FOURTH AMENDMENT TO CREDIT AGREEMENT AND WAIVER
Execution Version
FOURTH AMENDMENT TO CREDIT AGREEMENT AND WAIVER
This Fourth Amendment to Credit Agreement and Waiver (“Amendment”) is dated as of August 29, 2024 by and among SWK HOLDINGS CORPORATION (“SWK Holdings”), a Delaware corporation, and SWK FUNDING LLC (“SWK Funding”), a Delaware limited liability company (collectively and individually, the “Borrower”), FIRST HORIZON BANK, as agent for Lenders (in such capacity, “Agent”), and the financial institutions party hereto as lenders (collectively, the “Lenders” and each a “Lender”).
BACKGROUND
A.Xxxxxxxx, Xxxxxxx and Agent are parties to a certain Credit Agreement dated as of June 28, 2023 (as amended or modified from time to time, the “Credit Agreement”). Capitalized terms used but not otherwise defined in this Amendment shall have the meanings respectively ascribed to them in the Credit Agreement.
B.Certain Events of Default have occurred and are continuing as a result of (i) the Borrower’s failure to comply with Section 6.12(b) of the Credit Agreement (Consolidated Interest Coverage Ratio) for each of the twelve calendar month periods ending March 31, 2024, April 30, 2024 and June 30, 2024 and (ii) the Borrower’s failure to comply with Section 6.12(f) of the Credit Agreement (Net Charge-Off) for the twelve calendar month period ending June 30, 2024 (collectively, the “Specified Events of Default”).
C.Xxxxxxxx has requested and Agent and Lenders have agreed to (i) waive the Specified Events of Default and (ii) amend the Credit Agreement in certain respects, all on the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby promise and agree as follows:
1.Waiver of Specified Events of Default. Notwithstanding the provisions of the Credit Agreement to the contrary, and subject to the satisfaction of the conditions precedent set forth in Section 4 below, Agent and Xxxxxxx hereby waive the Specified Events of Default. This waiver shall be effective only to the extent specifically set forth herein and shall not (i) be construed as a waiver of any breach, Default or Event of Default other than as specifically waived herein, nor as a waiver of any breach, Default or Event of Default of which the Agent and Lenders have not been informed by the Borrower, (ii) affect the right of the Agent or the Lenders to demand compliance by the Borrower with all terms and conditions of the Credit Agreement and the Loan Documents, except as specifically modified or waived by this Amendment, (iii) to be deemed a waiver of any transaction or future action on the part of the Borrower requiring the Agent or Lenders’ consent or approval under the Credit Agreement and the Loan Documents or obligate Agent or any Lender to grant any future waiver with respect to any Default or Event of Default, or (iv) be deemed or construed to be a waiver or release of, or a limitation upon, the
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Agent or the Lenders’ exercise of any rights or remedies under the Credit Agreement or any Loan Document, whether arising as a consequence of any Default or Event of Default (other than the Specified Events of Default) which may now exist or otherwise, all such rights and remedies hereby being expressly reserved.
2.Amendment. Upon the effectiveness of this Amendment the Credit Agreement is hereby amended such that, after giving effect to all such amendments, it shall read in its entirety as attached hereto as Exhibit A.
3.Amendment Fee. Borrower shall pay to Agent, for the ratable benefit of the Lenders, a non-refundable amendment fee in an amount equal to $40,000 (the “Amendment Fee”), which Amendment Fee shall be due and payable in immediately available funds on the date hereof.
4.Effectiveness Conditions. This Amendment shall be effective upon the completion of the following conditions precedent (all agreements, documents and instruments to be in form and substance reasonably satisfactory to Agent and Agent’s counsel):
(a)Execution and delivery to Agent of this Amendment by Xxxxxxxx and Xxxxxxx.
(b)Execution and delivery to Agent of such other documents and certificates (including Organizational Documents and good standing certificates) as Agent may reasonably request relating to the organization, existence and good standing of Borrower and any other legal matters relating to Borrower, the Loan Documents or the transactions contemplated thereby.
5.Representations and Warranties. Borrower represents and warrants to Agent and Lenders that:
(a)As of the date hereof, the representations and warranties of Borrower contained in the Credit Agreement and in all other Loan Documents are true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality, in all respects) on and as of the date of such extension of credit, as though made on and as of such date (or, in the case of any such representation or warranty expressly stated to have been made as of a specific date, as of such specific date).
The execution and delivery by Borrower of this Amendment and performance of the transactions herein contemplated (i) are and will be within such party’s powers, (ii) have been authorized by all necessary organizational action, and (iii) are not and will not be in contravention in any material respect of any order of any court or other agency of government, of law or any other indenture, agreement or undertaking to which Borrower is a party or by which the property of Borrower is bound, or be in conflict with, result in a breach of, or constitute (with due notice and/or lapse of time) a default under any such indenture, agreement or undertaking or result in the imposition of any lien, charge or encumbrance
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of any nature on any of the properties of Borrower with failure to comply resulting in a Material Adverse Effect.
(b)This Amendment and any assignment, instrument, document, or agreement executed and delivered in connection herewith will be valid, binding and enforceable in accordance with its respective terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law.
(c)After giving effect to this Amendment, no Event of Default or Default has occurred and is continuing under the Credit Agreement or any of the other Loan Documents.
6.Representations. Except as otherwise specified herein, the terms and provisions hereof shall in no manner impair, limit, restrict or otherwise affect the obligations of Borrower or any third party to Agent and Lenders as evidenced by the Loan Documents. Borrower hereby acknowledges, agrees, and represents that (a) as of the date of this Amendment, there are no claims or offsets against, or defenses or counterclaims to, the terms or provisions of the Loan Documents or the other obligations created or evidenced by the Loan Documents; (b) Borrower has no claims, offsets, defenses or counterclaims arising from any of Agent’s or any existing or prior Xxxxxx’s acts or omissions with respect to the Loan Documents or Agent’s or any existing or prior Xxxxxx’s performance under the Loan Documents; and (c) Borrower promises to pay to the order of Agent and Xxxxxxx the indebtedness evidenced by the Notes according to the terms thereof.
7.Collateral. As security for the payment of the Obligations and satisfaction by Borrower of all covenants and undertakings contained in the Credit Agreement and the Loan Documents, Borrower reconfirms the prior security interest and lien on, upon and to, its Collateral, granted pursuant to the Credit Agreement and the other Loan Documents in favor of Agent, for the benefit of Lenders and Issuing Bank, whether now owned or hereafter acquired, created or arising and wherever located. Xxxxxxxx hereby confirms and agrees that all security interests and Xxxxx granted to Agent, for the benefit of Xxxxxxx and Issuing Bank, continue in full force and effect and shall continue to secure the Obligations. All Collateral remains free and clear of any Liens other than permitted pursuant to Section 6.02 of the Credit Agreement. Nothing herein contained is intended to in any manner impair or limit the validity, priority and extent of Agent’s existing security interest in and Liens upon the Collateral.
8.Acknowledgment of Indebtedness and Obligations. Borrower hereby acknowledges and confirms that, as of the date hereof, Borrower is indebted to Agent and Lenders, without defense, setoff or counterclaim, for all Obligations owing under the Credit Agreement plus accrued and unpaid interest, all fees, costs, and expenses, including reasonable attorney’s fees, incurred through the date hereof and any other indebtedness or obligations owed by Borrower with respect to Bank Products owing to Lenders.
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9.Ratification of Loan Documents. This Amendment shall be incorporated into and deemed a part of the Credit Agreement. Except as expressly set forth herein, all of the terms and conditions of the Credit Agreement and the Loan Documents are hereby ratified and confirmed and continue unchanged and in full force and effect. All references to the Credit Agreement shall mean the Credit Agreement as modified by this Amendment.
10.Governing Law. This Amendment, the Credit Agreement, the Loan Documents and the transactions contemplated hereby or thereby, and any claim, controversy, or dispute arising out of or relating to this Amendment, the Credit Agreement, the Loan Documents and the transactions contemplated hereby or thereby shall be governed by, construed and enforced in accordance with the laws of the State of New York, excluding its conflict of law rules.
11.Counterparts. This Amendment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, and such counterparts together shall constitute one and the same respective agreement. Signature by facsimile or PDF shall also bind the parties hereto.
12.WAIVER OF JURY TRIAL. XXXXXXXX, XXXXXXX AND AGENT WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, PROCEEDING OR COUNTERCLAIM OF ANY KIND ARISING OUT OF OR RELATED TO THIS AMENDMENT OR THE TRANSACTIONS DESCRIBED HEREIN.
SIGNATURES ON FOLLOWING PAGES
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IN WITNESS WHEREOF, the parties have caused this Amendment to be executed by their respective duly authorized officers as of the date first above written.
| BORROWER: | SWK HOLDINGS CORPORATION By: ___/s/ Xxx X.Staggs_______________ Name: Xxx X. Xxxxxx Title: President and Chief Executive Officer SWK FUNDING LLC By: SWK Holdings Corporation, its sole Manager By: ___/s/ Xxx X. Staggs_________________ Name: Xxx X. Xxxxxx Title: President and Chief Executive Officer | ||||
[Signature Page to Fourth Amendment to Credit Agreement and Waiver]
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| AGENT: | FIRST HORIZON BANK By: ____________________________ Name: ____________________________ Title: ____________________________ | ||||
[Signature Page to Fourth Amendment to Credit Agreement and Waiver]
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| LENDERS: | FIRST HORIZON BANK By: ____________________________ Name: ____________________________ Title: ____________________________ WOODFOREST NATIONAL BANK By: _____/s/ Xxxxxxxxxxx X. Thompson_____ Name: Xxxxxxxxxxx X. Xxxxxxxx Title: Senior Vice President | ||||
[Signature Page to Fourth Amendment to Credit Agreement and Waiver]
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