Amendment No. 1 to Credit Agreement and Guaranty, dated October 3, 2018, between Sonendo, Inc. and Perceptive Credit Holdings, LP

Exhibit 10.4

Execution Version

AMENDMENT NO. 1 TO CREDIT AGREEMENT AND GUARANTY

This AMENDMENT NO. 1 TO CREDIT AGREEMENT AND GUARANTY, dated as of October 3, 2018 (this “Amendment”), is among Sonendo, Inc., a Delaware corporation (the “Borrower”), the Lenders party hereto (the “Lenders”), Perceptive Credit Holdings, LP, a Delaware limited partnership, as the collateral agent for the Secured Parties (in such capacity, together with its successors and assigns, “Collateral Agent”). Reference is made to the Credit Agreement and Guaranty, dated as of June 23, 2017 (as amended or otherwise modified, the “Credit Agreement”), among the Borrower, the Subsidiary Guarantors party thereto, the Lenders party thereto and the Collateral Agent. Capitalized terms used herein without definition shall have the same meanings as set forth in the Credit Agreement, as amended hereby.

RECITALS

WHEREAS, the Borrower has requested that the Lenders and the Collateral Agent amend the Credit Agreement in order to, among other things, provide an additional tranche of senior, secured, delayed-draw term loans in an aggregate principal amount of $10,000,000; and

WHEREAS, subject to the terms and conditions hereof, the Lenders party hereto and the Collateral Agent are willing to agree to such amendments and other modifications.

NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants herein contained, the parties hereto agree as follows:

SECTION 1. AMENDMENTS.

A. Each of the following definitions in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:

“Borrowing” means, as the context may require, (i) the borrowing of the Initial Loan on the Closing Date, (ii) the borrowing of the Delayed Draw Loan on the Delayed Draw Date, (iii) the initial borrowing of Tranche 3 Loans on the initial Tranche 3 Borrowing Date or (iv) the second borrowing of the Tranche 3 Loans on the second Tranche 3 Borrowing Date.

“Borrowing Date” means, (i) with respect to the Initial Loan, the Closing Date, (ii) with respect to the Delayed Draw Loan, the Delayed Draw Date, (iii) with respect to the initial Tranche 3 Loans, the initial Borrowing of the Tranche 3 Borrowing Date and, (iv) with respect to the second Borrowing of the Tranche 3 Loans, the second Tranche 3 Borrowing Date; provided that there shall be no more than one (1) Borrowing Date for the Delayed Draw Loan and no more than two (2) Borrowing Dates for Tranche 3 Loans.

“Commitment” means, with respect to each Lender, the obligation of such Lender to make Loans to the Borrower in accordance with the terms and conditions of this Agreement, which commitment is in the amount set forth opposite such Lender’s name on Schedule 1 under the caption “Commitment”, as such Schedule may be amended from time to time pursuant to an Assignment and Assumption or otherwise. The aggregate Commitments on the Amendment No. 1 Effective Date equal $20,000,000.

“Delayed Draw Date Warrant” means the warrant to be issued on the Delayed Draw Date pursuant to Section 6.02(e), exercisable into 90,000 shares of the Borrower’s Series E preferred stock.

“Loans” means, collectively, the Initial Loan, the Delayed Draw Loan, the Tranche 3 Loans and any PIK Loan, and “Loan” means any of the foregoing.

“Warrant” means, as the context may require, the Closing Date Warrant, the Delayed Draw Date Warrant, the Tranche 3 Initial Warrant or the Tranche 3 Subsequent Warrant.

“Warrant Obligations” means any and all Obligations of the Borrower arising out of, under or in connection with the Warrants.

B. Clause (f) of the definition of Permitted Acquisition set forth in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:

(f) with respect to any acquisition other than the Surf Acquisition (which shall be ignored (and not included) for all purposes of this clause (f)), the purchase price for such acquisition (i) when taken together with the purchase price for all other acquisitions consummated or effected in the prior 12-month period, does not exceed $10,000,000 in the aggregate, and (ii) when taken together with the purchase price for all other such acquisitions consummated or effected since the Closing Date, does not exceed $15,000,000 in the aggregate (in each case, the purchase price being determined by including all deferred purchase price payments, whether in the form of earn-outs, post-closing adjustments, payment on seller notes or otherwise, to the extent actually paid or payable);

C. The following definitions are added to Section 1.01 of the Credit Agreement in appropriate alphabetical order:

“Amendment No. 1” means Amendment No. 1 to Credit Agreement and Guaranty, dated as of October 3, 2018, among the Borrower, the Lenders party thereto and the Collateral Agent.

“Amendment No. 1 Effective Date” means October 3, 2018.

“Surf Acquisition” means the acquisition by Borrower of all of the outstanding Equity Interests of Dog Breath Software, Inc., a California corporation, pursuant to the terms of the Surf Acquisition Agreement.

“Surf Acquisition Agreement” means that certain Stock Purchase Agreement dated as of or about October 3, 2018 by and among Borrower, Dog Breath Software, Inc. and Dr. Gary B. Carr.

“Surf Earnout” means, collectively, the obligations of Borrower to make each License Earnout Payment (as defined in the Surf Acquisition Agreement) and each Unit Earnout Payment (as defined in the Surf Acquisition Agreement).

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“Tranche 3 Borrowing Certificate” has the meaning set forth in Section 6.03(b).

“Tranche 3 Borrowing Date” means, as the context may require, either (i) the date of the initial Borrowing of Tranche 3 Loans hereunder, which shall be no sooner than the date on which the Amendment No. 1 Effective Date shall have occurred and each of the conditions precedent set forth in Section 6.03 shall have been satisfied for such Borrowing, (ii) the date of the second Borrowing of Tranche 3 Loans hereunder, which shall be after the initial Borrowing of Tranche 3 Loans and no sooner than the date on which each of the conditions precedent set forth in Section 6.03 shall have been satisfied for such Borrowing, or (iii) each of the foregoing dates.

“Tranche 3 Loan” means any Borrowing of term loans made by the Lenders pursuant to Section 6.03 hereof on a Tranche 3 Borrowing Date; provided that each individual Borrowing of Tranche 3 Loans made hereunder shall be in a minimum aggregate principal amount of at least $5,000,000 and the aggregate principal amount of all Borrowings of Tranche 3 Loans made hereunder shall not exceed the Tranche 3 Maximum Amount.

“Tranche 3 Maximum Amount” means $10,000,000.

“Tranche 3 Initial Warrant” means the warrant to be issued on the initial Tranche 3 Borrowing Date pursuant to Section 6.03(e), exercisable into the number of shares of the Borrower’s Series E preferred stock equal to (i) 90,000 multiplied by (ii) a fraction having as a numerator the aggregate principal amount of the Tranche 3 Loans made on the initial Tranche 3 Borrowing Date and a denominator equal to $10,000,000.

“Tranche 3 Subsequent Warrant” means the warrant to be issued on the second Tranche 3 Borrowing Date pursuant to Section 6.03(e), exercisable into the number of shares of the Borrower’s Series E preferred stock equal to (i) 90,000 less (ii) the original number of shares of the Borrower’s Series E preferred stock issuable upon exercise of the Tranche 3 Initial Warrant.

D. Section 2.01 of the Credit Agreement is hereby amended by (1) re-designating clauses (c) and (d) as clauses (d) and (e), respectively, and (2) adding a new clause (c) to read as follows:

(c) On the terms and subject to the conditions of this Agreement, the Lenders agree to make (i) the initial Tranche 3 Loans to the Borrower in a single Borrowing on the initial Tranche 3 Borrowing Date and (ii) additional Tranche 3 Loans to the Borrower in a single Borrowing on the second Tranche 3 Borrowing Date; provided that, without limiting any other term, provision or condition hereunder related to the making of Tranche 3 Loans, no Borrowing of Tranche 3 Loans shall be made hereunder unless it is in a minimum aggregate amount of $5,000,000 and a multiple of $1,000,000.

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E. Section 2.02(a) of the Credit Agreement is hereby amended and restated in its entirety as follows:

(a) At least ten Business Days prior to the proposed Borrowing Date (or one Business Day with respect to the Borrowings on the Closing Date and the Delayed Draw Date), the Borrower shall deliver to the Lender an irrevocable Borrowing Notice (which notice, if received by the Lender on a date that is not a Business Day or after 10:00 A.M. Eastern time on a Business Day, shall be deemed to have been delivered on the next Business Day).

F. Section 2.04 of the Credit Agreement is hereby amended and restated in its entirety as follows:

2.04 Use of Proceeds. The Borrower shall use the proceeds of the Loans for general purposes, including, without limitation, for Permitted Acquisitions, the payment of costs and expenses in connection therewith and the payment of fees and expenses associated with this Agreement.

G. Section 6.02(a) of the Credit Agreement is hereby amended and restated in its entirety as follows:

(a) Delayed Draw Date. The Delayed Draw Date shall have occurred on or before October 31, 2018.

H. Section 6 of the Credit Agreement is hereby amended by adding a new Section 6.03 to read as follows:

6.03 Conditions to the Borrowing of the Tranche 3 Loans. The obligation of the Lenders to fund any Borrowing of Tranche 3 Loans shall be subject to satisfaction of the requirements of Section 2.01(c), the delivery of a Borrowing Notice for such Borrowing as required pursuant to Section 2.02(a), and the satisfaction of each of the conditions precedent set forth below in this Section 6.03.

(a) Tranche 3 Borrowing Date. No Borrowing of any Tranche 3 Loans shall have been made or requested to be made after December 31, 2019.

(b) Tranche 3 Borrowing Certificate. The Lenders shall have received, on each applicable Tranche 3 Borrowing Date, a certificate, dated as of such date, in form and substance reasonably satisfactory to the Lenders (each, a “Tranche 3 Borrowing Certificate”), duly executed and delivered by a Responsible Officer of the Borrower, in which certificate the Borrower shall agree and acknowledge, among other things, that the statements made therein shall be deemed to be true and correct representations and warranties of the Borrower as of such date and on the applicable Tranche 3 Borrowing Date, and, at the time such certificate is delivered and on such Tranche 3 Borrowing Date, such statements shall in fact be true and correct, and such statements shall include that (i) both immediately before and after giving effect to the making of the applicable Tranche 3 Loans, (x) the representations and warranties set forth in this Agreement and each other Loan Document shall, in each case, be true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect which such representation and warranty shall, in each case, be true and correct in all respects) and (y) no Default shall have then occurred and be

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continuing, or would result from the Tranche 3 Loans to be advanced on its applicable Tranche 3 Borrowing Date, and (ii) all of the conditions set forth in Section 6.03 have been satisfied; provided that, with respect to the certification referenced in clause (x) above relating to representations and warranties set forth in this Agreement or any other Loan Document, (1) references in such representations and warranties to “the Closing Date” or “the date hereof” shall be deemed to be references to the applicable “Tranche 3 Borrowing Date” for the Borrowing of Tranche 3 Loans to be made on such day, and (2) the Borrower may supplement the Schedules hereto and the other Loan Documents as reasonably necessary in order for such certification to be true and correct; provided that no such supplement shall be permitted in the event that the Lenders reasonably determine that the circumstance or event necessitating such supplement constituted a Material Adverse Effect or (with respect to any supplement that does not reflect a transaction permitted pursuant to this Credit Agreement) was otherwise materially adverse to the interests of the Lenders under the Loan Documents. All documents and agreements required to be appended to a Tranche 3 Borrowing Certificate or an updated Perfection Certificate, if any, shall be in form and substance reasonably satisfactory to the Lenders, shall have been executed and delivered by the requisite parties, and shall be in full force and effect.

(c) Delivery of Note. Each Lender shall have received a Note, dated as of the applicable Tranche 3 Borrowing Date and reflecting the Borrowing made (or to be made) on such date, duly executed and delivered by a Responsible Officer of the Borrower.

(d) Pro Forma Balance Sheet. The Lenders shall have received a pro forma consolidated balance sheet of the Borrower and its Subsidiaries as of each Tranche 3 Borrowing Date, prepared in accordance with GAAP applied consistently with the Borrower’s previous audited financial statements, giving effect to the Borrowing of the applicable Tranche 3 Loans and the application of the proceeds thereof.

(e) Tranche 3 Warrants. With respect to the initial Borrowing of a Tranche 3 Loan on the initial Tranche 3 Borrowing Date, the Lenders shall have received an executed counterpart of the Tranche 3 Initial Warrant. With respect to the subsequent Borrowing of a Tranche 3 Loan on the second Tranche 3 Borrowing Date, the Lenders shall have received an executed counterpart of the Tranche 3 Subsequent Warrant.

(f) Perfection Certificate. On each Tranche 3 Borrowing Date, the Lenders shall have received (i) an updated Perfection Certificate, dated as of such date, that is true and correct as of the applicable Tranche 3 Borrowing Date, duly executed and delivered by a Responsible Officer of the Borrower, or (ii) a certificate duly executed and delivered by a Responsible Officer of the Borrower certifying that the information disclosed in the Perfection Certificate delivered pursuant to Section 6.01(h), or as updated on a previous Tranche 3 Borrowing Date, remains true, correct and complete in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect which such representation and warranty shall, in each case, be true and correct in all respects) as of the applicable Tranche 3 Borrowing Date; provided that each reference therein to the Closing Date shall be deemed to refer to such applicable Tranche 3 Borrowing Date, and each reference to the Initial Loan shall be deemed to refer to the applicable Tranche 3 Loans being made on such Borrowing Date.

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(g) Lien Searches. The Lenders shall be satisfied with Lien searches regarding the Borrower and its Subsidiaries made within two Business Days (or such earlier date as may be agreed by the Collateral Agent) prior to any Borrowing of Tranche 3 Loans.

(h) Material Adverse Change. No Material Adverse Change shall have occurred since December 31, 2017.

(i) Satisfactory Legal Form. All documents executed or submitted pursuant hereto by or on behalf of the Borrower or any of its Subsidiaries shall be reasonably satisfactory in form and substance to the Lender and its counsel, and the Lender and its counsel shall have received all information, approvals, resolutions, opinions, documents or instruments as the Lenders or their counsel may reasonably request.

(j) Fees, Expenses, Etc. (i) On each Tranche 3 Borrowing Date, the Lenders shall have received a delayed draw fee in an amount equal to (x) the aggregate original principal amount of the Tranche 3 Loans to be made on such date multiplied by (y) 1.50%, and (ii) on each Tranche 3 Borrowing Date, each of the Collateral Agent and the Lenders shall have received all fees, costs and expenses due and payable pursuant to Section 14.03 (including the Lenders’ legal fees and expenses).

I. Section 7.13(a) of the Credit Agreement is hereby amended and restated in its entirety as follows:

(a) The pro forma balance sheets delivered pursuant to Section 6.01(e) and, if the Delayed Draw Loan or any Tranche 3 Loan is made, 6.02(d) and 6.03(d), as applicable, each set forth a complete and correct list of all outstanding Indebtedness of the Borrower and each of its Subsidiaries outstanding as of the date of such balance sheet.

J. Section 8.18 of the Credit Agreement is hereby amended by adding the following paragraph at the end thereof:

Notwithstanding anything to the contrary, this Section 8.18 shall not apply to any Subsidiary which is formed or acquired after the Closing Date until the date that is 60 days following the formation or acquisition of such Subsidiary.

K. Section 9.01(m) of the Credit Agreement is hereby amended and restated in its entirety as follows:

(m) (i) unsecured Indebtedness consisting of seller notes, earn-outs and similar obligations in connection with any Permitted Acquisition (other than the Surf Acquisition), not exceeding, in the aggregate at any time outstanding, $3,000,000 and (ii) the Surf Earnout; provided that, in each case, such Indebtedness shall not exceed 50% of the original purchase price of the Permitted Acquisition to which such Indebtedness is applicable;

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L. Section 10.01 of the Credit Agreement is hereby amended by replacing the reference to “The Borrower” set forth therein with a reference to “The Borrower and its Subsidiaries, collectively,”.

M. Schedule 1 to the Credit Agreement is hereby amended and restated in its entirety as Exhibit A hereto.

N. For the avoidance of doubt, the parties hereto hereby agree that with respect to the Persons acquired pursuant to the Surf Acquisition, the Borrower shall cause to be completed the actions required by Section 8.12 of the Credit Agreement within the 60 day period of such acquisition as provided in Section 8.12 of the Credit Agreement.

SECTION 2. ACKNOWLEDGEMENT, AGREEMENT AND CONSENT AND REPRESENTATIONS AND WARRANTIES.

A. Each Obligor confirms and agrees that, notwithstanding the effectiveness of this Amendment, the obligations of such Obligor under each Loan Documents to which such Obligor is a party shall not be impaired and each Loan Documents to which such Obligor is a party is, and shall continue to be, in full force and effect and is hereby confirmed and ratified in all respects.

B. Each Obligor hereby acknowledges and agrees that the Guaranteed Obligations will include all Obligations under, and as defined in, the Credit Agreement as amended by this Amendment.

C. Each Subsidiary Guarantor acknowledges and agrees that (i) notwithstanding the conditions to effectiveness set forth in this Amendment, such Subsidiary Guarantor is not required by the terms of the Credit Agreement or any other Loan Document to consent to the amendments to the Credit Agreement effected pursuant to this Amendment and (ii) nothing in the Credit Agreement, this Amendment or any other Loan Document shall be deemed to require the consent of such Subsidiary Guarantor to any future amendments to the Credit Agreement.

D. In order to induce the Collateral Agent and the Lenders to enter into this Amendment, each Obligor represents and warrants to the Collateral Agent and the Lenders that the following statements are true, correct and complete:

(i) such Obligor has full power, authority and legal right to enter into this Amendment and perform its obligations under this Amendment and each Loan Document as amended hereby or thereby;

(ii) the transactions contemplated by this Amendment are within such Obligor’s corporate powers and have been duly authorized by all necessary corporate and, if required, by all necessary shareholder action. This Amendment has been duly executed and delivered by such Obligor and constitutes a legal, valid and binding obligation of such Obligor, enforceable against such Obligor in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency, reorganization, moratorium or similar laws of general applicability affecting the enforcement of creditors’ rights and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law);

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(iii) the transactions contemplated by this Amendment (1) do not require any Governmental Approval of, registration or filing with, or any other action by, any Governmental Authority or any third party, except for such as have been obtained or made and are in full force and effect, (2) will not violate (x) any Law or any order of any Governmental Authority, other than any such violations that, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, or (y) the Organic Documents of such Obligor or its Subsidiaries, (3) will not violate or result in a default under any indenture, agreement or other instrument binding upon such Obligor or its Subsidiaries or assets, or give rise to a right thereunder to require any payment to be made by any such Person, and (4) will not result in the creation or imposition of any Lien (other than Permitted Liens) on any asset of such Obligor or its Subsidiaries; and

(iv) both immediately before and after giving effect to this Amendment, (x) the representations and warranties set forth in this Amendment and each other Loan Document shall, in each case, be true and correct and (y) no Default shall have then occurred and be continuing, or would result from this Amendment or the transaction contemplated hereby.

SECTION 3. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective only upon the satisfaction of the following conditions precedent (the date of satisfaction of such conditions being referred to as the “Amendment Effective Date”):

A. The Obligors, the Collateral Agent and the Lenders shall have indicated their consent to this Amendment by the execution and delivery of the signature pages hereto to the Collateral Agent.

B. The Borrowing of the Delayed Draw Loan shall have occurred in an aggregate principal amount of $10,000,000 and all conditions precedent thereto shall have been satisfied.

C. The Lenders shall have received (i) an officer’s certificate of each Obligor, either confirming that (x) there have been no changes to its Organic Documents since June 23, 2017, or if there have been changes to its Organic Documents since such date, certifying as to such changes and (y) (1) the representations and warranties set forth in this Amendment and each other Loan Document (including the Credit Agreement both immediately before and after giving effect to this Amendment) are, in each case, true and correct and (2) no Default has occurred and is continuing, or would result from this Amendment or the transaction contemplated hereby, (ii) copies of resolutions of each Obligor’s Board then in full force and effect authorizing the execution, delivery and performance of this Amendment certified by a Responsible Officer of such Obligor, (iii) a copy of a good standing certificate of each Obligor dated a date reasonably close to the date hereof, and (iv) an incumbency certificate from each Obligor.

D. The Lenders shall have received one or more customary opinions (including from such local counsel as the Lenders may determine, in their sole discretion, is reasonably necessary), each dated the Amendment Effective Date and addressed to the Lenders and the Collateral Agent, from independent legal counsel to the Borrower and the other Obligors, in form and substance reasonably acceptable to the Lenders.

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E. The Collateral Agent and the Lenders shall have received all reasonable and documented out of pocket expenses for which invoices have been presented (including the reasonable fees and expenses of legal counsel for which the Borrower agrees it is responsible pursuant to Section 14.03 of the Credit Agreement) that are due and payable in connection with this Amendment.

F. The Surf Acquisition shall have been consummated in accordance with the terms of the Surf Acquisition Agreement.

G. The Lender shall have received one or more executed payoff letters terminating all the Indebtedness of the Persons being acquired pursuant to the Surf Acquisition and UCC-3 termination statements and all other termination and releases necessary to release all Liens and other rights of any Person in any of the assets of the Persons being acquired pursuant to the Surf Acquisition, in each case, in form and substance reasonably acceptable to the Lender.

SECTION 4. MISCELLANEOUS

A. Reference to and Effect on the Loan Documents.

(i) On and after the Amendment Effective Date, each reference in any Loan Document to the Credit Agreement shall mean and be a reference to the Credit Agreement as amended by this Amendment.

(ii) Except as expressly amended hereby, all of the representations, warranties, terms, covenants, conditions and other provisions of the Loan Documents shall remain unchanged and shall continue to be, and shall remain, in full force and effect in accordance with their respective terms. The amendments, consents and modifications set forth herein shall be limited precisely as provided for herein to the provisions expressly amended herein or otherwise modified or consented to hereby and shall not be deemed to be an amendment to, waiver of, consent to or modification of any other term or provision of the Credit Agreement or any other Loan Document or of any transaction or further or future action on the part of any Obligor which would require the consent of the Lenders or the Collateral Agent under the Credit Agreement or any other Loan Document.

(iii) The execution, delivery and performance of this Amendment shall not constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of the Collateral Agent or any Lender under any Loan Document or applicable Law.

(iv) This Amendment shall constitute a Loan Document.

B. Captions. The captions and section headings appearing herein are included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Amendment.

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C. Governing Law. This Amendment and the rights and obligations of the parties hereunder shall be governed by, and construed in accordance with, the law of the State of New York, without regard to principles of conflicts of laws that would result in the application of the laws of any other jurisdiction; provided that Section 5-1401 of the New York General Obligations Law shall apply.

D. Counterparts. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Amendment by signing any such counterpart. Delivery of an executed signature page of this Amendment by facsimile transmission or electronic transmission (in PDF format) shall be effective as delivery of a manually executed counterpart hereof.

[Signature Pages Follow]

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first written above.

Exhibit A

Schedule 1

to Credit Agreement

COMMITMENTS