until the date that is 30 days after the Amendment Effective Date (as defined below) or such later date as Agent may agree in its sole discretion, and agree to waive any Default or Event of Default that may have occurred under the Credit Agreement and the other Loan Documents as a result of the failure to deliver the Subsidiary Joinder Documents by the initial deadline therefor under Section 5.11 of the Credit Agreement. For the avoidance of doubt, the delivery of the Subsidiary Joinder Documents with respect to Merger Sub II as the sole surviving entity of the Mergers shall satisfy the requirement to deliver the Subsidiary Joinder Documents with respect to Merger Sub I and the Target upon consummation of the Mergers.
(c) Except as explicitly set forth herein, the consents set forth in this Section 3 shall not, by implication or otherwise, limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of any of the members of the Lender Group under any provision of the Credit Agreement or any other Loan Document, and all of the provisions of the Credit Agreement and the other Loan Documents shall remain in full force and effect. Neither Agent’s or any other member of the Lender Group’s failure (if any) to require strict performance by Borrowers or any other Loan Party of any provision of any Loan Document nor Agent’s or any other member of the Lender Group’s failure to exercise, or delay in exercising, any remedy, power, right or privilege under any Loan Document nor the election by any of them to exercise any particular remedy, power, right or privilege under any Loan Document shall operate as a waiver thereof or waive, affect or diminish any right of Agent or such member of the Lender Group thereafter to demand strict compliance and performance therewith.
4. Conditions Precedent to Amendment. The satisfaction (or waiver in writing by Agent) of each of the following shall constitute conditions precedent to the effectiveness of the Amendment (such date being the “Amendment Effective Date”):
(a) Agent shall have received this Amendment, duly executed by the parties hereto, and the same shall be in full force and effect.
(b) Agent shall have received a copy of an amendment to the Second Lien Credit Agreement, in form and substance reasonably satisfactory to Agent (the “Second Lien Amendment”), duly executed by the parties hereto, and the same shall be in full force and effect as of the Amendment Effective Date, together with a certificate of the Secretary of Parent certifying such document as being a true and correct copy thereof.
(c) Agent shall have received UCC, tax lien, judgment lien, litigation, bankruptcy and intellectual property searches with respect to Target, and the same shall be satisfactory to Agent.
(d) Agent shall have received a duly executed certificate of an authorized officer of Parent, in substantially the form of Exhibit B attached hereto, together with all attachments thereto.
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(e) After giving effect to this Amendment, the representations and warranties contained herein, in the Credit Agreement, and in the other Loan Documents, in each case shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date hereof, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall continue to be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date).
(f) No injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the consummation of the transactions contemplated herein shall have been issued and remain in force by any Governmental Authority against any Borrower, any Guarantor, Agent, any other member of the Lender Group, or any Bank Product Provider.
(g) No Default or Event of Default shall have occurred and be continuing as of the Amendment Effective Date, nor shall either result from the consummation of the Mergers or any of the other transactions contemplated herein.
(h) Borrowers shall pay concurrently with the closing of the transactions evidenced by this Amendment, all fees, costs, expenses and taxes then payable pursuant to the Credit Agreement and Section 6 of this Amendment.
(i) All other documents and legal matters in connection with the transactions contemplated by this Amendment shall have been delivered, executed, or recorded and shall be in form and substance reasonably satisfactory to Agent.
5. Representations and Warranties. Each Borrower hereby represents and warrants to Agent and each other member of the Lender Group as follows:
(a) It (i) is duly organized and existing and in good standing under the laws of the jurisdiction of its organization, (ii) is qualified to do business in any state where the failure to be so qualified could reasonably be expected to result in a Material Adverse Effect, and (iii) has all requisite power and authority to own and operate its properties, to carry on its business as now conducted and as proposed to be conducted, to enter into this Amendment and the other Loan Documents to which it is a party and to carry out the transactions contemplated hereby and thereby.
(b) The execution, delivery, and performance by it of this Amendment and the performance by it of each Loan Document to which it is or will be a party, and the consummation of the Designated Transaction, in each case, (i) have been duly authorized by all necessary action, (ii) do not and will not (A) violate any material provision of federal, state or local law or regulation applicable to it or its Subsidiaries, the Governing Documents of it or its Subsidiaries, or any order, judgment, or decree of any court or other Governmental Authority binding on it or its Subsidiaries, (B) conflict with, result in a breach of, or constitute (with due notice or lapse of time or both) a default under any Material Contract of it or its Subsidiaries where any such conflict, breach or default could individually or in the aggregate reasonably be expected to have a Material Adverse Effect, (C) result in or require the creation or imposition of any Lien of any nature whatsoever upon any assets of any Loan Party, other than Permitted Liens, or (D) require any approval of any holder of Equity Interests of a Loan Party or any approval or consent of any Person under any Material Contract of any Loan Party, other than consents or approvals that have been obtained and that are still in force and effect and except, in the case of material agreements, for consents or approvals, the failure to obtain could not individually or in the aggregate reasonably be expected to cause a Material Adverse Effect.
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(c) No registration with, consent, or approval of, or notice to, or other action with or by, any Governmental Authority is required in connection with the execution, delivery and performance by it of this Amendment or any other Loan Document to which it is or will be a party.
(d) This Amendment is, and each other Loan Document to which it is or will be a party, when executed and delivered by each Person that is a party thereto, will be the legally valid and binding obligation of such Person, enforceable against such Person in accordance with its respective terms, except as enforcement may be limited by equitable principles or by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights generally.
(e) No injunction, writ, restraining order, or other order of any nature prohibiting, directly or indirectly, the consummation of the transactions contemplated herein has been issued and remains in force by any Governmental Authority against any Borrower, any Guarantor, Agent, any member of the Lender Group, or any Bank Product Provider.
(f) No Default or Event of Default has occurred and is continuing as of the date of the effectiveness of this Amendment, and no condition exists which constitutes a Default or an Event of Default.
(g) The representations and warranties set forth in this Amendment, the Credit Agreement, as amended by this Amendment and after giving effect to this Amendment, and the other Loan Documents to which it is a party are true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) on and as of the date hereof, as though made on and as of such date (except to the extent that such representations and warranties relate solely to an earlier date, in which case such representations and warranties shall continue to be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by materiality in the text thereof) as of such earlier date).
(h) This Amendment has been entered into without force or duress, of the free will of each Borrower, and the decision of each Borrower to enter into this Amendment is a fully informed decision and such Person is aware of all legal and other ramifications of each decision.
(i) It has read and understands this Amendment, has consulted with and been represented by independent legal counsel of its own choosing in negotiations for and the preparation of this Amendment, has read this Amendment in full and final form, and has been advised by its counsel of its rights and obligations hereunder.
6. Payment of Costs and Fees. Borrowers shall jointly and severally pay to Agent and each Lender all Lender Group Expenses (including, without limitation, the reasonable fees and expenses of any attorneys retained by Agent or any Lender) in connection with the preparation, negotiation, execution and delivery of this Amendment and any documents and instruments relating hereto.
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7. Release.
(a) Effective on the date hereof, each Borrower and each Guarantor, for itself and on behalf of its successors, assigns, and officers, directors, employees, agents and attorneys, and any Person acting for or on behalf of, or claiming through it, hereby waives, releases, remises and forever discharges Agent and each Lender, each of their respective Affiliates, and each of their respective successors in title, past, present and future officers, directors, employees, limited partners, general partners, investors, attorneys, assigns, subsidiaries, shareholders, trustees, agents and other professionals and all other persons and entities to whom any member of the Lenders would be liable if such persons or entities were found to be liable to such Borrower or such Guarantor (each a “Releasee” and collectively, the “Releasees”), from any and all past, present and future claims, suits, liens, lawsuits, adverse consequences, amounts paid in settlement, debts, deficiencies, diminution in value, disbursements, demands, obligations, liabilities, causes of action, damages, losses, costs and expenses of any kind or character, whether based in equity, law, contract, tort, implied or express warranty, strict liability, criminal or civil statute or common law (each a “Claim” and collectively, the “Claims”), whether known or unknown, fixed or contingent, direct, indirect, or derivative, asserted or unasserted, matured or unmatured, foreseen or unforeseen, past or present, liquidated or unliquidated, suspected or unsuspected, which such Borrower or such Guarantor ever had from the beginning of the world, now has, or might hereafter have against any such Releasee which relates, directly or indirectly to the Credit Agreement, any other Loan Document, or to any acts or omissions of any such Releasee with respect to the Credit Agreement or any other Loan Document, or to the lender-borrower relationship evidenced by the Loan Documents, except for the duties and obligations set forth in this Amendment. As to each and every Claim released hereunder, each Borrower and each Guarantor hereby represents that it has received the advice of legal counsel with regard to the releases contained herein, and having been so advised, specifically waives the benefit of the provisions of Section 1542 of the Civil Code of California which provides as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
As to each and every Claim released hereunder, each Borrower and each Guarantor also waives the benefit of each other similar provision of applicable federal or state law (including without limitation the laws of the state of New York), if any, pertaining to general releases after having been advised by its legal counsel with respect thereto.
Each Borrower and each Guarantor acknowledges that it may hereafter discover facts different from or in addition to those now known or believed to be true with respect to such Claims and agrees that this instrument shall be and remain effective in all respects notwithstanding any such differences or additional facts. Each Borrower and each Guarantor understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release.
(b) Each Borrower and each Guarantor, for itself and on behalf of its successors, assigns, and officers, directors, employees, agents and attorneys, and any Person acting for or on behalf of, or claiming through it, hereby absolutely, unconditionally and irrevocably, covenants and agrees with and in favor of each Releasee above that it will not xxx (at law, in equity, in any regulatory proceeding or otherwise) any Releasee on the basis of any Claim released, remised and discharged by such Person pursuant to the above release. Each Borrower and each Guarantor further agrees that it shall not dispute the validity or enforceability of the Credit Agreement or any of the other Loan Documents or any of its obligations thereunder, or the validity, priority, enforceability or the extent of Agent’s Lien on any item of Collateral under the Credit Agreement or the other Loan Documents. If any Borrower, any Guarantor, or any of their respective successors, assigns, or officers, directors, employees, agents or attorneys, or any Person acting for or on behalf of, or claiming through it violate the foregoing covenant, such Person, for itself and its successors, assigns and legal representatives, agrees to pay, in addition to such other damages as any Releasee may sustain as a result of such violation, all attorneys’ fees and costs incurred by such Releasee as a result of such violation.
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8. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER; JUDICIAL REFERENCE PROVISION. THIS AMENDMENT SHALL BE SUBJECT TO THE PROVISIONS REGARDING CHOICE OF LAW AND VENUE, JURY TRIAL WAIVER AND JUDICIAL REFERENCE PROVISION SET FORTH IN SECTION 12 OF THE CREDIT AGREEMENT, AND SUCH PROVISIONS ARE INCORPORATED HEREIN BY THIS REFERENCE, MUTATIS MUTANDIS.
9. Amendments. This Amendment cannot be altered, amended, changed or modified in any respect except in accordance with Section 14.1 of the Credit Agreement.
10. Counterpart Execution. This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same Amendment. Delivery of an executed counterpart of this Amendment by telefacsimile or other electronic method of transmission shall be equally as effective as delivery of an original executed counterpart of this Amendment. Any party delivering an executed counterpart of this Amendment by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Amendment, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Amendment.
11. Further Assurances. Borrowers shall execute and deliver all agreements, documents and instruments, in form and substance satisfactory to Agent, and take all actions as Agent may reasonably request from time to time to perfect and maintain the perfection and priority of the security interests of Agent in the Collateral and to consummate fully the transactions contemplated under this Amendment and the other Loan Documents.
12. Effect on Loan Documents.
(a) The Credit Agreement, as amended hereby, and each of the other Loan Documents, as amended as of the date hereof, shall be and remain in full force and effect in accordance with their respective terms and hereby are ratified and confirmed in all respects. The execution, delivery, and performance of this Amendment shall not operate, except as expressly set forth herein, as a modification or waiver of any right, power, or remedy of Agent or any Lender under the Credit Agreement or any other Loan Document. Except for the amendments to the Credit Agreement expressly set forth herein, the Credit Agreement and the other Loan Documents shall remain unchanged and in full force and effect. The waivers, consents and modifications set forth herein are limited to the specifics hereof (including facts or occurrences on which the same are based), shall not apply with respect to any facts or occurrences other than those on which the same are based, shall neither excuse any future non-compliance with the Loan Documents nor operate as a waiver of any Default or Event of Default, shall not operate as a consent to any further waiver, consent or amendment or other matter under the Loan Documents, and shall not be construed as an indication that any future waiver or amendment of covenants or any other provision of the Credit Agreement will be agreed to, it being understood that the granting or denying of any waiver or amendment which may hereafter be requested by any Borrower remains in the sole and absolute discretion of Agent and Lenders. To the extent that any terms or provisions of this Amendment conflict with those of the Credit Agreement or the other Loan Documents, the terms and provisions of this Amendment shall control.
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(b) Upon and after the effectiveness of this Amendment, each reference in the Credit Agreement to “this Agreement”, “hereunder”, “herein”, “hereof” or words of like import referring to the Credit Agreement, and each reference in the other Loan Documents to “the Credit Agreement”, “thereunder”, “therein”, “thereof” or words of like import referring to the Credit Agreement, shall mean and be a reference to the Credit Agreement as modified and amended hereby.
(c) To the extent that any of the terms and conditions in any of the Loan Documents shall contradict or be in conflict with any of the terms or conditions of the Credit Agreement, after giving effect to this Amendment, such terms and conditions are hereby deemed modified or amended accordingly to reflect the terms and conditions of the Credit Agreement as modified or amended hereby.
(d) This Amendment is a Loan Document.
(e) Unless the context of this Amendment clearly requires otherwise, references to the plural include the singular, references to the singular include the plural, the terms “includes” and “including” are not limiting, and the term “or” has, except where otherwise indicated, the inclusive meaning represented by the phrase “and/or”. The words “hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Amendment refer to this Amendment as a whole and not to any particular provision of this Amendment. Section, subsection, clause, schedule, and exhibit references herein are to this Amendment unless otherwise specified. Any reference in this Amendment to any agreement, instrument, or document shall include all alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and thereof, as applicable (subject to any restrictions on such alterations, amendments, changes, extensions, modifications, renewals, replacements, substitutions, joinders, and supplements set forth herein). The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties. Any reference herein to any Person shall be construed to include such Person’s successors and assigns.
13. Entire Agreement. This Amendment, and the terms and provisions hereof, the Credit Agreement and the other Loan Documents constitute the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and supersede any and all prior or contemporaneous amendments or understandings with respect to the subject matter hereof, whether express or implied, oral or written.
14. Integration. This Amendment, together with the other Loan Documents, incorporates all negotiations of the parties hereto with respect to the subject matter hereof and is the final expression and agreement of the parties hereto with respect to the subject matter hereof.
15. Reaffirmation of Obligations. Each Borrower hereby (a) acknowledges and reaffirms its obligations owing to Agent, each member of the Lender Group, and the Bank Product Providers under each Loan Document to which it is a party, and (b) agrees that each of the Loan Documents to which it is a party is and shall remain in full force and effect. Each Borrower hereby (i) 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 Guaranty and Security Agreement or any other Loan Document to Agent, on behalf and for the benefit of each member of the Lender Group and each Bank Product Provider, as collateral security for the obligations under the Loan Documents in accordance with their respective terms, and (ii) 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 (including, without limitation, from after giving effect to this Amendment).
16. Ratification. Each Borrower hereby restates, ratifies and reaffirms each and every term and condition set forth in the Credit Agreement and the Loan Documents effective as of the date hereof and as modified hereby.
17. Severability. In case any provision in this Amendment shall be invalid, illegal or unenforceable, such provision shall be severable from the remainder of this Amendment and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above written.
| “Borrowers” | |
|
SHARECARE, INC. (for itself and as successor by merger a Delaware corporation |
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | EVP, Finance and HR |
|
LUCID GLOBAL, INC., a Delaware corporation |
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | EVP, Finance and HR |
|
HEALTHWAYS SC, LLC, a Delaware limited liability company |
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | EVP, Finance and HR |
| SHARECARE HEALTH DATA SERVICES, INC. (formerly known as Bactes Imaging Solutions, Inc.), a Delaware corporation |
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | EVP, Finance and HR |
| SHARECARE HEALTH DATA SERVICES, LLC (formerly known as Bactes Imaging Solutions, LLC), a Delaware limited liability company |
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | EVP, Finance and HR |
| Visualize Health, LLC (formerly known as New VH, LLC), a Delaware limited liability company |
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | EVP, Finance and HR |
| HDS-VH HOLDINGS, INC., a Delaware corporation |
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | EVP, Finance and HR |
| MINDSCIENCES, INC., a Delaware corporation |
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | EVP, Finance and HR |
| SC-WHAI, LLC, a Delaware limited liability company |
| By: | /s/ Xxxxx Xxxxxx | |
| Name: | Xxxxx Xxxxxx | |
| Title: | EVP, Finance and HR |
| “Agent” and “Lender” | |
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, a national banking association |
| By: | /s/ Xxxx Xxxxxxx | |
| Name: | Xxxx Xxxxxxx | |
| Title: | Its Duly Authorized Signatory |
EXHIBIT A
XXX.XX MERGER AGREEMENT
EXHIBIT B
FORM OF CERTIFICATE
