FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT
Exhibit 10.7
Execution Version
FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT
FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT, dated as of June 15, 2023 (this “Amendment”), by and among ATI Physical Therapy, Inc., a Delaware corporation (the “Issuer”), Wilco Holdco,
Inc., a Delaware corporation (“Intermediate Parent”), Wilco Intermediate Holdings, Inc., a Delaware corporation (“Holdings”), ATI Holdings Acquisition, Inc., a Delaware corporation (“Opco”), the Subsidiary Guarantors party
hereto, each Person identified on the signature pages hereto as “First Amendment Purchaser” (collectively, the “First Amendment Purchasers”), the other Purchasers party hereto and Wilmington Savings Fund Society, FSB, as the purchaser
representative (in such capacity, the “Purchaser Representative”).
RECITALS
WHEREAS, the Issuer is a party to that certain Note Purchase Agreement, dated as of April 17, 2023 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time
prior to the date hereof, the “Existing Note Purchase Agreement”, and as amended or otherwise modified by this Amendment, the “Amended Note Purchase Agreement”), among, inter alios, the
Issuer, the purchasers from time to time party thereto (the “Purchasers”) and the Purchaser Representative;
WHEREAS, the Issuer has requested that the First Amendment Purchasers purchase, and the Issuer will authorize the issuance of (a) additional notes on the Closing Date (as defined in the Amended
Note Purchase Agreement) in an aggregate principal amount equal to $3,243,302.02, and (b) shares of Series B Preferred Stock (as defined in the Amended Note Purchase Agreement) on the Closing Date, and the First Amendment Purchasers have agreed,
subject to the terms and conditions set forth herein and in the Amended Note Purchase Agreement, to purchase such additional notes and shares of Series B Preferred Stock, the proceeds of which may be used as provided in Section 5.11 of the
Amended Note Purchase Agreement;
WHEREAS, in accordance with Section 9.02 of the Existing Note Purchase Agreement, the Issuer has requested that, effective as of the First Amendment Effective Date (as defined below), the
Purchasers agree to amend certain provisions of the Existing Note Purchase Agreement as provided for herein; and
WHEREAS, subject to the terms and conditions set forth herein, the relevant Purchasers are willing to agree to such amendments to the Existing Note Purchase Agreement.
NOW, THEREFORE, in consideration of the agreements contained herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Definitions. Capitalized terms used (including in the preamble and recitals hereto) but not defined herein shall have the meanings assigned to such terms in
the Amended Note Purchase Agreement.
ARTICLE II
AMENDMENTS TO NOTE PURCHASE AGREEMENT
SECTION 2.1 As of the First Amendment Effective Date, the Existing Note Purchase Agreement shall hereby be amended to delete the stricken text (indicated textually in the same manner as
the following example: stricken text) and to add the double-underlined text (indicated textually in the same manner as the following example: double-underlined text) as set forth in the conformed copy of the Amended Note Purchase Agreement attached hereto as Exhibit A.
SECTION 2.2 As of the First Amendment Effective Date, the attached Exhibit B shall be added to the Amended Note Purchase Agreement as Exhibit B-4.
SECTION 2.3 As of the First Amendment Effective Date, (a) Schedule 2.01 of the Note Purchase Agreement shall be replaced in its entirety with the Schedule 2.01 attached as Exhibit C
hereto, and (b) Schedule 11.01 of the Note Purchase Agreement shall be replaced in its entirety with the Schedule 11.01 attached as Exhibit D hereto.
SECTION 2.4 As of the First Amendment Effective Date, pursuant to Section 10.04(a) of the Note Purchase Agreement, the Conversion Price is adjusted to $12.50 per share (which reflects the
1-for-50 reverse stock split effective as of June 14, 2023) of Common Stock.
ARTICLE III
FIRST AMENDMENT NOTES AND FIRST AMENDMENT SERIES B PREFERRED STOCK
SECTION 3.1 Each First Amendment Purchaser hereby commits, severally and not jointly, to purchase (a) First Amendment Notes (as defined in the Amended
Note Purchase Agreement) in the amount set forth opposite its name on Schedule 2.01 of the Amended Note Purchase Agreement and (b) First Amendment Series B Preferred Stock in the amount set forth opposite its name on Schedule 11.01 –
Part II of the Amended Note Purchase Agreement, which First Amendment Note Commitment shall be subject to the terms and conditions set forth in the Amended Note Purchase Agreement.
SECTION 3.2 Upon the occurrence of the Closing Date, each First Amendment Purchaser (a) agrees to purchase (i) First Amendment Notes and (ii) First Amendment Series B Preferred Stock as
provided in the Amended Note Purchase Agreement on the terms, and subject to the conditions, set forth in the Amended Note Purchase Agreement and (b) to the extent provided in the Amended Note Purchase Agreement, shall have the rights and
obligations of a Purchaser thereunder and under the other applicable Note Documents. Notwithstanding anything to the contrary in the Amended Note Purchase Agreement, it is understood and agreed that each First Amendment Purchaser is obligated to
purchase, and the Issuer shall authorize the issuance of, (x) First Amendment Notes in accordance with Section 2.01(c) and Section 2.02(b) of the Amended Note Purchase Agreement and (y) First Amendment Series B Preferred Stock in accordance with
Section 11.01(b) of the Amended Note Purchase Agreement, each upon satisfaction (or waiver) of the conditions set forth in Section 4.03 of the Amended Note Purchase Agreement.
SECTION 3.3 It is understood and agreed that, upon the Issuance and purchase of (a) the First Amendment Notes pursuant to this Amendment on the Closing Date, such First Amendment Notes
shall constitute “Notes” for all purposes under the Amended Note Purchase Agreement and (b) the First Amendment Series B Preferred Stock pursuant to this Amendment on the Closing Date, the First Amendment Series B Preferred Stock shall constitute
“Series B Preferred Stock” for all purposes under the Amended Note Purchase Agreement.
SECTION 3.4 The Issuer acknowledges and agrees that (a) it shall be liable for all Obligations with respect to all First Amendment Notes issued by it pursuant to this Amendment and (b) all
such Obligations (including all such First Amendment Notes) shall be entitled to the benefits of the Collateral Documents.
ARTICLE IV
CONDITIONS TO EFFECTIVENESS
SECTION 4.1 The effectiveness of this Amendment (including the amendments contained in Article II) (the date of such effectiveness, the “First Amendment Effective Date”) is
subject to the due execution of this Amendment by the Issuer, Intermediate Holdings, Holdings, Opco, the Subsidiary Guarantors party hereto, the First Amendment Purchasers and the Purchasers constituting all Purchasers.
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ARTICLE V
[RESERVED]
ARTICLE VI
EFFECTS ON NOTE DOCUMENTS
SECTION 6.1 On and after the First Amendment Effective Date, (i) each reference in the Amended Note Purchase Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like
import referring to the “Note Purchase Agreement”, and each reference in the other Note Documents to “the Note Purchase Agreement”, “thereunder”, “thereof” or words of like import referring to the “Note Purchase Agreement” shall, in each case, mean
and be a reference to the Amended Note Purchase Agreement (ii) the First Amendment Notes shall constitute “Notes” under and as defined in the Amended Note Purchase Agreement, (iii) the First Amendment Series B Preferred Stock being purchased
pursuant to this Amendment shall constitute “Series B Preferred Stock” under and as defined in the Amended Note Purchase Agreement, (iv) each First Amendment Purchaser shall constitute a “Purchaser” under and as defined in the Amended Note Purchase
Agreement, and (v) the First Amendment Note Commitments shall constitute “Commitments” under and as defined in the Amended Note Purchase Agreement.
SECTION 6.2 Except as specifically amended or otherwise modified herein or contemplated hereby, the Existing Note Purchase Agreement and each of the other Note Documents, as specifically
amended by this Amendment, are and shall continue to be in full force and effect in all respects. Without limiting the generality of the foregoing, all of the Collateral described in the Collateral Documents shall continue to secure the payment of
all Obligations. This Amendment shall not constitute a novation of any Obligations existing prior to the date hereof and shall merely amend or otherwise modify such Obligations to the extent set forth herein.
SECTION 6.3 The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Purchaser
or the Purchaser Representative under any of the Note Documents, nor constitute a waiver of any provision of any of the Note Documents. On and after the First Amendment Effective Date, this Amendment shall constitute a Note Document.
ARTICLE VII
MISCELLANEOUS
SECTION 7.1 Amendments; Execution in Counterparts; Severability; Reaffirmation.
(a) This Amendment may not be amended nor may any provision hereof be waived except in accordance with the provisions of Section 9.02 of the
Amended Note Purchase Agreement.
(b) To the extent any provision of this Amendment is prohibited by or invalid under the applicable law of any jurisdiction, such provision shall be
ineffective only to the extent of such prohibition or invalidity and only in such jurisdiction, without prohibiting or invalidating such provision in any other jurisdiction or the remaining provisions of this Amendment in any jurisdiction.
SECTION 7.2 Governing Law; Jurisdiction; Waiver of Jury Trial. This Amendment shall be construed in accordance with and governed by the laws of the State of New York. The
provisions of Sections 9.03, 9.10, 9.11 and 9.13 of the Existing Note Purchase Agreement are incorporated herein by reference, mutatis mutandis.
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SECTION 7.3 Headings. Article and Section headings used herein are for convenience of reference only, are not part of this Amendment and are not to affect the construction of, or to
be taken into consideration in interpreting, this Amendment.
SECTION 7.4 Counterparts. This Amendment may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall
constitute but one contract, and shall become effective as provided in Section 9.02 of the Existing Note Purchase Agreement. Delivery of an executed counterpart to this Amendment by facsimile transmission (or other electronic transmission pursuant
to procedures approved by the Purchaser Representative) shall be effective as a delivery of a mutually signed original.
SECTION 7.5 Reaffirmation. Each Guarantor party hereto hereby (i) consents to the amendment of the Existing Note Purchase Agreement effected hereby, (ii) acknowledges and agrees that
all of its obligations under the Existing Note Purchase Agreement, the Collateral Documents and the other Note Documents to which it is a party are reaffirmed and remain in full force and effect on a continuous basis and are hereby ratified and
confirmed in all respects, in each case as amended by this Amendment, (iii) reaffirms (A) each Lien granted by it to the Collateral Agent for the benefit of the Secured Parties and (B) any guaranties made by it pursuant to the Guaranty, (iv)
acknowledges and agrees that the grants of security interests by it contained in the Collateral Documents shall remain in full force and effect and continue to secure the obligations of the Note Parties under the Amended Note Purchase Agreement and
(v) agrees that the Obligations include, among other things and without limitation, the payment of any principal or interest on the First Amendment Notes. Nothing contained in this Amendment shall be construed as substitution or novation of the
obligations outstanding under the Existing Note Purchase Agreement or the other Note Documents, which shall remain in full force and effect, except to any extent modified hereby.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and delivered by their respective duly authorized officers as of the day and year first above written.
ATI PHYSICAL THERAPY, INC., as the Issuer
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By:
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/s/ Xxxxxx Xxxxxx
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Name:
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Xxxxxx Xxxxxx
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Title:
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Chief Financial Officer
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ATI HOLDINGS ACQUISITION, INC., as Opco
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By:
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/s/ Xxxxxx Xxxxxx
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Name:
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Xxxxxx Xxxxxx
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Title:
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Chief Financial Officer
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XXXXX XXXXXX, INC., as Intermediate Parent
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By:
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/s/ Xxxxxx Xxxxxx
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Name:
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Xxxxxx Xxxxxx
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Title:
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Chief Financial Officer
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WILCO INTERMEDIATE HOLDINGS, INC., as Holdings
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By:
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/s/ Xxxxxx Xxxxxx
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Name:
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Xxxxxx Xxxxxx
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Title:
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Chief Financial Officer
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[Signature Page to First Amendment to Note Purchase Agreement]
SUBSIDIARY GUARANTORS:
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ATI HOLDINGS OF ALABAMA, LLC
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IDEAL PHYSICAL THERAPY OF TEXAS, LLC
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ATI HOLDINGS, INC.
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TOUCHSTONE HOLDCO LLC
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ATI HOLDINGS MISSOURI, LLC
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PROAXIS THERAPY, LLC
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ADIENT ALASKA, LLC
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THI OF NEVADA AT DESERT VALLEY THERAPY, LLC
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ATI HOLDINGS OF ARIZONA, LLC
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ATI HOLDINGS, LLC
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ATHLETIC & THERAPEUTIC INSTITUTE OF BOLINGBROOK, LLC
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ATHLETIC & THERAPEUTIC INSTITUTE OF NAPERVILLE, LLC
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ATHLETIC & THERAPEUTIC INSTITUTE OF MILWAUKEE, LLC
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ATHLETIC & THERAPEUTIC INSTITUTE OF BOURBONNAIS, LLC
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OHIO CENTERS FOR HAND AND PHYSICAL REHABILITATION, LLC
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ADVANCED PHYSICAL THERAPY, LLC
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COMMUNITY REHAB OF IOWA, LLC
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PERFORMANCE REHABILITATION OF WESTERN NEW ENGLAND, LLC
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MICHIGAN REHABILITATION SPECIALISTS OF FOWLERVILLE, LLC
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QUANTUM PHYSICAL THERAPY CENTERS – YPSILANTI LLC
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COMMUNITY REHAB, LLC
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NEW CENTURY REHABILITATION, LLC
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PHYSICAL THERAPY AT XXXX, LLC
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XXXXXXX PHYSICAL THERAPY AND SPORTS MEDICINE, LLC
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WILLAMETTE SPINE CENTER PHYSICAL THERAPY AND REHABILITATION, LLC
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MCMINNVILLE PHYSICAL THERAPY & SPORTS MEDICINE, LLC
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PROAXIS GREENVILLE, LLC
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PROAXIS THERAPY NC, LLC
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PROAXIS THERAPY SC, LLC
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MCM REHABILITATION, LLC
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APPLE PHYSICAL THERAPY, LLC
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By:
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/s/ Xxxxxx Xxxxxx
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Name:
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Xxxxxx Xxxxxx
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Title:
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Chief Financial Officer
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[Signature Page to First Amendment to Note Purchase Agreement]
PURCHASER REPRESENTATIVE:
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WILMINGTON SAVINGS FUND SOCIETY, FSB, as Purchaser Representative
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By:
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/s/ Xxxx XxXxxxxx
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Name:
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Xxxx XxXxxxxx
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Title:
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Assistant Vice President
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[Signature Page to First Amendment to Note Purchase Agreement]
KHSU SPV LP LLC, as a First Amendment Purchaser
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By: Knighthead Capital Management, LLC, its Investment Advisor
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By:
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/s/ Xxxxxx X. Xxxxxxx
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Name:
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Xxxxxx X. Xxxxxxx
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Title:
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General Counsel
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KNIGHTHEAD MASTER FUND, L.P., as a First Amendment Purchaser
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By: Knighthead Capital Management, LLC, its Investment Manager
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By:
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/s/ Xxxxxx X. Xxxxxxx
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Name:
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Xxxxxx X. Xxxxxxx
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Title:
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General Counsel
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KNIGHTHEAD (NY) FUND, L.P., as a First Amendment Purchaser
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By: Knighthead Capital Management, LLC, its Investment Manager
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By:
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/s/ Xxxxxx X. Xxxxxxx
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Name:
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Xxxxxx X. Xxxxxxx
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Title:
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General Counsel
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KNIGHTHEAD DISTRESSED OPPORTUNITIES FUND, L.P., as a First Amendment Purchaser
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By: Knighthead Capital Management, LLC, its Investment Manager
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By:
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/s/ Xxxxxx X. Xxxxxxx
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Name:
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Xxxxxx X. Xxxxxxx
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Title:
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General Counsel
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[Signature Page to First Amendment to Note Purchase Agreement]
MARATHON STEPSTONE MASTER FUND LP, as a First Amendment Purchaser
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By:
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/s/ Xxx Xxxxxxx
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Name:
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Xxx Xxxxxxx
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Title:
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Managing Partner
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MCSP SUB, LLC, as a First Amendment Purchaser
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By:
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/s/ Xxx Xxxxxxx
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Name:
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Xxx Xxxxxxx
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Title:
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Managing Partner
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MARATHON DISTRESSED CREDIT MASTER FUND, as a First Amendment Purchaser
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By:
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/s/ Xxx Xxxxxxx
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Name:
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Xxx Xxxxxxx
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Title:
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Managing Partner
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[Signature Page to First Amendment to Note Purchase Agreement]
ONEX CAPITAL SOLUTIONS HOLDINGS LP, as a First Amendment Purchaser
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By: Onex Capital Solutions GP, LP, its general partner
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By: Onex Capital Solutions GP, LLC, its general partner
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By:
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/s/ Xxxxx Xxxxxx
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Name:
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Xxxxxx Xxxxxx
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Title:
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General Counsel
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[Signature Page to First Amendment to Note Purchase Agreement]
KHSU SPV LP LLC, as a Purchaser
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By: Knighthead Capital Management, LLC, its Investment Advisor
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By:
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/s/ Xxxxxx X. Xxxxxxx
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Name:
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Xxxxxx X. Xxxxxxx
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Title:
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General Counsel
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KNIGHTHEAD MASTER FUND, L.P., as a Purchaser
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By: Knighthead Capital Management, LLC, its Investment Manager
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By:
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/s/ Xxxxxx X. Xxxxxxx
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Name:
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Xxxxxx X. Xxxxxxx
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Title:
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General Counsel
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KNIGHTHEAD (NY) FUND, L.P., as a Purchaser
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By: Knighthead Capital Management, LLC, its Investment Manager
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By:
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/s/ Xxxxxx X. Xxxxxxx
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Name:
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Xxxxxx X. Xxxxxxx
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Title:
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General Counsel
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KNIGHTHEAD DISTRESSED OPPORTUNITIES FUND, L.P., as a Purchaser
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By: Knighthead Capital Management, LLC, its Investment Manager
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By:
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/s/ Xxxxxx X. Xxxxxxx
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Name:
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Xxxxxx X. Xxxxxxx
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Title:
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General Counsel
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[Signature Page to First Amendment to Note Purchase Agreement]
MARATHON DISTRESSD CREDIT FUND, LP, as a Purchaser
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By:
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/s/ Xxx Xxxxxxx
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Name:
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Xxx Xxxxxxx
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Title:
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Managing Partner
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MARATHON STEPSTONE MASTER FUND LP, as a Purchaser
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By:
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/s/ Xxx Xxxxxxx
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Name:
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Xxx Xxxxxxx
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Title:
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Managing Partner
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MCSP SUB, LLC, as a Purchaser
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By:
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/s/ Xxx Xxxxxxx
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Name:
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Xxx Xxxxxxx
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Title:
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Managing Partner
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MARATHON DISTRESSED CREDIT MASTER FUND, as a Purchaser
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By:
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/s/ Xxx Xxxxxxx
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Name:
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Xxx Xxxxxxx
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Title:
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Managing Partner
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[Signature Page to First Amendment to Note Purchase Agreement]
ONEX CAPITAL SOLUTIONS HOLDINGS LP, as a Purchaser
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By: Onex Capital Solutions GP, LP, its general partner
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By: Onex Capital Solutions GP, LLC, its general partner
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By:
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/s/ Xxxxx Xxxxxx
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Name:
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Xxxxxx Xxxxxx
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Title:
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General Counsel
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[Signature Page to First Amendment to Note Purchase Agreement]
CASPIAN SELECT CREDIT MASTER
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FUND, LTD.
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XXXXXXX SOLITUDE MASTER FUND,
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L.P.
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CASPIAN HLSC1, LLC
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CASPIAN SC HOLDINGS, L.P.
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SPRING CREEK CAPITAL, LLC
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CASPIAN FOCUSED OPPORTUNITIES
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FUND, L.P.
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CASPIAN KEYSTONE FOCUSED FUND,
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X.X.
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XXXXXXXXXX ALTERNATIVE MULTISTRATEGY
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FUND IV L.L.C. II
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BLACKSTONE ALTERNATIVE MULTISTRATEGY
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FUND IV L.L.C. IIA
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By: CASPIAN CAPITAL L.P. in its capacity as manager, advisor, sub-advisor or similar capacity on behalf of certain funds and accounts,
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as a Purchaser
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By:
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/s/ Xxxxxxxx Xxxxxxxxx
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Name:
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Xxxxxxxx Xxxxxxxxx
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Title:
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Authorized Signatory
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[Signature Page to First Amendment to Note Purchase Agreement]
SCHEDULE 1
First Amendment Note Commitments
First Amendment Purchasers
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First Amendment Notes
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First Amendment Series B
Preferred Stock
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Onex Capital Solutions Holdings, LP
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$286,719.49
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286
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Marathon Distressed Credit Master Fund
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$1,106,363.29
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1,106
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Marathon Stepstone Master Fund LP
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$88,810.56
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88
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MCSP Sub, LLC
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$115,683.13
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115
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KHSU SPV LP LLC
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$579,448.60
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579
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Knighthead Master Fund, L.P.
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$564,749.73
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564
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Knighthead (NY) Fund, L.P.
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$166,658.65
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166
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Knighthead Distressed Opportunities Fund, LP
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$334,868.58
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334
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Total
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$3,243,302.02
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3,238
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EXHIBIT A
Amended Note Purchase Agreement
NOTE PURCHASE AGREEMENT
Dated as of April 17, 2023
among
as the Issuer,
WILCO HOLDCO, INC.
as the Intermediate Parent,
WILCO INTERMEDIATE HOLDINGS, INC.,
as Holdings,
ATI HOLDINGS ACQUISITION, INC.
as Opco,
THE PURCHASERS PARTY HERETO,
and
WILMINGTON SAVINGS FUND SOCIETY, FSB,
as Purchaser Representative
ARTICLE 1
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DEFINITIONS
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1
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Section 1.01.
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Defined Terms
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1
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Section 1.02.
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Classification of Notes and Issuances
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52 |
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Section 1.03.
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Terms Generally
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52 |
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Section 1.04.
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Accounting Terms; GAAP
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53 |
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Section 1.05.
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Effectuation of Transactions
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55 |
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Section 1.06.
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Timing of Payment or Performance
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55 |
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Section 1.07.
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Times of Day
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55 |
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Section 1.08.
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Currency Equivalents Generally
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55 |
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Section 1.09.
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Cashless Rollovers
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56 |
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Section 1.10.
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Certain Calculations and Tests
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56 |
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Section 1.11.
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[Reserved]
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57 |
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Section 1.12.
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Negative Covenant Carveouts
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57 |
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Section 1.13.
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[Reserved]
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57 |
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Section 1.14.
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Guarantees and Collateral
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57 |
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Section 1.15.
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Conflicts
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58 |
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Section 1.16.
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Confidentiality; Privilege
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58 |
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ARTICLE 2
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THE NOTES
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58 |
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Section 2.01.
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Authorization of Notes
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58 |
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Section 2.02.
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Purchase and Sale
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58 |
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Section 2.03.
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Delayed Draw Notes
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59 |
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Section 2.04.
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Additional Notes
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59 |
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Section 2.05.
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Notes and Issuances
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59 |
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Section 2.06.
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Restricted Securities
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59 |
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Section 2.07.
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Restrictive Legend
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59 | ||
Section 2.08.
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Book Entry; Notes Not Certificated.
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60 |
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Section 2.09.
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Funding Mechanics
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60 |
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Section 2.10.
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[Reserved]
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60 |
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Section 2.11.
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Termination and Reduction of Commitments
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60 |
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Section 2.12.
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Repayment of Notes; Evidence of Debt
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61 |
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Section 2.13.
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[Reserved]
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61 |
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Section 2.14.
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Fees
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61 |
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Section 2.15.
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Interest
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62 |
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Section 2.16.
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[Reserved]
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62 |
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Section 2.17.
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[Reserved]
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62 |
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Section 2.18.
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Increased Costs
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62 |
i
Section 2.19.
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[Reserved]
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63 |
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Section 2.20.
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Taxes
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64 |
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Section 2.21.
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Payments Generally; Allocation of Proceeds; Sharing of Payments
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67 |
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Section 2.22.
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Mitigation Obligations; Replacement of Purchasers
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69 |
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Section 2.23.
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[Reserved]
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70 |
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Section 2.24.
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Defaulting Purchasers
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70 |
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Section 2.25.
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Additional Notes
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71 |
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ARTICLE 3
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REPRESENTATIONS AND WARRANTIES
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73 |
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Section 3.01.
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Organization; Powers
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73 |
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Section 3.02.
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Authorization; Enforceability
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73 |
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Section 3.03.
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Governmental Approvals; No Conflicts
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73 |
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Section 3.04.
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Financial Condition; No Material Adverse Effect
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74 |
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Section 3.05.
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Properties
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74 |
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Section 3.06.
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Litigation and Environmental Matters
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74 |
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Section 3.07.
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Compliance with Laws; Healthcare Laws
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75 |
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Section 3.08.
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Investment Company Status
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75 |
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Section 3.09.
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Taxes
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75 |
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Section 3.10.
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ERISA
|
75 |
||
Section 3.11.
|
Disclosure
|
76 |
||
Section 3.12.
|
[Reserved]
|
76 |
||
Section 3.13.
|
Capitalization and Subsidiaries
|
76 |
||
Section 3.14.
|
Security Interest in Collateral
|
76 |
||
Section 3.15.
|
Labor Disputes
|
76 |
||
Section 3.16.
|
Federal Reserve Regulations
|
77 |
||
Section 3.17.
|
Sanctions; PATRIOT ACT and FCPA
|
77 |
||
ARTICLE 4
|
CONDITIONS
|
77 |
||
Section 4.01.
|
Closing Date
|
77 |
||
Section 4.02.
|
Issuance of Delayed Draw Notes
|
80 |
||
Section 4.03.
|
Each Note Issuance
|
80 |
||
Section 4.04.
|
Conditions Precedent to Agreement Effective Date
|
80 |
||
ARTICLE 5
|
AFFIRMATIVE COVENANTS
|
81 |
||
Section 5.01.
|
Financial Statements and Other Reports
|
81 |
||
Section 5.02.
|
Existence
|
84 |
||
Section 5.03.
|
Payment of Taxes
|
84 |
||
Section 5.04.
|
Maintenance of Properties
|
84 |
||
Section 5.05.
|
Insurance
|
84
|
ii
Section 5.06.
|
Inspection
|
84 |
||
Section 5.07.
|
Maintenance of Books and Records
|
85 |
||
Section 5.08.
|
Compliance with Laws
|
85 |
||
Section 5.09.
|
Environmental
|
85 |
||
Section 5.10.
|
Reserved.
|
86 |
||
Section 5.11.
|
Use of Proceeds
|
86 |
||
Section 5.12.
|
Covenant to Guarantee Obligations and Give Security
|
86 |
||
Section 5.13.
|
[Reserved]
|
89 |
||
Section 5.14.
|
Further Assurances
|
89 |
||
Section 5.15.
|
Post-Closing Covenant
|
89 |
||
Section 5.16.
|
Affiliated Practices
|
89 |
||
Section 5.17.
|
Cash Flow Consultant
|
90 |
||
ARTICLE 6
|
NEGATIVE COVENANTS
|
90 |
||
Section 6.01.
|
Indebtedness
|
90 |
||
Section 6.02.
|
Liens
|
95 |
||
Section 6.03.
|
[Reserved]
|
98 |
||
Section 6.04.
|
Restricted Payments; Restricted Debt Payment
|
98 |
||
Section 6.05.
|
Burdensome Agreements
|
102 |
||
Section 6.06.
|
Investments
|
104 |
||
Section 6.07.
|
Fundamental Changes; Disposition of Assets
|
107 |
||
Section 6.08.
|
[Reserved]
|
110 |
||
Section 6.09.
|
Transactions with Affiliates
|
110 |
||
Section 6.10.
|
Conduct of Business
|
112 |
||
Section 6.11.
|
Amendments or Waivers of Certain Documents
|
112 |
||
Section 6.12.
|
Amendments of or Waivers with Respect to Restricted Debt
|
113 |
||
Section 6.13.
|
Fiscal Year
|
113 |
||
ARTICLE 7
|
EVENTS OF DEFAULT
|
113 |
||
Section 7.01.
|
Events of Default
|
113 |
||
ARTICLE 8
|
THE PURCHASER REPRESENTATIVE
|
116 |
||
Section 8.01.
|
Appointment and Authorization of Purchaser Representative
|
116 |
||
Section 8.02.
|
Rights as a Purchaser
|
116 |
||
Section 8.03.
|
Exculpatory Provisions
|
117 |
||
Section 8.04.
|
Exclusive Right to Enforce Rights and Remedies
|
118 |
||
Section 8.05.
|
Reliance by Purchaser Representative
|
119 |
||
Section 8.06.
|
Delegation of Duties
|
119 |
||
Section 8.07.
|
Successor Purchaser Representative
|
120 |
iii
Section 8.08.
|
Non-Reliance On Purchaser Representative
|
121 |
||
Section 8.09.
|
Collateral and Guaranty Matters
|
121 |
||
Section 8.10.
|
Intercreditor Agreements
|
123 |
||
Section 8.11.
|
Indemnification of Purchaser Representative
|
123 |
||
Section 8.12.
|
Withholding Taxes
|
123 |
||
Section 8.13.
|
Purchaser Representative May File Proofs of Claim
|
124 |
||
Section 8.14.
|
Erroneous Payments
|
124 |
||
Section 8.15.
|
Representations and Warranties of the Purchasers
|
126 |
||
ARTICLE 9
|
MISCELLANEOUS
|
128 |
||
Section 9.01.
|
Notices
|
128 |
||
Section 9.02.
|
Waivers; Amendments
|
130 |
||
Section 9.03.
|
Expenses; Indemnity
|
134 |
||
Section 9.04.
|
Waiver of Claim
|
135 |
||
Section 9.05.
|
Transfers of Notes
|
136 |
||
Section 9.06.
|
Survival
|
143 |
||
Section 9.07.
|
Counterparts; Integration; Effectiveness
|
143 |
||
Section 9.08.
|
Severability
|
143 |
||
Section 9.09.
|
Right of Setoff
|
143 |
||
Section 9.10.
|
Governing Law; Jurisdiction; Consent to Service of Process
|
144 |
||
Section 9.11.
|
Waiver of Jury Trial
|
144 |
||
Section 9.12.
|
Headings
|
145 |
||
Section 9.13.
|
Confidentiality
|
145 |
||
Section 9.14.
|
No Fiduciary Duty
|
146 |
||
Section 9.15.
|
Several Obligations
|
146 |
||
Section 9.16.
|
USA PATRIOT Act
|
146 |
||
Section 9.17.
|
Disclosure of Purchaser Conflicts
|
146 | ||
Section 9.18.
|
Appointment for Perfection
|
146 | ||
Section 9.19.
|
Interest Rate Limitation
|
147 |
||
Section 9.20.
|
Intercreditor Agreement
|
147 | ||
Section 9.21.
|
Conflicts
|
147 | ||
Section 9.22.
|
Release of Guarantors
|
147 |
||
Section 9.23.
|
Acknowledgement and Consent to Bail-In of EEA Financial Institutions
|
148 |
||
Section 9.24.
|
Certain ERISA Matters
|
148 |
||
Section 9.25.
|
Acknowledgement Regarding Any Supported QFCs
|
149 |
||
Section 9.26.
|
Termination
|
150 |
iv
ARTICLE 10
|
CONVERSION OF NOTES
|
150 |
||
Section 10.01.
|
Conversion Privilege
|
150 |
||
Section 10.02.
|
Forced Conversion.
|
150 |
||
Section 10.03.
|
Conversion Procedure; Settlement Upon Conversion.
|
151 |
||
Section 10.04.
|
Adjustment of Conversion Price
|
152 |
||
Section 10.05.
|
Shares To Be Fully Paid
|
159 |
||
Section 10.06.
|
Effect of Recapitalizations; Reclassifications and Changes of Common Stock.
|
160 |
||
Section 10.07.
|
Certain Covenants.
|
160 |
||
Section 10.08.
|
Notice to Holders Prior to Certain Actions
|
161 |
||
Section 10.09.
|
Stockholder Rights Plans
|
161 |
||
Section 10.10.
|
Effect of Conversion
|
162 |
||
Section 10.11.
|
Closing Date
|
162 |
||
ARTICLE 11
|
SERIES B PREFERRED STOCK
|
162 |
||
Section 11.01.
|
Authorization and Issuance of Series B Preferred Stock.
|
162 |
||
Section 11.02.
|
Fully paid; Non-assessable; No Encumbrances
|
162 |
||
Section 11.03.
|
Restricted Securities
|
163 | ||
Section 11.04.
|
Restrictive Legend
|
163 | ||
Section 11.05.
|
Book Entry; Series B Preferred Stock Not Certificated.
|
163 | ||
Section 11.06.
|
Purchaser Representative
|
163 |
SCHEDULES:
|
||
Schedule 1.01(c)
|
Material Real Estate Asset
|
|
Schedule 1.01(e)
|
Closing Date Collateral Documents and Note Guarantees
|
|
Schedule 2.01
|
–
|
Commitments
|
Schedule 3.05
|
–
|
Fee Owned Real Estate Assets
|
Schedule 3.06
|
Litigation
|
|
Schedule 3.13
|
–
|
Capitalization and Subsidiaries
|
Schedule 4.01(b)
|
Local Counsel Opinions
|
|
Schedule 5.15
|
–
|
Post-Closing Obligations
|
Schedule 6.01
|
–
|
Existing Indebtedness
|
Schedule 6.02
|
–
|
Existing Liens
|
Schedule 6.06
|
–
|
Existing Investments
|
Schedule 9.01
|
Issuer’s Website Address for Electronic Delivery
|
|
Schedule 11.01
|
||
EXHIBITS:
|
||
Exhibit A-1
|
–
|
Form of Transfer Agreement
|
Exhibit A-2
|
Form of Affiliated Purchaser Transfer Agreement
|
v
Exhibit B-1
|
–
|
Form of Initial Note
|
Exhibit B-2
|
–
|
Form of Delayed Draw Note
|
Exhibit B-3
|
–
|
Form of Additional Note
|
--
|
Form of First Amendment Note
|
|
Exhibit C
|
–
|
Form of Registration Rights Agreement
|
Exhibit D
|
–
|
Form of Series B Certificate of Designation
|
Exhibit E
|
–
|
Form of Perfection Certificate
|
Exhibit F
|
–
|
Form of Second Lien Intercreditor and Subordination Agreement
|
Exhibit G
|
–
|
Form of Issuance Request
|
Exhibit H
|
–
|
Form of Intellectual Property Security Agreement
|
Exhibit I
|
–
|
Form of Guaranty Agreement
|
Exhibit J
|
–
|
Form of Security Agreement
|
Exhibit K
|
–
|
Form of Additional Note Commitment Notice
|
Exhibit L-1
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Purchasers That Are Not Partnerships for U.S. Federal Income Tax Purposes)
|
Exhibit L-2
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Not Partnerships for U.S. Federal Income Tax Purposes)
|
Exhibit L-3
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Participants That Are Partnerships for U.S. Federal Income Tax Purposes)
|
Exhibit L-4
|
–
|
Form of U.S. Tax Compliance Certificate (For Foreign Purchasers That Are Partnerships for U.S. Federal Income Tax Purposes)
|
Exhibit M
|
–
|
Form of Compliance Certificate
|
Exhibit N
|
–
|
Form of Joinder Agreement
|
Exhibit O
|
Reserved
|
|
Exhibit P
|
Form of Management Services Agreement
|
|
Exhibit Q
|
Form of Securities Transfer Restriction Agreement
|
|
Exhibit R
|
Form of Therapy Director Agreement
|
|
Exhibit S
|
Form of Holder Conversion Notice
|
vi
NOTE PURCHASE AGREEMENT
NOTE PURCHASE AGREEMENT, dated as of April 17, 2023 (this “Agreement”), by and among ATI PHYSICAL THERAPY, INC., a Delaware corporation (the “Issuer”), ATI HOLDINGS ACQUISITION,
INC., a Delaware corporation (“Opco”), WILCO HOLDCO, INC. (“Intermediate Parent”), WILCO INTERMEDIATE HOLDINGS, INC., Inc., a Delaware corporation (“Holdings”), the institutions from time to time party hereto as
Purchasers and WILMINGTON SAVINGS FUND SOCIETY, FSB (“WSFS”), in its capacities as purchaser representative and collateral agent for the Purchasers and the other Secured Parties (in its capacities as purchaser representative and
collateral agent, the “Purchaser Representative”).
RECITALS
A. The Issuer is prepared to, directly or indirectly, exchange certain Term Loans incurred by Opco under the First Lien Facility (each, as defined in the First Lien Credit Agreement)
in an aggregate principal amount of $100,000,000 for an issuance of Initial Notes on the Closing Date in an equivalent aggregate principal amount (such exchange, the “Term Loan Exchange”), and the Lenders (as defined in the First Lien
Credit Agreement) of such certain Exchanged Term Loans (as defined herein) have agreed to the Term Loan Exchange.
B. The Issuer is also prepared to issue, and the Purchasers have
agreed, subject to the terms and conditions set forth herein, to (i) purchase First Amendment Notes on the Closing Date in a maximum
aggregate principal amount of $3,243,302.02 and (ii) purchase Delayed Draw Notes after the Closing Date in a maximum aggregate principal amount of $25,000,000.
C. Additional Purchasers may from time to time agree to purchase Additional Notes in an aggregate principal amount after the Closing Date of up to the Fixed Incremental Amount.
X. Accordingly, the parties hereto agree as follows:
Section 1.01. Defined Terms. As used in this Agreement, the following terms have the meanings specified below:
“Acceptable Debtor-In-Possession Financing” means any debtor-in-possession or similar financing (a) incurred by the Issuer or a Restricted Subsidiary following a voluntary petition by
the Issuer or any of its Restricted Subsidiaries under or in connection with any Debtor Relief Law and (b) approved pursuant to an order of an applicable court under any Debtor Relief Law.
“Acceptable Practice Management Arrangements” means, with respect to any Physical Therapy Entity:
(a) a Management Services Agreement;
(b) a securities transfer restriction agreement (or similar agreement) (a “Securities Transfer Restriction Agreement”) among the APC Manager, such Physical
Therapy Entity (or the Physical Therapy Entity which is the direct or indirect parent of such Physical Therapy Entity) and the Physical Therapist Owner of such Physical Therapy Entity, on terms, taken as a whole, in the good faith judgment of
the Issuer, that are not materially less favorable to the Purchasers than those set forth in the form of securities transfer restriction agreement attached hereto as Exhibit Q or such other terms as are (i) reasonably acceptable to
the Purchaser Representative (acting at the instructions of the Required Purchasers) and/or (ii) in the good faith judgment of the Issuer, required pursuant to or reasonably advisable to facilitate compliance with applicable Requirements of
Law;
(c) a therapy director agreement (or similar agreement) (a “Therapy Director Agreement”) among the APC Manager and the Physical Therapist Owner of such
Physical Therapy Entity on terms, taken as a whole, in the good faith judgment of the Issuer, that are not materially less favorable to the Purchasers than those set forth in the form of therapy director agreement attached hereto as Exhibit
R or such other terms as are (i) reasonably acceptable to the Purchaser Representative (acting at the instructions of the Required Purchasers) and/or (ii) in the good faith judgment of the Issuer, required pursuant to or reasonably
advisable to facilitate compliance with applicable Requirements of Law, and
(d) a loan agreement (or similar agreement) (a “Practice Loan Agreement”) by the Physical Therapy Entity, as borrower, and the APC Manager or other Note
Party, as lender, for the purpose of advancing funds to the Physical Therapy Entity to pay its liabilities (including management fees) and, if applicable, to finance Permitted Acquisitions and other investments of the Physical Therapy Entity,
which loan agreement shall contain restrictions applicable to the Physical Therapy Entity on (i) incurring third party debt, (ii) granting liens, (iii) paying dividends or other distributions to its Physical Therapist Owner(s) (other than in
connection with maintenance of legal status and/or the payment of taxes), (iv) consummating asset sales, (v) making investments (other than loans to one or more Note Parties, investments in other Consolidated APCs and Permitted Acquisitions)
and (vi) affiliate transactions, in each case, subject to other exceptions, thresholds and qualifications which are not, taken as a whole, materially adverse to the Purchasers or which in the good faith judgment of the Issuer, are required
pursuant to or reasonably advisable to facilitate compliance with applicable Requirements of Law,
provided that in each case, there shall be no restrictions or prohibitions in any Management Services Agreement, Securities Transfer Restriction Agreement, Therapy Director Agreement
or Practice Loan Agreement that would cause such Management Services Agreement, Securities Transfer Restriction Agreement, Therapy Director Agreement or Practice Loan Agreement to constitute Excluded Assets.
Notwithstanding the foregoing, until the First Lien Credit Agreement Obligations Payment Date, with respect to any item reflected in this definition (or any component defined term used
herein) that is required to be reasonably satisfactory to, or consented to by, the Purchaser Representative (acting at the instructions of the Required Purchasers), or with respect to which the Purchaser Representative (acting at the
instructions of the Required Purchasers) is otherwise granted discretion, the determination of the First Lien Credit Agreement Agent (or the equivalent representative under any other First Lien Facility) shall be deemed to be the
determination of the Purchaser Representative and the Required Purchasers, as applicable, with respect thereto.
“ACH” means automated clearing house transfers.
“Acqui-Novo Facility” means any existing physical therapy clinic that has been acquired by the Issuer, any Restricted Subsidiary and/or any Affiliated
Practice.
“Additional Agreement” has the meaning assigned to such term in Section 8.10.
“Additional Note Commitment” means, with respect to any Person, the commitment of such Person to purchase Additional Notes hereunder, as set forth in an Additional Note Commitment
Notice delivered by such Person and acknowledged by the Issuer at any time and from time to time after the Closing Date, as the same may be reduced or increased from time to time pursuant to transfers to or by such Purchaser pursuant to Section
9.05.
“Additional Note Commitment Notice” means a notice in substantially the form attached hereto as Exhibit K or such other form to which the Additional Purchasers providing a
majority of the Additional Note Commitment contemplated thereby may reasonably agree.
“Additional Note Commitment Termination Date” means, with respect to any Additional Note Commitment, the termination date specified with respect thereto in the applicable Additional
Note Commitment Notice.
“Additional Notes” means any senior second lien secured convertible PIK notes sold by the Issuer and purchased by any Additional Purchaser after the Closing Date pursuant to Section
2.25 (including any interest accrued thereof, which shall be payable in kind) and substantially in the form attached hereto as Exhibit B-3.
“Additional Purchaser” means any Person with an Additional Note Commitment and/or an outstanding Additional Note.
“Additional Series B Preferred Stock” means shares of Series B Preferred Stock, par value $0.0001 per share, of the Issuer, issued upon each Issuance of Delayed Draw Notes or
Additional Notes, as applicable.
“Additional Shares of Common Stock” means all shares of Common Stock issued (or deemed to be issued) by the Issuer after the date hereof, other than (a) the following shares of Common
Stock and (b) shares of Common Stock deemed issued pursuant to the following Options and Convertible Securities (clauses (a) and (b), collectively, “Exempted Securities”):
(i) shares of Common Stock, Options or Convertible Securities issued by reason of a dividend, stock split, split-up or other distribution on shares of Common Stock that is covered by
Section 1.03;
(ii) shares of Common Stock or Options issued to employees or directors of, or consultants or advisors to, the Issuer or any of its Subsidiaries pursuant to a plan, agreement or
arrangement approved by the Board of Directors of the Issuer; or
(iii) shares of Common Stock or Convertible Securities actually issued upon the exercise of Options or shares of Common Stock actually issued upon the conversion or exchange of
Convertible Securities, in each case provided such issuance is pursuant to the terms of such Option or Convertible Security.
“Administrative Questionnaire” means a customary administrative questionnaire in the form provided by the Purchaser Representative.
“Advent” means Advent International Corporation, together with its controlled Affiliates and funds managed or advised by it or any or its respective controlled Affiliates (other than
any portfolio company).
“Adverse Proceeding” means any action, suit, proceeding (whether administrative, judicial or otherwise), governmental investigation or arbitration (whether or not purportedly on behalf
of the Issuer or any of its Restricted Subsidiaries) at law or in equity, or before or by any Governmental Authority, domestic or foreign (including any Environmental Claim), whether pending or, to the knowledge of the Issuer or any of its
Restricted Subsidiaries, threatened in writing, against or affecting the Issuer or any of its Restricted Subsidiaries or any property of the Issuer or any of its Restricted Subsidiaries.
“Affiliate” means, as applied to any Person, any other Person directly or indirectly Controlling, Controlled by, or under common Control with, that Person. No Person shall be an
“Affiliate” solely because it is an unrelated portfolio company of the Sponsors and none of the Purchaser Representative, any Purchaser (other than, to the extent such Person otherwise constitutes an Affiliate, any Affiliated Purchaser or any
Debt Fund Affiliate) or any of their respective Affiliates shall be considered an Affiliate of the Issuer or any subsidiary thereof. Notwithstanding the foregoing, solely with respect to Section 6.09, (i) each Sponsor shall be deemed
an Affiliate of the Note Parties and (ii) “Affiliate” will include any Person with the power to vote 5% or more of the Capital Stock having ordinary voting power for the election of directors of such Person.
“Affiliated Purchaser” means, collectively, (i) any Non-Debt Fund Affiliate, (ii) the Issuer, and any subsidiary of the Issuer and (iii) any Affiliated Practice.
“Affiliated Purchaser Transfer Agreement” means a Transfer Agreement entered into by a Purchaser and an Affiliated Purchaser (with the consent of any party whose consent is required by
Section 9.05) and accepted by the Purchaser Representative in the form of Exhibit A-2 or any other form approved by the Purchaser Representative and the Issuer.
“Affiliated Practice” means any Physical Therapy Entity that is or will become party to a Management Services Agreement, including any Practice Subsidiary following a transfer of its
Capital Stock in any Permitted Practice Subsidiary Restructuring. For the avoidance of doubt, the term “Affiliated Practice” may include both Consolidated APCs and Non-Consolidated APCs.
“Agreement” has the meaning assigned to such term in the preamble hereof.
“Amendment No. 2 to Credit Agreement” means that certain Amendment No. 2 to Credit Agreement, dated as of April 17, 2023 by and among Opco, as borrower, Holdings, HPS Investment
Partners, LLC, as lender representative, the other lenders party thereto, and Barclays Bank PLC as administrative agent.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Issuer or any of its subsidiaries from time to time concerning or relating to
bribery or corruption.
“APC Manager” has the meaning assigned to such term in the definition of “Management Services Agreement”.
“Applicable Additional Note Percentage” means, with respect to any applicable Additional Purchaser in respect of any Additional Note Commitment, a percentage equal to fraction the
numerator of which is the aggregate outstanding principal amount of unused Additional Note Commitments of such Additional Purchaser and the denominator of which is the aggregate outstanding principal amount of such Additional Note Commitments
of all Additional Purchasers.
“Applicable Percentage” means, with respect to any Purchaser of any Class, a percentage equal to a fraction the numerator of which is the aggregate outstanding principal amount of the
Notes, unused Delayed Draw Note Commitments and unused Additional Note Commitments of such Purchaser under the applicable Class and the denominator of which is the aggregate outstanding principal amount of the Notes, unused Delayed Draw Note
Commitments and unused Additional Note Commitments of all Purchasers under the applicable Class.
“Applicable Rate” means, with respect to any Note, a rate per annum equal to 8.00%.
“Approved Fund” means, with respect to any Purchaser, any Person (other than a natural person) that is engaged in making, purchasing, holding or otherwise investing in commercial loans
and similar extensions of credit in the ordinary course of its activities and is administered, advised or managed by (a) such Purchaser, (b) any Affiliate of such Purchaser or (c) any entity or any Affiliate of any entity that administers,
advises or manages such Purchaser.
“Available Amount” means, at any time, an amount equal to, without duplication:
(a) the sum of:
(i) [reserved];
(ii) an amount, not less than zero for any period, equal to the Retained Excess Cash Flow Amount (as defined in the First Lien Credit Agreement as an effect on the
Signing Date or the corresponding term in the documentation governing any other First Lien Facility to the extent not less favorable to the Purchasers)) (provided that the Retained Excess Cash Flow Amount shall not be available for any
(A) Restricted Payment pursuant to Section 6.04(a)(iii)(A), (B) Restricted Debt Payments pursuant to Section 6.04(b)(vi)(A) or (C) Investments pursuant to Section 6.06(r)(i) unless (A) solely in the case of such
Restricted Payment and/or Restricted Debt Payment, no Event of Default exists at the time of declaration of such Restricted Payment and (B) after giving effect thereto, the Secured Net Leverage Ratio, calculated on a Pro Forma Basis, would
not exceed 6.25:1.00); plus
(iii) the amount of any capital contribution in respect of Qualified Capital Stock or the proceeds of any issuance of Qualified Capital Stock after the Closing Date
(other than any amounts (w) resulting from the conversion or exchange of the Notes into Capital Stock, (x) constituting a Cure Amount, an Available Excluded Contribution Amount or a Contribution Indebtedness Amount, (y) received from the
Issuer, any Restricted Subsidiary or any Affiliated Practice or (z) consisting of the proceeds of any loan or advance made pursuant to Section 6.06(h)(ii)), in each case, received as Cash equity by the Issuer or any of its Restricted
Subsidiaries, plus the amount of Cash Equivalents received by the Issuer or any Restricted Subsidiary as capital contribution in respect of Qualified Capital Stock or in return for any issuance of Qualified Capital Stock (other than amounts
(x) constituting a Cure Amount, an Available Excluded Contribution Amount or a Contribution Indebtedness Amount or (y) received from the Issuer, or any Restricted Subsidiary or any Affiliated Practice), in each case, during the period from
and including the day immediately following the Closing Date through and including such time; plus
(iv) [reserved]; plus
(v) the net proceeds received by the Issuer or any Restricted Subsidiary during the period from and including the day immediately following the Closing Date through
and including such time in connection with the Disposition to any Person (other than the Issuer, any Restricted Subsidiary or any Affiliated Practice) of any Investment made pursuant to Section 6.06(r)(i); plus
(vi) to the extent not already reflected as a return of capital with respect to such Investment for purposes of determining the amount of such Investment (pursuant to
the definition thereof), the proceeds received (or deemed to be received) by the Issuer or any Restricted Subsidiary during the period from and including the day immediately following the Closing Date through and including such time in
connection with cash returns, cash profits, cash distributions and similar cash amounts, including cash principal repayments and interest payments of loans, in each case received in respect of any Investment made after the Closing Date
pursuant to Section 6.06(r)(i); plus
(vii) [reserved]; plus
(viii) the amount of any Declined Proceeds (as defined in the First Lien Credit Agreement as in effect on the Signing Date (or the equivalent term under any First Lien
Facility to the extent not less favorable to the Purchasers)); minus
(b) an amount equal to the sum of (i) Restricted Payments made pursuant to Section 6.04(a)(iii)(A), plus (ii) Restricted Debt Payments made pursuant
to Section 6.04(b)(vi)(A), plus (iii) Investments made pursuant to Section 6.06(r)(i), in each case, after the Closing Date and prior to such time or contemporaneously therewith.
It is understood and agreed that in no event shall (i) any proceeds of the Series A Preferred Shares contributed to the Issuer, (ii) any proceeds of the Notes or (iii) the conversion or exchange of the Notes
into Capital Stock of any Person, increase the Available Amount.
“Available Excluded Contribution Amount” means the aggregate amount of Cash or Cash Equivalents (excluding any Cure Amount and/or any Contribution Indebtedness Amount) received by the
Issuer or any of its Restricted Subsidiaries after the Closing Date from:
(a) contributions in respect of Qualified Capital Stock of the Issuer (other than any amounts received from any Restricted Subsidiary of the Issuer or any
Affiliated Practice), and
(b) the sale of Qualified Capital Stock of the Issuer (other than (x) to any Restricted Subsidiary of the Issuer or any Affiliated Practice, (y) pursuant to any
management equity plan or stock option plan or any other management or employee benefit plan or (z) with the proceeds of any loan or advance made pursuant to Section 6.06(h)(ii)),
in each case, designated by the Issuer as an Available Excluded Contribution Amount pursuant to a certificate of a Responsible Officer on or promptly after the date on which the relevant capital contribution is
made or the relevant proceeds are received (or deemed received), as the case may be, and which are excluded from the calculation of the Available Amount.
It is understood and agreed that in no event shall (i) any proceeds of the Series A Preferred Shares contributed to the Issuer, (ii) any proceeds of the Notes or (iii) the conversion or
exchange of the Notes into Capital Stock of any Person, increase the Available Excluded Contribution Amount.
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.
“Bail-In Legislation” means, (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European
Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom
Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliate
(other than through liquidation, administration or other insolvency proceedings).
“Banking Services” means each and any of the following: commercial credit cards, stored value cards, purchasing cards, treasury management services, netting services, overdraft
protections, check drawing services, automated payment services (including depository, overdraft, controlled disbursement, ACH transactions, return items and interstate depository network services), employee credit card programs, cash pooling
services and any arrangements or services similar to any of the foregoing and/or otherwise in connection with Cash management and Deposit Accounts.
“Banking Services Obligations” means any and all obligations of any Note Party, whether absolute or contingent and however and whenever created, arising, evidenced or acquired
(including all renewals, extensions and modifications thereof and substitutions therefor), in connection with Banking Services under any arrangement in connection with Banking Services that is in effect on the Closing Date or entered into at
any time on or after the Closing Date.
“Bankruptcy Code” means Title 11 of the United States Code (11 U.S.C. § 101 et seq.), as it has been, or may be, amended from time to time.
“Blackout Period” has the meaning assigned to such term in Section 10.02(a).
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City and Wilmington, Delaware are authorized or required by law to remain
closed.
“Business Optimization Initiative” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Capital Expenditures” means, with respect to the Issuer and its Restricted Subsidiaries for any period, the aggregate amount, without duplication, of all expenditures (whether paid in
cash or accrued as liabilities and including in all events all amounts expended or capitalized under Capital Leases) that would, in accordance with GAAP, are, or are required to be included as, capital expenditures on the consolidated
statement of cash flows of the Issuer and its Restricted Subsidiaries for such period.
“Capital Lease” means, subject to Section 1.04, as applied to any Person, any lease of any property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is or should be accounted for as a capital lease on the balance sheet of that Person; provided, that for the avoidance of doubt, the amount of obligations attributable to any Capital Lease shall be the amount
thereof accounted for as a liability in accordance with GAAP.
“Capital Stock” means any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all equivalent ownership
interests in a Person (other than a corporation), including partnership interests and membership interests, and any and all warrants, rights or options to purchase or other arrangements or rights to acquire any of the foregoing, but excluding
for the avoidance of doubt any Indebtedness convertible into or exchangeable for any of the foregoing.
“Captive Insurance Subsidiary” means any Restricted Subsidiary of the Issuer that is subject to regulation as an insurance company (or any Restricted Subsidiary thereof).
“Cash” means money, currency or a credit balance in any Deposit Account, in each case determined (i) in accordance with GAAP or (ii) solely for purposes of determining the Unrestricted
Cash Amount, in accordance with the bank ledger.
“Cash Equivalents” means, as at any date of determination, (a) readily marketable securities (i) issued or directly and unconditionally guaranteed or insured as to interest and
principal by the U.S. government or (ii) issued by any agency or instrumentality of the U.S. the obligations of which are backed by the full faith and credit of the U.S., in each case maturing within one year after such date and, in each
case, repurchase agreements and reverse repurchase agreements relating thereto; (b) readily marketable direct obligations issued by any state of the U.S. or any political subdivision of any such state or any public instrumentality thereof or
by any foreign government, in each case maturing within one year after such date and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Xxxxx’x (or, if at any time neither S&P nor
Xxxxx’x shall be rating such obligations, an equivalent rating from another nationally recognized statistical rating agency) and, in each case, repurchase agreements and reverse repurchase agreements relating thereto; (c) commercial paper
maturing no more than one year from the date of creation thereof and having, at the time of the acquisition thereof, a rating of at least A-2 from S&P or at least P-2 from Xxxxx’x (or, if at any time neither S&P nor Xxxxx’x shall be
rating such obligations, an equivalent rating from another nationally recognized statistical rating agency); (d) deposits, money market deposits, time deposit accounts, certificates of deposit or bankers’ acceptances (or similar instruments)
maturing within one year after such date and issued or accepted by any Lender (as defined in the First Lien Credit Agreement) or by any bank organized under, or authorized to operate as a bank under, the laws of the U.S., any state thereof or
the District of Columbia or any political subdivision thereof or any foreign bank or its branches or agencies and that has capital and surplus of not less than $100,000,000 and, in each case, repurchase agreements and reverse repurchase
agreements relating thereto; (e) securities with maturities of six months or less from the date of acquisition backed by standby letters of credit issued by any commercial bank having capital and surplus of not less than $100,000,000; (f)
shares of any money market mutual fund that has (i) substantially all of its assets invested in the types of investments referred to in clauses (a) through (e) above, (ii) net assets of not less than $250,000,000 and (iii) a
rating of at least A-2 from S&P or at least P-2 from Xxxxx’x; and (g) solely with respect to any Captive Insurance Subsidiary, any investment that such Captive Insurance Subsidiary is not prohibited to make in accordance with applicable
law.
“Cash Equivalents” shall also include (x) Investments of the type and maturity described in clauses (a) through (g) above of foreign obligors, which Investments or
obligors (or the parent companies thereof) have the ratings described in such clauses or equivalent ratings from comparable foreign rating agencies and (y) other short-term Investments utilized by Foreign Subsidiaries in accordance with
normal investment practices for cash management in Investments that are analogous to the Investments described in clauses (a) through (g) and in this paragraph.
“Cash Flow Consultant” means a financial advisory firm, reasonably acceptable to the Required Purchasers, engaged by the Issuer or Opco to act as an operational and cash flow
consultant; it being understood and agreed that any of FTI Consulting, Xxxxxxx & Marshal, Xxxx, Xxxxxx Xxxxxxxxx, Xxxxx Xxxxx, Xxxxx & Xxxxx and Huron Consulting Group are reasonably acceptable to the Required Purchasers.
“Cash Flow Forecast” means the 13-week cash flow forecast delivered pursuant to Section 5.01(j).
“Cash Flow Reporting Period” means the period commencing on the Closing Date and ending on the first date thereafter on which (a) Consolidated Adjusted EBITDA of Opco and its
subsidiaries for a Test Period is greater than $50,000,000 and (b) the Issuer shall have delivered a certificate of a Responsible Officer to the Purchaser Representative showing such calculation in reasonable detail.
“Certificate of Designation Amendment” shall have the meaning assigned to such term in the Transaction Support Agreement.
“Certificate of Incorporation Amendment” shall have the meaning assigned to such term in the Transaction Support Agreement.
“Change in Law” means (a) the adoption of any law, treaty, rule or regulation after the Closing Date, (b) any change in any law, treaty, rule or regulation or in the interpretation or
application thereof by any Governmental Authority after the Closing Date or (c) compliance by any Purchaser (or, for purposes of Section 2.18(b), by any lending office of such Purchaser or by such Purchaser’s holding company, if any)
with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the Closing Date (other than any such request, guideline or directive to comply with any law, rule or
regulation that was in effect on the Closing Date). For purposes of this definition and Section 2.18, (x) the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act and all requests, rules, guidelines, requirements and directives
thereunder or issued in connection therewith or in implementation thereof and (y) all requests, rules, guidelines, requirements or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision
(or any successor or similar authority) or U.S. or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case described in clauses (a), (b) and (c) above, be deemed to be a Change in Law,
regardless of the date enacted, adopted, issued or implemented.
“Change of Control” means the occurrence of any of the following:
(a) a Responsible Officer of the Issuer becomes aware of the acquisition of the beneficial ownership by any Person or group (as used in this definition, within the
meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) (including any group acting for the purpose of acquiring, holding or disposing of Securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), but excluding
(i) any employee benefit plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor, (ii) one or more Permitted Holders and (iii) any underwriter in connection with any offering of Capital Stock after the
Closing Date), of voting stock representing more than 50% of the total voting power of all of the outstanding voting stock of the Issuer; provided, that notwithstanding the provisions of this clause (a), no “Change of Control” shall be deemed
to have occurred under this clause (a) (i) if the Permitted Holders have the right, by voting power, contract or otherwise, to elect or designate for election at least a majority of the board of directors of the Issuer or (ii) as a result of
a transfer by any Purchaser to any Purchaser or any Affiliate of such Purchaser or an Approved Fund; or
(b) [reserved]; or
(c) Opco ceasing to be a direct or indirect Wholly-Owned Subsidiary of the Parent; or
(d) a “Change of Control” (or equivalent term) occurs under the Series A Certificate of Designation or any other governing document of the Series A Preferred
Shares.
For purposes of this definition, (1) a Person or group shall not be deemed to beneficially own Capital Stock or voting power subject to a stock or asset purchase agreement, merger agreement
or similar agreement (or voting or similar agreement related thereto) until the consummation of the acquisition of the Capital Stock or voting power pursuant to the transactions contemplated by such agreement and (2) it is understood and
agreed that any transaction resulting in a Successor Issuer or successor Parent, Intermediate Parent or Holdings in accordance with the terms hereof shall not give rise to a Change of Control.
“Charge” means any fee, loss, charge, expense, cost, accrual or reserve of any kind.
“Charged Amounts” has the meaning assigned to such term in Section 9.19.
“Charter” means the Issuer’s Second Amended and Restated Certificate of Incorporation, filed on June 16, 2021 as amended from time to time in accordance with its terms.
“Class”, when used with respect to (a) any Note or Issuance, refers to whether such Note, or the Notes comprising such Issuance, are Initial Notes, First Amendment Notes, Delayed Draw Notes or Additional Notes identified in the same Additional Note Commitment Notice, (b) any Commitment, refers to whether
such Commitment is an Initial Note Commitment, a First Amendment Note Commitment, a Delayed Draw Note Commitment or an
Additional Note Commitment identified in the same Additional Note Commitment Notice or (c) any Purchaser, refers to whether such Purchaser has a Note of a particular Class.
“Closing Date” means the date on which the conditions specified in Section 4.01 are satisfied (or waived in accordance with Section 9.02).
“Code” means the Internal Revenue Code of 1986, as amended.
“Collateral” means any and all property of any Note Party subject (or purported to be subject) to a Lien under any Collateral Document and any and all other property of any Note Party,
now existing or hereafter acquired, that is or becomes subject (or purported to be subject) to a Lien pursuant to any Collateral Document to secure the Secured Obligations. For the avoidance of doubt, in no event shall “Collateral” include
any Excluded Asset.
“Collateral and Guarantee Requirement” means, at any time, subject to (x) the applicable limitations set forth in this Agreement and/or any other Note Document and the terms of any
applicable Intercreditor Agreement and (y) the time periods (and extensions thereof) set forth in Section 5.12 and/or Section 5.15, as applicable, the requirement that:
(a) on the Closing Date, the Purchaser Representative (on behalf of the Secured Parties) (or, in the case of clauses (ii) and (iii), the First Lien Credit Agreement
Agent, as gratuitous bailee for the Purchaser Representative) shall have received (i) each Collateral Document and Note Guaranty listed on Schedule 1.01(e), duly executed by each Note Party party thereto, (ii) a pledge of all of the
Capital Stock (together, in the case of Capital Stock that is certificated, with undated stock or similar powers for each such certificate executed in blank by a Responsible Officer of the pledgor thereof) of the Issuer and the Restricted
Subsidiaries listed on Schedule 3 to the Perfection Certificate delivered on the Closing Date, (iii) each Material Debt Instrument listed on Schedule 4 to the Perfection Certificate delivered on the Closing Date, endorsed (without recourse)
in blank or accompanied by executed transfer form in blank by the pledgor thereof and (iv) Form UCC-1 financing statements in appropriate form for filing in the jurisdiction of organization of each Note Party;
(b) after the Closing Date, the Purchaser Representative (on behalf of the Secured Parties) or its counsel shall have received in the case of any Restricted
Subsidiary that is required to become a Note Party after the Closing Date (including by ceasing to be an Excluded Subsidiary):
(i) (A) a Joinder Agreement, (B) if the respective Restricted Subsidiary required to comply with the requirements set forth in this definition pursuant to Section
5.12 owns registrations of or applications for U.S. Patents, Trademarks and/or Copyrights that constitute Collateral, an Intellectual Property Security Agreement in substantially the form attached as Exhibit H hereto, (C) a
completed Perfection Certificate with respect to such Restricted Subsidiary, (D) Uniform Commercial Code financing statements in appropriate form for filing in such jurisdictions as the Required Purchasers may reasonably request, (E) an
executed joinder to any applicable Intercreditor Agreement in substantially the form attached as an exhibit thereto and (F) a joinder to the Intercompany Note; and
(ii) each item of Collateral that such Restricted Subsidiary is required to deliver under Section 4.02 of the Security Agreement (which, for the avoidance of doubt,
shall be delivered within the applicable time period set forth in Section 5.12(a)); and
(iii) in the case of any subsidiary that has been designated as a Discretionary Guarantor (A) with respect to any such subsidiary that is a Domestic Subsidiary, the
documents described in clause (b)(i) above and (B) with respect to any such subsidiary that is a Foreign Subsidiary, (1) a Joinder Agreement and (2) such other documentation with respect to the creation and perfection of Liens in favor of the
Purchaser Representative, for the benefit of the Secured Parties, in such categories of assets (other than Excluded Assets) as the Issuer and Required Purchasers may reasonably agree; and
(c) the Purchaser Representative (on behalf of the Secured Parties) shall have received with respect to any Material Real Estate Asset acquired after the Closing
Date, a Mortgage and any necessary UCC fixture filing in respect thereof, in each case together with, to the extent customary and appropriate (as reasonably determined by the Required Purchasers and the Issuer):
(i) evidence that (A) counterparts of such Mortgage have been duly executed, acknowledged and delivered by the relevant Note Party and such Mortgage, to the extent
the same does not serve as a fixture filing in the relevant jurisdiction, and any corresponding UCC or equivalent fixture filing are in form suitable for filing or recording in all filing or recording offices that the Required Purchasers may
reasonably deem necessary in order to create a valid and subsisting Lien on such Material Real Estate Asset in favor of the Purchaser Representative for the benefit of the Secured Parties, (B) such Mortgage and any corresponding UCC or
equivalent fixture filings have been duly recorded or filed or delivered for recordation or filing, as applicable, and (C) all filing and recording taxes and fees have been paid or otherwise provided for in a manner reasonably satisfactory to
the Required Purchasers;
(ii) one or more fully paid policies of title insurance (the “Mortgage Policies”) in an amount reasonably acceptable to the Required Purchasers (not to exceed
the fair market value of the Material Real Estate Asset covered thereby (as reasonably determined by the Issuer)) issued by a nationally recognized title insurance company in the applicable jurisdiction that is reasonably acceptable to the
Required Purchasers, insuring the relevant Mortgage as having created a valid subsisting Lien on the real property described therein with the ranking or the priority which it is expressed to have in such Mortgage, subject only to Permitted
Liens, together with such endorsements, coinsurance and reinsurance as the Required Purchasers may reasonably request to the extent the same are available in the applicable jurisdiction;
(iii) customary legal opinions of local counsel for the relevant Note Party in the jurisdiction in which such Material Real Estate Asset is located, and if applicable,
in the jurisdiction of formation of the relevant Note Party, in each case as the Required Purchasers may reasonably request; and
(iv) surveys and appraisals (if required under the Financial Institutions Reform Recovery and Enforcement Act of 1989, as amended) and “Life-of-Loan” flood
certifications and any required borrower notices under Regulation H (together with evidence of federal flood insurance for any such Flood Hazard Property located in a flood hazard area); provided that the Required Purchasers may in
their reasonable discretion accept (A) any existing appraisal so long as such existing appraisal or survey satisfies any applicable local law requirements and (B) any new survey or any existing survey, together with a no change affidavit, in
either case sufficient for the relevant title insurance company to remove the standard survey exception and issue the survey-related endorsements.
Notwithstanding any provision of any Note Document to the contrary, if any mortgage tax or similar tax or charge is owed on the entire amount of the Secured Obligations evidenced hereby,
then, to the extent permitted by, and in accordance with, applicable Requirements of Law, the amount of such mortgage tax or similar tax or charge shall be calculated based
on the lesser of (x) the amount of the Secured Obligations allocated to the applicable Material Real Estate Asset and (y) the fair market value of the applicable Material Real Estate Asset at the time the Mortgage is entered into and determined in a manner reasonably acceptable to the Required Purchasers and the Issuer, which in the case of clause (y) will result in a limitation of the Secured Obligations secured by the Mortgage to such amount.
It is understood and agreed that the requirements set forth in clauses (c)(ii), (b)(ii) and (b)(iv) above with respect to any Material Real Estate Asset shall be deemed to be
satisfied upon the provision by the Issuer of the copies of the relevant item delivered to the First Lien Credit Agreement Agent in compliance with the requirements set forth in the First Lien Credit Agreement (it being understood and agreed
that any such item that is required to be acceptable or satisfactory (or a similar term) to the Required Purchasers shall be deemed to be so acceptable or satisfactory (or similar term) if it is delivered to the First Lien Credit Agreement
Agent in compliance with the requirements set forth in the First Lien Credit Agreement).
“Collateral Documents” means, collectively, (i) the Security Agreement, (ii) each Mortgage, (iii) each Intellectual Property Security Agreement, (iv) any supplement to any of the
foregoing delivered or deemed delivered to the Purchaser Representative pursuant to the definition of “Collateral and Guarantee Requirement”, (v) the Perfection Certificate (including any Perfection Certificate delivered to the Purchaser
Representative pursuant to the definition of “Collateral and Guarantee Requirement”) and (vi) each of the other instruments and documents pursuant to which any Note Party grants (or purports to grant) a Lien on any Collateral as security for
payment of the Secured Obligations.
“Commercial Tort Claim” has the meaning set forth in Article 9 of the UCC.
“Commitment” means, with respect to each Purchaser, such Purchaser’s Initial Note
Commitment, First Amendment Note Commitment, Delayed Draw Note Commitment and Additional Note Commitment, as applicable, in effect as of such time.
“Common Stock” means shares of Class A common stock, par value $0.0001 per share, of the Issuer.
“Company Competitor” means any competitor of the Issuer and/or any of its subsidiaries.
“Competitor Debt Fund Affiliate” means, with respect to any Company Competitor or any Affiliate thereof, any debt fund, investment vehicle, regulated bank entity or unregulated lending
entity (in each case, other than any Disqualified Lending Institution) that is (a) primarily engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of business
for financial investment purposes (but not with a view towards (i) owning the borrower or issuer of any such loan or similar extension of credit or (ii) investing in special or opportunistic situations) and (b) managed, sponsored or advised
by any person that is controlling, controlled by or under common control with the relevant Company Competitor or Affiliate thereof, but only to the extent that no personnel involved with the investment in the relevant Company Competitor or
its Affiliates, or the management, control or operation thereof, (i) makes (or has the right to make or participate with others in making) investment decisions on behalf of, or otherwise cause the direction of the investment policies of, such
debt fund, investment vehicle, regulated bank entity or unregulated entity or (ii) has access to any information (other than information that is publicly available) relating to the Issuer and/or any entity that forms part of its business
(including any of its subsidiaries).
“Compliance Certificate” means a Compliance Certificate substantially in the form of Exhibit M.
“Confidential Information” has the meaning assigned to such term in Section 9.13.
“Consolidated Adjusted EBITDA” means, with respect to any Person on a consolidated basis for any period, the sum of:
(a) Consolidated Net Income for such period; plus
(b) to the extent not otherwise included in the determination of Consolidated Net Income for such period, the amount of any proceeds of any business interruption
insurance policy in an amount representing the earnings for the applicable period that such proceeds are intended to replace (whether or not then received so long as such Person in good faith expects to receive such proceeds within the next
four Fiscal Quarters (it being understood that to the extent such proceeds are not actually received within such Fiscal Quarters, such proceeds shall be deducted in calculating Consolidated Adjusted EBITDA for such Fiscal Quarters)); plus
(c) without duplication, those amounts which, in the determination of Consolidated Net Income for such period, have been deducted for:
(i) Consolidated Interest Expense;
(ii) Charges related to any de novo facility (including any Acqui-Novo Facility), including any construction, pre-opening and start-up period prior to opening, until
such facility has been open and operating (in the case of any Acqui-Novo Facility, as an “ATI” or similar trade name clinic) for a period of 6 consecutive months; provided, that the aggregate amount added back to Consolidated Net
Income for purposes of the determination of Consolidated Adjusted EBITDA in any four Fiscal Quarter period in reliance on this clause (c)(ii), together with the aggregate amount added back to Consolidated Net Income for purposes of
the determination of Consolidated Adjusted EBITDA in such four Fiscal Quarter period in reliance on clauses (c)(xii), (c)(xiii), (c)(xiv), and (c)(xv), the aggregate amounts added in determining Consolidated
Adjusted EBITDA in such four Fiscal Quarter period in reliance on clauses (e) and (f) of “Consolidated Adjusted EBITDA” and the aggregate amount excluded from Consolidated Net Income in such four Fiscal Quarter period in
reliance on the Consolidated Net Income Specified Exclusion, shall be subject to, and not exceed, the Shared EBITDA Cap;
(iii) Taxes paid and any provision for Taxes, including income, capital, state, franchise and similar Taxes, property Taxes, foreign withholding Taxes and foreign
unreimbursed value added Taxes (including penalties and interest related to any such Tax or arising from any Tax examination, and including pursuant to any Tax sharing arrangement or as a result of any intercompany distribution) of such
Person paid or accrued during such period;
(iv) (A) all depreciation and amortization (including, without limitation, amortization of goodwill, software and other intangible assets), (B) all impairment Charges
(excluding any bad debt expense) and (C) all asset write-offs and/or write-downs (excluding any account receivables write-offs and/or write-downs);
(v) any earn-out and contingent consideration obligations (including to the extent accounted for as bonuses, compensation or otherwise) incurred in connection with
any acquisition and/or other Investment permitted under Section 6.06 which is paid or accrued during such period and in connection with any similar acquisition or other Investment completed prior to the Closing Date and, in each case,
adjustments thereof;
(vi) any non-cash Charge, including the excess of GAAP rent expense over actual cash rent paid during such period due to the use of straight line rent for GAAP
purposes (provided that to the extent that any such non-cash Charge represents an accrual or reserve for any potential cash item in any future period, (A) such Person may elect not to add back such non-cash Charge in the current
period and (B) to the extent such Person elects to add back such non-cash Charge, the cash payment in respect thereof in such future period shall be subtracted from Consolidated Adjusted EBITDA to such extent);
(vii) any non-cash compensation Charge and/or any other non-cash Charge arising from the granting of any stock option or similar arrangement (including any profits
interest), the granting of any stock appreciation right and/or similar arrangement (including any repricing, amendment, modification, substitution or change of any such stock option, stock appreciation right, profits interest or similar
arrangement);
(viii) (A) to the extent incurred or accrued on or prior to December 31, 2023, Transaction Costs, (B) Charges incurred in connection with any transaction (in each case,
regardless of whether consummated), and whether or not permitted under this Agreement, including any incurrence, issuance and/or incurrence of Indebtedness and/or any issuance and/or offering of Capital Stock (including, in each case, by any
Parent Company), any Investment, any acquisition, any Disposition, any recapitalization, any merger, consolidation or amalgamation, any option buyout or any repayment, redemption, refinancing, amendment or modification of Indebtedness
(including any amortization or write-off of debt issuance or deferred financing costs, premiums and prepayment penalties) or any similar transaction, (C) the amount of any Charge that is actually reimbursed or reimbursable by third parties
pursuant to indemnification or reimbursement provisions or similar agreements or insurance; provided that in respect of any Charge that is added back in reliance on clause (C) above, the relevant Person in good faith expects
to receive reimbursement for such fee, cost, expense or reserve within the next four Fiscal Quarters (it being understood that to the extent any reimbursement amount is not actually received within such Fiscal Quarters, such reimbursement
amount shall be deducted in calculating Consolidated Adjusted EBITDA for such Fiscal Quarters) and/or (D) Public Company Costs provided that the aggregate amount added to Consolidated Net Income for purposes of determining Consolidated
Adjusted EBITDA in any four Fiscal Quarter period in reliance on this clause (c)(viii)(D) shall not exceed $15,000,000;
(ix) any Charge or deduction that is associated with any Restricted Subsidiary and attributable to any non-controlling interest and/or minority interest of any third
party provided that the aggregate amount added to Consolidated Net Income for purposes of determining Consolidated Adjusted EBITDA in any four Fiscal Quarter period in reliance on this clause (c)(ix) shall not exceed $6,000,000;
(x) without duplication of any amount referred to in clause (b) above, the amount of (A) any Charge to the extent that a corresponding amount is received in
cash by such Person from a Person other than such Person or any Restricted Subsidiary or Consolidated APC of such Person under any agreement providing for reimbursement of such Charge or (B) any Charge with respect to any liability or
casualty event, business interruption or any product recall, (i) so long as such Person has submitted in good faith, and reasonably expects to receive payment in connection with, a claim for reimbursement of such amounts under its relevant
insurance policy (with a deduction in the applicable future period for any amount so added back to the extent not so reimbursed within the next four Fiscal Quarters) or (ii) without duplication of amounts included in a prior period under clause
(B)(i) above, to the extent such Charge is covered by insurance proceeds received in cash during such period (it being understood that if the amount received in cash under any such agreement in any period exceeds the amount of Charge
paid during such period such excess amounts received may be carried forward and applied against any Charge in any future period);
(xi) the amount of management, monitoring, consulting, transaction and advisory fees and related indemnities and expenses (including reimbursements) pursuant to any
sponsor management agreement and payments made to any Investor (and/or their respective Affiliates or management companies) for any financial advisory, financing, underwriting or placement services or in respect of other investment banking
activities and payments to outside directors of Opco or a Parent Company actually paid by or on behalf of, or accrued by, such Person or any of its subsidiaries; provided that such payment is permitted under this Agreement;
(xii) (A) any Charge attributable to the undertaking and/or implementation of new initiatives, business optimization activities, cost savings initiatives, cost
rationalization programs, operating expense reductions and/or synergies and/or similar initiatives and/or programs (including in connection with any integration, restructuring or transition, any reconstruction, decommissioning,
recommissioning or reconfiguration of fixed assets for alternative uses, any facility opening and/or pre-opening), including the following: any inventory optimization program and/or any curtailment, any business optimization Charge, any
restructuring Charge (including any Charge relating to any tax restructuring), any Charge relating to the closure or consolidation of any facility (including but not limited to rent termination costs, moving costs and legal costs), any
systems implementation Charge, any severance Charge, any Charge relating to entry into a new market, any Charge relating to any strategic initiative, any signing Charge, any retention or completion bonus, any expansion and/or relocation
Charge, any Charge associated with any modification to any pension and post-retirement employee benefit plan, any software development Charge, any Charge associated with new systems design, any implementation Charge, any project startup
Charge, any Charge in connection with new operations, any Charge in connection with unused warehouse space and (B) any Charge relating to a new contract, any consulting Charge and/or any corporate development Charge; provided, the
aggregate amount added back to Consolidated Net Income for purposes of the determination of Consolidated Adjusted EBITDA in any four Fiscal Quarter period in reliance on this clause (c)(xii), together with the aggregate amount added
back to Consolidated Net Income for purposes of the determination of Consolidated Adjusted EBITDA such four Fiscal Quarter period in reliance on clauses (c)(ii), (c)(xiii), (c)(xiv), and (c)(xv), the aggregate
amounts added in determining Consolidated Adjusted EBITDA in such four Fiscal Quarter period in reliance on clauses (e) and (f) of “Consolidated Adjusted EBITDA” and the aggregate amount excluded from Consolidated Net Income
in such four Fiscal Quarter period in reliance on the Consolidated Net Income Specified Exclusion, shall be subject to, and not exceed, the Shared EBITDA Cap; plus
(xiii) any Charge incurred or accrued in connection with any single or one-time event; provided, that the aggregate amount added back to Consolidated Net Income
for purposes of the determination of Consolidated Adjusted EBITDA in any four Fiscal Quarter period in reliance on this clause (c)(xiii), together with the aggregate amount added back to Consolidated Net Income for purposes of the
determination of Consolidated Adjusted EBITDA in such four Fiscal Quarter period in reliance on clauses (c)(ii), (c)(xii), (c)(xiv), and (c)(xv), the aggregate amounts added in determining Consolidated Adjusted
EBITDA in such four Fiscal Quarter period in reliance on clauses (e) and (f) of “Consolidated Adjusted EBITDA” and the aggregate amount excluded from Consolidated Net Income in such four Fiscal Quarter period in reliance on
the Consolidated Net Income Specified Exclusion, shall be subject to, and not exceed, the Shared EBITDA Cap; plus
(xiv) any Charge incurred or accrued in connection with any Permitted Practice Subsidiary Restructuring; provided, the aggregate amount added back to
Consolidated Net Income for purposes of the determination of Consolidated Adjusted EBITDA in any four Fiscal Quarter period in reliance on this clause (c)(xiv), together with the aggregate amount added back to Consolidated Net Income
for purposes of the determination of Consolidated Adjusted EBITDA in such four Fiscal Quarter period in reliance on clauses (c)(ii), (c)(xii), (c)(xiii), and (c)(xv), the aggregate amounts added in determining
Consolidated Adjusted EBITDA in such four Fiscal Quarter period in reliance on clauses (e) and (f) of “Consolidated Adjusted EBITDA” and the aggregate amount excluded from Consolidated Net Income in such four Fiscal Quarter
period in reliance on the Consolidated Net Income Specified Exclusion, shall be subject to, and not exceed, the Shared EBITDA Cap; plus
(xv) any add-back, adjustment and/or exclusion included in (A) the Financial Model and/or (B) any quality of earnings report prepared by any independent registered
public accountant of recognized national standing or any other accounting firm reasonably acceptable to the Required Purchasers, in each case, delivered to the Purchaser Representative (on behalf of the Purchasers) (including, for the
avoidance of doubt, in connection with any acquisition or similar investment prior to or after the Closing Date); provided, that the aggregate amount added back to Consolidated Net Income for purposes of the determination of
Consolidated Adjusted EBITDA in any four Fiscal Quarter period in reliance on this clause (c)(xv), together with the aggregate amount added back to Consolidated Net Income for purposes of the determination of Consolidated Adjusted
EBITDA in such four Fiscal Quarter period in reliance on clauses (c)(ii), (c)(xii), (c)(xiii), and (c)(xiv), the aggregate amounts added in determining Consolidated Adjusted EBITDA in such four Fiscal Quarter
period in reliance on clauses (e) and (f) of “Consolidated Adjusted EBITDA” and the aggregate amount excluded from Consolidated Net Income in such four Fiscal Quarter period in reliance on the Consolidated Net Income
Specified Exclusion, shall be subject to, and not exceed, the Shared EBITDA Cap; plus
(d) to the extent not included in Consolidated Net Income for such period, cash actually received (or any netting arrangement resulting in reduced cash expenditures)
during such period so long as the non-cash income or gain was deducted in the calculation of Consolidated Adjusted EBITDA (including any component definition) pursuant to clause (h) below for such period or any previous period and not
added back; plus
(e) the full pro forma “run rate” cost savings, operating expense reductions, operational improvements and synergies (collectively, “Expected Cost Savings”)
(net of actual amounts realized) that are reasonably identifiable and factually supportable (in the good faith determination of the Issuer) related to (i) the Transactions, (ii) any Investment, Disposition, operating improvement,
restructuring, cost savings initiative, any similar initiative (including the renegotiation of contracts and other arrangements, provided that in no event shall Consolidated Adjusted EBITDA be thereby increased by any revenue run
rating (price or volume)) and/or specified transaction (any such Investment, Disposition, operating improvement, restructuring, cost savings initiative and/or similar initiative or specified transaction, a “Business Optimization Initiative”),
in each case, consummated or implemented prior to, or on Closing Date and (iii) any Business Optimization Initiative consummated or implemented after the Closing Date; provided, that (A) the relevant action resulting in (or
substantial steps towards the relevant action that would result in) such Expected Cost Savings must either be taken or expected to be taken within 18 months after the determination to take such action, and (B) the aggregate amount added to
Consolidated Adjusted EBITDA in any four Fiscal Quarter period in reliance on this clause (e), together with the aggregate amount added back to Consolidated Net Income for purposes of the determination of Consolidated Adjusted EBITDA
in such four Fiscal Quarter period in reliance on clauses (c)(ii), (c)(xii), (c)(xiii), (c)(xiv), and (c)(xv), the aggregate amount added in determining Consolidated Adjusted EBITDA in such four Fiscal
Quarter period in reliance on clause (f) of “Consolidated Adjusted EBITDA” and the aggregate amount excluded from Consolidated Net Income in such four Fiscal Quarter period in reliance on the Consolidated Net Income Specified
Exclusion shall be subject to, and not exceed, the Shared EBITDA Cap; plus
(f) if greater than zero, with respect to any facility or practice (a “De Novo Facility”) that has been open or operating for less than 8 full fiscal
quarters, including, any Acqui-Novo Facility that has been open and operating as an “ATI” (or similar trade name) clinic for less than 8 full fiscal quarters, the pro forma “run rate” Consolidated Adjusted EBITDA attributable to such De Novo
Facility, which will be assumed to be (i) the Consolidated Adjusted EBITDA attributable to comparable (as determined by the Issuer in good faith) facilities that have been opened and operating for a period of at least 12 consecutive months
and determined in good faith by the Issuer by annualizing the Consolidated Adjusted EBITDA attributable to the relevant comparable (as determined by the Issuer in good faith) facilities in their respective fourth full fiscal quarter of
operation minus (ii) the actual Consolidated Adjusted EBITDA generated by the relevant De Novo Facility (this clause (f), the “De Novo Facility Adjustment”); provided, the
aggregate amount added to Consolidated Adjusted EBITDA in any four Fiscal Quarter period in reliance on this clause (f), together with the aggregate amount added back to Consolidated Net Income for purposes of the determination of
Consolidated Adjusted EBITDA in such four Fiscal Quarter period in reliance on clauses (c)(ii), (c)(xii), (c)(xiii), (c)(xiv), and (c)(xv), the aggregate amount added in determining Consolidated
Adjusted EBITDA in such four Fiscal Quarter period in reliance on clause (e) of “Consolidated Adjusted EBITDA” and the aggregate amount excluded from Consolidated Net Income in such four Fiscal Quarter period in reliance on the
Consolidated Net Income Specified Exclusion, shall be subject to, and not exceed, the Shared EBITDA Cap; plus
(g) non-cash Charges in connection with a change in the fair value of contingent earn-out shares and/or warrants with respect to the SPAC Transaction (as defined in
the First Lien Credit Agreement as in effect of the Signing Date), the Series A Preferred Shares issued on the Closing Date and any subsequent public or private offering of equity interests of the Issuer or any direct or indirect parent
company thereof; minus
(h) any amount which, in the determination of Consolidated Net Income for such period, has been added for any non-cash income or non-cash gain, all as determined in
accordance with GAAP (provided that if any non-cash income or non-cash gain represents an accrual or deferred income in respect of potential cash items in any future period, such Person may determine not to deduct the relevant non-cash gain
or income in the then-current period); minus
(i) the amount of any cash payment made during such period in respect of any non-cash accrual, reserve or other non-cash Charge that is accounted for in a prior
period which was added to Consolidated Net Income to determine Consolidated Adjusted EBITDA for such prior period and which does not otherwise reduce Consolidated Net Income for the current period; minus
(j) to the extent the related legal and/or professional fees were not excluded or deducted in the determination of Consolidated Net Income for such period (or did
not otherwise reduce Consolidated Net Income for such period), the amount by which (i) the sum of the aggregate amount of Restricted Payments made pursuant to sub-clause (y) of Section 6.04(a)(i)(D) in respect of such legal and/or
professional fees that were not so excluded or deducted in in the four Fiscal Quarter period in such period plus the aggregate amount of Public Company Costs added back to Consolidated Net Income for purposes of the determination of
Consolidated Adjusted EBITDA in such four Fiscal Quarter period in reliance on clause (c)(viii)(D) of the definition of “Consolidated Adjusted EBITDA” exceeds (ii) $20,000,000 in such four Fiscal Quarter period.
Notwithstanding anything to the contrary herein,
(1) there shall be no adjustment to Consolidated Adjusted EBITDA or Consolidated Net Income for bad debt expense or account receivables write-downs or write-offs; and
(2) for the avoidance of doubt, the Shared EBITDA Cap shall not exceed 25% of Consolidated Adjusted EBITDA.
It is understood and agreed that, for purposes of calculating the Consolidated Adjusted EBITDA attributable to any de novo facility, if the De Novo Facility Adjustment applies in any Fiscal
Quarter (the “Subject Fiscal Quarter”) of a Test Period, the De Novo Facility Adjustment will continue to apply with respect to such Subject Fiscal Quarter in any subsequent Test Period that includes such Subject Fiscal Quarter, even
if the De Novo Facility Adjustment does not apply in respect of such de novo facility in any subsequent fiscal quarter included in any such subsequent Test Period.
“Consolidated APC” means any Affiliated Practice that has entered into or is otherwise subject to Acceptable Practice Management Arrangements, which, for accounting purposes is
consolidated with the Issuer in accordance with GAAP.
“Consolidated Interest Expense” means, with respect to any Person for any period, the sum of (a) consolidated total interest expense of such Person and its Restricted Subsidiaries
and/or Consolidated APCs for such period, whether paid or accrued and whether or not capitalized, (including, without limitation (and without duplication), amortization of any debt issuance cost and/or original issue discount, any premium
paid to obtain payment, financial assurance or similar bonds, any interest capitalized during construction, any non-cash interest payment, the interest component of any deferred payment obligation, the interest component of any payment under
any Capital Lease (regardless of whether accounted for as interest expense under GAAP), any commission, discount and/or other fee or charge owed with respect to any letter of credit and/or bankers’ acceptance, any fee and/or expense paid to
the Purchaser Representative in connection with its services hereunder, any other bank, administrative agency (or trustee) and/or financing fee and any cost associated with any surety bond in connection with financing activities (whether
amortized or immediately expensed)) plus (b) any cash dividend paid or payable in respect of Disqualified Capital Stock during such period other than to such Person or any Note Party and/or any Consolidated APC, plus (c) any net losses or
obligations arising from any Hedge Agreement and/or other derivative financial instrument issued by such Person for the benefit of such Person or its subsidiaries and/or Consolidated APCs, in each case determined on a consolidated basis for
such period. For purposes of this definition, interest in respect of any Capital Lease shall be deemed to accrue at an interest rate reasonably determined by such Person to be the rate of interest implicit in such Capital Lease in accordance
with GAAP.
“Consolidated Net Income” means, in respect of any period and as determined for any Person (the “Subject Person”) on a consolidated basis, an amount equal to the sum of net
income, determined in accordance with GAAP, but excluding:
(a) (i) the income of any Person (other than a Restricted Subsidiary and/or a Consolidated APC of the Subject Person) in which any other Person (other than the
Subject Person or any of its Restricted Subsidiaries or Consolidated APCs) has a joint interest, except to the extent of the amount of dividends or distributions or other payments (including any ordinary course dividend, distribution or other
payment) paid in cash (or to the extent converted into cash) to the Subject Person or any of its Restricted Subsidiaries or Consolidated APCs by such Person during such period or (ii) the loss of any Person (other than a Restricted Subsidiary
or Consolidated APC of the Subject Person) in which any other Person (other than the Subject Person or any of its Restricted Subsidiaries or Consolidated APCs) has a joint interest, other than to the extent that the Subject Person or any of
its Restricted Subsidiaries or Consolidated APCs has contributed cash or Cash Equivalents to such Person in respect of such loss during such period,
(b) any gain or Charge attributable to any asset Disposition (including asset retirement costs and including any abandonment of assets) or of returned surplus assets
outside the ordinary course of business,
(c) (i) any Charge from (A) any extraordinary item (as determined in good faith by such Person) and/or (B) any nonrecurring or unusual item (as determined in good
faith by such Person) and/or (ii) any Charge associated with and/or payment of any actual or prospective legal settlement, fine, judgment or order (this clause (c)(ii), together with this clause (c)(i), the “Consolidated Net Income
Specified Exclusion”) and/or (ii) any net gain (it being understood that in no event shall the Charges netted against such gain exceed such gain and result in an increase to Consolidated Net Income) from (A) any extraordinary item (as
determined in good faith by such Person) and/or (B) any nonrecurring or unusual item (as determined in good faith by such Person); provided that the aggregate amount excluded from Consolidated Net Income in any four Fiscal Quarter
period in reliance on the Consolidated Net Income Specified Exclusion, together with the aggregate amount added to Consolidated Net Income for purpose of determining Consolidated Adjusted EBITDA in such four Fiscal Quarter period in reliance
on clauses (c)(ii), (c)(xii), (c)(xiii), (c)(xiv),(c)(xv), (e) and (f) of “Consolidated Adjusted EBITDA”, shall be subject to, and not exceed, the Shared EBITDA Cap,
(d) any net gain or Charge with respect to (i) any disposed, abandoned, divested and/or discontinued asset, property or operation (other than, at the option of the
Issuer, any asset, property or operation pending the disposal, abandonment, divestiture and/or termination thereof), (ii) any disposal, abandonment, divestiture and/or discontinuation of any asset, property or operation (other than, at the
option of such Person, relating to assets or properties held for sale or pending the divestiture or termination thereof) and/or (iii) any facility that has been closed during such period,
(e) any net income or write-off or amortization made of any deferred financing cost and/or premium paid or other Charge, in each case attributable to the early
extinguishment of Indebtedness (and the termination of any associated Hedge Agreement),
(f) (i) any Charge incurred pursuant to any management equity plan, profits interest or stock option plan or any other management or employee benefit plan or
agreement, any pension plan (including any post-employment benefit scheme which has been agreed with the relevant pension trustee), any stock subscription or shareholder agreement, any employee benefit trust, any employment benefit scheme or
any similar equity plan or agreement (including any deferred compensation arrangement) (excluding in the case of this clause (i) any cash contributions to any employee 401(k) program or similar arrangement) and (ii) any Charge
incurred in connection with the rollover, acceleration or payout of Capital Stock held by management of the Issuer and/or any Restricted Subsidiary, in each case, to the extent that any cash Charge is funded with net cash proceeds contributed
to relevant Person as a capital contribution or as a result of the sale or issuance of Qualified Capital Stock,
(g) any Charge that is established, adjusted and/or incurred, as applicable, (i) within 12 months after the Closing Date that is required to be established,
adjusted or incurred, as applicable, as a result of the Transactions in accordance with GAAP, (ii) within 12 months after the closing of any other acquisition that is required to be established, adjusted or incurred, as applicable, as a
result of such acquisition in accordance with GAAP or (iii) as a result of any change in, or the adoption or modification of, accounting principles and/or policies in accordance with GAAP,
(h) (i) the effects of adjustments (including the effects of such adjustments pushed down to the relevant Person and its subsidiaries and/or Consolidated APCs) in
component amounts required or permitted by GAAP (including in the inventory, property and equipment, lease, rights fee arrangement, software, goodwill, intangible asset, in-process research and development, deferred revenue, advanced billing
and debt line items thereof), resulting from the application of purchase accounting in relation to the Transactions (as defined in the First Lien Credit Agreement as in effect on the Signing Date) or any consummated acquisition or
recapitalization accounting or the amortization or write-off of any amounts thereof, net of Taxes, and (ii) the cumulative effect of changes (effected through cumulative effect adjustment or retroactive application) in, or the adoption or
modification of, accounting principles or policies made in such period in accordance with GAAP which affect Consolidated Net Income (except that, if the Issuer determines in good faith that the cumulative effects thereof are not material to
the interests of the Purchasers, the effects of any change, adoption or modification of any such principles or policies may be included in any subsequent period after the Fiscal Quarter in which such change, adoption or modification was
made),
(i) [reserved];
(j) [reserved];
(k) (i) any realized or unrealized gain or loss in respect of (A) any obligation under any Hedge Agreement as determined in accordance with GAAP and/or (B) any other
derivative instrument pursuant to, in the case of this clause (B), Financial Accounting Standards Board’s Accounting Standards Codification No. 815-Derivatives and Hedging, (ii) any realized or unrealized foreign currency exchange
gain or loss (including any currency re-measurement of Indebtedness, any net gain or loss resulting from Hedge Agreements for currency exchange risk resulting from any intercompany Indebtedness, any foreign currency translation or transaction
or any other currency-related risk); provided, that notwithstanding anything to the contrary herein, any realized gain or loss in respect of any Designated Operational FX Hedge shall be included in the calculation of Consolidated Net
Income, and
(l) any deferred Tax expense associated with any tax deduction or net operating loss arising as a result of the Transactions, or the release of any valuation
allowance related to any such item.
“Consolidated Net Income Specified Exclusion” has the meaning assigned to such term in clause (c) of the definition of “Consolidated Net Income.”
“Consolidated Total Assets” means, at any date, all amounts that would, in conformity with GAAP, be set forth opposite the caption “total assets” (or any like caption) on a
consolidated balance sheet of the applicable Person at such date.
“Consolidated Total Debt” means, as to any Person at any date of determination, the aggregate principal amount of (a) all third party debt for borrowed money (including LC
Disbursements (as defined in the First Lien Credit Agreement as in effect on the Signing Date) that have not been reimbursed within three Business Days and the outstanding principal balance of all indebtedness of such Person represented by
notes, bonds and similar instruments and excluding, for the avoidance of doubt, (i) undrawn letters of credit and (ii) the amount of any loan made by the Issuer and/or any Restricted Subsidiary to any Consolidated APC), (b) capital leases and
purchase money indebtedness, (c) the deferred purchase price of property or services constituting Indebtedness under clause (d) of the definition of “Indebtedness” and (d) guarantees of Indebtedness of the type described in clause
(a) above, as such amount may be adjusted to reflect the effect (as determined by the Issuer in good faith) of any hedge agreement or other derivative instrument entered into in respect of the currency exchange risk relating to such third
party debt for borrowed money, calculated on a mark-to-market basis; minus (e) the Unrestricted Cash Amount and (f) excluding any obligation, liability or indebtedness of such Person if, upon or prior to the maturity thereof, such
Person has irrevocably deposited with the proper Person in trust or escrow the necessary funds (or evidences of indebtedness) for the payment, redemption or satisfaction of such obligation, liability or indebtedness, and thereafter such funds
and evidences of such obligation, liability or indebtedness or other security so deposited are not included in the calculation of the Unrestricted Cash Amount.
“Contractual Obligation” means, as applied to any Person, any provision of any Security issued by that Person or of any indenture, mortgage, deed of trust, contract, undertaking,
agreement or other instrument to which that Person is a party or by which it or any of its properties is bound or to which it or any of its properties is subject.
“Contribution Indebtedness Amount” has the meaning assigned to such term in Section 6.01(r).
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise
voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto.
“Control Agreement” means, with respect to any deposit account, any securities account, commodity account, securities entitlement or commodity contract, an agreement (after the First Lien Credit
Agreement Obligations Payment Date, in form and substance reasonably satisfactory to the Required Purchasers and the Purchaser Representative), among the Purchaser Representative (or, in lieu of the Purchaser Representative, the First Lien
Credit Agreement Agent, as gratuitous bailee for the Purchaser Representative), the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Note Party maintaining
such account, effective to grant “control” (as defined under the applicable UCC) over such account to the Purchaser Representative (or the First Lien Credit Agreement Agent, as gratuitous bailee for the Purchaser Representative).
“Conversion Date” has the meaning set forth in Section 10.03.
“Conversion Price” means, initially, $0.2512.50 per share (which reflects the 1‑for‑50 reverse stock split
effective as of June 14, 2023) of Common Stock, subject to adjustment as set forth herein.
“Conversion Right” has the meaning set forth in Section 10.01.
“Conversion Shares” has the meaning set forth in Section 10.01.
“Converted Amount” has the meaning assigned to such term in Section 10.01.
“Convertible Securities” means any evidences of indebtedness, shares or other securities directly or indirectly convertible into or exchangeable for Common Stock, but excluding
Options.
“Copyright” means the following: (a) all copyrights, rights and interests in copyrights, works protectable by copyright whether published or unpublished, copyright registrations and
copyright applications; (b) all renewals of any of the foregoing; (c) all income, royalties, damages, and payments now or hereafter due and/or payable under any of the foregoing, including, without limitation, damages or payments for past or
future infringements for any of the foregoing; (d) the right to sue for past, present, and future infringements of any of the foregoing; and (e) all rights corresponding to any of the foregoing.
“Credit Party” means the Purchaser Representative or any other Purchaser.
“Cure Amount” shall have the meaning assigned to such term in the First Lien Credit Agreement.
“Daily VWAP” means, for any trading day, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “ATIP AQR” (or its equivalent
successor if such page is not available) in respect of the period from the scheduled open of trading until the scheduled close of trading of the primary trading session on such trading day (or if such volume-weighted average price is
unavailable, the market value of one share of Common Stock on such trading day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by the Issuer). The
“Daily VWAP” will be determined without regard to after-hours trading or any other trading outside of the regular trading session trading hours.
“De Novo Facility” has the meaning assigned to such term in clause (f) of the definition of Consolidated Adjusted EBITDA.
“De Novo Facility Adjustment” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Debt Fund Affiliate” means with respect to each Sponsor, any Affiliate of such Sponsor (other than a natural Person) that is a bona fide debt fund or other investment vehicle (in each
case with one or more bona fide investors to whom its managers owe fiduciary duties independent of their fiduciary duties to the fund or other investment vehicle of such Sponsor (and funds managed or advised by such fund or investment
vehicle) that is responsible for managing the equity investment in the company) that is primarily engaged in, or manages or advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise investing in
commercial loans, bonds and similar extensions of credit in the ordinary course.
“Debtor Relief Laws” means the Bankruptcy Code of the U.S., and all other liquidation, conservatorship, bankruptcy, general assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization or similar debtor relief laws of the U.S. or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.
“Default” means any event or condition which upon notice, lapse of time or both would become an Event of Default.
“Defaulting Purchaser” means any Person that has (a) defaulted in (or is otherwise unable to perform) its obligations under this Agreement, including without limitation, to purchase a
Note within one Business Day of the date required hereunder, (b) notified the Purchaser Representative or any Note Party in writing that it does not intend to satisfy or perform any such obligation or has made a public statement to the effect
that it does not intend to comply with its funding and/or purchasing obligations under this Agreement or under agreements in which it commits to extend credit generally (unless such writing or public statement relates to such Purchaser’s
obligation to purchase a Note hereunder and states that such position is based on such Purchaser’s good faith determination that a condition precedent to purchasing specifically identified and including the particular default, if any) cannot
be satisfied), (c) failed, within two Business Days after the request of the Issuer, to confirm in writing that it will comply with the terms of this Agreement relating to its obligations to purchase prospective Notes; provided that
such Purchaser shall cease to be a Defaulting Purchaser pursuant to this clause (c) upon receipt of such written confirmation by the Purchaser Representative and the Issuer, (d) become (or any parent company thereof has become)
insolvent or been determined by any Governmental Authority having regulatory authority over such Person or its assets, to be insolvent, or the assets or management of which has been taken over by any Governmental Authority or (e) (i) become
(or any parent company thereof has become) either the subject of (A) a bankruptcy or insolvency proceeding or (B) a Bail-In Action, (ii) has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business or custodian, appointed for it, or (iii) has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in, any such proceeding or
appointment, unless in the case of any Person subject to this clause (e), the Issuer and the Purchaser Representative shall have received a certification from such Person that such Person intends, and has received all approvals
required to enable it (in form and substance satisfactory to the Issuer and the Purchaser Representative, acting on the instructions of the Required Purchasers) to continue to perform its obligations hereunder; provided that no Person
shall be deemed to be a Defaulting Purchaser solely by virtue of the ownership or acquisition of any Capital Stock in such Purchaser or its parent by any Governmental Authority; provided that such action does not result in or provide
such Purchaser with immunity from the jurisdiction of courts within the U.S. or from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority) to reject, repudiate, disavow or
disaffirm any contract or agreement to which such Person is a party.
“Delaware Divided LLC” means any Delaware LLC which has been formed upon the consummation of a Delaware LLC Division.
“Delaware LLC” means any limited liability company organized or formed under the laws of the State of Delaware.
“Delaware LLC Division” means the statutory division of any Delaware LLC into two or more Delaware LLCs pursuant to Section 18-217 of the Delaware Limited Liability Company Act.
“Delayed Draw Note Commitment” means, with respect to any Person, the commitment of such Person to purchase Delayed Draw Notes hereunder in an aggregate amount not to exceed the amount
set forth opposite such Person’s name on Schedule 2.01, as the same may be (a) reduced from time to time pursuant to Section 2.11 and (b) reduced or increased from time to time pursuant to assignments by or to such Purchaser
pursuant to Section 9.05. The aggregate amount of the Delayed Draw Purchasers’ Delayed Draw Note Commitments on the Closing Date is $25,000,000.
“Delayed Draw Note Commitment Termination Date” means, with respect to any Delayed Draw Note Commitment, the date that is 548 days after the Closing Date.
“Delayed Draw Notes” means senior second lien secured convertible PIK notes in an aggregate initial principal amount of up to $25,000,000 (plus from time to time any interest accrued
thereon, which shall be payable in kind), as reduced by any repayment, redemption or retirement thereof, issued on or after the Closing Date pursuant to this Agreement and substantially in the form attached hereto as Exhibit B-2.
“Delayed Draw Purchaser” means any Person with a Delayed Draw Note Commitment and/or an outstanding Delayed Draw Note.
“Deposit Account” means a demand, time, savings, passbook or like account with a bank, savings and loan association, credit union or like organization, other than an account evidenced
by a negotiable certificate of deposit.
“Derivative Transaction” means (a) any interest-rate transaction, including any interest-rate swap, basis swap, forward rate agreement, interest rate option (including a cap, collar or
floor), and any other instrument linked to interest rates that gives rise to similar credit risks (including when-issued securities and forward deposits accepted), (b) any exchange-rate transaction, including any cross-currency interest-rate
swap, any forward foreign-exchange contract, any currency option, and any other instrument linked to exchange rates that gives rise to similar credit risks, (c) any equity derivative transaction, including any equity-linked swap, any
equity-linked option, any forward equity-linked contract, and any other instrument linked to equities that gives rise to similar credit risk and (d) any commodity (including precious metal) derivative transaction, including any
commodity-linked swap, any commodity-linked option, any forward commodity-linked contract, and any other instrument linked to commodities that gives rise to similar credit risks; provided, that no phantom stock or similar plan
providing for payments only on account of services provided by current or former directors, officers, employees, members of management, managers or consultants of the Issuer or its subsidiaries shall be a Derivative Transaction.
“Designated Operational FX Hedge” means any Hedge Agreement entered into for the purpose of hedging currency-related risks in respect of the revenues, cash flows or other balance sheet
items of the Issuer, any of its subsidiaries and/or Consolidated APCs and designated at the time entered into (or on or prior to the Closing Date, with respect to any Hedge Agreement entered into on or prior to the Closing Date) as a
Designated Operational FX Hedge by the Issuer in a writing delivered to the Purchaser Representative.
“Discretionary Guarantor” has the meaning assigned to such term in Section 5.12(c).
“Disposition” or “Dispose” means the sale, lease, sublease, license, sublicense or other disposition of any property of any Person, including any disposition of property to a
Delaware Divided LLC pursuant to a Delaware LLC Division or any issuance of Capital Stock of any subsidiary of the Issuer.
“Disqualified Capital Stock” means any Capital Stock which, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the
happening of any event, (a) matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable (other than for Qualified Capital Stock), pursuant to a sinking fund obligation or
otherwise, or is redeemable at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part, on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being
understood that if any such redemption is in part, only such part coming into effect prior to 91 days following the Latest Maturity Date shall constitute Disqualified Capital Stock), (b) is or becomes convertible into or exchangeable (unless
at the sole option of the issuer thereof) for (i) debt securities or (ii) any Capital Stock that would constitute Disqualified Capital Stock, in each case at any time on or prior to 91 days following the Latest Maturity Date at the time such
Capital Stock is issued, (c) contains any mandatory repurchase obligation or any other repurchase obligation at the option of the holder thereof (other than for Qualified Capital Stock), in whole or in part, which may come into effect prior
to 91 days following the Latest Maturity Date at the time such Capital Stock is issued (it being understood that if any such repurchase obligation is in part, only such part coming into effect prior to 91 days following the Latest Maturity
Date shall constitute Disqualified Capital Stock) or (d) provides for the scheduled payments of dividends in Cash on or prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued; provided that any
(x) Capital Stock that would not constitute Disqualified Capital Stock but for provisions thereof giving holders thereof (or the holders of any security into or for which such Capital Stock is convertible, exchangeable or exercisable) the
right to require the issuer thereof to redeem such Capital Stock upon the occurrence of any change of control or any Disposition occurring prior to 91 days following the Latest Maturity Date at the time such Capital Stock is issued shall not
constitute Disqualified Capital Stock if such Capital Stock provides that the issuer thereof will not redeem any such Capital Stock pursuant to such provisions unless either (1) the relevant redemption is permitted by the terms of this
Agreement or (2) the Termination Date has occurred and (y) for purposes of clauses (a) through (d) above, it is understood and agreed that if any such maturity, redemption conversion, exchange, repurchase obligation or
scheduled payment is in part, only such part coming into effect prior to the date that is 91 days following the Latest Maturity Date (determined at the time such Capital Stock is issued) shall constitute Disqualified Capital Stock. For the
avoidance of doubt, the Series A Preferred Shares and the Series B Preferred Stock shall not constitute Disqualified Capital Stock.
Notwithstanding the preceding sentence, (A) if such Capital Stock is issued pursuant to any plan for the benefit of directors, officers, employees, members of management, managers or
consultants or by any such plan to such directors, officers, employees, members of management, managers or consultants, in each case in the ordinary course of business of the Issuer or any Restricted Subsidiary, such Capital Stock shall not
constitute Disqualified Capital Stock solely because it may be required to be repurchased by the issuer thereof in order to satisfy applicable statutory or regulatory obligations, and (B) no Capital Stock held by any future, present or former
employee, director, officer, manager, member of management or consultant (or their respective Affiliates or Immediate Family Members) of the Issuer (or any Parent Company or any subsidiary) shall be considered Disqualified Capital Stock
because such stock is redeemable or subject to repurchase pursuant to any management equity subscription agreement, stock option, stock appreciation right or other stock award agreement, stock ownership plan, put agreement, stockholder
agreement or similar agreement that may be in effect from time to time.
“Disqualified Institution” means:
(a) (i) any Person identified in writing to the Purchaser Representative on or prior to the date hereof and acceptable to the Required Purchasers (it being
understood and agreed that list delivered by counsel to the Purchasers to the Issuer on April 9, 2023 is acceptable to the Required Purchasers), (ii) any Person that is identified in writing to the Purchaser Representative after the date
hereof (provided, that any Person so identified after the date hereof must be reasonably acceptable to the Required Purchasers), (iii) any Affiliate of any Person described in clauses (i) or (ii) above that is reasonably
identifiable on the basis of such Person’s name as an Affiliate of such Person, and (iv) any other Affiliate of any Person described in clauses (i), (ii) or (iii) above that is identified in a written notice to the
Purchaser Representative (each such person, a “Disqualified Lending Institution”); and
(b) prior to the occurrence of an Event of Default under Section 7.01(f) or (g), (i) any Person that is or becomes a Company Competitor and/or any
Affiliate of any Company Competitor (other than a Competitor Debt Fund Affiliate), in each case, that is identified in writing to the Purchaser Representative, (ii) any Affiliate of any Person described in clause (i) above (other than
any Competitor Debt Fund Affiliate) that is reasonably identifiable on the basis of such Person’s name as an Affiliate of such Person and (iii) any other Affiliate of any Person described in clauses (i) or (ii) above that is
identified in a written notice to the Purchaser Representative; it being understood and agreed that no Competitor Debt Fund Affiliate of any Company Competitor may be designated as a Disqualified Institution pursuant to this clause (iii);
provided that no written notice delivered pursuant to clauses (a)(ii), (a)(iv), (b)(i) and/or (b)(iii) above shall apply retroactively to disqualify any
person that has previously acquired an assignment or participation interest in the Notes prior to the delivery of such notice.
The Issuer shall be permitted to remove any Person from the list of Disqualified Institutions; provided, that at any time after the removal of such Person, the Issuer shall be
permitted to redesignate such Person as a Disqualified Institution without the consent of the Purchaser Representative or any other Person upon written notice to the Purchaser Representative.
“Disqualified Lending Institution” has the meaning assigned to such term in the definition of “Disqualified Institution”.
“Disqualified Person” has the meaning assigned to such term in Section 9.05(f)(ii).
“Distributed Property” shall have the meaning specified in Section 10.04(c).
“Dollars” or “$” refers to lawful money of the U.S.
“Domestic Subsidiary” means any Restricted Subsidiary incorporated or organized under the laws of the U.S., any state thereof or the District of Columbia.
“EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country (or, to the extent that the United Kingdom is not an EEA Member
Country, the United Kingdom), which is subject to the supervision of a Resolution Authority, (b) any entity established in an EEA Member Country (or, to the extent that the United Kingdom is not an EEA Member Country, the United Kingdom),
which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country (or, to the extent that the United Kingdom is not an EEA Member Country, the United
Kingdom), which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.
“EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.
“EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee)
having responsibility for the resolution of any EEA Financial Institution.
“Effective Date” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, reflecting the relevant share split
or share combination, as applicable.
“Electronic Signature” means any electronic symbol or process attached to, or associated with, any contract or other record and adopted by a person with the intent to sign,
authenticate or accept such contract or record.
“Eligible Transferee” means (a) any Purchaser, (b) any commercial bank, insurance company, or finance company, financial institution, any fund that invests in loans or any other
“accredited investor” (as defined in Regulation D of the Securities Act), (c) any Affiliate of any Purchaser, (d) any Approved Fund of any Purchaser and (e) to the extent permitted under Section 9.05(g), any Affiliated Purchaser or
any Debt Fund Affiliate; provided that in any event, “Eligible Transferee” shall not include (i) any natural person, (ii) any Disqualified Institution or (iii) except as permitted under Section 2.25(b) or Section 9.05(g),
the Issuer or any of its Affiliates.
“Encumbrance” means all security interests, mortgages, charges, options, equities, claims, or other third-party rights (including rights of pre-emption) of any nature whatsoever.
“Environment” means ambient air, indoor air, surface water, groundwater, drinking water, land surface and subsurface strata & natural resources such as wetlands, flora and fauna.
“Environmental Claim” means any investigation, notice, notice of violation, claim, action, suit, proceeding, demand, abatement order or other order or directive (conditional or
otherwise), by any Governmental Authority or any other Person, arising (a) pursuant to or in connection with any actual or alleged violation of any Environmental Law; (b) in connection with any Hazardous Material or any actual or alleged
Hazardous Materials Activity; or (c) in connection with any actual or alleged damage, injury, threat or harm to the Environment.
“Environmental Laws” means any and all current or future applicable foreign or domestic, federal or state (or any subdivision of either of them), statutes, ordinances, orders, rules,
regulations, judgments, Governmental Authorizations, or any other applicable requirements of Governmental Authorities and the common law relating to (a) environmental matters, including those relating to any Hazardous Materials Activity; or
(b) the generation, use, storage, transportation or disposal of or exposure to Hazardous Materials, in any manner applicable to the Issuer or any of its Restricted Subsidiaries or any Facility.
“Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities),
directly or indirectly resulting from or based upon (a) any actual or alleged violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to
any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials into the Environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to
any of the foregoing.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any trade or business (whether or not incorporated) that is under common control with the Issuer or any Restricted Subsidiary and is treated as a single
employer within the meaning of Section 414 of the Code or Section 4001 of ERISA.
“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Issuer or any Restricted Subsidiary or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations at any facility of the Issuer or any Restricted Subsidiary or any ERISA
Affiliate as described in Section 4062(e) of ERISA, in each case, resulting in liability pursuant to Section 4063 of ERISA; (c) a complete or partial withdrawal by the Issuer or any Restricted Subsidiary or any ERISA Affiliate from a
Multiemployer Plan resulting in the imposition of Withdrawal Liability on the Issuer or any Restricted Subsidiary or any ERISA Affiliate, notification of the Issuer or any Restricted Subsidiary or any ERISA Affiliate concerning the imposition
of Withdrawal Liability or notification that a Multiemployer Plan is “insolvent” within the meaning of Section 4245 of ERISA; (d) the filing of a notice of intent to terminate a Pension Plan under Section 4041(c) of ERISA, the treatment of a
Pension Plan amendment as a termination under Section 4041(c) of ERISA, the commencement of proceedings by the PBGC to terminate a Pension Plan or the receipt by the Issuer or any Restricted Subsidiary or any ERISA Affiliate of notice of the
treatment of a Multiemployer Plan amendment as a termination under Section 4041A of ERISA or of notice of the commencement of proceedings by the PBGC to terminate a Multiemployer Plan; (e) the occurrence of an event or condition which
constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan; (f) the imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon the Issuer or any Restricted Subsidiary or any ERISA Affiliate, with respect to the termination of any Pension Plan; or (g) the conditions for imposition of a Lien under
Section 303(k) of ERISA have been met with respect to any Pension Plan.
“EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.
“Event of Default” has the meaning assigned to such term in Section 7.01.
“Ex-Dividend Date” means the first date on which shares of the Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive the
issuance, dividend or distribution in question, from the Issuer.
“Excess Cash Flow” means “Excess Cash Flow” as defined in the First Lien Credit Agreement as in effect on the Signing Date.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Exchanged Term Loans” means with respect to each Initial Purchaser, the First Lien Term Loans identified with respect to such Initial Purchaser on Schedule 2.01 hereto.
“Excluded Account” means any Deposit Account (a) that is an escrow, fiduciary, trust or similar account for the benefit of third parties (other than the Issuer or any Restricted
Subsidiary), (b) holding cash collateral for a third party (other than the Issuer or any Restricted Subsidiary) subject to a Lien permitted under Section 6.02, (c) used by any Note Party exclusively for disbursements and/or payments
of payroll in the ordinary course of business, (d) that is a zero balance account or (e) that has an average daily balance measured on a monthly basis of less than $1,000,000 individually or $5,000,000 in the aggregate for all such Deposit
Accounts that are Excluded Accounts pursuant to this clause (e).
“Excluded Assets” means each of the following:
(a) any asset the grant or perfection of a security interest in which would (i) be prohibited by enforceable anti-assignment provisions set forth in any contract
that is permitted or otherwise not prohibited by the terms of this Agreement and is binding on such asset at the time of its acquisition and not incurred in contemplation thereof (other than assets subject to Capital Leases and purchase money
financings), (ii) violate (after giving effect to applicable anti-assignment provisions of the UCC or other applicable Requirements of Law) the terms of any contract relating to such asset that is permitted or otherwise not prohibited by the
terms of this Agreement and is binding on such asset at the time of its acquisition and not incurred in contemplation thereof (other than in the case of Capital Leases and purchase money financings), or (iii) trigger termination of any
contract relating to such asset that is permitted or otherwise not prohibited by the terms of this Agreement pursuant to any “change of control” or similar provision (to the extent such contract is binding on such asset at the time of its
acquisition and not incurred in contemplation thereof); it being understood that the term “Excluded Asset” shall not include proceeds or receivables arising out of any contract described in this clause (a) to the extent that the
assignment of such proceeds or receivables is expressly deemed to be effective under the UCC or other applicable Requirements of Law notwithstanding the relevant prohibition, violation or termination right,
(b) the Capital Stock of any (i) Captive Insurance Subsidiary and/or (ii) not-for-profit subsidiary.
(c) any intent-to-use (or similar) Trademark application prior to the filing and acceptance of a “Statement of Use”, “Amendment to Allege Use” or similar filing
with respect thereto, only to the extent, if any, that, and solely during the period if any, in which, the grant of a security interest therein may impair the validity or enforceability of such intent-to-use Trademark application under
applicable federal law,
(d) any asset (including any Capital Stock), the grant or perfection of a security interest in which would (i) be prohibited under applicable Requirements of Law
(including, without limitation, rules and regulations of any Governmental Authority) or (ii) require any governmental or regulatory consent, approval, license or authorization, except to the extent such requirement or prohibition would be
rendered ineffective under the UCC or other applicable Requirements of Law notwithstanding such requirement or prohibition; it being understood that the term “Excluded Asset” shall not include proceeds or receivables arising out of any asset
described in clauses (d)(i) or (d)(ii) to the extent that the assignment of such proceeds or receivables is expressly deemed to be effective under the UCC or other applicable Requirements of Law notwithstanding the relevant
requirement or prohibition or (iii) result in material adverse tax consequences to any Note Party as reasonably determined by the Issuer and specified in a written notice to the Purchaser Representative,
(e) (i) any leasehold Real Estate Asset, (ii) except to the extent a security interest therein can be perfected by the filing of a UCC-1 financing statement, any
other leasehold interest and (iii) any owned Real Estate Asset that is not a Material Real Estate Asset,
(f) the Capital Stock of any Person that is not a Wholly-Owned Subsidiary,
(g) any Margin Stock,
(h) the Capital Stock of (i) any Foreign Subsidiary (other than a Foreign Subsidiary that is a Discretionary Guarantor) and (ii) any
FSHCO, in each case, (A) in excess of 65% of the issued and outstanding voting Capital Stock and 100% of the issued and outstanding non-voting Capital Stock of any such Foreign Subsidiary and/or FSHCO or (B) to the extent such Foreign
Subsidiary or FSHCO is not a first-tier Subsidiary of any Note Party,
(i) Commercial Tort Claims with a value (as reasonably estimated by the Issuer) of less than $5,000,000,
(j) Deposit Accounts of the type described in clause (a), (b) or (c) of the definition of Excluded Accounts,
(k) assets subject to any purchase money security interest, Capital Lease obligation or similar arrangement, in each case, that is permitted or otherwise not
prohibited by the terms of this Agreement and to the extent the grant of a security interest therein would violate or invalidate such lease, license or agreement or purchase money or similar arrangement or create a right of termination in
favor of any other party thereto (other than the Issuer or any Subsidiary of the Issuer) after giving effect to the applicable anti-assignment provisions of the UCC or any other applicable Requirement of Law; it being understood that the term
“Excluded Asset” shall not include proceeds or receivables arising out of any asset described in this clause (k) to the extent that the assignment of such proceeds or receivables is expressly deemed to be effective under the UCC or
other applicable Requirements of Law notwithstanding the relevant violation or invalidation,
(l) patient records and
(m) any asset with respect to which the Required Purchasers and the Issuer have reasonably determined in writing that the cost, burden, difficulty or consequence
(including any effect on the ability of the Issuer and its subsidiaries to conduct their operations and business in the ordinary course of business and including the cost of title insurance, surveys or flood insurance (if necessary)) of
obtaining or perfecting a security interest therein outweighs, or is excessive in light of, the practical benefit of a security interest to the relevant Secured Parties afforded thereby.
Notwithstanding anything to the contrary contained herein, no Management Services Agreement, no other agreement constituting an Acceptable Practice Management Arrangement nor any other agreement among a Note
Party and an Affiliated Practice relating to the provision of management services, or any of the rights and interests of any Note Party under any of the foregoing agreements or any proceeds thereof shall constitute Excluded Assets.
“Excluded Subsidiary” means:
(a) (i) any Restricted Subsidiary that is a JV Entity and (ii) any subsidiary of any Person described in the foregoing clause (i),
(b) any Immaterial Subsidiary,
(c) any Restricted Subsidiary (i) that is prohibited or restricted from providing a Note Guaranty by (A) any Requirement of Law or (B) any Contractual Obligation
that exists on the Closing Date or at the time such Restricted Subsidiary becomes a subsidiary (which Contractual Obligation was not entered into in contemplation of such Restricted Subsidiary becoming a subsidiary (including pursuant to
assumed Indebtedness)), (ii) that would require a governmental (including regulatory) or third party consent, approval, license or authorization (including any regulatory consent, approval, license or authorization) to provide a Note Guaranty
(in each case, at the time such Restricted Subsidiary became a Subsidiary) or (iii) with respect to which the provision of a Note Guaranty would result in material adverse tax consequences as reasonably determined by the Issuer, where the
Issuer notifies the Purchaser Representative in writing of such determination,
(d) any not-for-profit subsidiary,
(e) any Captive Insurance Subsidiary,
(f) [reserved],
(g) any Foreign Subsidiary,
(h) any Domestic Subsidiary that (i) is a FSHCO or (ii) is a direct or indirect subsidiary of any Foreign Subsidiary (other than a Foreign Subsidiary that is a
Discretionary Guarantor and is directly and wholly owned by one or more Domestic Subsidiaries that are Note Parties);
(i) [reserved],
(j) any Restricted Subsidiary directly or indirectly acquired by the Issuer that, at the time of the relevant acquisition, is an obligor in respect of assumed
Indebtedness permitted by Section 6.01 to the extent (and for so long as) the documentation governing the applicable assumed Indebtedness prohibits such subsidiary from providing a Note Guaranty (which prohibition was not implemented
in contemplation of such Restricted Subsidiary becoming a subsidiary in order to avoid the requirement of providing a Note Guaranty) and/or
(k) any other Restricted Subsidiary with respect to which, in the reasonable judgment of the Required Purchasers and the Issuer, the burden or cost of providing a
Note Guaranty outweighs, or would be excessive in light of, the practical benefits afforded thereby.
Notwithstanding anything to the contrary contained herein, no APC Manager shall constitute an Excluded Subsidiary.
“Excluded Taxes” means, with respect to any Credit Party or any other recipient of any payment to be made by or on account of any obligation of any Note Party under any Note Document,
(a) any Taxes imposed on (or measured by) such recipient’s net income (however denominated) or franchise Taxes, (i) imposed as a result of such recipient being organized or having its principal office located in or, in the case of any
Purchaser, having its applicable lending office located in, the taxing jurisdiction or (ii) that are Other Connection Taxes, (b) any branch profits Taxes imposed under Section 884(a) of the Code, or any similar Tax imposed by any jurisdiction
described in clause (a), (c) any U.S. federal withholding Tax that is imposed on amounts payable to or for the account of such Purchaser (other than a Purchaser that became a Purchaser pursuant to an assignment under Section
2.22(b)) with respect to an applicable interest in a Note or Commitment pursuant to a Requirement of Law in effect on the date on which such Purchaser (i) acquires such interest in the applicable Commitment or, if such Purchaser did not
fund the applicable Note pursuant to a prior Commitment, on the date such Purchaser acquires its interest in such Note or (ii) designates a new lending office, except in each case to the extent that, pursuant to Section 2.20, amounts
with respect to such Tax were payable either to such Purchaser’s assignor immediately before such Purchaser acquired the applicable interest in a Note or Commitment or to such Purchaser immediately before it designated a new lending office,
(d) any Tax imposed as a result of a failure by any Purchaser, the Purchaser Representative or such Credit Party to comply with its respective obligations under Sections 2.20(f) or (j) and (e) any U.S. federal withholding Tax
under FATCA.
“Facility” means any real property (including all buildings, fixtures or other improvements located thereon) now, hereafter or, except with respect to Articles 5 and 6,
hereof owned, leased, operated or used by the Issuer or any of its Restricted Subsidiaries or any of their respective predecessors or Affiliates.
“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more
onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted
pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.
“FCPA” has the meaning assigned to such term in Section 3.17(c).
“Federal Funds Effective Rate” means, for any day, the rate calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depositary institutions
(as determined in such manner as the Federal Reserve Bank of New York sets forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective
rate; provided, that if the Federal Funds Effective Rate for any day is less than zero, the Federal Funds Effective Rate for such day will be deemed to be zero.
“Fee Letter” means that certain fee letter dated on or about the date hereof between the Issuer and the Purchaser Representative.
“Financial Model” has the meaning assigned to such term in the First Lien Credit Agreement as in effect on the Signing Date.
“First Amendment” means that certain First Amendment to Note Purchase Agreement, dated as of the First
Amendment Effective Date, among, inter alios, the Issuer, the Purchasers party thereto, the First Amendment
Purchasers and the Purchaser Representative.
“First Amendment Notes” means senior second lien secured convertible PIK notes in an aggregate initial
principal amount of up to $3,243,302.02 (plus from time to time any interest accrued thereon, which shall be payable in kind), as reduced by any repayment, redemption or retirement thereof, issued on the Closing Date pursuant to this
Agreement and substantially in the form attached hereto as Exhibit B-4.
“First Amendment Note Commitment” means, with respect to any Person, the commitment of such Person to
purchase First Amendment Notes hereunder in an aggregate amount not to exceed the amount set forth opposite such Person’s name on Schedule 2.01, as the same may be (a) reduced or terminated from time to time pursuant to Section 2.11 and (b)
reduced or increased from time to time pursuant to assignments by or to such Purchaser pursuant to Section 9.05. The aggregate amount of the First Amendment Purchasers’ First Amendment Note Commitments on the Closing Date is $3,243,302.02.
“First Amendment Series B Preferred Stock” means shares of Series B Preferred Stock, par value $0.0001 per
share, of the Issuer, issued to each First Amendment Purchaser on the Closing Date and set forth opposite such First Amendment Purchaser’s name on Schedule 11.01 – Part II hereto in the column labeled “First Amendment Series B Preferred
Stock.”
“First Lien Credit Agreement” means that certain Credit Agreement, dated as of February 24, 2022 (as amended by that certain Amendment No. 1 to Credit Agreement, dated as of March 30,
2022 and as further amended by that certain Amendment No. 2 to Credit Agreement, dated as of the Agreement Effective Date), among Opco, as borrower, the lenders party thereto and Barclays Bank PLC, as administrative agent and collateral
agent.
“First Lien Credit Agreement Agent” means the “Senior Agent” as defined in the Second Lien Intercreditor and Subordination Agreement.
“First Lien Credit Agreement Obligations Payment Date” means the date that the Senior Obligations shall have been Paid in Full, as defined in the Second Lien Intercreditor and
Subordination Agreement.
“First Lien Credit Documents” means the First Lien Credit Agreement and the other “Loan Documents” (as defined in the First Lien Credit Agreement) (or the equivalent term in the
documentation governing any other First Lien Facility).
“First Lien Facility” means the credit facilities governed by the First Lien Credit Agreement, including any First Lien Incremental Facility and one or more debt facilities or other
financing arrangements (including indentures or note purchase agreements) providing for loans or other indebtedness that replace or refinance such credit facilities, including any such replacement or refinancing facility, indenture or note
purchase agreement that increases or decreases the amount permitted to be borrowed thereunder or alters the maturity thereof and whether by the same or any other agent, lender or group of lenders, and any amendments, supplements,
modifications, extensions, renewals, restatements, amendments, replacements and restatements or refundings thereof or any such debt financings or other financing arrangements that replace or refinance such credit facilities or other
Indebtedness (or any subsequent replacement thereof), in each case to the extent otherwise permitted or not restricted by this Agreement.
“First Lien Incremental Cap” means, at any time, the “Incremental Cap” as defined in the First Lien Credit Agreement as in effect on the Signing Date.
“First Lien Incremental Facilities” means “Incremental Facilities” as defined in the First Lien Credit Agreement (or the equivalent term in the documentation governing any other
First Lien Facility to the extent not less favorable to the Purchasers).
“First Lien Term Loans” means any Term Loans under the First Lien Credit Agreement.
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
“Fiscal Year” means the fiscal year of the Issuer ending on or about December 31 of each calendar year.
“Fixed Amount” has the meaning assigned to such term in Section 1.10(c).
“Fixed Incremental Amount” means $150,000,000.
“Flood Hazard Property” means any parcel of any Material Real Estate Asset subject to a Mortgage located in the U.S. in an area designated by the Federal Emergency Management Agency
as having special flood or mud slide hazards.
“Forced Conversion” has the meaning assigned to such term in Section 10.02(a).
“Forced Conversion Date” has the meaning assigned to such term in Section 10.02(b).
“Forced Conversion Notice” has the meaning assigned to such term in Section 10.02(b).
“Forced Conversation Notice Date” has the meaning assigned to such term in Section 10.02(b).
“Foreign Purchaser” means a Purchaser that is not a U.S. Person.
“Foreign Subsidiary” means any Restricted Subsidiary that is not a Domestic Subsidiary.
“Fortress” means Fortress Value Acquisition Corp. II, together with its controlled Affiliates and funds managed or advised by it or any or its respective controlled Affiliates (other
than any portfolio company).
“FRB” means the Board of Governors of the Federal Reserve System of the U.S.
“FSHCO” means (a) any direct or indirect Domestic Subsidiary that has no material assets other than the Capital Stock and/or Indebtedness of one or more Foreign Subsidiaries (other than Foreign Subsidiaries that are Discretionary Guarantors) and (b) any direct or indirect Domestic Subsidiary that has no material assets other than the Capital Stock and/or Indebtedness of one or more
Persons of the type described in the immediately preceding clause (a) or in this clause (b).
“GAAP” means generally accepted accounting principles in the U.S. in effect and applicable to the accounting period in respect of which reference to GAAP is made.
“Governmental Authority” means any federal, state, municipal, national or other government, governmental department, commission, board, bureau, court, agency or instrumentality or
political subdivision thereof or any entity or officer exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government or any court, in each case whether associated with the U.S., a
foreign government or any political subdivision thereof.
“Governmental Authorization” means any permit, license, authorization, approval, plan, directive, consent order or consent decree of or from any Governmental Authority.
“Granting Purchaser” has the meaning assigned to such term in Section 9.05(e).
“Guarantee” of or by any Person (the “Guarantor”) means any obligation, contingent or otherwise, of the Guarantor guaranteeing or having the economic effect of guaranteeing
any Indebtedness or other monetary obligation of any other Person (the “Primary Obligor”) in any manner and including any obligation of the Guarantor (a) to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other monetary obligation or to purchase (or to advance or supply funds for the purchase of) any security for the payment thereof, (b) to purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other monetary obligation of the payment thereof, (c) to maintain working capital, equity capital or any other financial statement condition or liquidity of the Primary Obligor so as to enable the Primary
Obligor to pay such Indebtedness or other monetary obligation, (d) as an account party in respect of any letter of credit or letter of guaranty issued to support such Indebtedness or monetary obligation, (e) entered into for the purpose of
assuring in any other manner the obligee in respect of such Indebtedness or other monetary obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part) or (f) secured by
any Lien on any assets of such Guarantor securing any Indebtedness or other monetary obligation of any other Person, whether or not such Indebtedness or other monetary obligation is assumed by such Guarantor (or any right, contingent or
otherwise, of any holder of such Indebtedness or other monetary obligation to obtain any such Lien); provided that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business, or
customary and reasonable indemnity obligations in effect on the Closing Date or entered into in connection with any acquisition, Disposition or other transaction permitted under this Agreement (other than such obligations with respect to
Indebtedness). The amount of any Guarantee shall be deemed to be an amount equal to the stated or determinable amount of the related primary obligation, or portion thereof, in respect of which such Guarantee is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof as determined by the guaranteeing Person in good faith.
“Hazardous Materials” means any chemical, material, substance or waste, or any constituent thereof, which is prohibited, limited or regulated under any Environmental Law or by any
Governmental Authority or which poses a hazard to the Environment or to human health and safety, including without limitation, petroleum and petroleum by-products, asbestos and asbestos-containing materials, polychlorinated biphenyls,
medical waste and pharmaceutical waste.
“Hazardous Materials Activity” means any past, current, proposed or threatened activity, event or occurrence involving any Hazardous Material, including the use, manufacture,
possession, storage, holding, presence, existence, location, Release, threatened Release, discharge, placement, generation, transportation, processing, construction, treatment, abatement, removal, remediation, disposal, disposition or
handling of any Hazardous Material, and any corrective action or response action with respect to any of the foregoing.
“Healthcare Laws” means all applicable Requirements of Law relating to healthcare providers and facilities, participation in United States federal healthcare programs, the practice
of physical therapy, or otherwise relating to the regulation, provision or administration of, or payment for, healthcare products or services, including (a) all laws related to the billing or submission of claims, reimbursement or fraud and
abuse, including the federal Anti-Kickback Statute (42 U.S.C. § 1320a-7b(b)), the federal Physician Self-Referral Prohibition (commonly referred to as the “Xxxxx Law”) (42 U.S.C. §
1395nn), the Program Fraud Civil Remedies Act (31 U.S.C. §§ 3801-3812), the federal False Claims Act (31 U.S.C. § 3729 et seq.), Sections 1320a-7 and 1320a-7a of Title 42 of the United States Code, the
regulations promulgated pursuant to each of the foregoing statutes, and all applicable counterpart state laws to any of the foregoing; (b) Medicare (Title XVIII of the Social Security Act), as amended and the regulations promulgated
thereunder, including all conditions of participation; (c) Medicaid (Title XIX of the Social Security Act), as amended and the regulations promulgated thereunder, including all conditions of participation; (d) TRICARE (10 U.S.C. Section
1071 et seq.), as amended and the regulations promulgated thereunder; (e) the Patient Protection and Affordable Care Act (Pub. L. 111−148), as amended by the Health Care and Education Reconciliation Act of 2010 (Pub. L. 111−152), and the
regulations promulgated pursuant to each of the foregoing; (f) quality, safety and medical necessity Requirements of Law relating to the regulation, provision or administration of, or payment for, healthcare products or services; (g)
workers’ compensation Requirements of Law; (h) HIPAA; (i) Requirements of Law relating to the regulation of the corporate practice of physical therapy; and (j) licensure, permit or authorization Requirements of
Law relating to the regulation, provision or administration of, or payment for, healthcare products or services, including physical therapy Requirements of Law and durable medical equipment and home medical equipment Requirements of Law.
“Healthcare Permit” means any permit, license, approval, consent, certificate of need, provider number, registration or other authorization required by or from any Governmental
Authority under any applicable Healthcare Law.
“Hedge Agreement” means any agreement with respect to any Derivative Transaction between any Note Party or any Restricted Subsidiary and any other Person.
“Hedging Obligations” means, with respect to any Person, the obligations of such Person under any Hedge Agreement.
“HIPAA” means (a) the Health Insurance Portability and Accountability Act of 1996; (b) the Health Information Technology for Economic and Clinical Health Act (Title XIII of the
American Recovery and Reinvestment Act of 2009); and (c) any state, commonwealth and local laws regulating the privacy and/or security of individually identifiable information, including state laws providing for notification of breach of
privacy or security of individually identifiable information, in each case with respect to the laws described in clauses (a), (b) and (c) of this definition, as the same may be amended, modified or supplemented from time to time, any
successor statutes thereto, any and all rules or regulations promulgated from time to time thereunder.
“Holdings” has the meaning assigned to such term in the preamble to this Agreement.
“IFRS” means international accounting standards within the meaning of the IAS Regulation 1606/2002, as in effect from time to time (subject to the provisions of Section 1.04),
to the extent applicable to the relevant financial statements.
“Immaterial Subsidiary” means, as of any date, any Restricted Subsidiary of the Issuer (a) the assets of which do not exceed 2.50% of Consolidated Total Assets of the Issuer and its
Restricted Subsidiaries and (b) the contribution to Consolidated Adjusted EBITDA of which does not exceed 2.50% of the Consolidated Adjusted EBITDA of the Issuer and its Restricted Subsidiaries, in each case, as of the last day of the most
recently ended Test Period; provided that, the Consolidated Total Assets and Consolidated Adjusted EBITDA (as so determined) of all Immaterial Subsidiaries shall not exceed 5.00% of Consolidated Total Assets and 5.00% of
Consolidated Adjusted EBITDA, in each case, of the Issuer and its Restricted Subsidiaries as of the last day of the most recently ended Test Period; provided further that, at all times prior to the first delivery of financial
statements pursuant to Section 5.01(a) or (b), this definition shall be applied based on the most recent consolidated financial statements of the Issuer (or its applicable Parent Company) delivered pursuant to Section
4.01 hereof.
“Immediate Family Member” means, with respect to any individual, such individual’s child, stepchild, grandchild or more remote descendant, parent, stepparent, grandparent, spouse,
former spouse, domestic partner, former domestic partner, sibling, mother-in-law, father-in-law, son-in-law and daughter-in-law (including adoptive relationships), any trust, partnership or other bona fide estate-planning vehicle the only
beneficiaries of which are any of the foregoing individuals, such individual’s estate (or an executor or administrator acting on its behalf), heirs or legatees or any private foundation or fund that is controlled by any of the foregoing
individuals or any donor-advised fund of which any such individual is the donor.
“Incremental Cap” means the Fixed Incremental Amount.
“Incurrence-Based Amount” has the meaning assigned to such term in Section 1.10(c).
“Indebtedness” as applied to any Person means, without duplication:
(a) all indebtedness for borrowed money;
(b) that portion of obligations with respect to Capital Leases to the extent recorded as a liability on a balance sheet (excluding the footnotes thereto) of such
Person prepared in accordance with GAAP;
(c) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments to the extent the same would appear as a liability on a balance
sheet (excluding the footnotes thereto) of such Person prepared in accordance with GAAP;
(d) any obligation owed for all or any part of the deferred purchase price of property or services (excluding (i) any earn out obligation or purchase price
adjustment until such obligation (A) becomes a liability on the statement of financial position or balance sheet (excluding the footnotes thereto) in accordance with GAAP and (B) has not been paid within 30 days after becoming due and
payable, (ii) any such obligations incurred under ERISA, (iii) accrued expenses and trade accounts payable in the ordinary course of business (including on an inter-company basis) and (iv) liabilities associated with customer prepayments
and deposits), which purchase price is (A) due more than six months from the date of incurrence of the obligation in respect thereof or (B) evidenced by a note or similar written instrument;
(e) all Indebtedness of others secured by any Lien on any asset owned or held by such Person regardless of whether the Indebtedness secured thereby have been
assumed by such Person or is non-recourse to the credit of such Person;
(f) the face amount of any letter of credit issued for the account of such Person or as to which such Person is otherwise liable for reimbursement of drawings;
(g) the Guarantee by such Person of the Indebtedness of another;
(h) all obligations of such Person in respect of any Disqualified Capital Stock; and
(i) all net obligations of such Person in respect of any Derivative Transaction, including any Hedge Agreement, whether or not entered into for hedging or
speculative purposes;
provided that (i) in no event shall obligations under any Derivative Transaction be deemed “Indebtedness” for any calculation of the Total Net Leverage Ratio, the Secured Net Leverage Ratio or any
other financial ratio under this Agreement and (ii) the amount of Indebtedness of any Person for purposes of clause (e) shall be deemed to be equal to the lesser of (A) the aggregate unpaid amount of such Indebtedness and (B) the
fair market value of the property encumbered thereby as determined by such Person in good faith.
For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any third person (including any partnership in which such Person is a general partner and any
unincorporated joint venture in which such Person is a joint venture partner) to the extent such Person would be liable therefor under applicable Requirements of Law or any agreement or instrument by virtue of such Person’s ownership
interest in such Person, (A) except to the extent the terms of such Indebtedness provide that such Person is not liable therefor and (B) only to the extent the relevant Indebtedness is of the type that would be included in the calculation
of Consolidated Total Debt; provided that notwithstanding anything herein to the contrary, the term “Indebtedness” shall not include, and shall be calculated without giving effect to, (x) the effects of Accounting Standards
Codification Topic 815 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose hereunder as a result of accounting for any embedded derivatives created by the
terms of such Indebtedness (it being understood that any such amounts that would have constituted Indebtedness hereunder but for the application of this proviso shall not be deemed an incurrence of Indebtedness hereunder) and (y) the
effects of Statement of Financial Accounting Standards No. 133 and related interpretations to the extent such effects would otherwise increase or decrease an amount of Indebtedness for any purpose under this Agreement as a result of
accounting for any embedded derivative created by the terms of such Indebtedness (it being understood that any such amounts that would have constituted Indebtedness under this Agreement but for the application of this sentence shall not be
deemed to be an incurrence of Indebtedness under this Agreement).
“Indemnified Taxes” means all Taxes, other than Excluded Taxes or Other Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Note Party
under any Note Document.
“Indemnitee” has the meaning assigned to such term in Section 9.03(b).
“INHAM Exemption” has the meaning assigned to such term in Section 8.12(c)(v).
“Initial Note Commitment” means, with respect to any Initial Purchaser, the commitment of such Initial Purchaser to exchange Exchanged Term Loans held by such Initial Purchaser for
Initial Notes hereunder in an aggregate amount not to exceed the amount set forth opposite such Initial Purchaser’s name on Schedule 2.01. The aggregate amount of the Initial Purchasers’ Initial Note Commitments on the Closing Date
is $100,000,000.
“Initial Notes” has the meaning assigned to such term in Section 2.01(a).
“Initial Purchasers” means the Purchasers who are party to this Agreement as Purchasers on the Closing Date.
“Initial Series B Preferred Stock” means shares of Series B Preferred Stock, par value $0.0001 per share, of the Issuer, issued to each Initial Purchaser on the Closing Date and set
forth opposite such Initial Purchaser’s name on Schedule 11.01 - Part I hereto in the column labeled “Initial Series B Preferred
Stock.”
“Intellectual Property Security Agreement” means any agreement, or a supplement thereto, executed on or after the Closing Date confirming or effecting the grant of any Lien on IP
Rights owned by any Note Party to the Purchaser Representative, for the benefit of the Secured Parties, in accordance with this Agreement and the Security Agreement, including an Intellectual Property Security Agreement substantially in the
form of Exhibit H hereto.
“Intercompany Note” means a promissory note substantially in the form of Exhibit F.
“Intercreditor Agreement” means (a) with respect to the First Lien Facility, the Second Lien Intercreditor and Subordination Agreement or (b) with respect to any other Indebtedness,
any other intercreditor or subordination agreement or arrangement (which may take the form of a “waterfall” or similar provision), as applicable, the terms of which are reasonably acceptable to the Issuer, the Purchaser Representative and
the Required Purchasers.
“Interest Payment Date” means with respect to any Note, the last Business Day of each Fiscal Quarter (commencing with the first full Fiscal Quarter to elapse after the Closing Date)
and the Maturity Date of such Note; provided, however, that if any Note has an original term to maturity of more than five years from its original issuance date and otherwise would constitute an “applicable high yield discount
obligation” within the meaning of Section 163(i) of the Code, then the last Interest Payment Date prior to the Maturity Date shall instead be the date that is exactly five years from the original issuance of the Initial Notes and the First Amendment Notes.
“Investment” means (a) any purchase or other acquisition for consideration by the Issuer or any of its Restricted Subsidiaries of any of the Securities of any other Person (other
than any Note Party), (b) the acquisition for consideration by purchase or otherwise (other than any purchase or other acquisition of inventory, materials, supplies and/or equipment in the ordinary course of business) of all or a
substantial portion of the business, property or fixed assets of any other Person or any division or line of business or other business unit of any other Person and (c) any loan, advance (other than any advance to any current or former
employee, officer, director, member of management, manager, consultant or independent contractor of the Issuer, any Restricted Subsidiary, or any Parent Company for moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution by the Issuer or any of its Restricted Subsidiaries to any other Person. Subject to Section 5.10, the amount of any Investment shall be the original cost of
such Investment, plus the cost of any addition thereto that otherwise constitutes an Investment, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect thereto, but giving
effect to any repayments of principal in the case of any Investment in the form of a loan and any return of capital or return on Investment in the case of any equity Investment (whether as a distribution, dividend, redemption or sale but
not in excess of the amount of the relevant initial Investment). For purposes of Section 8.09(b), Investments held by any Note Party in any Subsidiary Guarantor that ceases to be a Wholly-Owned Subsidiary shall be deemed to be an
Investment incurred on the date such Subsidiary Guarantor ceases to constitute a Wholly-Owned Subsidiary.
“Investors” means (a) the Sponsors and (b) the Management Investors.
“Investors’ Rights Agreement Amendment” shall have the meaning assigned to such term in the Transaction Support Agreement.
“IP Rights” has the meaning assigned to such term in Section 3.05(c).
“IP Separation Transaction” means (a) any Disposition by any Note Party of any Material Intellectual Property to (i) any subsidiary of the Issuer that is not a Note Party or (ii) any
Consolidated APC, Non-Consolidated APC or any other Affiliated Practice and/or (b) any Investment by any Note Party in the form of a contribution of Material Intellectual Property to (i) any subsidiary that is not a Note Party or (ii) any
Consolidated APC, Non-Consolidated APC or any other Affiliated Practice.
“Issuance” means any Notes of the same Class issued.
“Issuance Approval” has the meaning assigned to such term in Section 10.07.
“Issuance Approval Meeting” has the meaning assigned to such term in Section 10.07.
“Issuance Request” means a request by the Issuer for an Issuance in accordance with Section 2.05 and substantially in the form attached hereto as Exhibit G or such
other form that is reasonably acceptable to the Required Purchasers.
“Issuer” has the meaning assigned to such term in the preamble to this Agreement.
“Joinder Agreement” means a Joinder Agreement substantially in the form of Exhibit N or such other form that is reasonably satisfactory to the Required Purchasers and the
Issuer; it being understood and agreed that any Joinder Agreement executed by any Foreign Subsidiary may include such modifications as may be necessary to reflect the fact that such Foreign Subsidiary may not become party to the Security
Agreement.
“Junior Indebtedness” means any Indebtedness of the types described in clauses (a) and (c) of the definition of “Indebtedness” (other than Indebtedness among the
Issuer and/or its subsidiaries) of the Issuer or any of its Restricted Subsidiaries that is expressly contractually subordinated in right of payment to the Obligations.
“Junior Lien Indebtedness” means any Indebtedness of the types described in clauses (a) and (c) of the definition of “Indebtedness” that is secured by a security
interest on the Collateral (other than Indebtedness among the Issuer and/or its subsidiaries) that is expressly junior or subordinated to the Lien securing the Notes on the Closing Date.
“JV Entity” means any bona fide joint venture with a third party in respect of which the Issuer and/or a Restricted Subsidiary own less than 100% of the Capital Stock (other than any
Wholly-Owned Subsidiary).
“Last Reported Sale Price” of the Common Stock on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or,
if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. national or regional securities exchange on which the Common Stock is
traded. If the Common Stock is not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “Last Reported Sale Price” shall be the last quoted bid price for the Common Stock in the over-the-counter
market on the relevant date as reported by OTC Markets Group Inc. or a similar organization. If the Common Stock is not so quoted, the “Last Reported Sale Price” shall be the average of the mid-point of the last bid and ask prices for the
Common Stock on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Issuer for this purpose.
“Latest Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any Note hereunder at such time.
“Legal Reservations” means the application of relevant Debtor Relief Laws, general principles of equity and/or principles of good faith and fair dealing.
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest
or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capital Lease having
substantially the same economic effect as any of the foregoing), in each case, in the nature of security; provided that in no event shall an operating lease in and of itself be deemed to constitute a Lien.
“Liquidity” means the sum of (a) the amount of unused Revolving Credit Commitments (for avoidance of doubt, any issued Letters of Credit shall be considered usage of Revolving Credit
Commitments) and (b) the Unrestricted Cash Amount; capitalized terms used in this definition shall have the meanings assigned to such terms in the First Lien Credit Agreement as in effect on the Signing Date.
“Management Investors” means the present and former officers, directors, managers, employees and members of management of the Issuer, any Parent Company and/or any subsidiary of the
Issuer.
“Management Services Agreement” means, with respect to any Physical Therapy Entity, a management or administrative services agreement (or similar agreement) between any Note Party,
as manager (in such capacity, the “APC Manager”), and such Physical Therapy Entity on terms (other than with respect to management or similar fees, which shall be determined in the reasonable business judgment of the applicable APC
Manager and such Physical Therapy Entity), taken as a whole, in the good faith judgment of the Issuer, that are not materially less favorable to the Purchasers than those set forth in the form attached hereto as Exhibit P or such
other terms as are (i) reasonably acceptable to the Required Purchasers and/or (ii) in the good faith judgment of the Issuer, required pursuant to or reasonably advisable to facilitate compliance with applicable Requirements of Law.
“Margin Stock” has the meaning assigned to such term in Regulation U.
“Master Assignment and Assumption Agreement” means that certain Master Assignment and Assumption Agreement, dated as of April 17, 2023 by and among, inter alios, the Issuer and each assignor party thereto.
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, financial condition or results of operations, in each case, of the Issuer and its Restricted
Subsidiaries, taken as a whole, (b) the rights and remedies (taken as a whole) of the Purchaser Representative under the applicable Note Documents or (c) the ability of the Note Parties (taken as a whole) to perform their payment
obligations under the applicable Note Documents.
“Material Debt Instrument” means any physical instrument evidencing any Indebtedness for borrowed money which is required to be pledged and delivered to the Purchaser Representative
(or its bailee) pursuant to the Security Agreement.
“Material Intellectual Property” means any intellectual property owned by any Note Party that is, in the good faith determination of the Issuer, material to the operation of the
business of the Issuer and its Restricted Subsidiaries, taken as a whole.
“Material Real Estate Asset” means (a) on the date hereof, each Real Estate Asset listed on Schedule 1.01(c) and (b) any “fee-owned” Real Estate Asset located in the U.S.,
any state thereof or the District of Columbia that is acquired by any Note Party after the date hereof having a fair market value (as determined by the Issuer in good faith after taking into account any liabilities with respect thereto that
impact such fair market value) in excess of $6,000,000 as of the date of acquisition thereof.
“Maturity Date” means August 24, 2028.
“Maximum Rate” has the meaning assigned to such term in Section 9.19.
“Merger Event” has the meaning set forth in Section 10.06.
“Xxxxx’x” means Xxxxx’x Investors Service, Inc.
“Monthly Reporting Package” has the meaning assigned to such term in Section 5.01(l).
“Mortgage” means any mortgage, deed of trust or other agreement in form and substance reasonably satisfactory to the Purchaser Representative and the Required Purchasers which
conveys or evidences a Lien in favor of the Purchaser Representative, for the benefit of the Purchaser Representative and the relevant Secured Parties, on any Material Real Estate Asset constituting Collateral, which shall contain such
terms as may be necessary under applicable local Requirements of Law to perfect a Lien on the applicable Material Real Estate Asset.
“Mortgage Policies” has the meaning assigned to such term in the definition of “Collateral and Guarantee Requirement”.
“Multiemployer Plan” means any employee benefit plan which is a “multiemployer plan” as defined in Section 3(37) of ERISA, that is subject to the provisions of Title IV of ERISA, and
in respect of which the Issuer or any of its Restricted Subsidiaries, or any of their respective ERISA Affiliates, makes or is obligated to make contributions or with respect to which any of them has any ongoing obligation or liability,
contingent or otherwise.
“NAIC Annual Statement” has the meaning assigned to such term in Section 8.12(c)(i).
“Net Proceeds” means with respect to any issuance or incurrence of Indebtedness or Capital Stock, the Cash proceeds thereof, net of all Taxes and customary fees, commissions, costs,
underwriting discounts and other fees and expenses incurred in connection therewith.
“Non-Consolidated APC” means any Affiliated Practice, which, for accounting purposes, is not consolidated with the Issuer in accordance with GAAP.
“Non-Debt Fund Affiliate” means any Investor (which is an Affiliate of the Issuer) and any Affiliate of any such Investor, other than any Debt Fund Affiliate.
“Non-Note Party Debt Cap” means $12,000,000.
“Note” means the Initial Notes, the First Amendment Notes, and, if
applicable, any Delayed Draw Notes and any Additional Notes.
“Note Documents” means this Agreement, the First Amendment, any Note,
each Note Guaranty, the Collateral Documents, any Intercreditor Agreement to which the Issuer is a party and any other document or instrument designated by the Issuer and the Purchaser Representative as a “Note Document”. Any reference in
this Agreement or any other Note Document to a Note Document shall include all appendices, exhibits or schedules thereto.
“Note Guarantor” means each Subsidiary Guarantor.
“Note Guaranty” means the Guaranty Agreement, dated as of the Closing Date, executed by each Note Guarantor and the Purchaser Representative for the benefit of the Secured Parties,
as supplemented in accordance with the terms of Section 5.12 hereof.
“Note Parties” means the Issuer and each Note Guarantor.
“Obligations” means, without duplication, all unpaid principal of and accrued and unpaid interest (including interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding) on the Notes, all premium (including the Prepayment Premium), all accrued and unpaid fees and all expenses (including premium, fees and
expenses accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding), reimbursements, indemnities and all other advances to, debts,
liabilities and obligations of any Note Party to the Purchasers or to any Purchaser, the Purchaser Representative or any indemnified party arising under the Note Documents in respect of any Note, whether direct or indirect (including those
acquired by assumption), absolute, contingent, due or to become due, now existing or hereafter arising.
“Option” means rights, options or warrants to subscribe for, purchase or otherwise acquire Common Stock or Convertible Securities.
“Organizational Documents” means (a) with respect to any corporation, its certificate or articles of incorporation or organization and its by-laws, (b) with respect to any limited
partnership, its certificate of limited partnership and its partnership agreement, (c) with respect to any general partnership, its partnership agreement, (d) with respect to any limited liability company, its articles of organization or
certificate of formation, and its operating agreement, and (e) with respect to any other form of entity, such other organizational documents required by local Requirements of Law or customary under such jurisdiction to document the
formation and governance principles of such type of entity. In the event that any term or condition of this Agreement or any other Note Document requires any Organizational Document to be certified by a secretary of state or similar
governmental official, the reference to any such “Organizational Document” shall only be to a document of a type customarily certified by such governmental official.
“Other Connection Taxes” means, with respect to any Credit Party, Taxes imposed as a result of a present or former connection between such Credit Party and the jurisdiction imposing
such Tax (other than connections arising solely from such Credit Party having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, or engaged in
any other transaction pursuant to or enforced any Note Document, or sold or assigned an interest in any Note or Note Document).
“Other Taxes” means all present or future stamp, court or documentary Taxes or any intangible, recording, filing or other excise or property Taxes arising from any payment made under
any Note Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Note Document, but excluding (i) any Excluded Taxes, and (ii) any such Taxes that are Other Connection Taxes imposed with respect to an
assignment or participation (other than an assignment made pursuant to Section 2.22).
“Parent” means the Issuer.
“Parent Company” means Parent, Intermediate Parent, Holdings and any other Person of which the Issuer is a direct or indirect Wholly-Owned Subsidiary.
“Participant” has the meaning assigned to such term in Section 9.05(c)(i).
“Participant Register” has the meaning assigned to such term in Section 9.05(c).
“Patent” means the following: (a) any and all patents and patent applications; (b) all inventions described and claimed therein; (c) all reissues, divisions, continuations, renewals,
extensions and continuations in part thereof; (d) all income, royalties, damages, claims, and payments now or hereafter due or payable under and with respect thereto, including, without limitation, damages and payments for past and future
infringements thereof; (e) all rights to sue for past, present, and future infringements thereof; and (f) all rights corresponding to any of the foregoing.
“PBGC” means the Pension Benefit Guaranty Corporation.
“Pension Plan” means any employee pension benefit plan, as defined in Section 3(2) of ERISA (other than a Multiemployer Plan), that is subject to the provisions of Title IV of ERISA
or Section 412 of the Code or Section 302 of ERISA, which the Issuer or any of its Restricted Subsidiaries, or any of their respective ERISA Affiliates, maintains or contributes to or has an obligation to contribute to, or otherwise has any
liability, contingent or otherwise.
“Perfection Certificate” means a certificate substantially in the form of Exhibit E.
“Perfection Requirements” means (a) with respect to any Note Party (other than any Discretionary Guarantor that is a Foreign Subsidiary), the filing of appropriate financing
statements with the office of the Secretary of State or other appropriate office of the state of organization of each Note Party, the filing of Intellectual Property Security Agreements with the U.S. Patent and Trademark Office and the U.S.
Copyright Office, the proper recording or filing, as applicable, of Mortgages and fixture filings with respect to any Material Real Estate Asset constituting Collateral, in each case in favor of the Purchaser Representative for the benefit
of the Secured Parties and the delivery to the Purchaser Representative (or the First Lien Credit Agreement Agent as gratuitous bailee for the Purchaser Representative) of any stock certificate, promissory note, or other Instrument (as
defined in the UCC) together with instruments of transfer executed in blank, (b) the entry into Control Agreements in favor of the Purchaser Representative (or the First Lien Credit Agreement Agent, as gratuitous bailee for the Purchaser
Representative) with respect to Deposit Accounts constituting Collateral and (c) with respect to any Discretionary Guarantor that is a Foreign Subsidiary, any recording, filing, registration, notification or other action required to be
taken in the applicable jurisdiction to perfect the liens on the assets of such Foreign Subsidiary, in each case of the foregoing clauses (a) and (c), to the extent required by the applicable Note Documents.
“Permitted Acquisition” means any acquisition made by the Issuer or any of its Restricted Subsidiaries or any Consolidated APC, whether by purchase, merger or otherwise, of all or
substantially all of the assets of (or, with respect to such acquisition by the Issuer or any of its Restricted Subsidiaries, substantially all of the assets of the relevant target that are legally permitted to be owned by the Issuer or any
of its Restricted Subsidiaries under applicable Requirements of Law, including, without limitation, Requirements of Law related to the corporate practice of physical therapy), or any business line, unit or division or product line
(including research and development and related assets in respect of any product) of, any Person or of a majority of the outstanding Capital Stock of any Person who is engaged in a Similar Business (and, in any event, including any
Investment in (x) any Restricted Subsidiary the effect of which is to increase the Issuer’s or any Restricted Subsidiary’s equity ownership in such Restricted Subsidiary or (y) any joint venture for the purpose of increasing the Issuer’s or
its relevant Restricted Subsidiary’s ownership interest in such joint venture) if (1) such Person becomes a Restricted Subsidiary or Consolidated APC or (2) such Person, in one transaction or a series of related transactions, is
amalgamated, merged or consolidated with or into, or transfers or conveys substantially all of its assets (or such division, business, unit or product line) to, or is liquidated into, the Issuer, any Restricted Subsidiary and/or any
Consolidated APC as a result of such Investment; provided that:
(a) the total consideration paid during the term of this Agreement in respect of such acquisitions of assets by Restricted Subsidiaries that are not Note Parties
or that are not owned by the Issuer or Subsidiary Guarantors or do not become Collateral or of Capital Stock of Persons that are not Subsidiary Guarantors or do not become Subsidiary Guarantors, together with the aggregate amount of
Investments made in Persons that are not Note Parties in reliance on Section 6.06(b)(iii) and Section 6.06(b)(aa), shall not exceed the Specified Investment Cap;
(b) the total consideration paid for the Capital Stock of any Person that becomes a Consolidated APC shall not exceed an aggregate amount of $6,000,000; provided,
that at the time of such acquisition (or such later date as the Required Purchasers may reasonably agree), such newly acquired Consolidated APC shall enter into Acceptable Practice Management Arrangements;
(c) the limitations described in clauses (a) and (b) above shall not apply to any acquisition to the extent (i) any such consideration is financed
with the cash proceeds of sales of the Qualified Capital Stock of, or cash common equity capital contributions to, the Issuer or any Restricted Subsidiary other than any Cure Amount, Available Excluded Contribution Amount or Contribution
Indebtedness Amount, (ii) the Person so acquired (or the Person owning the assets so acquired) becomes a Subsidiary Guarantor even though such Person is not otherwise required to become a Subsidiary Guarantor and/or (iii) at least 75.0% of
the Consolidated Adjusted EBITDA of the Person(s) acquired in such acquisition (or the Persons owning the assets so acquired) (for this purpose and for the component definitions used in the definition of “Consolidated Adjusted EBITDA”,
determined on a consolidated basis for such Person(s) and their respective Restricted Subsidiaries) is generated by Person(s) that will become Subsidiary Guarantors (i.e., disregarding any
Consolidated Adjusted EBITDA generated by Restricted Subsidiaries of such Persons that are not (or will not become) Subsidiary Guarantors); and
(d) in the event the amount available under the Specified Investment Cap is reduced as a result of any acquisition of (i) any Restricted Subsidiary that does not
become a Note Party or (ii) any assets that are not transferred to a Note Party and such Restricted Subsidiary subsequently becomes a Note Party or such assets are subsequently transferred to a Note Party, respectively, the amount available
under the Specified Investment Cap shall be proportionately increased as a result thereof.
“Permitted Holders” means (a) the Investors, (b) the Specified Preferred Equityholder and (c) any Person with which one or more Investors, Specified Preferred Equityholders and/or
management form a “group” (within the meaning of Section 14(d) of the Exchange Act) so long as, in the case of this clause (b), the relevant Investors and Specified Preferred Equityholders beneficially own more than 50% of the
relevant voting Capital Stock beneficially owned by the group.
“Permitted Liens” means Liens permitted pursuant to Section 6.02.
“Permitted Practice Subsidiary Restructuring” means any Practice Subsidiary Restructuring; provided that:
(a) the board of directors (or similar governing body) of the Issuer has approved such Practice Subsidiary Restructuring;
(b) the Issuer has determined in good faith that such Practice Subsidiary Restructuring (i) is in the best interests of the business of the Issuer and its
Restricted Subsidiaries, taken as a whole, and (ii) will not have a material and adverse impact on the financial condition of the Issuer and its Restricted Subsidiaries, taken as a whole, or the ability of the Issuer to satisfy its payment
obligations under the Notes and the Credit Facilities (as defined in the First Lien Credit Agreement);
(c) (i) the Consolidated Adjusted EBITDA attributable to the Issuer, its Restricted Subsidiaries and any Consolidated APC, calculated after giving effect to such
Practice Subsidiary Restructuring (or series of related Practice Subsidiary Restructurings) on a Pro Forma Basis for the most recently ended Test Period, is not less than (ii) the Consolidated Adjusted EBITDA attributable to the Issuer, its
Restricted Subsidiaries and any Consolidated APC for the most recently ended Test Period, calculated before giving effect to such Practice Subsidiary Restructuring, by more than 5.00%;
(d) either (i) all of the Capital Stock of the Practice Subsidiary has been transferred to one or more Physical Therapist Owners, and the Person whose Capital
Stock was transferred to one or more Physical Therapist Owners becomes a Consolidated APC or (ii) the Capital Stock and/or clinical assets of the applicable Practice Subsidiary have been transferred to a Consolidated APC, and the applicable
Practice Subsidiary becomes a Consolidated APC; and
(e) each applicable Note Party will use commercially reasonable efforts to cause each Person subject to a Practice Subsidiary Restructuring to transfer to a Note
Party substantially all of the assets of such Person (other than Accounts (as defined in the UCC), employment agreements, payor contracts, other assets which such Consolidated APC must retain, in the reasonable judgment of the Issuer, to
comply with any Requirements of Law and any other asset with respect to which the Issuer has determined in its reasonable business judgment that the cost, burden, difficulty or consequence (including any adverse tax consequence, any
required third party or governmental consent and any effect on the ability of the Issuer and/or any subsidiary and/or any Affiliated Practice to conduct their respective businesses and operations in the ordinary course) of transferring
outweighs, or is excessive in light of, the practical benefit to the Secured Parties afforded thereby).
“Person” means any natural person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or any other entity.
“Physical Therapist Owner” has the meaning assigned to such term in the definition of “Physical Therapy Entity”.
“Physical Therapy Entity” means any entity owned directly or indirectly solely by (a) one or more licensed physical therapists (any such licensed physical therapist, a “Physical
Therapist Owner”) and/or (b) another entity owned directly or indirectly solely by one or more Physical Therapist Owners.
“PIK Series B Preferred Stock” means shares of Series B Preferred Stock, par value $0.0001 per share, of the Issuer, issued on each Interest Payment Date.
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) maintained by the Issuer and/or any Restricted Subsidiary or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any of its ERISA Affiliates, other than any Multiemployer Plan.
“Platform” has the meaning assigned to such term in Section 5.01.
“Practice Loan Agreement” has the meaning assigned to such term in the definition of “Acceptable Practice Management Arrangements”.
“Practice Subsidiary” means a subsidiary of the Issuer the primary business of which consists of operating one or more physical therapy practices.
“Practice Subsidiary Restructuring” means the transfer by the Issuer and/or any Restricted Subsidiary of (a) the Capital Stock of one or more Practice Subsidiaries to one or more
Physical Therapist Owners or a Person owned by one or more Physical Therapist Owners and/or (b) certain clinical assets owned by one or more Practice Subsidiaries to one or more Physical Therapy Entities, in each case, to the extent
required by any Requirement of Law.
“Prepayment Premium” has the meaning assigned to such term in Section 2.12(f).
“Primary Obligor” has the meaning assigned to such term in the definition of “Guarantee”.
“Pro Forma Basis” or “pro forma effect” means, with respect to any determination of the Total Net Leverage Ratio, the Secured Net Leverage Ratio, Consolidated Adjusted EBITDA
or Consolidated Total Assets (including any component definitions thereof), that:
(a) in the case of (i) any Disposition of all or substantially all of the Capital Stock of any Restricted Subsidiary or any division and/or product line of the
Issuer and/or any Restricted Subsidiary, (ii) [reserved], (iii) the implementation of any Business Optimization Initiative relating to a cost-savings action and/or (iv) at the election of the Issuer, any Subject Transaction described in clauses
(i), (k) or (l) of the definition thereof, income statement items (whether positive or negative and including, subject to the limitations set forth in clause (e) of Consolidated Adjusted EBITDA, any Expected
Cost Saving) attributable to the property or Person subject to such Subject Transaction, shall be excluded as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination is being
made,
(b) in the case of (i) any Permitted Acquisition or other Investment, (ii) [reserved], (iii) any transaction described in clause (h) of the definition of
“Subject Transaction” and/or (iv) at the election of the Issuer, any Subject Transaction described in clause (l) of the definition thereof, income statement items (whether positive or negative and including, subject to the
limitations set forth in clause (e) of “Consolidated Adjusted EBITDA, any Expected Cost Saving) attributable to the property or Person subject to such Subject Transaction shall be included as of the first day of the applicable Test
Period with respect to any test or covenant for which the relevant determination is being made,
(c) [Reserved],
(d) any retirement or repayment of Indebtedness by the Issuer or any of its subsidiaries that constitutes a Subject Transaction shall be deemed to have occurred
as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination is being made;
(e) any Indebtedness incurred by the Issuer or any of its Restricted Subsidiaries in connection therewith that constitutes a Subject Transaction shall be deemed
to have occurred as of the first day of the applicable Test Period with respect to any test or covenant for which the relevant determination is being made; provided that, (i) if such Indebtedness has a floating or formula rate, such
Indebtedness shall have an implied rate of interest for the applicable Test Period for purposes of this definition determined by utilizing the rate that is or would be in effect with respect to such Indebtedness at the relevant date of
determination (taking into account any interest hedging arrangements applicable to such Indebtedness), (ii) interest on any obligation with respect to any Capital Lease shall be deemed to accrue at an interest rate reasonably determined by
a Responsible Officer of the Issuer in good faith to be the rate of interest implicit in such obligation in accordance with GAAP and (iii) interest on any Indebtedness that may optionally be determined at an interest rate based upon a
factor of a prime or similar rate, a eurocurrency interbank offered rate or other rate shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen by the Issuer;
(f) the acquisition of any asset included in calculating Consolidated Total Assets (other than the amount Cash or Cash Equivalents, which is addressed in clause
(g) below), whether pursuant to any Subject Transaction or any Person becoming a subsidiary or merging, amalgamating or consolidating with or into the Issuer or any of its subsidiaries, or the Disposition of any asset included in
calculating Consolidated Total Assets described in the definition of “Subject Transaction”, shall be deemed to have occurred as of the last day of the applicable Test Period with respect to any test or covenant for which such calculation is
being made;
(g) subject to Section 1.11, the Unrestricted Cash Amount shall be calculated as of the date of the consummation of such Subject Transaction after giving
pro forma effect thereto, including any application of cash proceeds in connection therewith (other than, for the avoidance of doubt, the cash proceeds of any Indebtedness that is, or is incurred in connection with, the Subject Transaction
for which such a calculation is being made); and
(h) each other Subject Transaction shall be deemed to have occurred as of the first day of the applicable Test Period (or, in the case of Consolidated Total
Assets, as of the last day of such Test Period) with respect to any test or covenant for which such calculation is being made.
“PTE” means a prohibited transaction class exemption issued by the U.S. Department of Labor, as any such exemption may be amended from time to time.
“Public Company Costs” means Charges associated with, or in anticipation of, or preparation for, compliance with the requirements of the Xxxxxxxx-Xxxxx Act of 2002 (and, in each
case, similar Requirements of Law under other jurisdictions) and the rules and regulations promulgated in connection therewith and Charges relating to compliance with the provisions of the Securities Act and the Exchange Act (and, in each
case, similar Requirements of Law under other jurisdictions), as applicable to companies with equity or debt securities held by the public, the rules of national securities exchange companies with listed equity or debt securities,
directors’, managers’ and/or employees’ compensation, fees and expense reimbursement, Charges relating to investor relations, shareholder meetings and reports to shareholders or debtholders, directors’ and officers’ insurance and other
executive costs, legal and other professional fees (including auditors’ and accountants’ fees), listing fees, filing fees and other costs and/or expenses associated with being a public company.
“Purchaser Representative” has the meaning assigned to such term in the preamble to this Agreement.
“Purchasers” means the Initial Purchasers, the First Amendment Purchasers,
the Delayed Draw Purchasers, the Additional Purchasers (if any) and any other Person that becomes a party hereto pursuant to a Transfer Agreement, other than any such Person that ceases to be a party hereto pursuant to a Transfer Agreement.
“QPAM Exemption” has the meaning assigned to such term in Section 8.12(c)(iv).
“Qualified Capital Stock” of any Person means any Capital Stock of such Person that is not Disqualified Capital Stock.
“Real Estate Asset” means, at any time of determination, all right, title and interest (fee, leasehold or otherwise) of any Note Party in and to real property (including, but not
limited to, land, improvements and fixtures thereon).
“Record Date” means, with respect to any dividend, distribution or other transaction or event in which the holders of Common Stock (or other applicable
security) have the right to receive any cash, securities or other property or in which the Common Stock (or such other security) is exchanged for or converted into any combination of cash, securities or other property, the date fixed for
determination of holders of the Common Stock (or such other security) entitled to receive such cash, securities or other property (whether such date is fixed by Parent, by statute, by contract or otherwise).
“Reference Property” has the meaning set forth in Section 10.06.
“Refinancing Indebtedness” has the meaning assigned to such term in Section 6.01(p).
“Refunding Capital Stock” has the meaning assigned to such term in Section 6.04(a)(viii).
“Register” has the meaning assigned to such term in Section 9.05(b)(iv).
“Registration Rights Agreement” means that certain Registration Rights Agreement, dated as of the Closing Date, substantially in the form attached hereto as Exhibit C.
“Regulation D” means Regulation D of the FRB as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Regulation H” means Regulation H of the FRB as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Regulation U” means Regulation U of the FRB as from time to time in effect and all official rulings and interpretations thereunder or thereof.
“Related Funds” means with respect to any Purchaser that is an Approved Fund, any other Approved Fund that is managed by the same investment advisor as such Purchaser or by an
Affiliate of such investment advisor.
“Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, managers, officers, trustees, employees, partners, agents,
advisors and other representatives of such Person and such Person’s Affiliates.
“Release” means any release, spill, emission, leaking, pumping, pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping, leaching or migration of any Hazardous
Material into the Environment (including the abandonment or disposal of any barrels, containers or other closed receptacles containing any Hazardous Material), including the movement of any Hazardous Material through the air, soil, surface
water or groundwater.
“Relevant APC” has the meaning assigned to such term in Section 5.16(b).
“Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the
Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto.
“Reportable Event” means, with respect to any Pension Plan or Multiemployer Plan, any of the events described in Section 4043(c) of ERISA or the regulations issued thereunder, other than those events
as to which the 30-day notice period is waived under PBGC Reg. Section 4043.
“Representatives” has the meaning assigned to such term in Section 9.13.
“Required Additional Purchasers” means, at any time, with respect to any Additional Note Commitment at such time, Purchasers having Additional Note Commitments representing more than
50% of such Additional Note Commitments at such time.
“Required Delayed Draw Purchasers” means, at any time, Purchasers having Delayed Draw Note Commitments representing more than 50% of the Delayed Draw Note Commitments at such time.
“Required Purchasers” means, at any time, Purchasers having Notes or unused Commitments representing more than 50% of the sum of the total Notes and unused Commitments outstanding at
such time.
“Requirements of Law” means, with respect to any Person, collectively, the common law and all federal, state, local, foreign, multinational or international laws, statutes, codes,
treaties, standards, rules and regulations, guidelines, ordinances, orders, judgments, writs, injunctions, decrees (including administrative or judicial precedents or authorities) and the interpretation or administration thereof by, and
other determinations, directives, requirements or requests of any Governmental Authority, in each case whether or not having the force of law and that are applicable to or binding upon such Person or any of its property or to which such
Person or any of its property is subject.
“Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority.
“Responsible Officer” of any Person means the chief executive officer, the president, the chief financial officer, the treasurer, any assistant treasurer, any executive vice
president, any senior vice president, any vice president or the chief operating officer of such Person and any other individual or similar official thereof responsible for the administration of the obligations of such Person in respect of
this Agreement, and, as to any document delivered on the Closing Date, shall include any secretary or assistant secretary or any other individual or similar official thereof with substantially equivalent responsibilities of a Note Party
and, as to the Purchaser Representative, shall include only such individuals at the Purchaser Representative having direct responsibility for the administration of this Agreement. Any document delivered hereunder that is signed by a
Responsible Officer of any Note Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Note Party, and such Responsible Officer shall be conclusively
presumed to have acted on behalf of such Note Party.
“Responsible Officer Certification” means, with respect to the financial statements for which such certification is required, the certification of a Responsible Officer of the Issuer
that such financial statements fairly present, in all material respects, in accordance with GAAP, the consolidated financial condition of the Issuer as at the dates indicated and its consolidated operations and cash flows for the periods
indicated, subject to changes resulting from audit and normal year-end adjustments.
“Restricted Debt” has the meaning set forth in Section 6.04(b).
“Restricted Debt Payments” has the meaning set forth in Section 6.04(b).
“Restricted Payment” means (a) any dividend or other distribution on account of any shares of any class of the Capital Stock of the Issuer or any Restricted Subsidiary, except a
dividend payable solely in shares of Qualified Capital Stock to the holders of such class; (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value of any shares of any class of the Capital
Stock of the Issuer or any Restricted Subsidiary and (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of the Capital Stock of the Issuer or any
Restricted Subsidiary now or hereafter outstanding.
“Restricted Subsidiary” means, as to any Person, any subsidiary of such Person. Unless otherwise specified, “Restricted Subsidiary” shall mean any subsidiary of the Issuer.
“RP/RDP Shared Cap” means $1,200,000.
“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of the XxXxxx-Xxxx Companies, Inc.
“Sale and Lease-Back Transaction” means any arrangement providing for the leasing by the Issuer or any of its Restricted Subsidiaries of any property, which property has been or is
to be sold or transferred by the Issuer or such Restricted Subsidiary in contemplation of such leasing.
“Sanctions” has the meaning assigned to such term in Section 3.17(a).
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of its functions.
“Second Lien Intercreditor and Subordination Agreement” means the Second Lien Intercreditor and Subordination Agreement, dated as of the date hereof, by and among the Purchaser
Representative and the First Lien Credit Agreement Agent and acknowledged by the Note Parties.
“Secured Net Leverage Ratio” has the meaning assigned to such term in the First Lien Credit Agreement as in effect on the Signing Date.
“Secured Obligations” means all Obligations.
“Secured Parties” means (i) the Purchasers and the Purchaser Representative and (ii) the beneficiaries of each indemnification obligation undertaken by any Note Party under any Note
Document.
“Securities” means any stock, shares, units, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or
arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of
interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing; provided that “Securities” shall not include any
earn-out agreement or obligation or any employee bonus or other incentive compensation plan or agreement.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.
“Securities Transfer Restriction Agreement” has the meaning assigned to such term in the definition of “Acceptable Practice Management Arrangements”.
“Security Agreement” means the Pledge and Security Agreement, dated as of the Closing Date and substantially in the form of Exhibit J, among the Note Parties and the
Purchaser Representative for the benefit of the Secured Parties.
“Series A Certificate of Designation” means that certain Certificate of Designation of Series A Non-Convertible Senior Preferred Stock of the Issuer filed in the office of the
Secretary of State of Delaware on or prior to February 24, 2022, as amended on the Closing Date, and as may be further amended, restated, supplemented or otherwise modified from time to time.
“Series A Preferred Shares” means the series A non-convertible senior preferred shares issued by the Issuer on or prior to February 22, 2022 pursuant to the Series A Certificate of
Designation, with an aggregate initial liquidation preference of not more than $165,000,000.
“Series A Preferred Stockholder Consent” shall have the meaning assigned to such term in the Transaction Support Agreement.
“Series B Certificate of Designation” means the Certificate of Designation of Series B Preferred Stock of the Issuer, substantially in the form attached hereto as Exhibit D.
“Series B Preferred Stock” means the Initial Series B Preferred Stock, First
Amendment Series B Preferred Stock, PIK Series B Preferred Stock and Additional Series B Preferred Stock.
“Shared EBITDA Cap” means an aggregate cap of 25% of Consolidated Adjusted EBITDA (which cap shall be calculated by multiplying (A) the quotient obtained by dividing (i) Consolidated
Adjusted EBITDA (calculated without giving effect to clauses (c)(ii), (c)(xii), (c)(xiii), (c)(xiv), (c)(xv), (e) and (f) of the definition of “Consolidated Adjusted EBITDA” and the “Consolidated Net Income Specified Exclusion”) by (ii) 1 –
0.25, by (B) 0.25); provided, that, notwithstanding anything in the definition of “Consolidated Adjusted EBITDA” to the contrary, the Shared EBITDA Cap shall not apply to any amount relating to any pro forma adjustment consistent
with Regulation S-X under the Securities Act (as such Regulation S-X was in effect prior to January 1, 2021).
“Signing Date” means the date of this Agreement.
“Similar Business” means any Person the majority of the revenues of which are derived from a business that would be permitted by Section 6.10 if the references to “Restricted
Subsidiaries” in Section 6.10 were read to refer to such Person.
“Source” has the meaning assigned to such term in Section 8.12(c).
“Specified Guarantor Release Provision” has the meaning assigned to such term in Section 8.09(b).
“Specified Investment Cap” means the greater of $3,900,000 and 6.0% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period.
“Specified Preferred Equityholders” means (a) Knighthead Capital Management, LLC, together with its controlled Affiliates and funds managed or advised by it or any or its respective
controlled Affiliates (other than any portfolio company), (b) Marathon Asset Management LP, together with its controlled Affiliates and funds managed or advised by it or any or its respective controlled Affiliates (other than any portfolio
company), (c) each of Onex Credit Management LLC and Onex Credit Partners, LLC, together with its controlled Affiliates and funds managed or advised by it or any or its respective controlled Affiliates (other than any portfolio company) and
(d) Caspian Capital L.P., together with its controlled Affiliates and funds managed or advised by it or any or its respective controlled Affiliates (other than any portfolio company).
“specified transaction” has the meaning assigned to such term in Section 1.08(a).
“Sponsors” means, collectively, Advent and Fortress.
“Stapled Series B Preferred Stock” means any shares of Series B Preferred Stock issued pursuant to Article 11 that are stapled together with any Note issued hereunder.
“Subject Fiscal Quarter” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
“Subject Person” has the meaning assigned to such term in the definition of “Consolidated Net Income”.
“Subject Transaction” means, with respect to any Test Period, (a) the Transactions and the Transactions (as defined in the First Lien Credit Agreement as in effect on the Signing
Date), (b) any Permitted Acquisition or any other acquisition or similar Investment, whether by purchase, merger or otherwise, of all or substantially all of the assets of, or any business line, unit or division of, any Person or of a
majority of the outstanding Capital Stock of any Person (and, in any event, including any Investment in (x) any Restricted Subsidiary the effect of which is to increase the Issuer’s or any Restricted Subsidiary’s respective equity ownership
in such Restricted Subsidiary or (y) any joint venture for the purpose of increasing the Issuer’s or its relevant Restricted Subsidiary’s ownership interest in such joint venture), in each case that is permitted by this Agreement, (c) any
Disposition of all or substantially all of the assets or Capital Stock of any subsidiary and/or any Consolidated APC (or any business unit, line of business or division of the Issuer, any subsidiary and/or any Consolidated APC) not
prohibited by this Agreement, (d) [reserved], (e) any incurrence, retirement, redemption, repayment and/or prepayment of Indebtedness (other than any Indebtedness incurred or repaid under any revolving credit facility in the ordinary course
of business for working capital purposes) (including by any Consolidated APC), (f) any capital contribution in respect of Qualified Capital Stock or any issuance of Qualified Capital Stock (other than any amount constituting a Cure Amount),
(g) the conversion of any Non-Consolidated APC or any other Person to a Consolidated APC, (h) the conversion of any Consolidated APC to a Non-Consolidated APC, (i) any Permitted Practice Subsidiary Restructuring, (j) the implementation of
any Business Optimization Initiative, (k) at the election of the Issuer, any discontinued operation and/or (l) any other event that by the terms of the Note Documents requires pro forma compliance with a test or covenant hereunder or
requires such test or covenant to be calculated on a pro forma basis.
“subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, association, joint venture or other business entity of which more than 50% of
the total voting power of stock or other ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of the Person or Persons (whether directors, trustees or other Persons performing similar
functions) having the power to direct or cause the direction of the management and policies thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other subsidiaries of such Person or a
combination thereof, in each case to the extent the relevant entity’s financial results are required to be included in such Person’s consolidated financial statements under GAAP; provided that (a) in determining the percentage of
ownership interests of any Person controlled by another Person, no ownership interests in the nature of a “qualifying share” of the former Person shall be deemed to be outstanding and (b) in no event shall any Affiliated Practice be deemed
to be a “subsidiary” for any purpose under any Note Document. Unless otherwise specified, “subsidiary” shall mean any subsidiary of the Issuer.
“Subsidiary Guarantor” means (a) on the Closing Date, each subsidiary of the Issuer (other than any such subsidiary that is an Excluded Subsidiary on the Closing Date) and (b)
thereafter, each subsidiary of the Issuer that becomes a guarantor of the Secured Obligations pursuant to the terms of this Agreement, in each case, until such time as the relevant subsidiary is released from its obligations under the Note
Guaranty in accordance with the terms and provisions hereof.
“Successor Issuer” has the meaning assigned to such term in Section 6.07(a).
“Taxes” means all present and future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“Termination Date” has the meaning assigned to such term in the lead-in to Article 5.
“Test Period” means, as of any date, the period of four consecutive Fiscal Quarters then most recently ended for which financial statements of the type described in Section
5.01(a) or Section 5.01(b), as applicable, have been delivered (or are required to have been delivered) or, if earlier, are internally available; it being understood and agreed that prior to the first delivery (or required
delivery) of financial statements of Section 5.01(b), “Test Period” means the period of four consecutive Fiscal Quarters most recently ended for which financial statements of the Issuer are available.
“Therapy Director Agreement” has the meaning assigned to such term in the definition of “Acceptable Practice Management Arrangements”.
“Threshold Amount” means $30,000,000.
“Total Net Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated Total Debt outstanding as of the last day of the most recently ended Test Period to
(b) Consolidated Adjusted EBITDA for the most recently ended Test Period, in each case of Opco, its subsidiaries that are Restricted Subsidiaries and Consolidated APCs on a consolidated basis.
“Trademark” means the following: (a) all trademarks (including service marks), common law marks, trade names, trade dress, and logos, slogans and other indicia of origin under the
Requirements of Law of any jurisdiction in the world, and the registrations and applications for registration thereof and the goodwill of the business symbolized by the foregoing; (b) all renewals of the foregoing; (c) all income,
royalties, damages, and payments now or hereafter due or payable with respect thereto, including, without limitation, damages, claims, and payments for past and future infringements thereof; (d) all rights to sue for past, present, and
future infringements of the foregoing, including the right to settle suits involving claims and demands for royalties owing; and (e) all domestic rights corresponding to any of the foregoing.
“Trading Day” means a day on which (a) trading in the Common Stock (or other security for which a closing sale price must be determined) generally occurs on the principal U.S.
national or regional securities exchange on which the Common Stock (or such other security) is then listed or, if the Common Stock (or such other security) is not then listed on a U.S. national or regional securities exchange, on the
principal other market on which the Common Stock (or such other security) is then traded and (b) a Last Reported Sale Price for the Common Stock (or closing sale price for such other security) is available on such securities exchange or
market; provided that if the Common Stock (or such other security) is not so listed or traded, “Trading Day” means a Business Day.
“Transaction Costs” means fees, premiums, expenses and other transaction costs (including original issue discount or upfront fees) payable or otherwise borne by any Parent Company
and/or its subsidiaries in connection with the Transactions and the transactions contemplated thereby.
“Transaction Support Agreement” means that certain Transaction Support Agreement, dated as of March 15, 2023, by and among Parent, Holdings, Opco and the Consenting Stakeholders
party thereto, as amended and restated on April 17, 2023, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.
“Transactions” means, collectively, (a) the Term Loan Exchange, (b) the Issuance of Notes hereunder on or after the Closing Date, (c) the execution, delivery and performance by the
Note Parties of the Notes Documents and all other documentation necessary to implement the Term Loan Exchange to which they are a party to, (d) the execution, delivery and performance by the Notes Parties of Amendment No. 2 to Credit
Agreement, (e) the payment of the Transaction Costs and (f) the other transactions contemplated by the Transaction Support Agreement.
“Transfer Agreement” means a Transfer Agreement entered into by a Purchaser and an assignee (with the consent of any party whose consent is required by Section 9.05), and
delivered to the Purchaser Representative in the form of Exhibit A-1 or any other form reasonably approved by the Required Purchasers and the Issuer.
“Treasury Capital Stock” has the meaning assigned to such term in Section 6.04(a)(viii).
“Treasury Rate” means, a rate per annum (computed on the basis of actual days elapsed over a year of 360 days) equal to the rate determined on the date that is one Business Day prior
to the date of prepayment or acceleration, to be the yield expressed as a rate listed in The Wall Street Journal for US Treasury securities having a term of no greater than the period of remaining months until the second anniversary of the
Closing Date.
“Treasury Regulations” means the U.S. federal income tax regulations promulgated under the Code.
“UCC” means the Uniform Commercial Code as in effect from time to time in the State of New York or any other state the laws of which are required to be applied in connection with the
creation or perfection of security interests.
“UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential
Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms,
and certain affiliates of such credit institutions or investment firms.
“UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution.
“Unrestricted Cash Amount” means (a) as to any Person, on any date of determination, the amount of (a) unrestricted Cash and Cash Equivalents of such Persons (including, in the case
of Opco, its Restricted Subsidiaries and Consolidated APCs) maintained in (A) Deposit Accounts and/or securities accounts in the name of a Note Party as of such date, which Deposit Accounts and/or securities accounts are either (i) subject
to Control Agreements or (ii) in a Deposit Account (other than any Excluded Account or securities account) that is not required to be subject to a Control agreement at such time pursuant to Section 5.12(d); provided, that
notwithstanding the foregoing clauses (i) and (ii), until the date that is 120 days following the Closing Date (as such date may be extended in accordance with Section 5.12(d)), Cash and Cash Equivalents of Opco and its Restricted
Subsidiaries that are on deposit in Deposit Accounts (other than Excluded Accounts) and/or securities accounts shall be included in the Unrestricted Cash Amount irrespective of whether Control Agreements are then in effect and/or (B) money
market funds with respect to which the relevant Note Party has (i) granted a security interest therein in favor of the Purchaser Representative perfected by the filing of a UCC-1 financing statement and (ii) not granted control (as defined
in the UCC) to any Person (other than the Purchaser and any other Person, in its capacity as the holder of, or a representative for the holders of, a Lien on the Collateral subject to an Intercreditor Agreement; it being understood and
agreed that such a “control” arrangement in favor of such Persons shall not be required); provided that the aggregate amount of unrestricted Cash and Cash Equivalents that may be included in the determination of Unrestricted Cash Amount
pursuant to this clause (B) that is not held in a Deposit Account or securities account subject to a Control Agreement shall not exceed $25,000,000 at any time; and (b) in the case of any JV Entity, the amount of unrestricted Cash and Cash
Equivalents of such JV Entity multiplied by the percentage of outstanding Capital Stock in such JV Entity owned by Opco or any Guarantor.
“U.S.” means the United States of America.
“U.S. Person” means a “United States person” within the meaning of Section 7701(a)(30) of the Code.
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.20(f)(ii)(B)(3).
“USA PATRIOT Act” means The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (Title III of Pub. L. No. 107-56
(signed into law October 26, 2001)).
“Weighted Average Life to Maturity” means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (a) the sum of the products obtained by multiplying
(i) the amount of each then remaining installment, sinking fund, serial maturity or other required scheduled payments of principal, including payment at final maturity, in respect thereof, by (ii) the number of years (calculated to the
nearest one-twelfth) that will elapse between such date and the making of such payment; by (b) the then outstanding principal amount of such Indebtedness; provided that the effect of any prepayment made in respect of such
Indebtedness shall be disregarded in making such calculation.
“Wholly-Owned Subsidiary” of any Person means a subsidiary of such Person, 100% of the Capital Stock of which (other than directors’ qualifying shares or shares required by
Requirements of Law to be owned by a resident of the relevant jurisdiction) shall be owned by such Person or by one or more Wholly-Owned Subsidiaries of such Person.
“Withdrawal Liability” means the liability to any Multiemployer Plan as the result of a “complete” or “partial” withdrawal by the Issuer or any Restricted Subsidiary or any ERISA
Affiliate from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
“Write-Down and Conversion Powers” means (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time
under the Bail-In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, any powers of the applicable
Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that
liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that
liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers.
Section 1.02. Classification of Notes and Issuances. For purposes of this Agreement, Notes may be classified and
referred to by Class (e.g., an “Initial Note”). Issuances also may be classified and referred to by Class (e.g., an “Initial Note Issuance”).
Section 1.03. Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase
“without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document
herein or in any Note Document (including any Note Document) shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, amended and restated, supplemented or otherwise modified or
extended, replaced or refinanced (subject to any restrictions or qualifications on such amendments, restatements, amendment and restatements, supplements or modifications or extensions, replacements or refinancings set forth herein), (b)
any reference to any Requirement of Law in any Note Document shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Requirement of Law, (c) any reference herein or in any
Note Document to any Person shall be construed to include such Person’s successors and permitted assigns, (d) the words “herein,” “hereof” and “hereunder,” and words of similar import, when used in any Note Document, shall be construed to
refer to such Note Document in its entirety and not to any particular provision hereof, (e) all references herein or in any Note Document to Articles, Sections, clauses, paragraphs, Exhibits and Schedules shall be construed to refer to
Articles, Sections, clauses and paragraphs of, and Exhibits and Schedules to, such Note Document, (f) in the computation of periods of time in any Note Document from a specified date to a later specified date, the word “from” means “from
and including”, the words “to” and “until” mean “to but excluding” and the word “through” means “to and including” and (g) the words “asset” and “property”, when used in any Note Document, shall be construed to have the same meaning and
effect and to refer to any and all tangible and intangible assets and properties, including Cash, securities, accounts and contract rights. For purposes of determining compliance at any time with Sections 6.01, 6.02, 6.04,
6.05, 6.06, 6.07 and 6.09, in the event that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, burdensome agreement, Investment, Disposition or Affiliate transaction, as applicable, meets
the criteria of more than one of the categories of transactions or items permitted pursuant to any clause of such Sections 6.01 (other than Section 6.01(a)), 6.02 (other than Section 6.02(a)), 6.04, 6.05,
6.06, 6.07 and 6.09, the Issuer, in its sole discretion, may, from time to time, classify or reclassify such transaction or item (or portion thereof) under one or more clauses of each such Section and will only be
required to include the amount and type of such transaction (or portion thereof) in any one category; provided that, (i) [reserved]; (ii) upon delivery of any financial statements of the type described in Section 5.01(a)
or (b) are delivered following the making of any Investment in reliance on Section 6.06 (other than Section 6.06(bb)), if all or any portion of such Investment could, based on such financial statements, have been
made in reliance on Section 6.06(bb), such Investment (or the relevant portion thereof) shall automatically be reclassified (with retroactive effect) as having been made in reliance on Section 6.06(bb), (iii)upon delivery of
any financial statements of the type described in Section 5.01(a) or (b) are delivered following the making of any Restricted Payment under Section 6.04(a) (other than Section 6.04(a)(xi)), if all or any
portion of such Restricted Payment could, based on such financial statements, have been made in reliance on Section 6.04(a)(xi), such Restricted Payment (or the relevant portion thereof) shall automatically be reclassified (with
retroactive effect) as having been made in reliance on Section 6.04(a)(xi); and (iv) upon delivery of any financial statements of the type described in Section 5.01(a) or (b) are delivered following the making of any
Restricted Debt Payment under Section 6.04(b) (other than Section 6.04(b)(vii)), if all or any portion of such Restricted Debt Payment could, based on such financial statements, have been made in reliance on Section
6.04(b)(vii), such Restricted Debt Payment (or the relevant portion thereof) shall automatically be reclassified (with retroactive effect) as having been made in reliance on Section 6.04(b)(vii).
It is understood and agreed that any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, burdensome agreement, Investment, Disposition and/or Affiliate transaction need not be
permitted solely by reference to one category of permitted Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, burdensome agreement, Investment, Disposition and/or Affiliate transaction under Sections 6.01, 6.02,
6.04, 6.05, 6.06, 6.07 or 6.09, respectively, but may instead be permitted in part under any combination thereof, but the Issuer will only be required to include the amount and type of such transaction
(or portion thereof) in one such category (or combination thereof). To the extent the applicability of Sections 6.07 and 6.09 with respect to any transaction is subject to a materiality threshold, such transaction shall
only be required to comply with the provisions of the relevant Section to the extent of the amount of such transaction that is in excess of such materiality threshold.
For purposes of any amount herein expressed as a percentage of Consolidated Adjusted EBITDA, “Consolidated Adjusted EBITDA”, unless the context otherwise requires, shall be deemed to refer
to Consolidated Adjusted EBITDA of Opco, its Restricted Subsidiaries and Consolidated APCs.
(a) All financial statements to be delivered pursuant to this Agreement shall be prepared in accordance with GAAP as in effect from time to time
and, except as otherwise expressly provided herein, all terms of an accounting nature that are used in calculating the Secured Net Leverage Ratio, the Total Net Leverage Ratio, Consolidated Adjusted EBITDA, or Consolidated Total Assets
shall be construed and interpreted in accordance with GAAP, as in effect from time to time; provided that if the Issuer notifies the Purchaser Representative that the Issuer requests an amendment to any provision hereof to eliminate
the effect of any change occurring after the date of delivery of the financial statements described in Section 3.04(a) of the First Lien Credit Agreement in GAAP or in the application thereof (including the conversion to IFRS as described
below) on the operation of such provision (or if the Purchaser Representative notifies the Issuer that the Required Purchasers request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given
before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change becomes effective until such notice have been withdrawn
or such provision amended in accordance herewith; provided, further, that if such an amendment is requested by the Issuer or the Required Purchasers, then the Issuer and the Required Purchasers shall negotiate in good faith
to enter into an amendment of the relevant affected provisions (without the payment of any amendment or similar fee to the Purchasers) to preserve the original intent thereof in light of such change in GAAP or the application thereof; provided,
further, that all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made without giving effect to (i) any election under Accounting
Standards Codification 000-00-00 (previously referred to as Statement of Financial Accounting Standards 159) (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any
Indebtedness or other liabilities of the Issuer or any subsidiary at “fair value,” as defined therein and (ii) any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 (or any
other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be
valued at the full stated principal amount thereof. If the Issuer notifies the Purchaser Representative that Opco (or its applicable Parent Company) is required to report under IFRS or has elected to do so through an early adoption policy,
“GAAP” shall mean international financial reporting standards pursuant to IFRS (provided that after such conversion, Opco cannot elect to report under GAAP).
(b) Notwithstanding anything to the contrary herein, but subject to Section 1.10 hereof, all financial ratios and tests (including the
Secured Net Leverage Ratio and/or the Total Net Leverage Ratio and the amount of Consolidated Total Assets and Consolidated Adjusted EBITDA (other than, for the avoidance of doubt, for purposes of calculating Excess Cash Flow (as defined in
the First Lien Credit Agreement))) contained in this Agreement that are calculated with respect to any Test Period during which any Subject Transaction occurs shall be calculated with respect to such Test Period and such Subject Transaction
on a Pro Forma Basis. Further, if since the beginning of any such Test Period and on or prior to the date of any required calculation of any financial ratio or test (x) any Subject Transaction has occurred or (y) any Person that
subsequently became a Restricted Subsidiary or Consolidated APC was merged, amalgamated or consolidated with or into Opco or any of its Restricted Subsidiaries or Consolidated APCs or any joint venture since the beginning of such Test
Period has consummated any Subject Transaction, then, in each case, any applicable financial ratio or test shall be calculated on a Pro Forma Basis for such Test Period as if such Subject Transaction had occurred at the beginning of the
applicable Test Period. All references herein to consolidated financial statements of the Issuer and its Restricted Subsidiaries or to the determination of or any other amount for the Issuer and its Restricted Subsidiaries on a consolidated
basis or any similar reference (including any Total Net Leverage Ratio test and/or the amount of Consolidated Adjusted EBITDA, Consolidated Total Debt, the Unrestricted Cash Amount and/or Consolidated Total Assets) shall, in each case, be
deemed to include each Consolidated APC as if such Consolidated APC were a Restricted Subsidiary as defined herein.
(c) Notwithstanding anything to the contrary contained in paragraph (a) above, in the definition of “Capital Lease”, only those leases (assuming
for purposes hereof that such leases were then in existence) that would constitute Capital Leases in conformity with GAAP as in effect prior to giving effect to the adoption of ASU No. 2016-02 “Leases (Topic 842)” and ASU No. 2018-11
“Leases (Topic 842)” shall be considered Capital Leases hereunder or under any other Note Document, and all calculations and deliverables under this Agreement or any other Note Document shall be made, prepared or available, as applicable,
in accordance therewith; provided, that all financial statements required to be provided hereunder may, at the option of the Issuer, be prepared in accordance with GAAP without giving effect to the foregoing treatment of Capital
Leases.
Section 1.05. Effectuation of Transactions. Each of the representations and warranties contained in this Agreement
(and all corresponding definitions) is made after giving effect to the Transactions, unless the context otherwise requires.
Section 1.06. Timing of Payment or Performance. When payment of any obligation or the performance of any covenant,
duty or obligation is stated to be due or performance required on a day which is not a Business Day, the date of such payment or performance shall extend to the immediately succeeding Business Day, and, in the case of any payment accruing
interest, interest thereon shall be payable for the period of such extension.
Section 1.07. Times of Day. Unless otherwise specified herein, all references herein to times of day shall be
references to New York City time (daylight or standard, as applicable).
(a) For purposes of any determination under Article 1, Article 5, Article 6 (other than the calculation of compliance
with any financial ratio for purposes of taking any action hereunder) or Article 7 with respect to the amount of any Indebtedness, Lien, Restricted Payment, Restricted Debt Payment, Investment, Disposition, Affiliate transaction or
other transaction, event or circumstance, or any determination under any other provision of this Agreement (any of the foregoing, a “specified transaction”), in a currency other than Dollars, (i) the Dollar equivalent amount of a
specified transaction in a currency other than Dollars shall be calculated based on the rate of exchange quoted by the Bloomberg Foreign Exchange Rates & World Currencies Page (or any successor page thereto, or in the event such rate
does not appear on any Bloomberg Page, by reference to such other publicly available service for displaying exchange rates as may be agreed upon by the Purchaser Representative (acting at the direction of the Required Purchasers) and the
Issuer) for such foreign currency, as in effect at 11:00 a.m. (London time) on the date of such specified transaction (which, in the case of any Restricted Payment, shall be deemed to be the date of the declaration thereof and, in the case
of the incurrence of Indebtedness, shall be deemed to be on the date first committed); provided, that if any Indebtedness is incurred (and, if applicable, associated Lien granted) to refinance or replace other Indebtedness
denominated in a currency other than Dollars, and the relevant refinancing or replacement would cause the applicable Dollar-denominated restriction to be exceeded if calculated at the relevant currency exchange rate in effect on the date of
such refinancing or replacement, such Dollar-denominated restriction shall be deemed not to have been exceeded so long as the principal amount of such refinancing or replacement Indebtedness (and, if applicable, associated Lien granted)
does not exceed an amount sufficient to repay the principal amount of such Indebtedness being refinanced or replaced, except by an amount equal to (x) unpaid accrued interest and premiums (including tender premiums) thereon plus other
reasonable and customary fees and expenses (including upfront fees and original issue discount) incurred in connection with such refinancing or replacement, (y) any existing commitments unutilized thereunder and (z) additional amounts
permitted to be incurred under Section 6.01 and (ii) for the avoidance of doubt, no Default or Event of Default shall be deemed to have occurred solely as a result of a change in the rate of currency exchange occurring after the
time of any specified transaction so long as such specified transaction was permitted at the time incurred, made, acquired, committed, entered or declared as set forth in clause (i). For purposes of the calculation of compliance
with any financial ratio for purposes of taking any action hereunder, on any relevant date of determination, amounts denominated in currencies other than Dollars shall be translated into Dollars at the applicable currency exchange rate used
in preparing the financial statements delivered pursuant to Section 5.01(a) or (b) (or, prior to the first such delivery, the financial statements referred to in Section 3.04), as applicable, for the relevant Test
Period and will, with respect to any Indebtedness, reflect the currency translation effects, determined in accordance with GAAP, of any Hedge Agreement permitted hereunder in respect of currency exchange risks with respect to the applicable
currency in effect on the date of determination for the Dollar equivalent amount of such Indebtedness.
(b) Each provision of this Agreement shall be subject to such reasonable changes of construction as the Required Purchasers may from time to
time specify with the Issuer’s consent to appropriately reflect a change in currency of any country and any relevant market convention or practice relating to such change in currency.
Section 1.09. Cashless Rollovers. Notwithstanding anything to the contrary contained in this Agreement or in any
other Note Document, to the extent that any Purchaser extends the maturity date of, or replaces, renews or refinances, any of its then-existing Notes with Additional Notes, loans incurred under a new credit facility or notes issued under a
new issuance thereof, in each case, to the extent such extension, replacement, renewal or refinancing is effected by means of a “cashless roll” by such Purchaser, such extension, replacement, renewal or refinancing shall be deemed to comply
with any requirement hereunder or any other Note Document that such payment be made “in Dollars”, “in immediately available funds”, “in Cash” or any other similar requirement.
(a) Notwithstanding anything to the contrary herein, to the extent that the terms of this Agreement require (i) compliance with any financial
ratio or test (including, without limitation, any Secured Net Leverage Ratio test, and/or any Total Net Leverage Ratio test) and/or any cap expressed as a percentage of Consolidated Adjusted EBITDA or Consolidated Total Assets, (ii) the
absence of a Default or Event of Default (or any type of Default or Event of Default), (iii) the making or accuracy of any representation and/or warranty or (iv) compliance with availability under any basket or cap (including any basket
expressed as a percentage of Consolidated Adjusted EBITDA or Consolidated Total Assets), in each case, a condition to the consummation of any transaction in connection with any acquisition or similar Investment (including with respect to
any Indebtedness contemplated, assumed or incurred in connection therewith), the determination of whether the relevant condition is satisfied may be made, at the election of the Issuer, at the time of (or on the basis of the financial
statements for the most recently ended Test Period at the time of) either (x) the execution of the definitive agreement with respect to such acquisition or Investment, (y) in connection with an acquisition or similar Investment to which the
United Kingdom City Code or Takeover and Mergers (or any comparable Requirement of Law) applies, the date on which a “Rule 2.7 announcement” of a firm intention to make an offer in respect of the target of an acquisition (or equivalent
notice under comparable Requirements of Law) or (z) the consummation of such acquisition or Investment, in each case, after giving effect, on a Pro Forma Basis, to the relevant acquisition or Investment (including with respect to any
Indebtedness contemplated, assumed or incurred in connection therewith); provided that (A) in the event that such acquisition or Investment shall not have been consummated on or prior to the date that is 270 days following the
execution of the definitive acquisition agreement governing such acquisition or Investment, the determination of whether the matters specified in the preceding clauses (i) through (iv) have been satisfied shall be made on the date of the
consummation of such acquisition or Investment, and (B) no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) shall have occurred and be continuing on the date of the consummation of such acquisition or
Investment.
(b) For purposes of determining the permissibility of any action, change, transaction or event that requires a calculation of any financial
ratio or test (including, without limitation, any Secured Net Leverage Ratio test, any Total Net Leverage Ratio test and/or the amount of Consolidated Adjusted EBITDA or Consolidated Total Assets), such financial ratio or test shall be
calculated at the time such action is taken (subject to clause (a) above), such change is made, such transaction is consummated or such event occurs, as the case may be, and no Default or Event of Default shall be deemed to have
occurred solely as a result of a change in such financial ratio or test or amount occurring after such calculation, or after the time such action is taken, such change is made, such transaction is consummated or such event occurs, as the
case may be.
(c) Notwithstanding anything to the contrary herein, with respect to any amount incurred or transaction entered into (or consummated) in
reliance on a provision of this Agreement that does not require compliance with a financial ratio or test (including, without limitation, any Secured Net Leverage Ratio test and/or any Total Net Leverage Ratio test) (any such amount, a “Fixed
Amount”) substantially concurrently with any amount incurred or transaction entered into (or consummated) in reliance on a provision of this Agreement that requires compliance with a financial ratio or test (including, without
limitation, any Secured Net Leverage Ratio test and/or any Total Net Leverage Ratio test) (any such amount, an “Incurrence-Based Amount”), it is understood and agreed that (i) any Fixed Amount shall be disregarded in the calculation
of the financial ratio or test applicable to the relevant Incurrence-Based Amount, (ii) except as provided in clause (i), pro forma effect shall be given to the entire transaction and (iii) for the avoidance of doubt, all Indebtedness
substantially concurrently incurred will be included for purposes of calculating compliance with Sections 6.04(a)(xi), 6.04(a)(xii), 6.04(a)(xiii), 6.04(b)(vii), 6.06(bb) and clause (a)(ii) of
the Available Amount (in each case, giving pro forma effect to the intended use of proceeds thereof). The Issuer may elect that any amount incurred or transaction entered into (or consummated) in reliance on one or more of any
Incurrence-Based Amount or any Fixed Amount in its sole discretion; provided, that unless the Issuer elects otherwise, each such amount or transaction shall be deemed incurred, entered into or consummated first under any Incurrence-Based
Amount to the maximum extent permitted thereunder.
(d) The principal amount of any non-interest bearing Indebtedness or other discount security constituting Indebtedness at any date shall be the
principal amount thereof that would be shown on a balance sheet of the Issuer dated such date prepared in accordance with GAAP.
(e) The increase in any amount secured by any Lien by virtue of the accrual of interest, the accretion of accreted value, the payment of
interest or a dividend in the form of additional Indebtedness, amortization of original issue discount and/or any increase in the amount of Indebtedness outstanding solely as a result of any fluctuation in the exchange rate of any
applicable currency will not be deemed to be the granting of a Lien for purposes of Section 6.02.
(f) With respect to any pro forma calculation that is required to be made in connection with any acquisition or similar Investment in respect of
which financial statements for the applicable target are not available for the same Test Period for which financial statements of the Issuer are available, the Issuer shall make the relevant calculation on the basis of the relevant
available financial statements (even if for differing periods) or such other commercially reasonable basis as the Issuer may elect.
(g) Any determination of the Weighted Average Life to Maturity of any Indebtedness shall be made by the Issuer in good faith at the time of the
incurrence of such Indebtedness.
(a) (i) With respect to determination of the permissibility of any transaction by the Issuer and/or any subsidiary under this Agreement, the
delivery by the Issuer of a third party valuation report from (1) a nationally recognized accounting, appraisal, investment banking or consulting firm or (2) another firm that is reasonably acceptable to the Required Purchasers, in each
case, shall be conclusive with respect to the value of the assets covered thereby and (ii) any determination of whether an action is taken “in the ordinary course of business” or “in a manner consistent with
past practice” (or, in either case, any similar expression) shall be made by the Issuer in good faith.
(b) It is understood and agreed for the avoidance of doubt that the carve-outs from the provisions of Article 6 may include items or
activities that are not restricted by the relevant provision.
Section 1.14. Guarantees and Collateral. Notwithstanding any provision of any Note Document to the contrary, until
the First Lien Credit Agreement Obligations Payment Date, for purposes of any determination relating to the Note Guaranty and/or the Collateral (including any determination with respect to any opportunity to request that is permitted or
required under the definition of “Collateral and Guarantee Requirement” and/or under any other provision of this this Agreement and/or any other Note Document, but other than any determination by the Required Purchasers pursuant to Section
7.01 (or any other provision under this Agreement or any other Note Document permitting the exercise of remedies), including any determination as to whether any Collateral Document is in form and substance satisfactory to the Required
Purchasers and/or the Purchaser Representative, as applicable, or Section 9.02(b)) as to which the Purchaser Representative and/or the Required Purchasers, as applicable, are granted discretion hereunder or under any other Note
Document, the determination of the First Lien Credit Agreement Agent (or the equivalent representative under any other First Lien Facility) shall be deemed to be the determination of the Purchaser Representative and/or the Required
Purchasers, as applicable, with respect thereto. For the avoidance of doubt, neither the Purchaser Representative, nor any Purchaser, shall have any liability or responsibility for any such determination of the First Lien Credit Agreement
Agent or any consequences thereof.
Section 1.15. Conflicts. Notwithstanding anything to the contrary contained herein or in any other Note Document, in
the event of any conflict or inconsistency between any term or provision of this Agreement (excluding the Exhibits hereto) and any term or provision of any Exhibit to this Agreement, the term or provision of this Agreement shall govern, and
the Issuer shall be entitled to make such revisions to the relevant term or provision of the applicable Exhibit to ensure that such term or provision is consistent with the corresponding term or provision of this Agreement.
Section 1.16. Confidentiality; Privilege. Notwithstanding any obligation to provide information under any Note
Document or allow the Purchaser Representative, the Purchasers or any third party to access or inspect the books and records of the Issuer or its subsidiaries or otherwise as set forth in this Agreement, neither the Issuer nor any of its
subsidiaries will be required to disclose or permit the inspection or discussion of, any document, information or other matter (a) that constitutes a non-financial trade secret or non-financial proprietary information, (b) in respect of
which disclosure to the Purchaser Representative or any Purchaser (or any of their respective representatives, agents or contractors) would result in a breach of any confidentiality obligation, fiduciary duty or Requirement of Law and/or
(c) that is subject to attorney client or similar privilege or constitutes attorney work product (provided, that such confidentiality obligations were not entered into in contemplation of the requirements of this Section 1.16); provided,
that in the event that such information has not been provided in reliance on clause (b) and/or (c) above, notice that information is being withheld must be provided to the Purchaser Representative.
(a) On or prior to the Closing Date, the Issuer will (i) authorize the direct or indirect exchange of $100,000,000 in aggregate principal amount of the Exchanged Term Loans for the Issuance of $100,000,000 in aggregate principal amount of
notes governed by this Agreement and substantially in the form attached hereto as Exhibit B (the “Initial Notes”, which term shall include, for the avoidance of doubt, any interest accrued thereon from time to time, which shall be
payable in kind) due August 24, 2028, which Initial Notes shall be convertible into shares of Common Stock in accordance with the terms and provisions thereof.; and (ii) authorize the Issuance and sale of up to $3,243,302.02 in aggregate principal amount of First Amendment Notes due August 24,
2028, which First Amendment Notes shall be convertible into shares of Common Stock in accordance with the terms and provisions thereof.
(b) In connection with any issuance of Delayed Draw Notes, the Issuer will authorize the Issuance and sale of up to $25,000,000 in
aggregate principal amount of Delayed Draw Notes due August 24, 2028, which Delayed Draw Notes shall be convertible into shares of Common Stock in accordance with the terms and provisions thereof.
(a) . Subject to the terms and conditions set forth herein and the Master Assignment and Assumption Agreement, the
Issuer will issue, and each Initial Purchaser severally, and not jointly, agrees to directly or indirectly exchange for the Exchanged Term Loans held by such Initial Purchaser on the date on which the conditions with respect to the
exchange of the Exchanged Term Loans for Initial Notes contained in Sections 4.01 and 4.03 are satisfied, an aggregate amount of Initial Notes in Dollars in a principal amount not to exceed such Initial Purchaser’s Initial
Note Commitment.
(b) Subject to the terms and conditions set forth herein and in the First Amendment, each First Amendment Purchaser severally, and not jointly, agrees, subject to Section 4.03 hereof, to purchase
on the Closing Date First Amendment Notes from the Issuer in Dollars in a principal amount not to exceed such First Amendment Purchaser’s First Amendment Note Commitment.
Section 2.03. Delayed Draw Notes. Each Delayed Draw Purchaser severally, and not jointly, agrees, subject to Sections
4.02 and 4.03 hereof, to purchase Delayed Draw Notes from the Issuer in Dollars, at par, in a principal amount not to exceed its Delayed Draw Note Commitment at any time and from time to time after the Closing Date until the
termination of the Delayed Draw Note Commitment of such Delayed Draw Purchaser in accordance with the terms hereof. The Issuer shall be permitted to request either (i) two Issuances of Delayed Draw Term Notes, each, in an initial
principal amount of $12,500,000 or (ii) one Issuance of Delayed Draw Term Notes in an initial principal amount of $25,000,000.
Section 2.04. Additional Notes. Each Additional Purchaser severally, and not jointly, agrees to purchase, at the
purchase price, on the date and subject to the conditions specified in the related Additional Note Commitment Notice, Additional Notes from the Issuer in Dollars in a principal amount not to exceed its Additional Note Commitment at any
time and from time to time after the Closing Date until the termination of the Additional Note Commitment of such Additional Purchaser in accordance with the terms of the relevant Additional Note Commitment Notice.
(a) Each Note shall be issued as part of an Issuance consisting of Notes of the same Class made by the Purchasers ratably in accordance
with their respective Applicable Percentage of the Commitments of the applicable Class.
(b) Each Issuance, other than the issuance of Initial Notes on the Closing Date, shall be made upon notice by the Issuer to the Purchaser
Representative. Each such notice must be in the form of a written Issuance Request, appropriately completed and signed by a Responsible Officer of the Issuer not later than 1:00 p.m. three Business Days prior to the requested date of any
Issuance of First Amendment Notes, Delayed Draw Notes or Additional Notes, as applicable. The Purchaser Representative
will forward to each Purchaser the relevant Issuance Request no later than one Business Day following receipt of an Issuance Request in accordance with this Section. If any Notes issued after the Initial Notes and the First Amendment Notes are not fungible with the Initial Notes and the First Amendment Notes for U.S. federal income tax purposes, the Issuer shall cause such Notes to have a distinct CUSIP or other identifying number.
Section 2.06. Restricted Securities. The Purchasers acknowledge that each of the Notes and Conversion Shares are
“restricted securities” and have not been registered under the Securities Act, and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, and that the Issuer is
not required to register any of the Notes under the Securities Act or the Trust Indenture Act of 1939. In this connection, each Purchaser represents that it is familiar with Rule 144 promulgated under the Securities Act, as presently in
effect, and understands the resale limitations imposed by the Securities Act.
Section 2.07. Restrictive Legend. Each Note shall bear legends in substantially the following forms:
“THIS NOTE (“NOTE”) AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”) AND MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN EXEMPTION THEREFROM.”
THIS NOTE HAS BEEN ISSUED WITH “ORIGINAL ISSUE DISCOUNT” (WITHIN THE MEANING OF SECTION 1271 ET SEQ OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED). UPON WRITTEN REQUEST (ADDRESSED TO CHIEF FINANCIAL
OFFICER AT ATI PHYSICAL THERAPY, INC., 000 XXXXXXXXX XXXXXXXXX, XXXXXXXXXXX, XXXXXXXX 00000), THE ISSUER WILL PROMPTLY MAKE AVAILABLE TO ANY HOLDER OF THIS NOTE THE FOLLOWING INFORMATION: (1) THE ISSUE PRICE AND ISSUE DATE OF THE NOTE;
(2) THE AMOUNT OF ORIGINAL ISSUE DISCOUNT ON THE NOTE; AND (3) THE YIELD TO MATURITY OF THE NOTE.
Section 2.08. Book Entry; Notes Not Certificated. The Purchasers acknowledge that the Notes will not be issued in
certificated form. The Purchaser Representative shall at all times maintain the Register, reflecting the holders thereof from time to time and the aggregate principal amounts then held by each such holder. The Register will be deemed to
include the legend set forth in Section 2.07.
(a) The Term Loan Exchange shall be consummated in accordance with the terms of the Master Assignment and Assumption Agreement.
(b) Each Purchaser shall purchase each First Amendment Note, Delayed Draw Note or Additional Note to be purchased by it hereunder on the proposed date thereof by wire transfer of immediately available funds by 1:00 p.m. to the account of the Purchaser
Representative most recently designated by it for such purpose by notice to the Purchasers in an amount equal to such Purchaser’s respective Applicable Percentage of the applicable First Amendment Note, Delayed Draw Notes or Additional Notes. The Purchaser Representative will make the proceeds of such purchases available to the Issuer by promptly
crediting the amounts so received on the same Business Day, in like funds, to the account designated by the Issuer. Notwithstanding the foregoing, any Purchaser may make the proceeds of any First Amendment Note, Delayed Draw Note or Additional Note directly available to the Issuer in accordance with such instructions as the Issuer may specify
to such Purchaser in writing on or prior to the applicable date of funding and the Issuer or the applicable Purchaser shall notify the Purchaser Representative of the Purchaser’s election on the Business Day prior to any such funding.
(a) Unless previously terminated, (i) the Initial Note Commitments on the Closing Date shall automatically terminate upon the
consummation of the Term Loan Exchange on the Closing Date, (ii) any Delayed Draw Note Commitment shall automatically terminate (A) in the event a Delayed Draw Note thereunder is issued, upon the purchase of such Delayed Draw Note in a
corresponding amount and (B) in any event, with respect to any then remaining Delayed Draw Note Commitments on the Delayed Draw Note Commitment Termination Date and, (iii) any First
Amendment Note Commitment shall automatically terminate upon the purchase of the First Amendment Note issued thereunder in a corresponding amount and (iv) any Additional Note Commitment shall automatically terminate (A) in
the event an Additional Note thereunder is issued, upon the purchase of such Additional Note in a corresponding amount and (B) in any event, with respect to any then remaining Additional Note Commitment, on the Additional Note Commitment
Termination Date.
(b) Upon delivering the notice required by Section 2.11(c), the Issuer may at any time terminate or from time to time reduce, the
Commitments of any Class; provided each reduction of the Commitments of any Class shall be in an amount that is an integral multiple of $1,000,000 and not less than $1,000,000.
(c) The Issuer shall notify the Purchaser Representative of any election to terminate or reduce any Commitment under paragraph (b)
of this Section in writing at least three Business Days prior to the effective date of such termination or reduction (or such later date to which the Purchaser Representative may agree), specifying such election and the effective date
thereof. Promptly following receipt of any such notice, the Purchaser Representative shall forward such notice to the Purchasers. Each notice delivered by the Issuer pursuant to this Section shall be irrevocable; provided that
any such notice may state that it is conditioned upon the effectiveness of other transactions, in which case such notice may be revoked by the Issuer (by written notice to the Purchaser Representative on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction of any Note Commitment, as applicable, pursuant to this Section 2.11 shall be permanent. Upon any reduction of any Commitment, the Commitment of
each Purchaser of the relevant Class shall be reduced by such Purchaser’s Applicable Percentage or Applicable Additional Note Percentage, as applicable, of such reduction amount.
(a) (i) The Issuer
hereby unconditionally promises to pay the outstanding principal amount of the Initial Notes to the Purchaser Representative for the account of each Initial Purchaser on the Maturity Date, in an amount equal to the principal amount of the
Initial Notes outstanding on such date, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the date of such payment.
(ii) The Issuer hereby unconditionally promises to pay the outstanding principal amount of the First Amendment Notes to the Purchaser Representative for the account of each
First Amendment Purchaser on the Maturity Date, in an amount equal to the principal amount of the First Amendment Notes outstanding on such date, together in each case with accrued and unpaid interest on the principal amount to be
paid to but excluding the date of such payment.
(iii) (i) The Issuer hereby unconditionally promises to pay the outstanding principal amount of the Delayed Draw Notes to the Purchaser Representative for the account of each Delayed
Draw Purchaser on the Maturity Date, in an amount equal to the principal amount of the Delayed Draw Notes outstanding on such date, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding
the date of such payment.
(iv) (ii) The Issuer hereby unconditionally promises to pay the outstanding principal amount of the Additional Notes to the Purchaser Representative for the account of each Additional
Purchaser on the Maturity Date, in an amount equal to the principal amount of the Additional Notes outstanding on such date, together in each case with accrued and unpaid interest on the principal amount to be paid to but excluding the
date of such payment.
(b) The Notes will not be subject to any optional redemption.
(c) Each Purchaser shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Issuer
to such Purchaser resulting from each Note purchased by such Purchaser, including the amounts of principal and interest payable and paid to such Purchaser from time to time hereunder.
(d) The Purchaser Representative shall maintain the Register in which it shall record (i) the amount of each Note purchased hereunder and
the Class thereof, (ii) the amount of any principal or interest due and payable or to become due and payable from the Issuer to each Purchaser hereunder, (iii) any payment of interest in kind on any Note and the increase of the principal
amount of each Note resulting therefrom, and (iv) the amount of any sum received by the Purchaser Representative hereunder for the account of the Purchasers and each Purchaser’s share thereof.
(e) The entries made in the accounts and the Register maintained pursuant to paragraphs (c) or (d) of this Section shall
be prima facie evidence of the existence and amounts of the obligations recorded therein (absent manifest error); provided that the failure of any Purchaser or the Purchaser Representative to maintain such accounts or the
Register, as applicable, or any manifest error therein shall not in any manner affect the obligation of the Issuer to repay the Notes in accordance with the terms of this Agreement; provided, further, that in the event of
any inconsistency between the Register maintained by the Purchaser Representative pursuant to paragraph (d) of this Section and any Purchaser’s records, the Register shall govern.
(a) The Issuer agrees to pay (i) to the Purchaser Representative, for its own account, the annual administration fee and (ii) any other
amounts described in the Fee Letter.
(b) All amounts payable hereunder shall be paid on the dates due, in Dollars and in immediately available funds, to the Purchaser
Representative. Fees paid shall not be refundable under any circumstances except as otherwise provided in the Fee Letter. Fees payable hereunder shall accrue through and including the last day of the month immediately preceding the
applicable fee payment date.
(c) Unless otherwise indicated herein, all computations of fees shall be made on the basis of a 360-day year and shall be payable for the
actual days elapsed (including the first day but excluding the last day).
(a) The Notes comprising each Issuance shall bear interest at the Applicable Rate and such interest shall be paid in kind by capitalizing
the amount of such interest on the outstanding principal balance of such Note in arrears on each Interest Payment Date for such Note and shall be payable as part of the outstanding principal balance of such Note upon the Maturity Date or
upon acceleration of the Notes. All amounts capitalized in respect of any Notes on any Interest Payment Date shall constitute principal under the Notes and shall accrue interest at the Applicable Rate, payable in accordance with this Section
2.15. Interest that has accrued but has not been paid in kind shall be payable on the Maturity Date and any date of acceleration of the Notes. The aggregate amount of interest capitalized and added to principal on any relevant
date shall be determined by the Purchaser Representative, which determination shall be conclusive and binding on the Issuer, absent manifest error.
(b) [Reserved].
(c) [Reserved].
(d) Notwithstanding the foregoing, if any principal of or interest on any Note or any fee payable by the Issuer hereunder is not, in
each case, paid or reimbursed when due, whether at stated maturity, upon acceleration or otherwise, the relevant overdue amount shall bear interest, to the fullest extent permitted by applicable Requirements of Law, after as well as
before judgment, at a rate per annum equal to (i) in the case of overdue principal or interest of any Note, 2.00% plus the rate otherwise applicable to such Note, as provided in the preceding paragraphs of this Section or (ii) in
the case of any other amount, 2.00% plus the rate applicable to the Notes; provided that no amount shall accrue pursuant to this Section 2.15(d) on any overdue amount or other amount payable to a Defaulting
Purchaser so long as such Purchaser is a Defaulting Purchaser.
(e) Accrued interest on each Note shall be payable in arrears on each Interest Payment Date for such Note and on the Maturity Date
applicable to such Note; provided that (A) interest accrued pursuant to paragraph (d) of this Section shall be payable on demand and (B) in the event of any repayment, redemption or conversion of any Note, accrued interest
on the principal amount repaid, redeemed or converted shall be payable on the date of such repayment, redemption or conversion. Without duplication of the preceding sentence, interest on each Note shall be payable in kind and
automatically added to the outstanding principal balance of each Note on each Interest Payment Date without further action by the Issuer.
(f) [Reserved].
(g) All interest hereunder shall be computed on the basis of a year of 360 days. Interest shall accrue on each Note for the day on which
the Note is issued and shall not accrue on a Note, or any portion thereof, for the day on which the Note or such portion is paid, redeemed or converted; provided that any Note that is repaid on the same day on which it is issued
shall bear interest for one day.
(a) If any Change in Law:
(i) [Reserved];
(ii) subjects any Credit Party to any Taxes (other than (A) Indemnified Taxes and Other Taxes indemnifiable under Section 2.20 and (B) Excluded Taxes)
on or with respect to its loans, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or
(iii) imposes on any Credit Party any other condition (other than Taxes) affecting this Agreement;
and the result of any of the foregoing is to increase the cost to the relevant Purchaser of making or maintaining any Note or to reduce the amount of any sum received or receivable by such Purchaser
hereunder (whether of principal, interest or otherwise) in respect of any Note in an amount deemed by such Purchaser to be material, then, within 30 days after the Issuer’s receipt of the certificate contemplated by paragraph (c)
of this Section, the Issuer will pay to such Purchaser such additional amount or amounts as will compensate such Purchaser for such additional costs incurred or reduction suffered; provided that the Issuer shall not be liable for
such compensation if (x) the relevant Change in Law occurs on a date prior to the date such Purchaser becomes a party hereto, (y) such Purchaser invokes Section 2.23 or (z) in the case of requests for reimbursement under clause
(iii) above resulting from a market disruption, (A) the relevant circumstances do not generally affect the banking market or (B) the applicable request has not been made by Purchasers constituting Required Purchasers.
(b) If any Purchaser determines that any Change in Law regarding liquidity or capital requirements has or would have the effect of
reducing the rate of return on such Purchaser’s capital or on the capital of such Purchaser’s holding company, if any, as a consequence of this Agreement or the Notes purchased by such Purchaser to a level below that which such Purchaser
or such Purchaser’s holding company could have achieved but for such Change in Law other than due to Taxes (taking into consideration such Purchaser’s policies and the policies of such Purchaser’s holding company with respect to capital
adequacy), then within 30 days of receipt by the Issuer of the certificate contemplated by paragraph (c) of this Section, the Issuer will pay to such Purchaser such additional amount or amounts as will compensate such Purchaser or
such Purchaser’s holding company for any such reduction suffered; provided that, subject to the last sentence of the definition of “Change of Law”, the Issuer shall not be liable for such compensation if the relevant Change in Law
occurs on a date prior to the date such Purchaser becomes a party hereto.
(c) Any Purchaser requesting compensation under this Section 2.18 shall be required to deliver a certificate to the Issuer that
(i) sets forth the amount or amounts necessary to compensate such Purchaser or the holding company thereof, as applicable, as specified in paragraph (a) or (b) of this Section, (ii) sets forth, in reasonable detail, the
manner in which such amount or amounts were determined, and (iii) certifies that such Purchaser is generally charging such amounts to similarly situated borrowers which certificate shall be conclusive absent manifest error.
(d) Failure or delay on the part of any Purchaser to demand compensation pursuant to this Section shall not constitute a waiver of such
Purchaser’s right to demand such compensation; provided that the Issuer shall not be required to compensate a Purchaser pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date
that such Purchaser notifies the Issuer of the Change in Law giving rise to such increased costs or reductions and of such Purchaser’s intention to claim compensation therefor; provided, further, that if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the 180-day period referred to above shall be extended to include the period of retroactive effect thereof.
(a) Any and all payments by or on account of any obligation of any Note Party under any Note Document shall be made free and clear of
and without deduction or withholding for any Taxes, except as required by applicable Requirements of Law. If any applicable Requirement of Law requires the deduction or withholding of any Tax from any such payment, then (i) if such Tax
is an Indemnified Tax and/or Other Tax, the amount payable by the applicable Note Party shall be increased as necessary so that after all required deductions or withholdings have been made (including deductions or withholdings applicable
to additional sums payable under this Section 2.20) each Purchaser (or, in the case of any payment made to the Purchaser Representative for its own account, the Purchaser Representative) receives an amount equal to the sum it
would have received had no such deductions or withholdings been made, (ii) the applicable withholding agent shall make such deduction or withholding and (iii) the applicable withholding agent shall timely pay the full amount deducted or
withheld to the relevant Governmental Authority in accordance with applicable Requirements of Law.
(b) In addition, the Note Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable
Requirements of Law.
(c) The Issuer shall indemnify the Purchaser Representative and each Purchaser within 30 days after receipt of the certificate described
in the succeeding sentence, for the full amount of any Indemnified Taxes or Other Taxes payable or paid by the Purchaser Representative or such Purchaser, as applicable (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section 2.17), other than any penalties determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement) to have resulted
from the gross negligence, bad faith or willful misconduct of the Purchaser Representative or such Purchaser, and, in each case, any reasonable expenses arising therefrom or with respect thereto, whether or not correctly or legally
imposed or asserted by the relevant Governmental Authority; provided that if the Issuer reasonably believes that such Taxes were not correctly or legally asserted, the Purchaser Representative or such Purchaser, as applicable,
will use reasonable efforts to cooperate with the Issuer to obtain a refund of such Taxes (which shall be repaid to the Issuer in accordance with Section 2.20(g)) so long as such efforts would not, in the sole determination of the
Purchaser Representative or such Purchaser, result in any additional out-of-pocket costs or expenses not reimbursed by such Note Party or be otherwise materially disadvantageous to the Purchaser Representative or such Purchaser, as
applicable. In connection with any request for reimbursement under this Section 2.20(c), the relevant Purchaser or the Purchaser Representative, as applicable, shall deliver a certificate to the Issuer setting forth, in
reasonable detail, the basis and calculation of the amount of the relevant payment or liability. Notwithstanding anything to the contrary contained in this Section 2.20, the Issuer shall not be required to indemnify the Purchaser
Representative or any Purchaser pursuant to this Section 2.20 for any amount to the extent the Purchaser Representative or such Purchaser fails to notify the Issuer of such possible indemnification claim within 180 days after the
Purchaser Representative or such Purchaser receives written notice from the applicable taxing authority of the specific tax assessment giving rise to such indemnification claim.
(d) In the event that any Taxes, other than Taxes which are Indemnified Taxes and/or Other Taxes, are required to be deducted or withheld
under Section 2.20(a) with respect to the Notes, the Issuer and its affiliates shall be entitled to satisfy such withholding obligations by any reasonable means including, without limitation: (i) withholding Common Stock
deliverable to an applicable Purchaser upon conversion of the Notes or (ii) withholding any amount payable to an applicable Purchaser with respect to its Common Stock (whether delivered upon conversion of the Notes or otherwise owned),
its interests in the First Lien Facility, its Series A Preferred Shares, or its warrants or other instruments issued by the Issuer or any affiliate thereof; provided, however, that upon request by an applicable Purchaser, the
Issuer shall permit such Purchaser to fund such withholding in cash.
(e) As soon as practicable after any payment of any Taxes pursuant to this Section 2.20 by any Note Party to a Governmental
Authority, the Issuer shall deliver to the Purchaser Representative the original or a certified copy of a receipt issued, if any, by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment that is reasonably satisfactory to the Purchaser Representative.
(f) Status of Purchasers.
(i) Any Purchaser that is entitled to an exemption from or reduction of any withholding Tax with respect to any
payments made under any Note Document shall deliver to the Issuer and the Purchaser Representative, at the time or times reasonably requested by the Issuer or the Purchaser Representative, such properly completed and executed
documentation as the Issuer or the Purchaser Representative may reasonably request to permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Purchaser, if reasonably requested by the
Issuer or the Purchaser Representative, shall deliver such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Issuer or the Purchaser Representative as will enable the Issuer or the Purchaser
Representative to determine whether or not such Purchaser is subject to backup withholding or information reporting requirements. Each Purchaser hereby authorizes the Purchaser Representative to deliver to the Issuer and to any successor
Purchaser Representative any documentation provided to the Purchaser Representative pursuant to this Section 2.20(f). Notwithstanding anything to the contrary in the preceding three sentences, the completion, execution and
submission of such documentation (other than such documentation set forth in paragraphs (f)(ii)(A), (ii)(B) and (ii)(D) of this Section 2.20) shall not be required if in the Purchaser’s reasonable judgment
such completion, execution or submission would subject such Purchaser to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Purchaser.
(ii) Without limiting the generality of the foregoing,
(A) each U.S. Purchaser shall deliver to the Issuer and the Purchaser Representative on or prior to the date on which
such U.S. Purchaser becomes a Purchaser under this Agreement (and from time to time thereafter upon the reasonable request of the Issuer or the Purchaser Representative, two copies of executed IRS Form W-9 certifying that such Purchaser
is exempt from U.S. federal backup withholding;
(B) each Foreign Purchaser shall, to the extent it is legally entitled to do so, deliver to the Issuer and the
Purchaser Representative on or prior to the date on which such Foreign Purchaser becomes a Purchaser under this Agreement (and from time to time thereafter upon the reasonable request of the Issuer or the Purchaser Representative),
whichever of the following is applicable:
(1) in the case of any Foreign Purchaser claiming the benefits of an income tax treaty to which the U.S. is a party,
two copies of executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing any available exemption from, or reduction of, U.S. federal withholding Tax;
(2) two copies of executed IRS Form W-8ECI (or any successor forms);
(3) in the case of any Foreign Purchaser claiming the benefits of the exemption for portfolio interest under Section
871(h) or 881(c) of the Code, (x) two copies of an executed certificate substantially in the form of Exhibit O-1 to the effect that such Foreign Purchaser is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a
“10 percent shareholder” of the Issuer within the meaning of Section 871(h)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code, and that no payments payable to such Purchaser are
effectively connected with the conduct of a U.S. trade or business (a “U.S. Tax Compliance Certificate”) and (y) two copies of executed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable (or any successor forms); or
(4) to the extent any Foreign Purchaser is not the beneficial owner (e.g.,
where the Foreign Purchaser is a partnership or participating Purchaser), two copies of executed IRS Form W-8IMY (or any successor forms), accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, a U.S. Tax Compliance
Certificate substantially in the form of Exhibit O-2, Exhibit O-3 or Exhibit O-4, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if such Foreign
Purchaser is a partnership (and not a participating Purchaser) and one or more direct or indirect partners of such Foreign Purchaser are claiming the portfolio interest exemption, such Foreign Purchaser may provide a U.S. Tax Compliance
Certificate substantially in the form of Exhibit O-4 on behalf of each such direct or indirect partner(s);
(C) each Foreign Purchaser shall, to the extent it is legally entitled to do so, deliver to the Issuer and the
Purchaser Representative on or prior to the date on which such Foreign Purchaser becomes a Purchaser under this Agreement (and from time to time thereafter upon the reasonable request of the Issuer or the Purchaser Representative), two
copies of any other executed form prescribed by applicable Requirements of Law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be
prescribed by applicable Requirements of Law to permit the Issuer or the Purchaser Representative to determine the withholding or deduction required to be made; and
(D) if a payment made to any Purchaser under any Note Document would be subject to U.S. federal withholding Tax imposed
by FATCA if such Purchaser were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Purchaser shall deliver to the Issuer and the
Purchaser Representative at the time or times prescribed by applicable Requirements of Law and at such time or times reasonably requested by the Issuer or the Purchaser Representative such documentation as is prescribed by applicable
Requirements of Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and may be necessary for the Issuer and the Purchaser Representative to comply with their obligations under FATCA, to determine whether such Purchaser
has complied with such Purchaser’s obligations under FATCA or to determine the amount, if any, to deduct and withhold from such payment.
For the avoidance of doubt, if a Purchaser is an entity disregarded from its owner for U.S. federal income tax purposes, references to the foregoing documentation are intended to refer to
documentation with respect to such Purchaser’s owner and, as applicable, such Purchaser. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
Each Purchaser agrees that if any documentation (including any specific documentation required above in this Section 2.20(f)) it previously delivered expires or becomes obsolete
or inaccurate in any respect, it shall deliver to the Issuer and the Purchaser Representative updated or other appropriate documentation (including any new documentation reasonably requested by the Issuer or the Purchaser Representative)
or promptly notify the Issuer and the Purchaser Representative in writing of its legal ineligibility to do so.
(g) If the Purchaser Representative or any Purchaser determines, in its sole discretion, that it has received a refund (whether received
in cash or applied as a credit against any cash taxes payable) of any Indemnified Taxes or Other Taxes as to which it has been indemnified by the Issuer or with respect to which the Issuer has paid additional amounts pursuant to this Section
2.20, it shall pay over such refund to the Issuer (but only to the extent of indemnity payments made, or additional amounts paid, by the Issuer under this Section 2.20 with respect to the Indemnified Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the Purchaser Representative or such Purchaser (including any Taxes imposed with respect to such refund), and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund); provided that the Issuer, upon the request of the Purchaser Representative or such Purchaser, agrees to repay the amount paid over to such Note Party (plus any penalties,
interest or other charges imposed by the relevant Governmental Authority) to the Purchaser Representative or such Purchaser in the event the Purchaser Representative or such Purchaser is required to repay such refund to such Governmental
Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the Purchaser Representative or any Purchaser be required to pay any amount to the Issuer pursuant to this paragraph (g) to the
extent that the payment thereof would place the Purchaser Representative or such Purchaser in a less favorable net after-Tax position than the position that the Purchaser Representative or such Purchaser would have been in if the Tax
subject to indemnification had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts giving rise to such refund had never been paid. This Section 2.20 shall not be construed to
require the Purchaser Representative or any Purchaser to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the relevant Note Party or any other Person.
(h) Survival. Each party’s obligations under this Section 2.20 shall survive the resignation or replacement of the
Purchaser Representative or any assignment of rights by, or the replacement of, any Purchaser, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Note Document.
(i) Definition of “Applicable Law”. For the avoidance of doubt, the term “Applicable Law” includes FATCA.
(j) Certain Documentation. On or before the date the Purchaser Representative becomes a party to this Agreement, the
Purchaser Representative shall deliver to Issuer whichever of the following is applicable: (i) if the Purchaser Representative is a “United States person” within the meaning of Section 7701(a)(30) of the Code, two executed original copies
of IRS Form W-9 certifying that such Purchaser Representative is exempt from U.S. federal backup withholding or (ii) if the Purchaser Representative is not a “United States person” within the meaning of Section 7701(a)(30) of the Code,
(A) with respect to payments received for its own account, two executed original copies of IRS Form W-8ECI and (B) with respect to payments received on account of any Purchaser, two executed original copies of IRS Form W-8IMY (together
with all required accompanying documentation) certifying that the Purchaser Representative is a U.S. branch and may be treated as a United States person for purposes of applicable U.S. federal withholding Tax. At any time thereafter, the
Purchaser Representative shall provide updated documentation previously provided (or a successor form thereto) when any documentation previously delivered has expired or become obsolete or invalid or otherwise upon the reasonable request
of the Issuer. Notwithstanding anything to the contrary in this Section 2.20(j), the Purchaser Representative shall not be required to provide any documentation that the Purchaser Representative is not legally eligible to deliver
as a result of a Change in Law after the Closing Date.
(k) Tax Treatment. The Issuer, the Purchaser Representative and the Purchasers agree that, for U.S. federal (and applicable state
and local) income tax purposes, each Note and the Stapled Series B Preferred Stock shall (i) be treated as a single integrated instrument and (ii) such single integrated instrument shall be treated as indebtedness of the Issuer, and none
of the Issuer, the Purchaser Representative or any Purchaser shall file any tax return or take any position contrary or inconsistent with such treatment described in clause (i) or (ii) unless otherwise required by a “determination” within
the meaning of Section 1313(a) of the Code (or any analogous provision of applicable state or local income tax law).
(a) Unless otherwise specified, including in Section 2.15(e) and Article 10 hereof, the Issuer shall make each payment
required to be made by it hereunder (whether of principal, interest or fees, or of amounts payable under Sections 2.18 or 2.22, or otherwise) prior to 12:00 p.m. on the date (or such other time as the Purchaser
Representative reasonably accepts) when due, in immediately available funds (or such other form of consideration as the relevant recipient may agree), without set-off (except as otherwise provided in Section 2.20) or
counterclaim. Any amount received after such time on any date may, in the discretion of the Purchaser Representative, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. Each
such payment shall be made to the Purchaser Representative to the applicable account designated by the Purchaser Representative to the Issuer, except that any payment made pursuant to Sections 2.18, 2.22 or 9.03
shall be made directly to the Person or Persons entitled thereto. The Purchaser Representative shall distribute any such payment received by it for the account of any other Person to the appropriate recipient promptly following receipt
thereof. Except as provided in Sections 2.22(b), 2.23 and Article 10 hereof, each Issuance, each payment (or redemption) of principal of any Issuance and each payment of interest in respect of the Notes of a given
Class shall be allocated pro rata among the Purchasers in accordance with their respective Applicable Percentages of the applicable Class. Each Purchaser agrees that in computing such Purchaser’s portion of any Issuance to be made
hereunder, the Purchaser Representative may round each Purchaser’s percentage of such Issuance to the next higher or lower whole Dollar amount. Except as provided in Section 2.15(a), all payments hereunder shall be made in
Dollars or such other form of consideration as the relevant recipient may agree. Any remittance required to be made by the Purchaser Representative hereunder shall be deemed to have been made by the time required if the Purchaser
Representative shall, at or before such time, have taken the necessary steps to make such payment in accordance with the regulations or operating procedures of the clearing or settlement system used by the Purchaser Representative to make
such payment.
(b) (I) Subject to the Second Lien Intercreditor and Subordination Agreement, after any of the Obligations have been accelerated
hereunder pursuant to Section 7.01 any amounts received on account of the Obligations (including all proceeds of Collateral) in accordance with the terms hereof (which amounts so received by the Purchaser Representative shall
satisfy the Issuer’s obligations with respect to such amounts notwithstanding that the order of application set forth below may differ from the application required with respect to such payment by the relevant section of this Agreement or
any other Note Document that gives rise to the payment of such amount) shall be applied by the Purchaser Representative in the following order:
(i) first, to the payment of all costs and expenses then due incurred by the Purchaser Representative in connection with any collection, sale or
realization on Collateral or otherwise in connection with this Agreement, any other Note Document or any of the Obligations, including all court costs and the fees and expenses of agents and legal counsel, the repayment of all advances
made by the Purchaser Representative hereunder or under any other Note Document on behalf of any Note Party and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Note
Document,
(ii) second, on a pro rata basis, to pay any fees, indemnities or expense reimbursements then due to the Purchaser Representative from the Issuer
constituting Obligations,
(iii) third, on a pro rata basis, to pay interest due and payable in respect of any Note,
(iv) fourth, on a pro rata basis, to redeem principal on the Notes among the Secured Parties,
(v) fifth, on a pro rata basis, to the payment of any other Secured Obligation due to the Purchaser Representative, any Purchaser or any other Secured
Party by the Issuer,
(vi) sixth, as provided in any applicable Intercreditor Agreement, and
(vii) seventh, to, or at the direction of, the Issuer or as a court of competent jurisdiction may otherwise direct.
(c) If any Purchaser obtains payment (whether voluntary, involuntary, through the exercise of any right of set-off or otherwise) in
respect of any principal of or interest on any of its Notes of any Class or resulting in such Purchaser receiving payment of a greater proportion of the aggregate amount of its Notes of such Class and accrued interest thereon than the
proportion received by any other Purchaser with Notes of such Class, then the Purchaser receiving such greater proportion shall purchase (for Cash at face value) participations in the Notes of such Class at such time outstanding to the
extent necessary so that the benefit of all such payments shall be shared by the Purchasers of such Class ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Notes of such Class; provided
that (i) if any such participation is purchased and all or any portion of the payment giving rise thereto is recovered, such participation shall be rescinded and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not apply to (x) any payment made by the Issuer pursuant to and in accordance with the express terms of this Agreement, (y) any payment obtained by any Purchaser as consideration
for the assignment of or sale of a participation in any of its Note to any permitted assignee or participant, including any payment made or deemed made in connection with Sections 2.22(b) and/or Section 9.05 or (z) any
transaction consummated in accordance with Article 10 hereof. The Issuer consents to the foregoing and agrees, to the extent it may effectively do so under applicable Requirements of Law, that any Purchaser acquiring a
participation pursuant to the foregoing arrangements may exercise against the Issuer rights of set-off and counterclaim with respect to such participation as fully as if such Purchaser were a direct creditor of the Issuer in the amount of
such participation. Upon notification of such participations or recovery of payments, the Purchaser Representative will forward a notice from the applicable Purchaser to the other Purchasers of any such purchases or repayments; provided,
that (A) such Purchaser’s obligations under this Agreement shall remain unchanged, (B) such Purchaser shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Purchaser Representative
and the other Purchasers shall continue to deal solely and directly with such Purchaser in connection with such Purchaser’s rights and obligations under this Agreement. For purposes of subclause (c) of the definition of “Excluded
Taxes”, any Purchaser that acquires a participation pursuant to this Section 2.21(c) shall be treated as having acquired such participation on the earlier date(s) on which such Purchaser acquired the applicable interest(s) in the
Commitment(s) and/or Note(s) to which such participation relates.
(a) If any Purchaser requests compensation under Section 2.18, or any Note Party is required to pay any additional amount to or
indemnify any Purchaser or any Governmental Authority for the account of any Purchaser pursuant to Section 2.20, then such Purchaser shall use reasonable efforts to designate a different lending office for funding or booking its
Notes hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Purchaser, such designation or assignment (i) would eliminate or reduce amounts
payable pursuant to Section 2.18 or 2.20, as applicable, in the future or mitigate the impact of Section 2.23, as the case may be, and (ii) would not subject such Purchaser to any material unreimbursed
out-of-pocket cost or expense and would not otherwise be disadvantageous to such Purchaser in any material respect. The Issuer hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Purchaser in connection
with any such designation or assignment.
(b) If (i) any Purchaser requests compensation under Section 2.18, (ii) any Note Party is required to pay any additional amount
to or indemnify any Purchaser or any Governmental Authority for the account of any Purchaser pursuant to Section 2.20, (iii) any Purchaser is a Defaulting Purchaser or (iv) in connection with any proposed amendment, waiver or
consent requiring the consent of “each Purchaser”, “each Additional Purchaser”, or “each Purchaser directly affected thereby” (or any other Class or group of Purchasers other than the Required Purchasers) with respect to which Required
Purchaser or Required Additional Purchaser consent (or the consent of Purchasers holding loans or commitments of such Class or lesser group representing more than 50% of the sum of the total loans and unused commitments of such Class or
lesser group at such time) has been obtained, as applicable, any Purchaser is a non-consenting Purchaser, then the Issuer may, at its sole expense and effort, upon notice to such Purchaser and the Purchaser Representative, (x) terminate
the applicable Commitments of such Purchaser, and repay all Obligations of the Issuer owing to such Purchaser relating to the applicable Notes held by such Purchaser as of such termination date or (y) replace such Purchaser by requiring
such Purchaser to assign and delegate (and such Purchaser shall be obligated to assign and delegate), without recourse (in accordance with and subject to the restrictions contained in Section 9.05), all of its interests, rights
and obligations under this Agreement to an Eligible Transferee that assumes such obligations (which Eligible Transferee may be another Purchaser, if any Purchaser accepts such assignment); provided that (A) such Purchaser has
received payment of an amount equal to the outstanding principal amount of its Notes of such Class of Notes and/or Commitments, accrued interest thereon, accrued fees and all other amounts payable to it under any Note Document with
respect to such Class of Notes and/or Commitments, (B) in the case of any assignment resulting from a claim for compensation under Section 2.18 or any payment required to be made pursuant to Section 2.20, such assignment
would result in a reduction in such compensation or payment and (C) such assignment does not conflict with applicable Requirements of Law. No Purchaser (other than a Defaulting Purchaser) shall be required to make any such assignment and
delegation, and the Issuer may not repay the Obligations of such Purchaser or terminate its Commitments, in each case, if, prior thereto, as a result of a waiver by such Purchaser or otherwise, the circumstances entitling the Issuer to
require such assignment and delegation cease to apply. Each Purchaser agrees that if it is replaced pursuant to this Section 2.22, it shall execute and deliver to the Purchaser Representative a Transfer Agreement to evidence such
sale and purchase and deliver to the Purchaser Representative any Note subject to such Transfer Agreement (provided that the failure of any Purchaser replaced pursuant to this Section 2.22 to execute a Transfer Agreement or
deliver any such Note shall not render such sale and purchase (and the corresponding assignment) invalid), such assignment shall be recorded in the Register and any such Note shall be deemed cancelled. If such Purchaser fails to execute
such Transfer Agreement, it shall be deemed to have so executed such Transfer Agreement and the Purchaser Representative shall have full authority (as directed by the Required Purchasers) to effect such deemed transfer and record it in
the Register.
Section 2.24. Defaulting Purchasers. Notwithstanding any provision of this Agreement to the contrary, if any
Person becomes a Defaulting Purchaser, then the following provisions shall apply for so long as such Person is a Defaulting Purchaser:
(a) The Commitments of such Defaulting Purchaser shall not be included in determining whether all Purchasers, each affected Purchaser, the
Required Purchasers, the Required Additional Purchasers, the Required Delayed Draw Purchasers or such other number of Purchasers as may be required hereby or under any other Note Document have taken or may take any action hereunder
(including any consent to any waiver, amendment or modification pursuant to Section 9.02); provided that any waiver, amendment or modification requiring the consent of all Purchasers or each affected Purchaser which
affects such Defaulting Purchasers disproportionately and adversely relative to other affected Purchasers shall require the consent of such Defaulting Purchaser.
(b) Any payment of principal, interest, fees or other amounts received by the Purchaser Representative for the account of any Defaulting
Purchaser (whether voluntary or mandatory, at maturity, pursuant to Section 2.18, Section 2.20, Section 2.21, Section 2.22, Article 7, Section 9.05 or otherwise, and including any amounts
made available to the Purchaser Representative by such Defaulting Purchaser pursuant to Section 9.09), shall be applied at such time or times as may be determined by the Required Purchasers and, where relevant, the Issuer as
follows: first, to the payment of any amount owing by such Defaulting Purchaser to the Purchaser Representative hereunder; second, so long as no Default or Event of Default exists, as the Issuer may request, to the
purchase of any Note in respect of which such Defaulting Purchaser has failed to fund its portion thereof as required by this Agreement; third, as the Required Purchasers or the Issuer may elect, to be held in a deposit account
and released in order to satisfy obligations of such Defaulting Purchaser to purchase Notes under this Agreement; fourth, to the payment of any amount owing to the non-Defaulting Purchasers as a result of any judgment of a court
of competent jurisdiction obtained by any non-Defaulting Purchaser against such Defaulting Purchaser as a result of such Defaulting Purchaser’s breach of its obligations under this Agreement; fifth, to the payment of any amount
owing to the Issuer as a result of any judgment of a court of competent jurisdiction obtained by the Issuer against such Defaulting Purchaser as a result of such Defaulting Purchaser’s breach of its obligations under this Agreement; and sixth,
to such Defaulting Purchaser or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Note in respect of which such Defaulting Purchaser has not
fully funded its appropriate share and (y) such Note was sold at a time when the conditions set forth in Section 4.02 or Section 4.03, as applicable, were satisfied or waived, such payment shall be applied solely to pay
the Notes of all non-Defaulting Purchasers on a pro rata basis prior to being applied to the payment of any Note of such Defaulting Purchaser. Any payment, prepayment or other amount paid or payable to any Defaulting Purchaser that is
applied (or held) to pay any amount owed by any Defaulting Purchaser shall be deemed paid to and redirected by such Defaulting Purchaser, and each Purchaser irrevocably consents hereto.
In the event that the Required Purchasers and the Issuer agree that any Defaulting Purchaser has adequately remedied all matters that caused such Purchaser to be a Defaulting Purchaser, then the Applicable
Percentage of the relevant Purchasers shall be readjusted to reflect the inclusion of such Purchaser’s Commitment, and on such date such Purchaser shall purchase at par such of the Notes of the applicable Class of the other Purchasers as
the Required Purchasers and the Issuer determine as necessary in order for such Purchaser to hold such Notes in accordance with its Applicable Percentage of the applicable Class. Notwithstanding the fact that any Defaulting Purchaser has
adequately remedied all matters that caused such Purchaser to be a Defaulting Purchaser, (x) no adjustment will be made retroactively with respect to fees accrued or payments made by or on behalf of the Issuer while such Purchaser was a
Defaulting Purchaser and (y) except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Purchaser to Purchaser will constitute a waiver or release of any claim of any party hereunder
arising from such Purchaser’s having been a Defaulting Purchaser.
(a) The Issuer may, at any time, on one or more occasions issue one or more new Classes of Additional Notes by requesting Additional Note
Commitments to purchase such Additional Notes in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
(i) no Additional Note Commitment may be in an amount that is less than $5,000,000 (or such lesser amount to which
the Purchaser Representative may reasonably agree (acting at the instruction of the Required Purchasers)),
(ii) except as the Issuer and any Initial Purchaser or Delayed Draw Purchaser may separately agree, no Initial
Purchaser or Delayed Draw Purchaser shall be obligated to provide any Additional Note Commitment, and the determination to provide any Additional Note Commitment shall be within the sole and absolute discretion of such Purchaser (it being
agreed that the Issuer shall not be obligated to offer the opportunity to any Purchaser to participate in any Additional Notes except to the extent required pursuant to Section 2.25(b)),
(iii) the issuance of such Additional Notes shall have been approved by the Required Purchasers (calculated without
giving effect to the issuance of such Additional Notes), acting in their sole discretion,
(iv) except as otherwise provided in clause (ix) below with respect to fees, the terms of any Additional Notes shall be
identical to any then-existing Notes,
(v) [reserved],
(vi) [reserved],
(vii) [reserved],
(viii) [reserved],
(ix) to the extent applicable, any fees payable in connection with any Additional Notes shall be determined by the
Issuer and the purchasers purchasing such Additional Notes,
(x) any Additional Notes shall (A) rank pari passu with any then-existing series of Notes, in right of payment and/or
security, (B) be guaranteed by each Person that is a Note Party and (B) be secured by the Collateral pursuant to the Collateral Documents on a pari passu basis with the then-existing Notes,
(xi) [reserved],
(xii) no Event of Default shall exist immediately prior to or after giving effect to such Additional Notes; provided,
that notwithstanding the foregoing, in the case of any Additional Notes issued in connection with any acquisition, Investment or irrevocable repayment or redemption of Indebtedness, the condition set forth in this clause (xii)
shall be that no Event of Default under Sections 7.01(a), (f) or (g) shall exist immediately prior to or after giving effect to such Additional Notes, and
(xiii) the proceeds of any Additional Notes may be used for working capital and/or purchase price adjustments and other
general corporate purposes (including Capital Expenditures, acquisitions and Investments); provided, that the proceeds of any Additional Notes may not be used to make Restricted Payments and/or Restricted Debt Payments,
(b) (i) Prior to the Issuer issuing Additional Notes, the Issuer shall first seek commitments in respect of such Additional Notes (the “Offered
Debt”) from the existing Purchasers, each of which shall be entitled to agree or decline to provide the applicable Additional Note Commitments in its sole discretion, provided, that if any of the existing Purchasers have
declined the offer to provide the Offered Debt, have failed to respond to the offer to provide the Offered Debt or have otherwise not provided a binding written commitment to provide the Offered Debt on the terms so offered (or at least
as favorable as the terms so offered), in each case, within five Business Days of receipt of the offer to provide the Offered Debt from the Issuer (such 5th Business Day, the “Offer Deadline”), the Issuer may then seek Additional
Note Commitments on substantially the same terms from other Persons; and provided, further that if any such other Person is not then an existing Purchaser, such Person must constitute an “Eligible Transferee” and the Purchaser
Representative (acting at the direction of the Required Purchasers) shall have a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Person’s provision of Additional Note Commitments if such consent
would be required under Section 9.05(b) for an assignment of Notes to such new Purchaser; provided, that the foregoing shall not prohibit any such Person from acquiring the relevant Additional Notes by assignment,
participation or otherwise after the initial closing thereof.
(c) Each Purchaser or Additional Purchaser purchasing a portion of any Additional Note Commitment shall execute and deliver to the
Purchaser Representative and the Issuer all such documentation as may be reasonably required by the Purchaser Representative to evidence and effectuate such Additional Note Commitment. On the effective date of such Additional Note
Commitment, each Additional Purchaser shall become a Purchaser for all purposes in connection with this Agreement.
(d) As conditions precedent to the effectiveness of any issuance of Additional Notes, (i) the Required Purchasers shall have consented to
any such issuance of Additional Notes, (ii) [reserved], (iii) the Purchaser Representative shall be entitled to receive, from each Additional Purchaser, an Administrative Questionnaire and such other documents as it shall reasonably
require from such Additional Purchaser, (iv) the relevant Additional Purchasers shall have directly received the amount of any fees payable to the Additional Purchasers in respect of such Additional Notes and (v) the Purchaser
Representative shall be entitled to receive a certificate of the Issuer signed by a Responsible Officer thereof:
(A) certifying and attaching a copy of the resolutions adopted by the governing body of the Issuer approving or
consenting to such Additional Notes, and
(B) to the extent applicable, certifying that the condition set forth in clause (a)(xii) above has been satisfied.
(e) [reserved].
(f) [reserved].
(g) The Purchasers hereby irrevocably authorize the Purchaser Representative to enter into any amendment to this Agreement or any other
Note Document as may be necessary in order to establish new Classes or sub-Classes in respect of Notes or commitments pursuant to this Section 2.25 and such technical amendments as may be necessary or appropriate in the reasonable
opinion of the Purchaser Representative or the Required Purchasers, and the Issuer, in connection with the establishment of such new Classes or sub-Classes, in each case on terms consistent with this Section 2.25.
(h) [reserved].
(i) This Section 2.25 shall supersede any provision in Sections 2.21 or 9.02 to the contrary.
On the Closing Date and on the date of each Issuance of Delayed Draw Term Notes and Series B Preferred Stock, the Issuer hereby represents and warrants to the Purchasers and the Purchaser
Representative that:
Section 3.01. Organization; Powers. The Issuer and each of its Restricted Subsidiaries (a) is (i) duly organized
or incorporated (as applicable) and validly existing and (ii) in good standing (to the extent such concept exists in the relevant jurisdiction) under the Requirements of Law of its jurisdiction of organization, (b) has all requisite
organizational power and authority to own its assets and to carry on its business as now conducted and (c) is qualified to do business in, and is in good standing (to the extent such concept exists in the relevant jurisdiction) in, every
jurisdiction where the ownership, lease or operation of its properties or conduct of its business requires such qualification, except, in each case referred to in this Section 3.01 (other than clause (a)(i) and clause
(b), in each case, with respect to the Issuer) where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
Section 3.02. Authorization; Enforceability. The execution, delivery and performance by each Note Party of each
Note Document to which such Note Party is a party are within such Note Party’s corporate or other organizational power and have been duly authorized by all necessary corporate or other organizational action of such Note Party. Each Note
Document to which any Note Party is a party has been duly executed and delivered by such Note Party and is a legal, valid and binding obligation of such Note Party, enforceable in accordance with its terms, subject to the Legal
Reservations.
Section 3.03. Governmental Approvals; No Conflicts. The execution and delivery of each Note Document by each Note
Party party thereto and the performance by such Note Party thereof on and after the Closing Date (a) do not require any consent or approval of, registration or filing with, or any other action by, any Governmental Authority, except (i)
such as have been obtained or made and are in full force and effect, (ii) in connection with the Perfection Requirements and (iii) such consents, approvals, registrations, filings, or other actions the failure to obtain or make which
could not be reasonably expected to have a Material Adverse Effect, (b) will not violate any (i) of such Note Party’s Organizational Documents or (ii) Requirement of Law applicable to such Note Party which violation, in the case of this clause
(b)(ii), could reasonably be expected to have a Material Adverse Effect and (c) will not violate or result in a default under any material Contractual Obligation to which such Note Party is a party which violation, in the case of
this clause (c), could reasonably be expected to result in a Material Adverse Effect.
(a) The financial statements most recently provided pursuant to Section 5.01(a) or (b), as applicable, present fairly,
in all material respects, the financial position and results of operations and cash flows of the Issuer on a consolidated basis as of such dates and for such periods in accordance with GAAP, (x) except as otherwise expressly noted
therein, (y) subject, in the case of quarterly financial statements, to the absence of footnotes and normal year-end adjustments and (z) except as may be necessary to reflect any Permitted Practice Subsidiary Restructuring.
(b) Since the Closing Date, there have been no events, developments or circumstances that have had, or could reasonably be expected to
have, individually or in the aggregate, a Material Adverse Effect.
(a) As of the date hereof, Schedule 3.05 sets forth the address of each Real Estate Asset (or each set of such assets that
collectively comprise one operating property) that is owned in fee simple by any Note Party.
(b) The Issuer and each of its Restricted Subsidiaries have good and valid fee simple title to or rights to purchase, or valid leasehold
interests in, or easements or other limited property interests in, all of their respective Real Estate Assets and have good title to their personal property and assets, in each case, except (i) for defects in title that do not materially
interfere with their ability to conduct their business as currently conducted or to utilize such properties and assets for their intended purposes, (ii) for any Lien permitted under Section 6.02 hereof or (iii) where the failure
to have such title would not reasonably be expected to have a Material Adverse Effect.
(c) The Issuer and its Restricted Subsidiaries own or otherwise have a license or right to use all rights in Patents, Trademarks,
Copyrights and other rights in works of authorship (including all copyrights embodied in software) and all other intellectual property rights (“IP Rights”) used to conduct their respective businesses as presently conducted without,
to the knowledge of the Issuer, any infringement or misappropriation of the IP Rights of third parties, except to the extent the failure to own or license or have rights to use would not, or where such infringement or misappropriation
would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(a) Except as disclosed on Schedule 3.06, there are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Issuer, threatened in writing against or affecting the Issuer or any of its Restricted Subsidiaries which would reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect.
(b) Except for any matters that, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse
Effect, (i) neither the Issuer nor any of its Restricted Subsidiaries is subject to or has received notice of any Environmental Claim or Environmental Liability or knows of any basis for any Environmental Liability or Environmental Claim
of the Issuer or any of its Restricted Subsidiaries and (ii) neither the Issuer nor any of its Restricted Subsidiaries has failed to comply with any Environmental Law or to obtain, maintain or comply with any Governmental Authorization,
permit, license or other approval required under any Environmental Law.
(c) Neither the Issuer nor any of its Restricted Subsidiaries has treated, stored, transported or Released any Hazardous Materials on, at,
under or from any currently or formerly owned, leased or operated real estate or facility in a manner that would reasonably be expected to have a Material Adverse Effect.
(a) The Issuer and each of its Restricted Subsidiaries is in compliance with all Requirements of Law applicable to it or its property,
except, in each case where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect; it being understood and agreed that this Section 3.07 shall not apply to
the Requirements of Law covered by Section 3.17 below.
(b) Health Care Laws. Notwithstanding the foregoing clause (a) above:
(i) The Issuer and each of its Restricted Subsidiaries is in compliance in all material respects with all Healthcare
Laws applicable to it, its assets, business, or operations.
(ii) HIPAA Compliance. The Issuer and each of its Restricted Subsidiaries (1) is in compliance in all material
respects with the applicable requirements of HIPAA, including but not limited to having written agreements in effect as required by HIPAA with all of its Business Associates (as defined by HIPAA); and (2) is not subject to, and would not
reasonably be expected to become subject to, any civil or criminal penalty or any investigation, claim or process or data breach with regard to HIPAA that would reasonably be expected to have a Material Adverse Effect. When acting as a
Business Associate, the Issuer and each of its Restricted Subsidiary has in effect agreements that satisfy all of the requirements of HIPAA in all material respects and neither the Issuer nor any Restricted Subsidiary is in material
breach of any such agreements. The Issuer and each of its Restricted Subsidiaries has developed and has implemented policies and procedures and training programs to facilitate compliance with HIPAA and have performed a thorough assessment
of the potential risks and vulnerabilities to the confidentiality, integrity and availability of electronic Protected Health Information (as defined by HIPAA) held in accordance with 45 C.F.R. § 164.308(a)(1)(ii)(A). Neither the Issuer
nor any of its Restricted Subsidiaries has received written notice of complaints or investigations from any Governmental Authority regarding their respective uses or disclosure of individually identifiable health-related information that
would reasonably be expected to have a material impact on the Issuer and the Restricted Subsidiaries, taken as a whole. With regard to individually identifiable health information, the Issuer and each of its Restricted Subsidiaries has
no knowledge of any non-permitted use or disclosure, breach of a Business Associate or confidentiality agreement, security incident (other than immaterial incidents that did not result in a disclosure of Protected Health Information) or
breach (each as determined by reference to HIPAA or applicable state law) by, or involving the systems of, the Issuer or any Restricted Subsidiary or by any employee, or contractor thereof, in each case, where the same, individually or in
the aggregate, would reasonably be expected to result in a Material Adverse Effect.
Section 3.08. Investment Company Status. No Note Party is an “investment company” as defined in, or is required
to be registered under, the Investment Company Act of 1940.
Section 3.09. Taxes. The Issuer and each of its Restricted Subsidiaries has timely filed or caused to be filed
all Tax returns and reports required to have been filed and has paid or caused to be paid all Taxes required to have been paid by it that are due and payable (including in its capacity as a withholding agent), except (a) Taxes (or any
requirement to file Tax returns with respect thereto) that are being contested in good faith by appropriate proceedings and for which the Issuer or such Restricted Subsidiary, as applicable, has set aside on its books adequate reserves in
accordance with GAAP or (b) to the extent that the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
(a) Each Plan is in compliance in form and operation with its terms and with ERISA and the Code and all other applicable Requirements of
Law, except where any failure to comply would not reasonably be expected to result in a Material Adverse Effect.
(b) In the five-year period prior to the date on which this representation is made or deemed made, no ERISA Event has occurred and is
continuing or is reasonably expected to occur that, when taken together with all other such ERISA Events for which liability is reasonably expected to occur, would reasonably be expected to result in a Material Adverse Effect.
Section 3.11. Disclosure. As of the date hereof, with respect to information relating to the Issuer and its
subsidiaries all written information (other than the financial estimates, other forward-looking information and/or projected information and information of a general economic or industry-specific nature and/or any third party report
and/or memorandum (but not the written information) other than forecasts, financial estimates, other forward-looking information and/or projected information and/or general economic or industry-specific information) on which such third
party report and/or memorandum was based, if such written information was provided to the Purchaser Representative or otherwise concerning the Issuer and its subsidiaries prepared by or on behalf of the Issuer or its subsidiaries or their
respective representatives and made available to any Purchaser or the Purchaser Representative in connection with the Transactions on or before the date hereof (the “Information”), when taken as a whole, did not, when furnished,
contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made
(after giving effect to all supplements and updates thereto from time to time).
Section 3.13. Capitalization and Subsidiaries. Schedule 3.13 sets forth, in each case as of the date
hereof, (a) a correct and complete list of the name of each subsidiary of the Issuer and the ownership interest therein held by the Issuer or its applicable subsidiary, and (b) the type of entity of Issuer and each of its subsidiaries. As
of the date hereof, there are no Consolidated APCs, Non-Consolidated APCs or other Affiliated Practices.
Section 3.14. Security Interest in Collateral. Subject to the terms of the last paragraph of Section 4.01,
the Legal Reservations, the Perfection Requirements and the provisions, limitations and/or exceptions set forth in this Agreement and/or any other Note Document, the Collateral Documents, when executed, will create legal, valid and
enforceable Liens on all of the Collateral in favor of the Purchaser Representative, for the benefit of itself and the other Secured Parties, and upon the satisfaction of the applicable Perfection Requirements, such Liens constitute
perfected Liens (with the priority that such Liens are expressed to have under the relevant Collateral Documents, unless otherwise permitted hereunder or under any Collateral Document) on the Collateral (to the extent such Liens are then
required to be perfected under the terms of the Note Documents) securing the Secured Obligations, in each case as and to the extent set forth therein.
For the avoidance of doubt, notwithstanding anything herein or in any other Note Document to the contrary, neither the Issuer nor any other Note Party makes any representation or warranty
as to (A) the effects of perfection or non-perfection, the priority or the enforceability of any pledge of or security interest in any Capital Stock of any Foreign Subsidiary, or as to the rights and remedies of the Purchaser
Representative or any Purchaser with respect thereto, under foreign Requirements of Law, (B) the enforcement of any security interest, or right or remedy with respect to any Collateral that may be limited or restricted by, or require any
consent, authorization approval or license under, any Requirement of Law or (C) on the Closing Date to the extent the same is not required on the Closing Date pursuant to the final paragraph of Section 4.01 and until required
pursuant to Section 5.12, the pledge or creation of any security interest.
Section 3.15. Labor Disputes. Except as individually or in the aggregate would not reasonably be expected to have a
Material Adverse Effect, (a) there are no strikes, lockouts or slowdowns against the Issuer or any of its Restricted Subsidiaries pending or, to the knowledge of the Issuer or any of its Restricted Subsidiaries, threatened and (b) the
hours worked by and payments made to employees of the Issuer and its Restricted Subsidiaries have not been in violation of the Fair Labor Standards Act or any other applicable Requirements of Law dealing with such matters.
Section 3.16. Federal Reserve Regulations. No part of the proceeds of any Issuance will be used, whether directly
or indirectly, and whether immediately, incidentally or ultimately, for any purpose that results in a violation of the provisions of Regulation U.
(a) (i) None of the Issuer or any of its Subsidiaries or any of the respective directors or officers or, to the knowledge of the Issuer,
agents (solely to the extent acting in its capacity as an agent for the Issuer or any of its Subsidiaries) or employees of the Issuer or its Subsidiaries is the subject or target of any U.S. economic or financial sanctions administered by
the Office of Foreign Assets Control of the U.S. Treasury Department or the U.S. State Department (collectively, “Sanctions”); and (ii) the Issuer has not used and will not use, directly or, to its knowledge, indirectly, any part
of the proceeds of any Issuance or otherwise made or will make available such proceeds to any Person to finance the activities of any Person that is the subject or target of any Sanctions.
(b) To the extent applicable, each Note Party is in compliance, in all material respects, with the USA PATRIOT Act.
(c) (i) None of the Issuer or any of its Subsidiaries or any of the respective directors or officers or, to the knowledge of the Issuer,
agents (solely to the extent acting in its capacity as an agent for the Issuer or any of its Subsidiaries) or employees of the Issuer or any of its Subsidiaries, has taken any action, directly or indirectly, that would result in a
material violation by any such Person of the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), including, without limitation, making any offer, payment, promise to pay or authorization or approval of the payment
of any money, or other property, gift, promise to give or authorization of the giving of anything of value, directly or indirectly, to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in each case in contravention of the FCPA or any other applicable Anti-Corruption Law; and (ii) the Issuer has not used and will not use, directly or, to its knowledge, indirectly,
any part of the proceeds of any Issuance or otherwise made or will make available such proceeds to any governmental official or employee, political party, official of a political party, candidate for public office or anyone else acting in
an official capacity, in order to obtain, retain or direct business or obtain any improper advantage in violation of the FCPA.
The representations and warranties set forth in Section 3.17 above made by or on behalf of any Foreign Subsidiary are subject to and limited by any Requirement of Law applicable to such Foreign
Subsidiary; it being understood and agreed that to the extent that any Foreign Subsidiary is unable to make any representation or warranty set forth in Section 3.17 as a result of the application of this sentence, such Foreign
Subsidiary shall be deemed to have represented and warranted that it is in compliance, in all material respects, with any equivalent Requirement of Law relating to anti-terrorism, anti-corruption or anti-money laundering that is
applicable to such Foreign Subsidiary in its relevant local jurisdiction of organization.
Section 4.01. Closing Date. The obligation of each Purchaser to consummate the Term Loan Exchange shall not become
effective until the date on which each of the following conditions is satisfied (or waived in accordance with Section 9.02):
(a) Note Purchase Agreement and Other Documents. (i) The Purchaser Representative (or its counsel) shall have received from each
Note Party party thereto, a counterpart signed by such Note Party (or written evidence reasonably satisfactory to the Purchaser Representative (which may include a copy transmitted by facsimile or other electronic method) that such party
has signed a counterpart) of (A) each Initial Note and each First Amendment Note, (B) the Security Agreement, (iiiC) any Intellectual Property
Security Agreement and (CD) the
Note Guaranty and (ii) the Initial Purchasers (or its counsel) shall have received from each Note Party party thereto, a counterpart signed by such Note Party (or written evidence reasonably satisfactory to the Initial Purchasers (which
may include a copy transmitted by facsimile or other electronic method) that such party has signed a counterpart) of (A) the Registration Rights Agreement, (B) the Certificate of Designation Amendment, (C) the Investor’s Rights Agreement
Amendment, (D) the Series A Preferred Stockholder Consent and (E) the Certificate of Incorporation Amendment.
(b) Legal Opinions. The Purchaser Representative and the Purchasers (or their respective counsel) shall have received, on behalf
of itself and the Purchasers on the Closing Date, (i) a customary written opinion of Xxxx, Gotshal & Xxxxxx LLP, in its capacity as special New York and Delaware counsel for the Note Parties, and (ii) customary written opinions of
local counsel to the Note Parties organized in the jurisdictions set forth on Schedule 4.01(b), each dated the Closing Date and addressed to the Purchaser Representative and the Purchasers.
(c) Financial Statements and Pro Forma Financial Statements. The Purchaser Representative shall have received:
(i) the audited consolidated balance sheet of the Issuer for the Fiscal Year ended on December 31, 2022 and the
audited consolidated statements of income and cash flows of the Issuer for the Fiscal Year then ended; and
(ii) the unaudited consolidated balance sheet and the unaudited consolidated statements of operations and cash flows of
the Issuer for the Fiscal Quarters ended on March 31, 2022, June 30, 2022 and September 30, 2022.
It is understood and agreed that the condition set forth in this Section 4.01(c) has been satisfied as of the date hereof.
(d) Secretary’s Certificate and Good Standing Certificates. The Purchaser Representative (or its counsel) shall have received
(i) a certificate of each Note Party, dated the Closing Date and executed by a secretary, assistant secretary or other Responsible Officer thereof, which shall (A) certify that (w) attached thereto is a true and complete copy of the
certificate or articles of incorporation, formation or organization of such Note Party, certified by the relevant authority of its jurisdiction of organization, (x) the certificate or articles of incorporation, formation or organization
of such Note Party attached thereto has not been amended (except as attached thereto) since the date reflected thereon, (y) attached thereto is a true and correct copy of the by-laws or operating, management, partnership or similar
agreement of such Note Party, together with all amendments thereto as of the Closing Date and such by-laws or operating, management, partnership or similar agreement are in full force and effect and (z) attached thereto is a true and
complete copy of the resolutions or written consent, as applicable, of its board of directors, board of managers, sole member or other applicable governing body authorizing the execution and delivery of the Note Documents, which
resolutions or consent have not been modified, rescinded or amended (other than as attached thereto) and are in full force and effect, and (B) identify by name and title and bear the signatures of the officers, managers, directors or
other authorized signatories of such Note Party who are authorized to sign the Note Documents to which such Note Party is a party on the Closing Date and (ii) a good standing (or equivalent) certificate for such Note Party from the
relevant authority of its jurisdiction of organization, dated as of a recent date.
(e) Reserved.
(f) Fees. Prior to or substantially concurrently with the purchase of the Initial Notes and the First Amendment Notes hereunder, the Purchaser Representative or the Purchasers, as applicable, shall have received (i) all fees required to be paid
by the Issuer on the Closing Date pursuant to the Fee Letter (including the reasonable and documented out-of-pocket fees and expenses of one legal counsel to the Purchaser Representative) and (ii) all expenses required to be paid by the
Issuer to the Purchasers pursuant to the Transaction Support Agreement for which invoices have been presented at least three Business Days prior to the Closing Date or such later date to which the Issuer may agree (including the
reasonable and documented out-of-pocket fees and expenses of one legal counsel to the Purchasers, taken as a whole), in each case on or before the Closing Date, which amounts may be offset against the proceeds of the Notes.
(g) Effectiveness of Credit Agreement Amendment. The “Second Amendment Effective Date” under and as defined in Amendment No. 2
to Credit Agreement shall occur substantially contemporaneously with the occurrence of the Closing Date.
(h) Board Approval. The board of directors of the Issuer shall have approved the issuance of (x) the Series B Preferred Stock
and (y) all shares of Common Stock issuable upon the conversion of the Notes.
(i) Perfection Certificate. The Purchaser Representative (or its counsel) shall have received a completed Perfection Certificate
dated the Closing Date and signed by a Responsible Officer of each Note Party, together with all attachments contemplated thereby.
(j) Pledged Stock and Pledged Notes. Subject to the final paragraph of this Section 4.01, the Purchaser Representative
(or its counsel) shall have received evidence reasonably satisfactory to the Required Purchasers that (i) the certificates representing the Capital Stock required to be pledged pursuant to the Security Agreement, together with an undated
stock power or similar instrument of transfer for each such certificate endorsed in blank by a duly authorized officer of the pledgor thereof, and (ii) each Material Debt Instrument (if any) endorsed (without recourse) in blank (or
accompanied by an transfer form endorsed in blank) by the pledgor thereof have been delivered to the Purchaser Representative’s bailee, it being understood that the possession by the First Lien Credit Agreement Agent of such items as
gratuitous bailee and non-fiduciary agent for the benefit of the Secured Parties in accordance with the Second Lien Intercreditor and Subordination Agreement shall be deemed to satisfy the requirement set forth in this clause (j).
(k) Filings Registrations and Recordings. Subject to the final paragraph of this Section 4.01, each document (including
any UCC (or similar) financing statement) required by any Collateral Document to be filed, registered or recorded, in order to create in favor of the Purchaser Representative, for the benefit of the Secured Parties, a perfected Lien on
the Collateral required to be delivered pursuant to any Collateral Document, shall be in proper form for filing, registration or recordation.
(l) Outside Closing Date. The Closing Date shall have occurred on or before the Outside Closing Date (as defined in the
Transaction Support Agreement).
(m) Transaction Support Agreement. The Transaction Support Agreement shall not have been terminated with respect to any Company
Party (as defined in the Transaction Support Agreement) and/or any Consenting First Lien Lender (as defined in the Transaction Support Agreement) and shall be in full force and effect other than as a result of the occurrence of the
“Closing Date” thereunder on the Closing Date.
(n) Initial Budget. The Purchaser Representative shall have received an initial budget for Opco in substantially the form agreed
by Opco and the First Lien Credit Agreement Agent prior to the date hereof, which budget shall include the 13-week statement of anticipated cash receipts and disbursements of Opco and its subsidiaries, set forth on a weekly basis,
commencing with the first Thursday following the Closing Date.
(o) Issuance Approval. The Required Purchasers (or their counsel) shall have received evidence that the Issuance Approval has
been obtained.
(p) Series B Certificate of Designation. The Series B Certificate of Designation shall have been filed with the Secretary of
State of the State of Delaware.
For purposes of determining whether the conditions specified in this Section 4.01 have been satisfied on the Closing Date, by virtue of the deemed purchase of the Notes hereunder
on the Closing Date, each Purchaser shall be deemed to have consented to, approved or accepted, or to be satisfied with, each document or other matter required hereunder to be consented to or approved by or acceptable or satisfactory to
the Purchaser Representative or such Purchaser, as the case may be.
Section 4.02. Issuance of Delayed Draw Notes. The obligation of each Delayed Draw
Purchaser to purchase its Delayed Draw Notes on or after the Closing Date is subject solely to the satisfaction (or waiver in accordance with Section 9.02) of solely
the following conditions (in addition to the conditions set forth in clauses (a)(i), (c) and (d) of Section 4.03):
(a) The projected Liquidity (as determined by the Issuer in good faith) at any time during the 6-month period following the date of the
requested Issuance is below either (i) $20,000,000 or (ii) the applicable minimum Liquidity threshold required pursuant to Section 6.15(a) of the First Lien Credit Agreement.
(b) At least a majority of the disinterested directors of the board of directors of the Issuer shall have approved any such Issuance of
Delayed Draw Notes.
Section 4.03. Each Note Issuance. The obligation of (xw) each Purchaser to consummate the Term Loan Exchange and, (x) each First Amendment Purchaser to purchase any First Amendment
Notes, (y) each Delayed Draw Purchaser to purchase any Delayed Draw Notes and (z) each Additional Purchaser to purchase
any Additional Notes is subject, in each case, solely to the satisfaction (or waiver in accordance with Section 9.02) of the following conditions:
(a) The Purchaser Representative shall have received (i) in the case of any First Amendment Note, Delayed Draw Note or any Additional Note, an Issuance Request as required by Section 2.05(b) and (ii) in the case of any Additional Note,
an Additional Note Commitment Notice.
(b) In the case of any Additional Notes, the aggregate outstanding principal amount of the Additional Notes does not exceed the
Incremental Cap.
(c) At the time of and immediately after giving effect to the applicable Issuance of Notes, no Default or Event of Default shall have
occurred and be continuing.
(d) The representations and warranties of the Note Parties set forth in this Agreement and the other Note Documents shall be true and
correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) on and as of the Issuance date with the same effect as though such representations and warranties had been made on and as of
such Issuance date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in all material respects as of such date or for such period; provided,
however, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on
such respective dates or for such periods.
The delivery of each Issuance Request shall be deemed to constitute a representation and warranty by the Issuer on the date thereof as to the satisfaction of
the matters specified in clauses (b), (c) and (d) of this Section.
Section 4.04. Conditions Precedent to Agreement Effective Date. This Agreement shall be effective and valid and
binding on each party hereto on the date hereof (the “Agreement Effective Date”) when each of the following conditions precedent is satisfied (or waived in accordance with Section 9.02):
(a) The Purchaser Representative (or its counsel) shall have received from each Note Party and each other party hereto a counterpart
signed by such party (or a copy transmitted by facsimile or other electronic method) of this Agreement.
(b) No later than three Business Days in advance of the Agreement Effective Date, the Purchaser Representative shall have received all
documentation and other information reasonably requested with respect to any Note Party in writing by any Initial Purchaser or the Purchaser Representative at least ten Business Days in advance of the Agreement Effective Date, which
documentation or other information is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
(c) The Purchaser Representative shall have an executed copy of the Second Lien Intercreditor and Subordination Agreement, duly executed
by the parties thereto.
(d) [Reserved].
(e) The Initial Purchasers (or their counsel) shall have received a copy of (i) the Amendment No. 2 to Credit Agreement, (ii) the
Transaction Support Agreement and (iii) the Master Assignment and Assumption Agreement, duly executed by the parties thereto.
From the Closing Date until the date on which all Commitments have expired or terminated and the principal of and interest on each Note and all fees, expenses and other amounts payable
under any Note Document (other than contingent indemnification obligations for which no claim or demand has been made) have been paid in full in Cash (or such other form of consideration as the relevant recipient may agree), including
pursuant to Article 10 hereof (such date, the “Termination Date”), the Issuer hereby covenants and agrees with the Purchasers that:
Section 5.01. Financial Statements and Other Reports. The Issuer will deliver to the Purchaser Representative for
the Purchaser Representative to make available to each Purchaser:
(a) Quarterly Financial Statements. Within 50 days (or in the case of any Fiscal Quarter in which a Permitted Practice
Subsidiary Restructuring is consummated with respect to any material subsidiary (in the good faith determination of the Issuer), 75 days) after the end of each of the first three Fiscal Quarters of each Fiscal Year, commencing with the
Fiscal Quarter ending March 31, 2023, the consolidated balance sheet of the Issuer as at the end of such Fiscal Quarter and the related consolidated statements of operations and cash flows of the Issuer for such Fiscal Quarter and for the
period from the beginning of the then current Fiscal Year to the end of such Fiscal Quarter, and setting forth, in reasonable detail, in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year,
all in reasonable detail, together with a Responsible Officer Certification (which may be included in the applicable Compliance Certificate) with respect thereto; provided, however, that such financial statements shall
only be required to reflect the Issuer’s good faith estimate of any purchase accounting adjustments relating to any acquisition consummated after the Closing Date until the Fiscal Quarter ending March 31 of the Fiscal Year following the
Fiscal Year in which the relevant acquisition was consummated;
(b) Annual Financial Statements. Within 120 days after the end of each Fiscal Year ending on or after December 31, 2023, (i) the
consolidated balance sheet of the Issuer as at the end of such Fiscal Year and the related consolidated statements of operations, stockholders’ equity and cash flows of the Issuer for such Fiscal Year and setting forth, in reasonable
detail, in comparative form the corresponding figures for the previous Fiscal Year and (ii) with respect to such consolidated financial statements, a report thereon of an independent certified public accountant of recognized national
standing (which report, for each Fiscal Year ending after January 1, 2022, except for the Fiscal Years ending on or about December 31, 2022, December 31, 2023 and December 31, 2024, shall not be subject to a “going concern” explanatory
paragraph or like statement (except as resulting from (A) the impending maturity of any Indebtedness within the four full Fiscal Quarter period following the relevant audit date and/or (B) any breach or anticipated breach of any financial
covenant)), and shall state that such consolidated financial statements fairly present, in all material respects, the consolidated financial position of the Issuer as at the dates indicated and its income and cash flows for the periods
indicated in conformity with GAAP;
(c) Compliance Certificate; Monthly Reporting Package. Together with each delivery of financial statements of the Issuer
pursuant to Sections 5.01(a) and (b), (i) a duly executed and completed Compliance Certificate and (ii) solely with
respect to any Compliance Certificate delivered with financial statements pursuant to Section 5.01(a), information for the last month in the relevant Fiscal Quarter substantially consistent with that provided in the
Monthly Reporting Package. (it being
understood that, notwithstanding anything in the form of Compliance Certificate to the contrary, the information required by this clause (ii) shall not be required to be provided with any Compliance Certificate delivered with
financial statements under Section 5.01(b));
(d) [reserved];
(e) Notice of Default. Promptly upon any Responsible Officer of the Issuer obtaining knowledge of (i) any Default or Event of
Default or (ii) the occurrence of any event or change that has caused or evidences or would reasonably be expected to cause or evidence, either individually or in the aggregate, a Material Adverse Effect, a reasonably-detailed notice
specifying the nature and period of existence of such condition, event or change and what action the Issuer has taken, is taking and proposes to take with respect thereto;
(f) Notice of Litigation. Promptly upon any Responsible Officer of the Issuer obtaining knowledge of (i) the institution of, or
threat of, any Adverse Proceeding not previously disclosed in writing by the Issuer to the Purchaser Representative, or (ii) any material development in any Adverse Proceeding that, in the case of either of clauses (i) or (ii),
could reasonably be expected to have a Material Adverse Effect, written notice thereof from the Issuer together with such other non-privileged information as may be reasonably available to the Note Parties to enable the Purchasers to
evaluate such matters;
(g) ERISA. Promptly upon any Responsible Officer of the Issuer becoming aware of the occurrence of any ERISA Event that could
reasonably be expected to have a Material Adverse Effect, a written notice specifying the nature thereof;
(h) [Reserved];
(i) Information Regarding Collateral. Prompt (and, in any event, within 90 days of the relevant change) written notice (i) with
respect to the Issuer or any other Note Party that is a Domestic Subsidiary, of any change in (A) such Note Party’s legal name, (B) such Note Party’s type of organization, (C) such Note Party’s jurisdiction of organization or (D) such
Note Party’s organizational identification number, in each case, to the extent such information is necessary to enable the Purchasers to perfect or maintain the perfection and priority of the Purchaser Representative’s security interest
in the Collateral of the relevant Note Party, together with a certified copy of the applicable Organizational Document reflecting the relevant change, and (ii) with respect to any Note Party that is a Discretionary Guarantor, such types
of changes affecting the perfection or priority of the Purchaser Representative’s security interest in the applicable Collateral of such Discretionary Guarantor as the Issuer and the Required Purchasers have agreed in connection with such
Note Party becoming a Discretionary Guarantor;
(j) Cash Flow Forecasts. Not later than the Thursday of the last calendar week of each calendar
month during the Cash Flow Reporting Period, a rolling 13 week cash flow projection of Opco and its subsidiaries on a consolidated basis, each substantially in a form consistent with the Cash Flow Forecast delivered under Section 4.01
hereof or otherwise in form and detail reasonably satisfactory to the First Lien Credit Agreement Agent, together with a variance report showing on a line item basis the dollar variance of actual cash disbursements and cash receipts
versus the Cash Flow Forecast that was most recently provided; it being understood and agreed that the requirements set forth in this clause (j) shall not apply if the delivery date therefor does not occur during a Cash Flow
Reporting Period.
(k) Certain Reports. Promptly upon their becoming available and without duplication of any obligations with respect to any such
information that is otherwise required to be delivered under the provisions of any Note Document, copies of (i) all financial statements, reports, notices and proxy statements sent or made available generally by Holdings or its applicable
Parent Company to all of its security holders acting in such capacity and (ii) all regular and periodic reports and all registration statements (other than on Form S-8 or a similar form) and prospectuses, if any, publicly filed by
Holdings or its applicable Parent Company with any securities exchange or with the SEC or any analogous Governmental Authority or private regulatory authority with jurisdiction over matters relating to securities, in each case, other than
any prospectus with respect to any equity plan; and
(l) Monthly Reports. Within 30 days after the end of each month ending after the Closing Date (other than the last month of any
of the first three Fiscal Quarters of any Fiscal Year), (i) the consolidated balance sheet of the Issuer as at the end of such month and the related consolidated statements of income and cash flows of the Issuer for such month and for the
period from the beginning of the current Fiscal Year to the end of such month, setting forth in each case in comparative form the corresponding figures for the corresponding periods of the previous Fiscal Year, all in reasonable detail
and (ii) a monthly reporting package in substantially the form and detail agreed by the Issuer and the First Lien Credit Agreement Agent prior to the date hereof (the “Monthly Reporting Package”).
(m) Other Information. Such other certificates, reports and information (financial or otherwise) as the Required Purchasers may
reasonably request from time to time regarding the financial condition or business of the Issuer and its Restricted Subsidiaries.
Documents required to be delivered pursuant to this Section 5.01 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on
which the Issuer (or a representative thereof) (x) posts such documents or (y) provides a link thereto at the website address listed on Schedule 9.01; (ii) on which such documents are delivered by the Issuer to the Purchaser
Representative for posting on behalf of the Issuer on IntraLinks, SyndTrak or another relevant website (the “Platform”), if any, to which each Purchaser and the Purchaser Representative have access (whether a commercial,
third-party website or whether sponsored by the Purchaser Representative); (iii) on which such documents are electronically mailed to the Purchaser Representative (or transmitted to the Purchaser Representative in a manner to which the
Purchaser Representative may reasonably agree); and/or (iv) in respect of the items required to be delivered pursuant to Section 5.01(a), (b) and/or (k) (including with respect to such information filed by the
Issuer and/or any Parent Company), on which such items have been made available on the SEC website or the website of the relevant analogous governmental or private regulatory authority or securities exchange (including, for the avoidance
of doubt, by way of “XXXXX”).
Notwithstanding the foregoing, the obligations in paragraphs (a), (b) and (hl) of this Section 5.01 may be satisfied with respect to any financial statements of the Issuer by furnishing
(A) the applicable financial statements of Holdings or any other Parent Company or (B) Holding’s (or any other Parent Company’s), as applicable, Form 10-K or 10-Q, as applicable, filed with the SEC or any securities exchange, in each
case, within the time periods specified in such paragraphs; provided that, with respect to each of clauses (A) and (B), (i) to the extent such financial statements related to any Parent Company, such financial
statements shall be accompanied by consolidating information that summarizes in reasonable detail the differences between the information relating to such Parent Company, on the one hand, and the information relating to the Issuer and its
consolidated subsidiaries and Consolidated APCs on a standalone basis, on the other hand, which consolidating information shall be certified by a Responsible Officer of the Issuer as having been fairly presented in all material respects
and (ii) to the extent such statements are in lieu of statements required to be provided under Section 5.01(b), such statements shall be accompanied by a report and opinion of an independent registered public accounting firm of
nationally recognized standing, which report and opinion shall satisfy the applicable requirements set forth in Section 5.01(b) as if the references to “the Issuer” therein were references to such Parent Company.
No financial statement required to be delivered pursuant to Section 5.01(a) or (b) shall be required to include acquisition accounting adjustments relating to the
Transactions or any Permitted Acquisition or other Investment to the extent it is not practicable to include any such adjustments in such financial statement.
Section 5.02. Existence. Except as otherwise permitted under Section 6.07, the Issuer will, and will cause
each of its Restricted Subsidiaries to, at all times preserve and keep in full force and effect its existence and all rights, franchises, licenses and permits material to its business, in each case except, other than with respect to the
preservation of the existence of the Issuer, to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect; provided that neither the Issuer nor any of its Restricted Subsidiaries
shall be required to preserve any such existence (other than with respect to the preservation of existence of the Issuer), right, franchise, license or permit if a Responsible Officer of such Person or such Person’s board of directors (or
similar governing body) determines that the preservation thereof is no longer desirable in the conduct of the business of such Person, and that the loss thereof is not disadvantageous in any material respect to such Person or to the
Purchasers (taken as a whole).
Section 5.03. Payment of Taxes. The Issuer will, and will cause each of its Restricted Subsidiaries to, pay all
Taxes imposed upon it or any of its properties or assets or in respect of any of its income or businesses or franchises before any penalty or fine accrues thereon; provided, however, that no such Tax need be paid if (a) it is
being contested in good faith by appropriate proceedings, so long as (i) adequate reserves or other appropriate provisions, as are required in conformity with GAAP, have been made therefor and (ii) in the case of a Tax which has resulted
or may result in the creation of a Lien on any of the Collateral, such contest proceedings conclusively operate to stay the sale of any portion of the Collateral to satisfy such Tax or (b) failure to pay or discharge the same could not
reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
Section 5.04. Maintenance of Properties. The Issuer will, and will cause each of its Restricted Subsidiaries to,
maintain or cause to be maintained in good repair, working order and condition, ordinary wear and tear and casualty and condemnation excepted, all property reasonably necessary to the normal conduct of business of the Issuer and its
Restricted Subsidiaries and from time to time will make or cause to be made all needed and appropriate repairs, renewals and replacements thereof, in each case except as expressly permitted by this Agreement or where the failure to
maintain such properties or make such repairs, renewals or replacements could not reasonably be expected to have a Material Adverse Effect.
Section 5.05. Insurance. Except where the failure to do so would not reasonably be expected to have a Material
Adverse Effect, the Issuer will maintain or cause to be maintained, with financially sound and reputable insurers, such insurance coverage with respect to liability, loss or damage in respect of the assets, properties and businesses of
the Issuer and its Restricted Subsidiaries as may customarily be carried or maintained under similar circumstances by Persons of established reputation engaged in similar businesses, in each case in such amounts (giving effect to
self-insurance), with such deductibles, covering such risks and otherwise on such terms and conditions as shall be customary for such Persons. Each such policy of insurance shall, subject to Section 5.15 hereof, (i) name the
Purchaser Representative on behalf of the Secured Parties as an additional insured thereunder as its interests may appear and (ii) (A) to the extent available from the relevant insurance carrier in the case of each casualty insurance
policy (excluding any business interruption insurance policy), contain a lender loss payable clause or endorsement that names the Purchaser Representative, on behalf of the Secured Parties, as the loss payee thereunder and (B) to the
extent available from the relevant insurance carrier after submission of a request by the applicable Note Party to obtain the same, provide for at least 30 days’ prior written notice to the Purchaser Representative of any modification or
cancellation of such policy (or 10 days’ prior written notice in the case of the failure to pay any premiums thereunder).
Section 5.06. Inspection. The Issuer will, and will cause each of its Restricted Subsidiaries to, permit any
authorized representative designated by the Required Purchasers to visit and inspect any of the properties of the Issuer and any of its Restricted Subsidiaries at which the principal financial records and executive officers of the
applicable Person are located, to inspect, copy and take extracts from its and their respective financial and accounting records, and to discuss its and their respective affairs, finances and accounts with its and their Responsible
Officers and independent public accountants (provided that the Issuer (or any of its subsidiaries) may, if it so chooses, be present at or participate in any such discussion) at the expense of the Issuer, all upon reasonable notice
and at reasonable times during normal business hours; provided that (a) only the Purchaser Representative on behalf of and at the direction of the Required Purchasers may exercise the rights of the Required Purchasers under this Section
5.06 and (b) except as expressly set forth in the proviso below during the continuance of an Event of Default, the Purchaser Representative shall not exercise such rights more often than one time during any calendar year; provided,
further, that when an Event of Default exists, the Purchaser Representative (or any of its representatives or independent contractors) at the direction of the Required Purchasers may do any of the foregoing at the expense of the Issuer at
any time during normal business hours and upon reasonable advance notice; provided, further, that notwithstanding anything to the contrary herein, neither the Issuer nor any Restricted Subsidiary shall be required to disclose,
permit the inspection, examination or making of copies of or taking abstracts from, or discuss any document, information, or other matter (A) that constitutes non-financial trade secrets or non-financial proprietary information of the
Issuer and its subsidiaries and/or any of its customers and/or suppliers, (B) in respect of which disclosure to such Purchaser (or any of their respective representatives or contractors) is prohibited by applicable Requirements of Law,
(C) that is subject to attorney-client or similar privilege or constitutes attorney work product or (D) in respect of which the Issuer or any Restricted Subsidiary owes confidentiality obligations to any third party (provided that
such confidentiality obligations were not entered into in contemplation of the requirements of this Section 5.06).
Section 5.07. Maintenance of Books and Records. The Issuer will, and will cause its Restricted Subsidiaries to,
maintain proper books of record and account containing entries of all material financial transactions and matters involving the assets and business of the Issuer and its Restricted Subsidiaries that are full, true and correct in all
material respects and permit the preparation of consolidated financial statements in accordance with GAAP.
(b) The Issuer shall comply, and shall cause each of its subsidiaries to comply,: (i) in all material respects, with applicable Sanctions, the FCPA and USA PATRIOT Act; and (ii)
the requirements of all other applicable Requirements of Law (including applicable ERISA and all Environmental Laws), except to the extent the failure of the Issuer or the relevant Restricted Subsidiary to comply could not reasonably be
expected to have a Material Adverse Effect.
(c) Each Note Party shall (i) comply in all material respects with all Healthcare Laws, the terms of any Healthcare Permits and any order or directive of any Governmental
Authority with jurisdiction pursuant to Healthcare Laws and (ii) obtain and maintain in full force and effect all Healthcare Permits, in each case in this Section 5.08(b), except to the extent the failure of the same to be true
could not reasonably be expected to have a Material Adverse Effect.
(a) Environmental Disclosure. The Issuer will deliver to the Purchaser Representative as soon as practicable following the sending or receipt thereof by the Issuer or any
of its Restricted Subsidiaries, a copy of any and all written communications with respect to (A) any Environmental Claim that, individually or in the aggregate, has a reasonable possibility of giving rise to a Material Adverse Effect, (B)
any Release required to be reported by the Issuer or any of its Restricted Subsidiaries to any federal, state or local governmental or regulatory agency or other Governmental Authority that reasonably could be expected to have a Material
Adverse Effect, (C) any request made to the Issuer or any of its Restricted Subsidiaries for information from any governmental agency that suggests such agency is investigating whether the Issuer or any of its Restricted Subsidiaries may
be potentially responsible for any Hazardous Materials Activity which is reasonably expected to have a Material Adverse Effect and (D) subject to the limitations set forth in the proviso to Section 5.01(l), such other documents
and information as from time to time may be reasonably requested by the Required Purchasers in relation to any matters disclosed pursuant to this Section 5.09(a);
(b) Hazardous Materials Activities, Etc. The Issuer shall promptly take, and shall cause each of its Restricted Subsidiaries promptly to take, any and all actions
necessary to (i) cure any violation of applicable Environmental Laws by the Issuer or its Restricted Subsidiaries, and address with appropriate corrective or remedial action any Release or threatened Release of Hazardous Materials at or
from any Facility, in each case, that could reasonably be expected to have a Material Adverse Effect and (ii) make an appropriate response to any Environmental Claim against the Issuer or any of its Restricted Subsidiaries and discharge
any obligations it may have to any Person thereunder, in each case, where failure to do so could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Section 5.11. Use of Proceeds. The Issuer shall use the proceeds of the First Amendment Notes, any Delayed Draw Notes or any Additional Notes for general corporate purposes and for working capital needs. No part of the
proceeds of any Note will be used, whether directly or indirectly, for any purpose that would entail a violation of Regulation U or X. The Issuer will not directly or, to its knowledge, indirectly, use the proceeds of the Notes or
otherwise make available such proceeds (x) to offer, pay, promise to pay, or authorize the payment or giving of money, or anything else of value, to any Person in violation of any Anti-Corruption Law, (y) for the purpose of funding,
financing or facilitating the activities, business or transaction of or with any Person that is the subject or target of any Sanctions, except to the extent permitted in compliance with applicable Sanctions or (z) in any manner that would
result in the violation of any Sanction applicable to the Issuer and/or any Subsidiary.
(a) Upon (i) the formation or acquisition after the Closing Date of any Restricted Subsidiary that is a Domestic Subsidiary, (ii) [reserved], (iii) any Restricted Subsidiary that
is a Domestic Subsidiary ceasing to be an Immaterial Subsidiary or (iv) any Restricted Subsidiary that was an Excluded Subsidiary ceasing to be an Excluded Subsidiary, (x) if the event giving rise to the obligation under this Section
5.12(a) occurs during the first three Fiscal Quarters of any Fiscal Year, on or before the date on which financial statements are required to be delivered pursuant to Section 5.01(a) for the Fiscal Quarter in which the
relevant formation, acquisition, designation or cessation occurred or (y) if the event giving rise to the obligation under this Section 5.12(a) occurs during the fourth Fiscal Quarter of any Fiscal Year, on or before the date that
is 60 days after the end of such Fiscal Quarter (or, in the cases of clauses (x) and (y), such longer period as the Required Purchasers may reasonably agree), the Issuer shall (A) cause such Restricted Subsidiary (other
than any Excluded Subsidiary) to comply with the requirements set forth in clause (b) of the definition of “Collateral and Guarantee Requirement” and (B) upon the reasonable request of the Required Purchasers, cause the relevant
Restricted Subsidiary (other than any Excluded Subsidiary) to deliver to the Purchasers Representative a signed copy of a customary opinion of counsel for such Restricted Subsidiary, addressed to the Purchaser Representative and the other
relevant Secured Parties.
(b) Within 90 days after the acquisition by any Note Party of any Material Real Estate Asset other than any Excluded Asset (or such longer period as the Required Purchasers may
reasonably agree), the Issuer shall cause such Note Party to comply with the requirements set forth in clause (d) of the definition of “Collateral and Guarantee Requirement”; it being understood and agreed that, with respect to
any Material Real Estate Asset owned by any Restricted Subsidiary at the time such Restricted Subsidiary is required to become a Note Party under Section 5.12(a) above, such Material Real Estate Asset shall be deemed to have been
acquired by such Restricted Subsidiary on the first day of the time period within which such Restricted Subsidiary is required to become a Note Party under Section 5.12(a).
(c) Notwithstanding anything to the contrary herein or in any other Note Document, the Issuer may, in its sole discretion, elect to cause any Restricted Subsidiary and/or Parent
Company (any such Person, a “Discretionary Guarantor”) that is not otherwise required to be a Subsidiary Guarantor to provide a Note Guaranty by causing such Person to execute a Joinder Agreement, and any such Person shall
constitute a Note Party and a Guarantor for all purposes hereunder and, in the case of any Restricted Subsidiary so designated as a Discretionary Guarantor, shall cease to be an Excluded Subsidiary until such time as such Discretionary
Guarantor is released from its obligations under the Note Guaranty in accordance with Sections 8.09(b) and 9.22; it being understood and agreed that such Person shall grant a security interest in such categories of assets
pursuant to such documentation as the Issuer and the Required Purchasers may reasonably agree; provided that (i) in the case of any Discretionary Guarantor that is a Foreign Subsidiary, the jurisdiction of such person is
reasonably satisfactory to the Required Purchasers and (ii) the Purchaser Representative shall have received at least two business days prior to such person becoming a Guarantor, all documentation and other information in respect of such
person required under applicable “know your customer” and anti-money laundering rules and regulations (including the USA Patriot Act).
(d) After the First Lien Credit Agreement Obligations Payment Date, the Issuer shall, or shall cause each applicable Note Party to, use commercially reasonable efforts to enter
into a Control Agreement with respect to each Deposit Account (other than Excluded Accounts) of the Issuer and the other Note Parties within 120 days (as may be extended by the Required Purchasers or the Issuer) (i) after such date, in
the case of each such Deposit Account held by any Note Party on such date or (ii) after the later of (A) the date the holder of such Deposit Account becomes a Note Party and (B) the date of opening or acquisition of such Deposit Account;
provided that, if the applicable Note Party has used its commercially reasonable efforts to obtain such Control Agreement with respect to the applicable Deposit Account but has been unable to do so within the 120-day period (as may
be extended as provided above in this clause (d)), the obligation set forth in this clause (d) shall cease.
(e) Notwithstanding anything to the contrary herein or in any other Note Document, it is understood and agreed that:
(i) the Required Purchasers may grant extensions of time (including after the expiration of any relevant period, which apply retroactively) for the creation
and perfection of security interests in, or obtaining of title insurance, legal opinions, surveys or other deliverables with respect to, particular assets or the provision of any Note Guaranty by any Restricted Subsidiary (in connection
with assets acquired, or Restricted Subsidiaries formed or acquired, after the Closing Date), and each Purchaser hereby consents to any such extension of time,
(ii) any Lien required to be granted from time to time pursuant to the definition of “Collateral and Guarantee Requirement” shall be subject to the exceptions
and limitations set forth in the Collateral Documents,
(iii) perfection by control shall not be required with respect to assets requiring perfection through control agreements or other control arrangements (other
than (A) Control Agreements with respect to Deposit Accounts of Note Parties, to the extent constituting Collateral and otherwise required herein and (B) control of pledged Capital Stock and/or Material Debt Instruments, in each case to
the extent the same otherwise constitute Collateral),
(iv) no Note Party shall be required to seek any landlord lien waiver, bailee letter, estoppel, warehouseman waiver or other collateral access or similar letter
or agreement;
(v) no Note Party (other than any Discretionary Guarantor that is organized under the laws of the jurisdiction outside of the U.S.) will be required to (A)
take any action outside of the U.S. in order to create or perfect any security interest in any asset located outside of the U.S., (B) execute any security agreement, pledge agreement, mortgage, deed, charge or other collateral document
governed by the laws of any jurisdiction other than the U.S., any state thereof or the District of Columbia or (C) make any foreign intellectual property filing, conduct any foreign intellectual property search or prepare any foreign
intellectual property schedule, in each case other than with respect to a Foreign Subsidiary designated as a Subsidiary Guarantor pursuant to clause (c) above;
(vi) in no event will the Collateral include any Excluded Asset;
(vii) no action shall be required to perfect any Lien with respect to (1) any vehicle or other asset subject to a certificate of title, (2) Letter-of-Credit
Rights, (3) the Capital Stock of any Immaterial Subsidiary and/or (4) the Capital Stock of any Person that is not a subsidiary, which Person, if a subsidiary, would constitute an Immaterial Subsidiary, in each case except to the extent
that a security interest therein can be perfected by filing a Form UCC-1 (or similar) financing statement under the UCC; and
(viii) no action shall be required to perfect a Lien in any asset in respect of which the perfection of a security interest therein would (1) be prohibited by
enforceable anti-assignment provisions set forth in any contract that is permitted or otherwise not prohibited by the terms of this Agreement and is binding on such asset at the time of its acquisition and not incurred in contemplation
thereof (other than in the case of capital leases, purchase money and similar financings), (2) violate the terms of any contract relating to such asset that is permitted or otherwise not prohibited by the terms of this Agreement and is
binding on such asset at the time of its acquisition and not incurred in contemplation thereof (other than in the case of capital leases, purchase money and similar financings), in each case, after giving effect to the applicable
anti-assignment provisions of the UCC or other applicable law or (3) trigger termination of any contract relating to such asset that is permitted or otherwise not prohibited by the terms of this Agreement and is binding on such asset at
the time of its acquisition and not incurred in contemplation thereof (other than in the case of capital leases, purchase money and similar financings) pursuant to any “change of control” or similar provision, it being understood that (A)
the Collateral shall include any proceeds and/or receivables arising out of any contract described in this clause to the extent the assignment of such proceeds or receivables is expressly deemed effective under the UCC or other applicable
Requirements of Law notwithstanding the relevant prohibition, violation or termination right and (B) in no event shall this clause (viii) be construed to limit the perfection of a Lien on the rights and interests of any Note Party
under any Management Services Agreement, any other agreement constituting an Acceptable Practice Management Arrangement or any other agreement among any Note Party and any Affiliated Practice relating to the provision of management
services or fees, or any proceeds thereof, in each case, to the extent a security interest therein is otherwise required to be perfected in accordance with the terms of the Note Documents.
(ix) no Note Party shall be required to perfect a security interest in any asset to the extent the perfection of a security interest in such asset would be
prohibited under any applicable Requirement of Law,
(x) any joinder or supplement to any Note Guaranty, any Collateral Document and/or any other Note Document executed by any Restricted Subsidiary that is required
to become a Note Party pursuant to Section 5.12(a) above (including any Joinder Agreement) may, with the consent of the Required Purchasers (not to be unreasonably withheld or delayed), include such schedules (or updates to
schedules) as may be necessary to qualify any representation or warranty set forth in any Note Document to the extent necessary to ensure that such representation or warranty is true and correct to the extent required thereby or by the
terms of any other Note Document,
(xi) (A) no Note Party will be required to take any action required under the Federal Assignment of Claims Act and (B) no Secured Party will be permitted to
exercise any right of setoff in respect of any account maintained solely for the purpose of receiving and holding government receivables,
(xii) for the avoidance of doubt, (A) in no event shall any Affiliated Practice and/or any other person that is not a subsidiary be required to provide a
Guarantee of any Secured Obligation and (B) in no event shall any Affiliated Practice and/or any other person that is not a subsidiary (other than the Issuer) be required to comply with any other requirement of this Section 5.12,
(xiii) the Required Purchasers shall not require the Purchaser Representative to take a Lien on, or require the perfection of any Lien granted in, any asset as