Waystar Holding S1/A IPO registration (amended) | WAY 26 Oct 23

Exhibit 10.6

EXECUTION VERSION

THIRD AMENDMENT, dated as of March 24, 2021 (this “Agreement”), to the First Lien Credit Agreement, dated as of October 22, 2019 (as amended by the First Amendment thereto, dated as of December 2, 2019, as amended by that Second Amendment thereto, dated as of September 23, 2020, and as further amended, restated, amended and restated, supplemented, or otherwise modified from time to time, the “Credit Agreement”), by and among BNVC Holdings, Inc., a Delaware corporation (as successor to Derby Parent, Inc., “Holdings”), Waystar Technologies, Inc. (f/k/a Navicure, Inc.), a Delaware corporation (as successor to Derby Merger Sub, Inc. and BNVC Group Holdings, Inc., the “Borrower”), the financial institutions from time to time party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent (in such capacity, the “Administrative Agent”), and JPMorgan Chase Bank, N.A., Barclays Bank PLC and Deutsche Bank AG New York Branch, as Issuing Banks.

A.        Pursuant to Section 9.02(c)(i) of the Credit Agreement, the Borrower has requested to incur Replacement Term Loans (as defined below) to replace in full all Second Amendment Incremental Term Loans outstanding under the Credit Agreement immediately prior to the effectiveness of this Agreement (the “Existing Term Loans”) with the Replacement Term Loans, and which Replacement Term Loans shall have the same terms (other than to the extent expressly provided in this Agreement) under the Loan Documents as the Existing Term Loans and become part of the same Class of Term Loans as the Initial Term Loans. The Borrower has appointed JPMorgan Chase Bank, N.A. as lead arranger and joint bookrunner and appointed Barclays Bank PLC and Deutsche Bank Securities, Inc. as joint bookrunners for the Replacement Term Loans.

B.        Each Person set forth on Schedule I hereto (each such Person, a “Replacement Term Loan Lender”) will be deemed to have irrevocably agreed and consented to the terms of this Agreement and will commit to make the Replacement Term Loans (the “Replacement Term Loans”) under the Credit Agreement to the Borrower on the Third Amendment Closing Date (as defined below) in the amount set forth opposite such Replacement Term Loan Lender’s name on Schedule I hereto.

C.        The proceeds of the Replacement Term Loans will be used to replace in full all Existing Term Loans, on the terms and subject to the conditions set forth herein. Accordingly, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows:

SECTION 1. Definitions. Capitalized terms used but not defined in this Agreement have the meanings assigned thereto in the Credit Agreement. The provisions of Section 1.03 of the Credit Agreement are hereby incorporated by reference herein, mutatis mutandis. This Agreement shall be a “Refinancing Amendment” for all purposes of the Credit Agreement, and shall be a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents. Each Replacement Term Loan Lender shall, upon the effectiveness of this Agreement in accordance with Section 5 hereof, be a party to the Credit Agreement, have the rights and obligations of a Lender thereunder, and shall be a “Lender” for all purposes of the Credit Agreement and the other Loan Documents.

Section 1.01     Replacement Term Loan Lenders; Replacement Term Loans; Administrative Agent Authorization.

(a) Replacement Term Loan Lenders. On the terms set forth herein and in the Credit Agreement and subject to the conditions set forth herein, each Replacement Term Loan Lender, by delivering its signature page to this Agreement, (i) irrevocably agrees to the terms of this Agreement and (ii) irrevocably commits to make, upon the Third Amendment Closing Date, Replacement Term Loans in the amount set forth opposite its name on Schedule I hereto by (A) funding such Replacement Term Loans in cash in the amount indicated with respect to such Replacement Term Loan Lender in Schedule I (any such Replacement Term Loan Lender, to the extent electing to fund its Replacement Term Loans in cash, a “New Term Lender”) and/or (y) converting into an equivalent principal amount of Replacement Term Loans such principal amounts of such Replacement Term Loan Lender’s Existing Term Loans as are indicated with respect to such Replacement Term Loan Lender in Schedule I (any such Replacement Term Loan Lender, to the extent electing to make its Replacement Term Loans pursuant to such conversions, a “Converting Term Lender”; any such Existing Term Loans converted into Replacement Term Loans, the “Converted Loans”) (the commitment of each Replacement Term Loan Lender to make Replacement Term Loans, including pursuant to such conversions, in the amounts set forth with respect to such Lender on Schedule I attached hereto, the “Replacement Term Commitment” of such Replacement Term Loan Lender and, collectively for all the Replacement Term Loan Lenders, the “Replacement Term Commitments”). No Replacement Term Loan Lender shall be responsible for any other Replacement Term Loan Lender’s failure to make Replacement Term Loans. From and after the Third Amendment Closing Date, each Replacement Term Loan Lender shall be a “Lender”, a “Term Lender” and an “Initial Term Lender” under, and for all purposes of, the Credit Agreement and the other Loan Documents. The commitments and the undertakings of each Replacement Term Loan Lender are several.

(b) Replacement Term Loans.

(a)        As of the Third Amendment Closing Date, the Replacement Term Loans shall be “Loans”, “Initial Term Loans”, “Term Loans”, “Replacement Term Loans” and “Additional Term Loans” under, and for all purposes of, the Credit Agreement and the other Loan Documents and the Replacement Term Commitments shall be “Term Commitments” under, and for all purposes of, the Credit Agreement and the other Loan Documents. The Replacement Term Loans shall have the same terms as the Existing Term Loans outstanding immediately prior to the Third Amendment Closing Date, other than to the extent expressly provided in this Agreement. Without limiting the foregoing, the Replacement Term Loans shall have the same maturity date as the Existing Term Loans outstanding immediately prior to the Third Amendment Closing Date. Upon the Third Amendment Closing Date, the Replacement Term Loans shall be treated as part of the same Class of Term Loans as the Initial Term Loan for all purposes of the Credit Agreement and the other Loan Documents. It is understood and agreed that on the Third Amendment Closing Date, the Replacement Term Loans shall be added to (and form part of) each Term Borrowing of outstanding Initial Term Loans on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Initial Term Lender will participate proportionately in each then outstanding Initial Term Borrowing.

(b)        On the Third Amendment Closing Date, the proceeds of the Replacement Term Loans (other than the Converted Loans) shall be applied to replace in full the principal of all of the Existing Term Loans (other than the Converted Loans), on the terms and subject to the conditions set forth herein. Notwithstanding anything herein or in the Credit Agreement to the contrary, the aggregate principal amount of the Replacement Term Loans shall not exceed the aggregate principal amount of the Existing Term Loans outstanding immediately prior to the Third Amendment Closing Date.

(c)        Upon the effectiveness of this Agreement, the Existing Term Loans outstanding immediately prior to the Third Amendment Closing Date (other than the Converted Loans) shall be prepaid in full with the proceeds of the Replacement Term Loans by the Borrower on the Third Amendment Closing Date. Each Replacement Term Loan Lender hereby waives (i) any breakage loss, cost or expense due and payable to it by the Borrower pursuant to Section 2.16 of the Credit Agreement with respect to the repayment of the Existing Term Loans on a date other than the last day of the Interest Period relating to such Existing Term Loans and (ii) the prepayment notice requirements set forth in Section 2.11(a) of the Credit Agreement with respect to the prepayment of the Existing Term Loans with the proceeds of the Replacement Term Loans on the Third Amendment Closing Date.

(d)        Notwithstanding anything herein or in the Credit Agreement to the contrary, (i) on the Third Amendment Closing Date, the Borrower shall pay all accrued and unpaid interest with respect to the Existing Term Loans outstanding immediately prior to such date and (ii) each Converting Term Lender hereby waives (x) the notice requirements of Section 2.08 of the Credit Agreement with respect to the conversion of the interest rate applicable to the Converted Loans and the Borrowing of the Replacement Term Loans and (y) any breakage loss, cost or expense due and payable to it by the Borrower pursuant to Section 2.16 of the Credit Agreement in connection with the repayment of interest and the conversion to a new Interest Period on the Third Amendment Closing Date as described above.

(c) Administrative Agent Authorization. The Borrower and each Replacement Term Loan Lender hereby authorize the Administrative Agent to (i) determine all amounts, percentages and other information with respect to the Loans of each Lender and (ii) enter and complete all such amounts, percentages and other information in the Register. The Administrative Agent’s determination and entry and completion shall be conclusive evidence of the existence, amounts, percentages and other information with respect to the obligations of the Borrower under the Credit Agreement, in each case, absent manifest error.

SECTION 2. Amendments to the Credit Agreement. Subject to the satisfaction or waiver of the conditions set forth in Section 5 hereof, the Credit Agreement is hereby amended by deleting the stricken test (indicated textually in the same manner as the following example: ~~stricken text~~) and adding the underlined text (indicated textually in the same manner as the following example: underlined text) as set forth on Exhibit A attached hereto.

SECTION 3. Representations and Warranties. To induce the other parties hereto to enter into this Agreement, Holdings and the Borrower hereby jointly and severally represent and warrant to the Administrative Agent and each Lender that, as of the Third Amendment Closing Date:

(a) Holdings and the Borrower have the organizational power and authority, and the legal right, to enter into this Agreement and to carry out the transactions contemplated by, and perform its obligations under, this Agreement, the Credit Agreement and the other Loan Documents;

(b) Holdings and the Borrower have taken all necessary organizational action to authorize the execution, delivery and performance of this Agreement;

(c) This Agreement has been duly executed and delivered on behalf of Holdings and the Borrower and constitutes the legal, valid and binding obligation of Holdings and the Borrower, enforceable against Holdings and the Borrower in accordance with its terms, except as enforceability may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the enforcement of creditor’s rights generally, by general equitable principles (whether enforcement is sought by proceedings in equity or at law) and by general principles of good faith and fair dealing; and

(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents are true and correct in all material respects on and as of the Third Amendment Closing Date as if made on and as of such date, except for representations and warranties expressly stated to relate to a specified date, in which case such representations and warranties are true and correct in all material respects as of such specified date (it being understood and agreed that the reference in Section 3.12 of the Credit Agreement to “the Closing Date, immediately after the consummation of the Transactions to occur on the Closing Date” shall be deemed to refer instead to “the Third Amendment Closing Date, immediately after giving effect to the transactions to be consummated on the Third Amendment Closing Date”).

SECTION 4. Conditions Precedent to Effectiveness of this Agreement. This Agreement shall become effective on the first date (the “Third Amendment Closing Date”) on which the following conditions precedent are satisfied or waived:

(a) the Borrower shall have, concurrently with the making of the Replacement Term Loans, paid all accrued and unpaid interest and other amounts in respect of the aggregate principal amount of the Existing Term Loans;

(b) the Administrative Agent (or its counsel) shall have received counterparts of this Agreement that, when taken together, bear the signatures of (1) the Borrower, (2) Holdings, (3) the Reaffirming Loan Parties (as defined in Section 8 hereof), (4) the Administrative Agent and (5) the Replacement Term Loan Lenders (including, for the avoidance of doubt, the Converting Term Lenders);

(c) all fees and expenses in connection with this Agreement or under any other Loan Document or other agreement with the Borrower relating to the transactions contemplated hereby (including reasonable and documented out-of-pocket legal fees and expenses required to be paid by the Borrower pursuant to Section 9.03(a) of the Credit Agreement) payable by the Borrower to the Administrative Agent or the Replacement Term Loan Lenders on or before the Third Amendment Closing Date shall have been paid to the extent then due; provided that any such expenses shall be required to be paid, as a condition precedent to the Third Amendment Closing Date, only to the extent invoiced at least three (3) Business Days prior to the Third Amendment Closing Date;

(d) the Administrative Agent shall have received a duly executed officer’s certificate of the Borrower certifying, as of the Third Amendment Closing Date, that (A) each of the representations and warranties set forth in Section 4 above is true and correct as of the Third Amendment Closing Date and (B) no Default or Event of Default has occurred and is continuing both before and immediately after giving effect to this Agreement and the transactions contemplated hereby;

(e) subject to Section 6, the Administrative Agent shall have received the following:

(e)        a copy of a short form certificate of the Secretary of State or other applicable Governmental Authority of the jurisdiction in which each Loan Party is organized, dated reasonably near the Third Amendment Closing Date, certifying that such Loan Party is duly organized and in good standing or full force and effect under the laws of such jurisdiction; and

(f)        a certificate of the Secretary, Assistant Secretary or other appropriate Responsible Officer of each Loan Party, dated the Third Amendment Closing Date and certifying (1) (x) that attached thereto is a true and complete copy of the by-laws or operating agreement, as applicable, of such Loan Party as in effect on the Third Amendment Closing Date and at all times since a date prior to the date of the resolutions described in clause (2) below or (y) that the by-laws or operating agreement, as applicable, of such Loan Party provided in the certificate delivered on the Closing Date, the First Amendment Closing Date or the Second Amendment Closing Date are still in effect, (2) that attached thereto is a true and complete copy of resolutions duly adopted by the board of directors, board of managers, members or other governing body, as applicable, of such Loan Party authorizing the execution, delivery and performance of this Agreement and the borrowings hereunder, in the case of the Borrower, and any Loan Documents to which each such Loan Party is a party, and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (3) (x) as to the incumbency and specimen signature of each officer executing this Agreement or any other Loan Document or any other document delivered in connection herewith on behalf of such Loan Party or (y) that the incumbency and specimen signature of each officer executing this Agreement provided on the Closing Date, the First Amendment Closing Date or the Second Amendment Closing Date has not changed;

(f) the Administrative Agent shall have received, on behalf of itself and the Replacement Term Loan Lenders, an opinion of (i) Simpson Thacher & Bartlett LLP, in its capacity as New York counsel to the Loan Parties and (ii) Husch Blackwell LLP, in its capacity as Kansas counsel to the Loan Parties, in each case, dated the Third Amendment Closing Date and addressed to the Administrative Agent and the Replacement Term Loan Lenders and in form and substance consistent with the opinions delivered by such counsel on the Second Amendment Closing Date (to the extent applicable), taking into account the nature of this Agreement and the transactions contemplated hereby;

(g) delivery of a Borrowing Request pursuant to Section 2.03 of the Credit Agreement; and

(h) the Administrative Agent and the Replacement Term Loan Lenders shall have received, at least three (3) Business Days prior to the Third Amendment Closing Date, all documentation and other information about the Borrower and the Guarantors that shall have been reasonably requested by the Administrative Agent or the Replacement Term Loan Lenders in writing at least 10 Business Days prior to the Third Amendment Closing Date and that the Administrative Agent and the Replacement Term Loan Lenders reasonably determine is required by United States regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the USA PATRIOT Act, and, if (i) the Borrower qualifies as a “legal entity” customer under 31 C.F.R. § 1010.230 and (ii) the Administrative Agent has provided the Borrower the name of each requesting Replacement Term Loan Lender and its electronic delivery requirements at least 10 Business Days prior to the Third Amendment Closing Date, a customary beneficial ownership certification.

SECTION 5. Post-Closing Obligation. Within 30 days after the Third Amendment Closing Date (or such later date as the Administrative Agent may reasonably agree), the Borrower shall deliver a short form certificate of the Secretary of State of Texas, dated within 30 days after the Third Amendment Closing Date (or such later date as the Administrative Agent may reasonably agree), certifying that Practice Insight, LLC, a Texas limited liability company, is duly organized and in good standing or full force and effect under the laws of Texas.

SECTION 6. Effect of this Agreement. Except as expressly set forth herein, this Agreement shall not by implication or otherwise limit, impair, constitute a waiver of, or otherwise affect the rights and remedies of the Lenders or the Administrative Agent or Collateral Agent under, the Credit Agreement or any other Loan Document, and shall not alter, modify, amend or in any way affect any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document, 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 a consent to, or a waiver, amendment, modification or other change of, any of the terms, conditions, obligations, covenants or agreements contained in the Credit Agreement or any other Loan Document in similar or different circumstances. Nothing herein can or may be construed as a novation of the Credit Agreement or any other Loan Document. This Agreement shall apply and be effective only with respect to the provisions of the Credit Agreement specifically referred to herein. After the Third Amendment Closing Date, any reference to the Credit Agreement shall mean the Credit Agreement as modified hereby.

SECTION 7. Reaffirmation. Each of Holdings, the Borrower and each Guarantor identified on the signature pages hereto (collectively, Holdings, the Borrower and such Guarantors, the “Reaffirming Loan Parties”) hereby acknowledges that it expects to receive substantial direct and indirect benefits as a result of this Agreement and the transactions contemplated hereby. Each Reaffirming Loan Party hereby consents to this Agreement and the transactions contemplated hereby, and hereby confirms its respective guarantees (including in respect of the Replacement Term Loans), pledges and grants of security interests, as applicable, under each of the Loan Documents to which it is party, and agrees that, notwithstanding the effectiveness of this Agreement and the transactions contemplated hereby, such guarantees, pledges and grants of security interests shall continue to be in full force and effect and shall accrue to the benefit of the Secured Parties (including in respect of the Replacement Term Loan Lenders). Each of the Reaffirming Loan Parties hereby reaffirms its obligations under each provision of each Loan Document to which it is party.

SECTION 8. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Delivery by telecopier (or other electronic transmission) of an executed counterpart of a signature page to this Agreement shall be effective as delivery of an original executed counterpart of this Agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Agreement shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other state laws based on the Uniform Electronic Transactions Act, and the parties hereto consent to conduct the transactions contemplated hereunder by electronic means.

SECTION 9. Headings. Section headings used herein are for convenience of reference only, are not part of this Agreement and are not to affect the construction of, or to be taken into consideration in interpreting, this Agreement.

SECTION 10. Governing Law; Jurisdiction, etc. This Agreement shall be construed in accordance with and governed by the laws of the State of New York. The provisions of Sections 9.10 and 9.11 of the Credit Agreement shall apply to this Agreement, mutatis mutandis.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.

	BNVC HOLDINGS, INC., as Holdings

	By:	/s/ Matthew Heiman
	Name: Matthew Heiman
	Title: Secretary & General Counsel

	WAYSTAR TECHNOLOGIES, Inc., as the Borrower

	By:	/s/ Matthew Heiman
	Name: Matthew Heiman
	Title: Secretary & General Counsel