UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
 
FORM 8-K
 

CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
 
Date of Report (Date of earliest event reported): April 17, 2023
 
 
ATI Physical Therapy, Inc.
(Exact name of registrant as specified in its charter)
 
 
Delaware
001-39439
85-1408039
(State or other jurisdiction of incorporation)
(Commission File Number)
(IRS Employer Identification No.)
 
790 Remington Boulevard
Bolingbrook, Illinois 60440
(Address of Principal Executive Offices, including Zip Code)
 
Registrant’s telephone number, including area code: (630) 296-2223
 
Not Applicable
(Former name or former address, if changed since last report)
 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2 below):
 
☐
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
☐
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
☐
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
☐
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
Securities registered pursuant to Section 12(b) of the Act:
 
Title of each class
 
Trading
Symbol(s)
 
Name of each exchange
on which registered
Class A Common Stock, $0.0001 par value
 
ATIP
 
NYSE
Redeemable Warrants, each whole warrant exercisable for one share of Class A Common Stock at an exercise price of $11.50 per share
  
ATIP WS
  
NYSE
 
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
 
Emerging growth company ☐
 
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
 
Item 1.01
Entry into a Material Definitive Agreement

On April 17, 2023, ATI Physical Therapy, Inc. (the “Company”) entered into (i) an Amended and Restated Transaction Support Agreement (the “A&R TSA”) to that certain Transaction Support Agreement, dated as of March 15, 2023, by and among the Company and certain of the Company’s affiliates, certain of its first lien lenders under the 2022 Credit Agreement (the “First Lien Lenders”), the administrative agent under the 2022 Credit Agreement, holders of its Series A Senior Preferred Stock (the “Preferred Equityholders”) and holders of the majority of its common stock (collectively, the “Parties”), (ii) Amendment No. 2 (the “Credit Agreement Amendment”) to the Company’s Credit Agreement, dated as of February 24, 2022, by and among ATI Holdings Acquisition, Inc. as borrower (“Opco”), Wilco Intermediate Holdings, Inc. (“Holdings”), Barclays Bank PLC, as administrative agent and issuing bank, and the lenders party thereto (the “2022 Credit Agreement” and together with the Credit Agreement Amendment, the “Credit Agreement”), (iii) a Second Lien Note Purchase Agreement (the “Note Purchase Agreement”), by and among the Company, Wilco Holdco, Inc. (“Wilco”), Holdings, Opco, the purchasers from time to time party thereto (the “Purchasers”) and Wilmington Savings Fund Society, FSB, as purchaser representative and (iv) certain other definitive agreements relating to the Transaction (as defined below) (such documents referred to collectively as the “Signing Date Definitive Documents”).
 
Transaction Support Agreement
 
The A&R TSA sets forth the principal terms of a comprehensive transaction to enhance the Company’s liquidity (the “Transaction”). Pursuant to the A&R TSA, the Company and the Parties agreed to and appended thereto substantially final forms of the remaining definitive documents (together with the Signing Date Definitive Documents, the “Definitive Documents”) and subject to the terms and conditions thereof, the Parties have agreed to support, act in good faith and take all steps reasonably necessary and desirable to consummate the transactions referenced therein by June 15, 2023 (the “Outside Closing Date”). Specifically, the Company has agreed, subject to stockholder approval of the Transaction, to a delayed draw new money financing in which the Company (i) may cause to be issued to the Purchasers an aggregate principal amount of $25.0 million (the “Delayed Draw Amounts”) in the form of a new stapled security, comprised of (A) second lien PIK convertible notes (the “Notes”) and (B) shares of Series B Preferred Stock (as defined below), which will provide the holder thereof with voting rights such that the holders thereof will have the right to vote on an as-converted basis as if the conversion occurred at an initial price per share equal to the average closing price for the five trading days immediately preceding the date on which the Note Purchase Agreement was signed (the “NYSE Minimum Price”), (ii) will facilitate the exchange of $100.0 million of the aggregate principal amount of the term loans under the 2022 Credit Agreement held by certain of the Preferred Equityholders for Notes and Series B Preferred Stock and (iii) will agree to certain other changes to the terms of the 2022 Credit Agreement, including modifications of the financial covenants thereunder. Holders of the Notes will also receive additional Notes upon the in-kind payment of interest on any outstanding Notes. The Notes will be convertible into shares of Class A common stock, par value $0.0001 per share, of the Company (“Common Stock”) at a fixed conversion price of $0.25 (subject to adjustment as provided in the Note Purchase Agreement, the “Conversion Price”).
 
In addition, as part of the Transaction, (1) the Preferred Equityholders’ preexisting rights as holders of the Company’s Series A Senior Preferred Stock to designate and elect one director to the Company’s board of directors (the “Board”) will be revised to provide that (aa) the Preferred Equityholders have the right to appoint three additional directors to the Board (resulting in the right of the Preferred Equityholders to appoint a total of four directors to the Board) until such time after the Closing Date that the Lead Purchaser (in each case, as defined in certain of the transaction agreements entered into in connection with the original issuance of the Series A Preferred Stock) ceases to hold at least 50.1% of the Series A Preferred Stock held by it as of the Closing Date, one of whom must be unaffiliated with (and independent of) the Preferred Equityholders and who must meet the definition of “independent” under the listing standards of the New York Stock Exchange, and by the Securities and Exchange Commission (the “SEC”); and (bb) all such designee directors of the Preferred Equityholders will be subject to consideration by the Board (acting in good faith and consistent with their review of other Board candidates) and (2) the provision in the certificate of designation of the Company’s Series A Senior Preferred Stock that eliminated the Preferred Equityholders’ director designation rights upon the Company’s achievement of certain amounts of EBITDA will be deleted (and the equivalent provision in that certain Investors’ Rights Agreement, dated as of February 24, 2022, by and among the Company and the Preferred Equityholders listed therein, will also be deleted).
 
In addition, the A&R TSA contains certain representations, warranties and other agreements by the Company and the Parties. The Company’s and the Parties’ obligations under the A&R TSA are, and the closing of the Transaction is, subject to various customary terms and conditions set forth therein, including the execution and delivery of definitive documentation and approval by the Company’s stockholders.
 
There is no assurance that the Transaction contemplated by the A&R TSA will be consummated on the terms as described above, on a timely basis or at all.
 
Credit Agreement Amendment
 
The Credit Agreement Amendment provides, among other things, (i) a reduction of the thresholds applicable to the minimum liquidity financial covenant under the 2022 Credit Agreement for certain periods, (ii) a waiver of the requirement to comply with the Secured Net Leverage Ratio financial covenant under the 2022 Credit Agreement for the fiscal quarters ending June 30, 2024, September 30, 2024 and December 31, 2024 and a modification of the levels and certain component definitions applicable thereto in the fiscal quarters ending after December 31, 2024, (iii) a waiver of the requirement for the Company to deliver audited financial statements without certain going concern qualifications for the years ended December 31, 2022, December 31, 2023, and December 31, 2024, (iv) an increase in the interest rate payable on the existing term loans and revolving loans until the achievement of a specified financial metric and (vi) board representation and observer rights and other changes to the governance of the Company.
 
Note Purchase Agreement and Series B Preferred Stock
 
The Note Purchase Agreement contains customary representations, warranties, conditions and indemnification obligations by each party thereto. The representation, warranties and covenants contained therein were made only for the purposes of the Note Purchase Agreement, and as of specific dates, were solely for the benefit of the parties to such agreement and are subject to certain limitations set forth therein.

Draws. Draws on the Delayed Draw Amounts will be available beginning immediately upon the closing of the Transaction (the “Closing Date”) and ending on the date that is 18 months after the Closing Date, the Company may request either (i) two draws in an amount of $12.5 million each, or (ii) one draw in an amount of $25.0 million, subject in each case to, (a) projected liquidity at any time during the 6-month period following the date of the relevant draw being below either (i) $20 million or (ii) the prevailing minimum liquidity covenant threshold, as determined by reference to the Credit Agreement and (b) the consent of at least a majority of the disinterested directors on our Board. The Note Purchase Agreement also provides, subject to certain conditions (including the receipt of commitments therefor) and consent rights outlined in the Note Purchase Agreement for the ability of the Company to issue up to an additional $150.0 million in Notes. Proceeds of the Notes will be used for general corporate purposes, subject to certain exceptions.

Interest. The Notes will bear interest at a rate of 8.00% per annum, payable quarterly in-kind in the form of additional Notes by capitalizing the amount of such interest on the outstanding principal balance of the Notes in arrears on each interest payment date.

Maturity. The Notes will mature on August 24, 2028, unless earlier repurchased or converted.
 
Conversion. The Notes may be converted, in whole or in part (if the portion to be converted is $1,000 principal amount or an integral multiple thereof), at the option of the holder, into shares of Common Stock based on the Conversion Price. The initial Conversion Price represents a discount of approximately 3% based on the NYSE Minimum Price.

Forced Conversion. On or after the second anniversary of the Closing Date, the Company may, at its option, from time to time, elect to convert a portion of the outstanding Notes into the number of shares of Common Stock issuable upon conversion based on the Conversion Price then in effect, subject in each case to the satisfaction of the conditions contained in the Note Purchase Agreement.
 
Adjustments to Conversion Price. The Conversion Price is subject to adjustment as a result of the following events:
 
 
•
the issuance of shares of Common Stock as a dividend or distribution;

 
•
effecting a share split or combination of the shares of Common Stock;

 
•
the issuance of any rights, options or warrants entitling holders of Common Stock, for a period of not more than 45 calendar days, to subscribe for or purchase shares of Common Stock at a price per share less than the average of the last reported sale price per share of Common Stock for the 10 trading days ending on, and including, the trading day immediately preceding the date of announcement of such issuance;

 
•
the distribution of distribution of capital stock, evidences of indebtedness or other assets or property of the Company or rights, options or warrants to acquire capital stock or other securities of the Company (subject to certain exceptions);

 
•
the issuance of a cash dividend or distribution;

 
•
a payment in respect of a tender or exchange offer for shares of Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of Common Stock exceeds the average of the last reported sale price per share of Common Stock for the 10 trading days commencing on, and including, the trading day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer; or

 
•
in the event of any issuance of Common Stock (or securities convertible into Common Stock) without consideration or for a consideration per share less than the Conversion Price in in effect immediately prior to such issuance or deemed issuance.

Guarantees; Collateral; Ranking.  The Notes will be guaranteed by Wilco, Holdings, Opco, and the subsidiaries of ATI Holdings Acquisition, Inc. that guaranty the obligations under the Credit Agreement. The Notes will be secured by the same collateral that secures the obligations under the Credit Agreement.
 
Pursuant to the terms of an intercreditor and subordination agreement, the Notes (and the guarantees thereof) will rank junior in right of payment to the obligations under the Credit Agreement, and the liens on the collateral securing the Notes will rank junior to the liens on such collateral securing the obligations under the Credit Agreement.

Other Covenants. The Note Purchase Agreement includes affirmative and negative covenants (other than financial covenants) that are substantially consistent with the Credit Agreement, as well as customary events of default.

Voting. The Company will issue to each holder of Notes shares of Series B Preferred Stock (the “Series B Preferred Stock”) in an amount equal to the quotient (rounded down to the nearest whole number) obtained by dividing (A) the amount paid by such holder to the Company for the Notes by (B) $1,000. The holders of shares of Series B Preferred Stock shall have full voting rights and powers equal to the voting rights and powers of the holders of Common Stock, and shall be entitled to notice of any stockholders' meeting in accordance with the bylaws of the Company, shall be entitled to vote, together with holders of Common Stock, with respect to any question upon which holders of Common Stock have the right to vote. Fractional votes shall not, however, be permitted, and any fractional voting rights available on an as-converted basis (after aggregating all shares into which shares of Series B Preferred Stock held by each holder could be converted) shall be rounded down to the nearest whole share of Series B Preferred Stock.
 
The Series B Preferred Stock shall not have any dividend or redemption rights and, in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, the holders of Series B Preferred Stock shall be entitled to be paid out of the assets of the Company available for distribution to its stockholders, after satisfying any senior payment obligations and before any payment in respect of any Common Stock, an amount per share of Series B Preferred Stock equal to $0.0001.

The Series B Preferred Stock shall be governed in all respects by Delaware law.

The Transaction is subject to the execution of the Definitive Documents, as well as customary closing conditions. In addition, the closing of the Transaction and the matters contemplated by each of the A&R TSA, Credit Agreement Amendment and Note Purchase Agreement, are subject in each case to approval by the Company’s stockholders.
 
The foregoing descriptions of the A&R TSA, Credit Agreement Amendment and Note Purchase Agreement do not purport to be complete and are qualified in their entirety by reference to the actual agreements as filed with this Current Report on Form 8-K, which agreements are incorporated herein by reference.
 
Cautionary Note Regarding Forward-Looking Statements
 
This Current Report includes statements that are not historical facts and are forward-looking statements for purposes of the safe harbor provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of the words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “project,” “forecast,” “predict,” “potential,” “seem,” “seek,” “future,” “outlook,” “target” or similar expressions that predict or indicate future events or trends or that are not statements of historical matters. Such statements include, but are not limited to, statements regarding the Transaction as discussed herein, and related matters. These statements are based on various assumptions, whether or not identified in this Current Report, and on the current expectations of the Company’s management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and may differ from assumptions. Many actual events and circumstances are beyond the control of the Company. Important factors that may cause actual results to differ materially from those in forward-looking statements include, but are not limited to, the Company’s ability to consummate the Transaction, on the terms proposed or at all, including the Company’s ability to obtain requisite support of the Transaction from various stockholders and to finalize the terms and documentation relating to the Transaction.
 
Additional risks and uncertainties that could affect the Company and its financial results are included under the captions “Risk Factors” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations” in the Company’s Annual Report on Form 10-K filed with the SEC on March 16, 2023, which is available on the Company’s website at investors.atipt.com and on the SEC’s website at www.sec.gov. Additional information will also be set forth in other filings that the Company makes with the SEC from time to time. All forward-looking statements in this Current Report are based on information available to the Company as of the date hereof, and the Company assumes no obligation to update the forward-looking statements provided to reflect events that occur or circumstances that exist after the date on which they were made, except as required by applicable law.
 
No Offer or Solicitation
 
This Current Report on Form 8-K shall not constitute a solicitation of a proxy, consent or authorization with respect to any securities. This communication shall also not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any states or jurisdictions in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended, or an exemption therefrom.
 
Item 2.03
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
 
The information required by this Item 2.03 is set forth under Item 1.01 above and is hereby incorporated by reference in response to this Item.
 
Item 9.01
Financial Statements and Exhibits.
 
(d) Exhibits:
 
10.1     Amended and Restated Transaction Support Agreement, dated April 17, 2023, by and among ATI Physical Therapy, Inc., ATI Holdings Acquisition, Inc., Wilco Intermediate Holdings, and other parties thereto.
 
10.2      Amendment No. 2 to Credit Agreement, dated April 17, 2023, by and among ATI Holdings Acquisition, Inc., Wilco Intermediate Holdings, Inc., HPS Investment Partners, LLC, as Lender Representative and Barclays Bank PLC, as Administrative Agent.
 
10.3      Second Lien Note Purchase Agreement, dated April 17, 2023, by and among ATI Physical Therapy, Inc., Wilco Holdco, Inc., Wilco Intermediate Holdings, Inc., ATI Holdings Acquisition, Inc., the Purchasers party thereto and Wilmington Savings Fund Society, FSB.
 
104       Cover Page Interactive Data File (embedded within the Inline XBRL document)
 
SIGNATURES
 
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
 
Date: April 21, 2023
ATI PHYSICAL THERAPY, INC.
   
 
By:
 /s/ Joseph Jordan
 
Name:
Joseph Jordan
 
Title:
Chief Financial Officer


Exhibit 10.1

Execution Version
THIS AMENDED & RESTATED TRANSACTION SUPPORT AGREEMENT IS NOT AND SHALL NOT BE DEEMED AN OFFER OR ACCEPTANCE WITH RESPECT TO ANY SECURITIES.  ANY SUCH OFFER OR SOLICITATION WILL COMPLY WITH ALL APPLICABLE SECURITIES LAWS.  NOTHING CONTAINED IN THIS AMENDED & RESTATED TRANSACTION SUPPORT AGREEMENT SHALL BE AN ADMISSION OF FACT OR LIABILITY OR, UNTIL THE OCCURRENCE OF THE SUPPORT EFFECTIVE DATE (AS DEFINED HEREIN), DEEMED BINDING ON ANY OF THE PARTIES TO THIS AGREEMENT ON THE TERMS DESCRIBED IN THIS AGREEMENT.
AMENDED & RESTATED TRANSACTION SUPPORT AGREEMENT
 
This AMENDED & RESTATED TRANSACTION SUPPORT AGREEMENT (together with all exhibits, schedules, and attachments hereto, as amended, supplemented, amended and restated, or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”), dated as of April 17, 2023, is entered into by and among:
 

 		(i)
ATI Physical Therapy Inc. (“Topco”), ATI Holdings Acquisition, Inc. (the “Borrower”), Wilco Intermediate Holdings, Inc. (“Holdings”) and the Guarantors under the Credit Agreement (each, a “Company Party” and collectively, the “Company” or the “Company Parties”);
 

 		(ii)
Barclays Bank PLC (“Barclays”), as lender under the Credit Agreement;
 

 		(iii)
Barclays, as Administrative Agent under the Credit Agreement (pursuant to Section 28 hereof);
 

 		(iv)
HPS Investment Partners, LLC, as Lender Representative under the Credit Agreement and each HPS Lender under the Credit Agreement (“HPS” and together with Barclays, the “Consenting First Lien Lenders”);
 

 		(v)
Certain entities affiliated with or managed by, or affiliates of each of (a) Knighthead Capital Management, LLC, (b) Marathon Asset Management LP, (c) Onex Credit Management LLC and Onex Credit Partners, LLC, and (d) Caspian Capital L.P., as holders of 100% of the Preferred Stock and, to the extent specified on the signature pages hereto, as lenders under the Credit Agreement; and
 

 		(vi)
The undersigned investment entities affiliated with Advent International Corporation (“Advent” and together with the Consenting First Lien Lenders and the Consenting Preferred Equityholders, the “Consenting Stakeholders”), as holder of the majority of the Common Stock issued and outstanding as of the date hereof.
 
Each Company Party and Consenting Stakeholder is referred to as a “Party” and collectively, the “Parties.”
 
WHEREAS, the Parties previously entered into that certain Transaction Support Agreement, dated March 15, 2023 (the “Original Transaction Support Agreement”), whereby the Parties agreed to undertake the Transaction (as defined herein) on the terms and subject to the conditions set forth therein, and to take certain actions in furtherance of their mutual support and commitment in respect of the Transaction;
 
WHEREAS, on April 14, 2023, the Parties entered into that certain Amendment No. 1 to the Original Transaction Support Agreement (as amended, the “Amended Transaction Support Agreement”);
 
WHEREAS, the Parties have agreed to amend and restate the Amended Transaction Support Agreement pursuant to this Agreement;
 
WHEREAS, the Parties have agreed to undertake the Transaction  on the terms and subject to the conditions set forth herein, including as set forth in the Transaction Term Sheet (as defined herein), which is the product of arm’s-length, good faith discussions between the Parties and their respective advisors;
 
WHEREAS, as of the date hereof, each Consenting First Lien Lender and Consenting Crossholder is the beneficial owner, or the investment advisor or manager for the beneficial owner(s), of Term Loans or Revolving Loans, as applicable, in the amount set forth on its signature page hereto;
 
WHEREAS, as of the date hereof, each Consenting Preferred Equityholder is the beneficial owner, or the investment advisor or manager for the beneficial owner(s), of Preferred Stock in the amounts set forth on its signature page hereto;
 
WHEREAS, as of the date hereof, HPS and the Consenting Crossholders collectively hold, directly or indirectly, 100% of the outstanding Term Loans;
 
WHEREAS, as of the date hereof, the Consenting Preferred Equityholders collectively hold, directly or indirectly, 100% of the Preferred Stock;
 
WHEREAS, as of the date hereof, Advent holds, directly or indirectly, in excess of 56% of the Common Stock issued and outstanding as of the date hereof; and
 
WHEREAS, the Parties desire to express to each other their mutual support and commitment in respect of the matters addressed in this Agreement, the Signing Date Definitive Documents and in the transaction term sheet attached hereto as Exhibit A (together with all term sheets, schedules, exhibits, and annexes attached thereto, and as may be modified in accordance with the terms hereof, the “Transaction Term Sheet”).
 
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
 
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 		1.
Certain Definitions.
 
Capitalized terms used but not defined in this Agreement shall have the meanings ascribed to them in the Transaction Term Sheet.
 
As used in this Agreement, the following terms have the following meanings:
 
(a)          “Administrative Agent” as defined in the definition of “Credit Agreement”.
 
(b)          “Agreement Among Lenders” has the meaning ascribed to the term “AAL” in the Credit Agreement.
 
(c)          “Agreement Among Lenders Amendment” means that certain Amendment to the Agreement Among Lenders, by and between the holders of the First Lien Loans.
 
(d)         “Alternative Transaction” means any plan, dissolution, winding up, liquidation, receivership, assignment for the benefit of creditors, workout, sale or disposition, reorganization, assignment for the benefit of creditors, merger, consolidation, tender offer, exchange offer, business combination, joint venture, partnership, sale of all or substantially all assets, debt equitization, recapitalization, refinancing, material amendment, new money financing transaction or restructuring of any of the Company Parties or their assets other than the Transaction.
 
(e)          “Assignment and Assumption Agreement” means the Master Assignment and Assumption Agreement, dated as of the date hereof, by and among the Consenting First Lien Lenders party thereto and the Borrower.
 
(f)          “Certificate of Designation Amendment” means that certain First Amended and Restated Certificate of Designation of Series A Senior Preferred Stock of Topco, to be filed with the Secretary of State of the State of Delaware on or prior to the Closing Date, substantially in the form attached to this Agreement as Exhibit C-2.
 
(g)          “Certificate of Incorporation Amendment” means that certain Third Amended and Restated Certificate of Incorporation of Topco, to be filed with the Secretary of State of the State of Delaware on or prior to the Closing Date to contain terms and conditions consistent in all material respects with this Agreement, including for the avoidance of doubt, the Transaction Term Sheet and the Definitive Documents.
 
(h)         “Claim” means, except as otherwise defined solely for the purposes of Section 6 of this Agreement, any right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.
 
(i)           “Closing Date” means the date on which the Transaction is consummated.
 
(j)         “Closing Date Definitive Documents” means (a) any documents relating to the Preferred Stock, including, without limitation, the Investors’ Rights Agreement Amendment, the Certificate of Designation Amendment, and the Consenting Preferred Equityholders’ Consent, (b) the Registration Rights Agreement, (c) the Management Incentive Program, (d) any other documents related to the amendment and/or restatement of the Organizational Documents of the Company required to implement the Transaction (including the Certificate of Incorporation Amendment), (e) the Series B Certificate of Designation and (f) such other related documents and ancillary agreements required to implement the Transaction.
 
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(k)          “Common Stock” means Topco’s issued and outstanding Class A common stock.
 
(l)          “Consenting Crossholder” means any party to this agreement which is both a lender under the Credit Agreement and a holder of Preferred Stock, in each case as indicated on the signature page or applicable Joinder Agreement for such party.
 
(m)        “Consenting Preferred Equityholder” means any party to this agreement which is a holder of Preferred Stock, as indicated on the signature page or applicable Joinder Agreement for such party.
 
(n)         “Consenting Preferred Equityholders’ Consent” means that certain Action by Written Consent of the Series A Senior Preferred Stockholders of the Company approving the Transaction and certain related matters, substantially in the form attached to this Agreement as Exhibit C-3.
 
(o)          “Credit Agreement” means that certain Credit Agreement, dated as of February 24, 2022, by and among the Borrower, Holdings, the lenders party thereto, Barclays, as Administrative Agent (together with its permitted successors and assigns in such capacity, the “Administrative Agent”), and HPS Investment Partners LLC, as Lender Representative, as amended by that certain Amendment No. 1 to Credit Agreement dated as of March 30, 2022, as shall be further amended by the Credit Agreement Amendment.
 
(p)          “Credit Agreement Amendment” means Amendment No. 2 to the Credit Agreement, dated as of the date hereof, by and among the Borrower, Holdings, the lenders party thereto, the Administrative Agent and the Lender Representative party thereto.
 
(q)          “Default” has the meaning assigned to such term in the Credit Agreement.
 
(r)          “Definitive Documents” means the Signing Date Definitive Documents and Closing Date Definitive Documents.
 
(s)          “Delayed Draw Note Commitment” has the meaning set forth in the Second Lien Note Purchase Agreement.
 
(t)           “Event of Default” has the meaning assigned to such term in the Credit Agreement.
 
(u)          “Fees and Expenses” has the meaning set forth in Section 4(v).
 
(v)          “First Lien Loans” means the Term Loans and the Revolving Loans.
 
(w)         “First Lien Termination Event” means, solely with respect to the Consenting First Lien Lenders, any of the following: (i) if (a) any Default that is, in the good faith determination of the Company, incapable of being cured or (b) an Event of Default shall occur under the Credit Agreement; provided, that, clause (i) shall not apply to any Specified Default; or (ii) notice of the occurrence of a Consenting Stakeholder Termination Event by any other Consenting Stakeholder.
 
-4-
(x)          “Governmental Authority” means any federal, state, local or other governmental authority having jurisdiction over any of the Company Parties.
 
(y)        “Intercreditor Agreement” means the Intercreditor Agreement, dated as of the date hereof, by and among the Administrative Agent and Wilmington Savings Fund Socieity, FSB, as “Purchaser Representative”, and acknowledged by the Company Parties signatory thereto.
 
(z)          “Interest” means any capital stock, membership interest, partnership interest, or other equity security or rights exercisable or exchangeable into capital stock or any other equity security, whether vested or unvested, of a Company Party.
 
(aa)       “Investors’ Rights Agreement” means that certain Investors’ Rights Agreement, dated February 24, 2022, by and among Topco and the Consenting Preferred Equityholders, among others.
 
(bb)       “Investors’ Rights Agreement Amendment” means that certain First Amendment to the Investors’ Rights Agreement, to be entered as of the Closing Date, by and among Topco and the Consenting Preferred Equityholders party thereto, substantially in the form attached to this Agreement as Exhibit C-1.
 
(cc)        “Joinder Agreement” means a joinder to this Agreement substantially in the form attached to this Agreement as Exhibit B providing, among other things, that such Person signatory thereto is bound by the terms of this Agreement.  For the avoidance of doubt, any party that executes a Joinder Agreement shall be a “Consenting Stakeholder” and “Party” under this Agreement as provided therein.
 
(dd)        “Loan Documents” has the meaning assigned to such term in the Credit Agreement.
 
(ee)        “Majority Consenting Preferred Equityholders” means, at any time, Consenting Preferred Equityholders that collectively beneficially own or control more than at least 50% of all issued and outstanding Preferred Stock at such time.
 
(ff)        “Management Incentive Program” means that certain management incentive program to be adopted by Topco as of the Closing Date on terms and conditions reasonably acceptable to each of the Consenting Stakeholders.
 
(gg)        “New Second Lien PIK Convertible Notes” means the “Initial Notes” (as defined in the Second Lien Note Purchase Agreement).
 
(hh)        “Organizational Documents” means (a) with respect to a corporation, the charter, articles or certificate of incorporation, as applicable, and bylaws thereof, (b) with respect to a limited liability company, the certificate of formation or organization, as applicable, and the operating or limited liability company agreement thereof, (c) with respect to a partnership, the certificate of formation and the partnership agreement, and (d) with respect to any other Person the organizational, constituent and/or governing documents and/or instruments of such Person.
 
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(ii)          “Outside Closing Date” means June 15, 2023.
 
(jj)         “Person” means any “person” as defined in section 101(41) of the Bankruptcy Code, including any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or other entity.
 
(kk)        “Preferred Equity Held Term Loans” means the Term Loans held by the Consenting Crossholders or their respective affiliates.
 
(ll)          “Preferred Stock” means Topco’s issued and outstanding Series A Preferred Stock.
 
(mm)      “Registration Rights Agreement” means that certain Registration Rights Agreement to be entered as of the Closing Date, by and among Topco and the Consenting Preferred Equityholders for the benefit of the holders of the New Second Lien PIK Convertible Notes and the shares of Common Stock into which such notes are convertible, substantially in the form attached to this Agreement as Exhibit C-4.
 
(nn)         “Revolving Credit Facility” means the “Revolving Facility” as defined in the Credit Agreement.
 
(oo)        “Revolving Loans” has the meaning assigned to such term in the Credit Agreement.
 
(pp)      “Second Lien Note Purchase Agreement” means the Note Purchase Agreement, dated as of the date hereof, by and among the Topco, as Issuer, the Borrower, Holdings, the Purchasers party thereto and Wilmington Savings Fund Society, FSB, as Purchaser Representative.
 
(qq)        “Securities Act” means the Securities Act of 1933, as amended.
 
(rr)         “Series B Certificate of Designation” means that certain Certificate of Designation of Series B Preferred Stock of Topco, to be filed with the Secretary of State of the State of Delaware on or prior to the Closing Date, substantially in the form attached to this Agreement as Exhibit C-5.
 
(ss)        “Signing Date Definitive Documents” means (a) the Credit Agreement Amendment, (b) the Assignment and Assumption Agreement, (c) the Second Lien Note Purchase Agreement, (d) the Agreement Among Lenders Amendment, and (e) the Intercreditor Agreement, each of which has been executed contemporaneously with this Agreement.
 
(tt)         “Special Committee” means those certain special committees of the boards of directors of Topco and Borrower.
 
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(uu)       “Specified Default” means any Default or Event of Default under Section 7.01(e) of the Credit Agreement prior to the Outside Closing Date arising from the Borrower’s failure to deliver an audit report for its fiscal year ended December 31, 2022 that satisfies the requirements set forth in Section 5.01(b) of the Credit Agreement.
 
(vv)        “Support Effective Date” means the date on which the counterpart signature pages to this Agreement have been executed and delivered by each of the Parties hereto.
 
(ww)       “Tax Code” means the Internal Revenue Code of 1986, as amended.
 
(xx)        “Term Loan Facility” means the “Term Facility” as defined in the Credit Agreement.
 
(yy)        “Term Loans” has the meaning assigned to such term in the Credit Agreement.
 
(zz)        “Transaction” means all acts, events, and transactions contemplated by, required for, and taken to implement the transactions contemplated under this Agreement (including the Signing Date Definitive Documents and the Transaction Term Sheet and for the avoidance of doubt, all schedules, exhibits and annexes attached thereto and hereto), pursuant to the Definitive Documents, each in the singular and collectively, as applicable.
 
(aaa)      “TSA Support Period” means the period commencing on the Support Effective Date and ending on the earliest of (i) with respect to any Party, the date on which this Agreement is terminated in accordance with Section 8 hereof with respect to such Party, (ii) the Outside Closing Date, and (iii) the Closing Date.
 

 		2.
Transaction Term Sheet; Definitive Documents.
 
(a)          Transaction Term Sheet. The Transaction Term Sheet is expressly incorporated herein by reference and made part of this Agreement as if fully set forth herein.  The Transaction Term Sheet and the Signing Date Definitive Documents set forth certain material terms and conditions of the Transaction.  Notwithstanding anything else in this Agreement to the contrary, in the event of any inconsistency between this Agreement and the Transaction Term Sheet (including the attachments thereto, as applicable), the Transaction Term Sheet (including the attachments thereto, as applicable) shall control.
 
(b)          Signing Date Definitive Documents.  Each of the Signing Date Definitive Documents has been finalized and executed by the requisite parties contemporaneously with the execution of this Agreement. Each Signing Date Definitive Documents shall become effective in accordance with the terms thereof.  Each Signing Date Definitive Document shall only be amended, restated, supplemented or modified in accordance with the terms thereof.
 
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(c)        Closing Date Definitive Documents.  Each of the Closing Date Definitive Documents attached hereto is in agreed form, subject to finalization and, to the extent applicable, execution by the requisite parties thereto.  Agreed forms of the (a) the Investors’ Rights Agreement Amendment, (b) the Certificate of Designation Amendment, (c) the Consenting Preferred Equityholders’ Consent, (d) the Registration Rights Agreement and (e) the Series B Certificate of Designation, each of which has been negotiated and agreed to by the Company and the applicable Consenting Stakeholders, are attached hereto as Exhibit C-1, C-2, C-3, C-4 and C-5, respectively.  To the extent not attached hereto, each of the other Closing Date Definitive Documents shall (i) contain terms and conditions consistent in all material respects with this Agreement, including, for the avoidance of doubt, the Transaction Term Sheet, as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with Section 12 herein and the Signing Date Definitive Documents, and (ii) to the extent any matter is not addressed in the Transaction Term Sheet or any Signing Date Definitive Document, shall be in form and substance reasonably acceptable to the Company and each of the Consenting Stakeholders party to the applicable Closing Date Definitive Document; provided, that, any provision of such Closing Date Definitive Document which has an adverse effect on HPS or the Revolving Lenders shall be in form and substance satisfactory to HPS or the Required Revolving Lenders, as applicable (such consent not to be unreasonably withheld).
 

 		3.
Agreements of the Consenting Stakeholders; Acknowledgment of the Company Parties.
 
(a)         Agreement to Support.  During the TSA Support Period, each of the Consenting Stakeholders agree, subject to the terms and conditions hereof (including, for the avoidance of doubt, the termination rights under Section 8), that each Consenting Stakeholder, severally and not jointly, shall use commercially reasonable efforts to:
 
(i)          support the Transaction, to act in good faith and to take any and all actions reasonably necessary to consummate the Transaction in a manner consistent with this Agreement, as promptly as practicable, and in no event later than the Outside Closing Date;
 
(ii)         not direct any Person to take any action inconsistent with the Consenting Stakeholder’s obligations under this Agreement, and, if such Person, at the direction of the Consenting Stakeholder in breach of this Agreement, takes any action inconsistent with the Consenting Stakeholder’s obligations under this Agreement, the Consenting Stakeholder shall direct and use commercially reasonable efforts to cause such Person to cease, withdraw, and refrain from taking any such action;
 
(iii)         negotiate in good faith the Closing Date Definitive Documents and, to the extent applicable, execute the Closing Date Definitive Documents;
 
(iv)        not directly or indirectly, through any Person, take any action, including initiating (or encouraging any other Person to initiate) any legal proceeding, that is inconsistent with or that would reasonably be expected to prevent, interfere with, delay, or impede the consummation of the Transaction;
 
(v)         to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Transaction, negotiate in good faith appropriate additional or alternative provisions to address any such impediment (to the extent not prohibited by law or regulation applicable to the Consenting Stakeholders);
 
(vi)       obtain and deliver such approvals, consents, waivers, and documents as are necessary to authorize the Consenting Stakeholders’ or the Company’s consummation and implementation of the Transaction in accordance with this Agreement, including the Transaction Term Sheet and the Signing Date Definitive Documents;
 
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(vii)       support and take all actions reasonably necessary or reasonably requested by the Company to confirm such Consenting Stakeholder’s support for, and facilitate the consummation of the Transaction (to the extent not prohibited by law or regulation applicable to the Consenting Stakeholders); and
 
(viii)       consent to the releases set forth in Section 6 hereof (it being understood that such releases shall not become effective until the Closing Date);
 
provided, that, any obligation, other than with respect to the commitment obligations in connection with any Delayed Draw Note Commitment, arising under this Section 3(a) shall not require any Consenting Stakeholder to, directly or indirectly, incur any non de minimis cost, expense, liability, or Claim.
 
(b)          Temporary Forbearance, Etc..
 
(i)          Forbearance by the Consenting Preferred Equityholders and Advent.  Each of the Consenting Preferred Equityholders and Advent shall temporarily forbear during the TSA Support Period from the exercise of any and all rights and remedies against any of the Company Parties in contravention of this Agreement or that would reasonably be expected to prevent, interfere with, delay, or impede the consummation of the Transaction, whether at law, in equity, by agreement or otherwise, which are or become available to them in respect of any Claims (as defined below) or Interests, as applicable, including, without limitation, any rights and all rights and remedies arising under or in connection with the Certificate of Designation or the Investors’ Rights Agreement, in each case to the maximum extent permitted by law. For the avoidance of doubt, the foregoing forbearance shall not be construed to impair the ability of the Consenting Stakeholders to take any remedial action, without requirement for any notice, demand, or presentment of any kind (except as required by the Credit Agreement and/or any other Loan Document), at any time after the TSA Support Period (unless the TSA Support Period is terminated solely as a result of the occurrence of the Closing Date).  If the Transaction is not consummated or if this Agreement is terminated for any reason (other than termination solely as a result of the occurrence of the Closing Date), the Consenting Stakeholders fully reserve any and all of their rights.
 
(ii)          Forbearance by Consenting First Lien Lenders.
 
(A)       To induce the Consenting First Lien Lenders to execute this Agreement, each Company Party (for itself and on behalf of each of their respective subsidiaries) hereby acknowledges, stipulates, represents, warrants and agrees as follows:
 
(1)          No Default or Event of Default under the Credit Agreement and/or any other Loan Document has occurred and is continuing as of the date hereof; provided that no representation is made in this sentence with respect to any Specified Default.  Except as expressly set forth in this Section 3(b)(ii) with respect to any Specified Default, the agreements of the Consenting First Lien Lenders hereunder to forbear in the exercise of their respective rights, remedies, powers, privileges and defenses under the Loan Documents in respect of any Specified Default during the TSA Support Period do not in any manner whatsoever limit any right of any of the Consenting First Lien Lenders to insist upon compliance with this Agreement or any Loan Document during the TSA Support Period.
 
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(2)         Nothing has occurred that constitutes or otherwise can be construed or interpreted as a waiver of, or, except as expressly set forth in this Section 3(b)(ii) with respect to any Specified Default, otherwise to limit in any respect, any rights, remedies, powers, privileges and defenses that the Administrative Agent, the Consenting First Lien Lenders or any other lenders under the Credit Agreement have or may have arising as the result of any Default or Event of Default (including any Specified Default) that has occurred or that may occur under the Credit Agreement, the other Loan Documents or applicable law.  Except as expressly set forth in this Section 3(b)(ii) with respect to any Specified Default, the Consenting First Lien Lenders’ actions in entering into this Agreement are without prejudice to the rights of any of the Administrative Agent, the Consenting First Lien Lenders or any other lenders under the Credit Agreement to pursue any and all remedies under the Loan Documents pursuant to applicable law or in equity available to it in its sole discretion upon the termination (whether upon expiration thereof, upon acceleration or otherwise) of the TSA Support Period.
 
(3)         All of the assets pledged, assigned, conveyed, mortgaged, hypothecated or transferred to the Administrative Agent pursuant to the Collateral Documents (as defined in the Credit Agreement) are (and shall continue to be) subject to valid and enforceable, subject to the Legal Reservations (as defined in the Credit Agreement), liens and security interests of the Administrative Agent, as collateral security for all of the Secured Obligations (as defined in the Credit Agreement), subject to no Liens other than Liens permitted by Section 6.02 of the Credit Agreement, and all of the Secured Obligations are secured by unavoidable, subject to the Legal Reservations, first-priority, subject to Liens permitted by Section 6.02 of the Credit Agreement, security interest in and liens on the Collateral, as described in the Collateral Documents.  Each Company Party (for itself and for each of their respective subsidiaries) hereby reaffirms and ratifies its prior conveyance to the Administrative Agent of a continuing security interest in and lien on the Collateral (as defined in the Credit Agreement).  There are no offsets, counterclaims or defenses (other than any defense arising from the permitted release of any Loan Party from its obligations under the Loan Documents in accordance with the express terms thereof) to any of the Secured Obligations, nor are there any bases for any arguments for avoidance, recharacterization, subordination or any other claim, cause of action or other challenge of any kind to the Secured Obligations or the security interests in and liens on the Collateral, as applicable, under the Bankruptcy Code or under any other applicable law or otherwise.
 
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(4)         Except as expressly set forth herein in this Section 3(b)(ii) with respect to any Specified Default, the Company Parties understand and accept the temporary nature of the forbearance provided hereby and that the Consenting First Lien Lenders have given no assurances that they will extend such forbearance beyond the TSA Support Period or provide waivers under or amendments to the Credit Agreement or any other Loan Document.  For the avoidance of doubt, and except as expressly set forth in this Section 3(b)(ii) with respect to any Specified Default, the forbearance in this Section 3(b)(ii) shall not be construed to impair the ability of the Consenting First Lien Lenders to take any remedial action, without requirement for any notice, demand, or presentment of any kind, at any time during or after the TSA Support Period (other than any such notice, demand or presentment that is required by the terms of the Loan Documents). If this Agreement is terminated for any reason, the Consenting First Lien Lenders fully reserve any and all of their rights.
 
(B)       Subject to (1) the occurrence of the Support Effective Date and (2) the continuing effectiveness and enforceability of the Loan Documents in accordance with their terms, the Consenting First Lien Lenders and the Consenting Crossholders agree to forbear in the exercise of their respective rights, remedies, powers, privileges and defenses under the Credit Agreement and the other Loan Documents solely in respect of any Specified Default during the TSA Support Period; provided that, (I) without limiting the terms of this clause (B), each Company Party shall comply with all limitations, restrictions, covenants and prohibitions that would otherwise be effective or applicable under the Loan Documents, and (II) nothing herein shall be construed as a waiver by the Administrative Agent, any Consenting First Lien Lender or any other Lender of any Specified Default.
 
(C)        Upon the occurrence of a termination of this Agreement with respect to any Consenting First Lien Lender, this Agreement shall automatically and without any further action or notice terminate and be of no force and effect with respect to such Consenting First Lien Lender; it being expressly agreed that the effect of such termination will be to permit the Consenting First Lien Lender to exercise, or cause the exercise of, any rights, remedies, powers, privileges and defenses available to any of them under the Credit Agreement, the other Loan Documents or applicable law, immediately, without any further notice, demand, passage of time, presentment, protest or forbearance of any kind (all of which each Company Party hereby waives), in each case, subject to the terms of the Credit Agreement and the other Loan Documents.
 
Notwithstanding anything contained in this Section 3(b)(ii) to the contrary, nothing in this Section 3(b)(ii) shall supersede, limit, waive or otherwise impair and/or modify the terms of any Definitive Document.
 
Notwithstanding anything to the contrary in this Agreement, it is understood and agreed for the avoidance of doubt that the provisions in this Agreement that reference any Specified Default shall not be deemed to constitute an acknowledgement, inference or admission by the Company that any Specified Default has occurred or will occur.
 
(c)       Preservation of Rights. Notwithstanding the foregoing, nothing in this Agreement, shall: (i) be construed to limit consent and approval rights provided in this Agreement, the Transaction Term Sheet, and the Definitive Documents; (ii) be construed to prohibit any Consenting Stakeholder from contesting whether any matter, fact, or thing is a breach of, or is inconsistent with, this Agreement; and (iii) constitute a waiver or amendment of any provision of any documents or agreements that give rise to a Consenting Stakeholder’s Claims or Interests, as applicable.
 
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(d)          [reserved].
 
(e)          [reserved].
 
(f)           [reserved].
 
(g)          Advent Voting Agreement.  During the TSA Support Period, (a) provided, that, the non-Advent Parties have complied with their obligations hereunder and that this Agreement shall not have been terminated by any non-Advent Party, and (b) subject in all respects to the negotiation and completion of the Definitive Documents reasonably acceptable to Advent and that are consistent in all material respects with the terms and subject to the conditions set forth herein and in the Transaction Term Sheet, Advent, in its capacity solely as a holder of the Common Stock,  hereby agrees to vote (in person or by proxy) at any meeting of the stockholders of Topco (whether annual, special or otherwise, and whether or not adjourned or postponed) or consent (or cause to be voted or consented) to any action by any written consent or resolution (x) in favor of any matters required under applicable law or stock exchange regulation to give effect to the Transaction, which shall include (i) the Company’s entry into the Definitive Documents, (ii) the appointment of directors to the board of directors of Topco by the Consenting Preferred Equityholders, (iii) any amendment and/or restatement of the Organizational Documents of the Company Parties or any other actions related to the Company’s corporate governance that are reasonably necessary to consummate the Transaction, (iv) a reverse split to raise the per-share trading price of the Common Stock in order to comply with applicable New York Stock Exchange (NYSE) listing rules and enable the Company to have sufficient authorized share capital to consummate the Transaction, and (v) any other transaction or proposal approved and/or recommended by the Special Committee, boards of directors, or members (as applicable) of the Company Parties relating directly or indirectly to the Transaction, which is reasonably necessary and appropriate to consummate the Transaction and are otherwise materially consistent with the Transaction Term Sheet and this Agreement and are reasonably acceptable to Advent, and (y) not support any other proposals that could reasonably be expected to delay or impair the ability of the Company to enter into the Definitive Documents or give effect to the Transaction.
 

 		4.
Agreements of the Company Parties.
 
(a)           Covenants. Each Company Party agrees that, for the duration of the TSA Support Period, such Company Party shall (and shall cause its subsidiaries to):
 
(i)          support and use commercially reasonable efforts to consummate and complete the Transaction and take any actions reasonably necessary to consummate the Transaction in a manner consistent with this Agreement, as promptly as practicable, and in no event later than the Outside Closing Date;
 
(ii)         if the Company Parties receive an unsolicited bona fide proposal or expression of interest in undertaking an Alternative Transaction the Company Parties shall, within 48 hours of the receipt of such expression of interest, notify the Consenting Stakeholders of the receipt thereof, with such notice to include the material terms thereof and thereafter comply with Section 4(a)(iii)(B);
 
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(iii)        not (A) solicit, initiate or encourage the submission of any proposal or offer from any Person relating to an Alternative Transaction or (B) participate in any discussions or negotiations regarding, furnish any information with respect to, assist or participate in, or facilitate in any other manner any effort or attempt by any Person to do or seek any of the foregoing, provided that, the foregoing shall not limit the Company’s rights under section 8(e)(ii) in connection with the Fiduciary Out;
 
(iv)        not, nor encourage any other person or entity to, take any action which would, or would reasonably be expected to, breach or be inconsistent with this Agreement or delay, impede, appeal, or take any other negative action, directly or indirectly, to interfere with the consummation or implementation of the Transaction and, if such person or entity takes any action inconsistent with any Company Party’s obligations under this Agreement, the Company Party shall direct and use commercially reasonable efforts to cause such person or entity to cease, withdraw, and refrain from taking any such action;
 
(v)          (a) during the TSA Support Period promptly (and no later than within five (5) business days after request) pay or reimburse the reasonable and documented, fees and out-of-pocket expenses of (1) Milbank LLP, counsel to HPS, (2) Davis Polk & Wardwell LLP, counsel to the Consenting Preferred Equityholders, (3) Ropes & Gray LLP, counsel to Advent, and (4) Cahill Gordon & Reindel LLP, counsel to Barclays and the Administrative Agent (collectively, the “Fees and Expenses”), and (b) upon the Closing Date, pay or reimburse any unpaid Fees and Expenses, in each case incurred pursuant to the representation of their respective client in connection with the negotiation, implementation, or closing of the Transaction and in each case by wire transfer to the applicable professional of immediately available funds;
 
(vi)       prepare such proxy statements, information statements or other disclosure documents with respect to solicitations of the Topco’s existing shareholders necessary or advisable to implement the Transaction, including providing any and all information reasonably required in connection therewith;
 
(vii)       to the extent any legal or structural impediment arises that would prevent, hinder, or delay the consummation of the Transaction, negotiate in good faith appropriate additional or alternative provisions to address any such impediment;
 
(viii)       consent to the releases set forth in Section 6 hereof;
 
(ix)       provide prompt written notice (in accordance with Section 22 hereof) to the Consenting First Lien Lenders, the Consenting Preferred Equityholders and Advent between the date hereof and the Closing Date of (A) receipt of any written notice from any Governmental Authority in connection with this Agreement or the Transaction; and (B) receipt of any written notice of any proceeding commenced, or, to the actual knowledge of the Company Parties, threatened against the Company Parties, that, if successful, would prevent or materially interfere with, delay, or impede the consummation of the Transaction;
 
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(x)         without limiting the generality of the foregoing, except as expressly contemplated by this Agreement or otherwise in the ordinary course of business consistent with past practice, each of the Company Parties shall not, without prior written consent of each of the Consenting Stakeholders, (A) amend its Organizational Documents, (B) combine or reclassify any shares of capital stock of the Topco or declare, set aside, or pay any dividend or other distribution in respect of the capital stock of the Company, or redeem, repurchase or otherwise acquire or offer to redeem, repurchase, or otherwise acquire any Company equity securities, (C) issue, deliver or sell, or authorize the issuance, delivery or sale of, any Company equity securities or amend any term of any Company equity security, except, for the avoidance of doubt, in connection with any grant under the Company’s 2021 Equity Incentive Plan (as amended, expanded or supplemented from time to time), or (D) enter into an agreement to do any of the foregoing;
 
(xi)        from and after the date of this Agreement and during the TSA Support Period, operate the business of the Company and its subsidiaries in a manner determined by the Company to be reasonable and prudent given the circumstances existing at the time; and
 
(xii)        not designate any subsidiaries as “Unrestricted Subsidiaries” under the Credit Agreement.
 

 		5.
Conditions to Effectiveness of the Transaction.
 
(a)          Conditions to Closing.  The closing of the Transaction and the obligations of the parties in connection therewith are subject to satisfaction of each of the following conditions:
 
(i)          each Closing Date Definitive Document and any other documentation necessary to consummate the Transaction (other than those documents permitted to be executed and delivered on a post-closing basis in accordance with the terms thereof) shall be in form and substance reasonably acceptable to, and have been executed and delivered by, each party thereto, provided, that, any provision of any Definitive Document (other than as set forth in the forms of the Closing Date Definitive Document described in clauses (a) and (b) of the definition thereof to the extent exhibited to this Agreement) which has an adverse effect on HPS or the Revolving Lenders shall be in form and substance reasonably satisfactory to HPS or the Required Revolving Lenders, as applicable;
 
(ii)         None of the Signing Date Definitive Documents shall have been terminated or amended, restated, modified or supplemented other than in accordance with the terms thereof;
 
(iii)         this Agreement shall be in full force and effect;
 
(iv)        the conditions precedent to the Transaction Term Sheet and any Definitive Document shall have been satisfied or waived by the appropriate parties in accordance with their terms
 
(v)          the Company Parties shall have paid or reimbursed any and all reasonable and documented, fees and out-of-pocket expenses of (A) Milbank LLP, counsel to HPS, (B) Davis Polk & Wardwell LLP, counsel to the Consenting Preferred Equityholders, (C) Ropes & Gray LLP, counsel to Advent, and (D) Cahill Gordon & Reindel LLP, counsel to Barclays and the Administrative Agent, in each case incurred pursuant to the representation of their respective client in connection with the negotiation, implementation, and closing of the Transaction;
 
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(vi)         approval by Topco stockholders of the Transaction and the other transactions contemplated by the Definitive Documents; and
 
(vii)        the Fees and Expenses as of such date shall be paid by the Company by wire transfer or immediately available funds.
 

 		6.
Releases.
 
(a)        In consideration of the agreements of the Company, HPS, the Consenting Preferred Equityholders, Advent and Barclays contained herein and in the Definitive Documents, and for other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, except with respect to the representations, warranties and/or covenants of the Company, HPS, the Consenting Preferred Equityholders, Advent and Barclays contained in the Definitive Documents and any other related transaction documents, (I) each Company Party, on behalf of itself and its successors, assigns, and other legal representatives (the “Company Releasing Parties”), hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges HPS, Barclays, each Consenting Preferred Equityholder, and Advent, and, in each case, its successors and assigns, and its present and former shareholders, direct and indirect owners, partners, members, managers, consultants, affiliates, subsidiaries, divisions, predecessors, directors, officers, employees, agents, attorneys, accountants, investment bankers, consultants and other representatives, and all Persons acting by, through, under or in concert with any of them, and each solely in their capacity as such (the “Company Released Parties”), (II) HPS, on behalf of itself and its successors, assigns, and other legal representatives (the “HPS Releasing Parties”), hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges each Company Party, Consenting Preferred Equityholders (solely in such equityholder’s capacity as a Consenting Preferred Equityholder), Barclays and Advent, and, in each case, its successors and assigns, and its present and former shareholders, direct and indirect owners, partners, members, managers, consultants, affiliates, subsidiaries, divisions, predecessors, directors, officers, employees, agents, attorneys, accountants, investment bankers, consultants and other representatives, and all Persons acting by, through, under or in concert with any of them, and each solely in their capacity as such (the “HPS Released Parties”), (III) each Consenting Preferred Equityholder, on behalf of itself and its successors, assigns, and other legal representatives (the “Consenting Preferred Equityholder Releasing Parties”), hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges each Company Party, HPS, Barclays and Advent and, in each case, its successors and assigns, and its present and former shareholders, direct and indirect owners, partners, members, managers, consultants, affiliates, subsidiaries, divisions, predecessors, directors, officers, employees, agents, attorneys, accountants, investment bankers, consultants and other representatives, and all Persons acting by, through, under or in concert with any of them, and each solely in their capacity as such (the “Consenting Preferred Equityholder Released Parties”), (IV) Advent, on behalf of itself and its successors, assigns, and other legal representatives (the “Advent Releasing Parties”), hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges each Company Party, HPS, Barclays and each Consenting Preferred Equity Holder, and, in each case, its successors and assigns, and its present and former shareholders, direct and indirect owners, partners, members, managers, consultants, affiliates, subsidiaries, divisions, predecessors, directors, officers, employees, agents, attorneys, accountants, investment bankers, consultants and other representatives, and all Persons acting by, through, under or in concert with any of them, and each solely in their capacity as such (the “Advent Released Parties”), and (V) Barclays, on behalf of itself and its successors, assigns, and other legal representatives (together with the Company Releasing Parties, the HPS Releasing Parties, the Consenting Preferred Equityholder Releasing Parties and the Advent Releasing Parties, the “Releasing Parties”) (each of (I)-(V) in their capacities as such), hereby absolutely, unconditionally and irrevocably releases, remises and forever discharges each Company Party, HPS, each Consenting Preferred Equity Holder and Advent, and, in each case, its successors and assigns, and its present and former shareholders, direct and indirect owners, partners, members, managers, consultants, affiliates, subsidiaries, divisions, predecessors, directors, officers, employees, agents, attorneys, accountants, investment bankers, consultants and other representatives, and all Persons acting by, through, under or in concert with any of them, and each solely in their capacity as such (together with the Company Released Parties, the HPS Released Parties, the Consenting Preferred Equityholder Released Parties and the Advent Released Parties, each in their capacities as such, the “Released Parties”), in each case, of and from all demands, actions, causes of action, suits, covenants, contracts, controversies, agreements, promises, sums of money, accounts, bills, reckonings, damages and any and all other claims, counterclaims, defenses, recoupment, rights of setoff, demands and liabilities whatsoever (individually, a “Claim” and collectively, “Claims”) of every name and nature, known or unknown, contingent or mature, suspected or unsuspected, both at law and in equity which any Releasing Party may now or hereafter own, hold, have or claim to have against the applicable Released Parties (as specified in this section 6(a)) or any of them for or on account of, or in relation to, or in any way in connection with the Company, the Company’s subsidiaries, the Transaction, actions taken to consummate the Transaction or any of the transactions contemplated thereunder or related thereto, and entry into the Definitive Documents; provided, that, (i) the release set forth in this Section 6(a) shall not be effective unless the Closing Date shall have occurred and (ii) nothing in this Section 6(a) shall be construed to (x) release the Released Parties from any (1) gross negligence, willful misconduct, or actual fraud, in each case as determined by a final order of a court of competent jurisdiction where such order is not subject to appeal, (2) Claims that arise solely from or relate to acts or omissions occurring after the Closing Date, (3) liability arising from or in connection with any pending shareholder or derivative actions filed against the Company or any of its officers and directors or any pending SEC inquiry or demand for information, or (4) obligations under, or waive any right to enforce, the terms of the Definitive Documents; or (y) (1) impact any Parties’ rights, as applicable and if any, to enforce the terms of the Loan Documents, including, without limitation, the indemnification provisions set forth therein, (2) constitute a waiver of any default or Event of Default arising thereunder or limit in any respect, any rights, remedies, powers, privileges and defenses that the Administrative Agent, the Consenting First Lien Lenders or any other lenders under the Credit Agreement have or may have arising as the result of any Default or Event of Default that has occurred or that may occur under the Credit Agreement or the other Loan Documents or (3) waive or release any indemnification and other obligations that are expressly stated in the Credit Agreement or any other Loan Document as surviving that respective agreement’s termination which shall remain in full force and effect.
 
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(b)          Each Releasing Party understands, acknowledges and agrees that the release set forth above may be pleaded as a full and complete defense and may be used as a basis for an injunction against any action, suit or other proceeding which may be instituted, prosecuted or attempted in breach of the provisions of such release.  Each Releasing Party agrees that no fact, event, circumstance, evidence or transaction which could now be asserted or which may hereafter be discovered shall affect in any manner the final, absolute and unconditional nature of the release set forth above.
 
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(c)        In entering into this Agreement, each Releasing Party has consulted with, and has been represented by, legal counsel and expressly disclaims any reliance on any representations, acts or omissions by any of the Released Parties and hereby agrees and acknowledges that the validity and effectiveness of the release set forth above does not depend in any way on any such representations, acts and/or omissions or the accuracy, completeness or validity hereof.  The release set forth herein shall survive the termination of this Agreement or the other agreements contemplated hereby.  Each Releasing Party acknowledges and agrees that the release set forth above may not be changed, amended, waived, discharged or terminated orally.
 
(d)          For the avoidance of doubt and notwithstanding anything in this Agreement to the contrary, the releases set forth in this Section 6 shall survive the termination of this Agreement but shall become effective only upon the closing of the Transaction.
 
(e)          References to Barclays in this Section 6 shall be a collective reference to Barclays Bank PLC in its capacity as Administrative Agent and Revolving Lender.
 

 		7.
Transfer of Claims, Interests and Securities.
 
(a)          Except as otherwise provided in the Transaction Term Sheet, during the TSA Support Period, the Consenting Stakeholders agree, subject to the terms and conditions hereof, that each Consenting Stakeholder, severally and not jointly, shall not sell, transfer, loan, issue, participate, pledge, hypothecate, assign or otherwise dispose of or offer or contract to pledge, encumber, assign, sell or otherwise transfer (each, a “Transfer”), directly or indirectly, in whole or in part, any of its Claims against or Interests in the Company or any option thereon or any right or interest therein, unless such Transfer is made to a Person that is or becomes party to this Agreement or is otherwise approved by the Company. Notwithstanding the foregoing, (i) the Consenting Stakeholders shall be permitted during the TSA Support Period to Transfer their Claims and Interests, as applicable, to their respective affiliates and managed funds and accounts without the consent of any other party, provided that any such affiliate or managed fund or accounts agrees to be bound by the terms of this Agreement; and (ii) the foregoing restriction shall not be applicable to transferees that are broker-dealers or trading desks in their capacity or to the extent of their holdings as a broker-dealer or market maker of claims engaged in market making or riskless back-to-back trades.
 
(b)          Notwithstanding anything to the contrary herein, except as otherwise provided in the Transaction Term Sheet, each of the Consenting Preferred Equityholders and Advent, severally and not jointly, agrees that such Consenting Preferred Equityholder or Advent shall not, during the TSA Support Period, Transfer, or contract to Transfer, in whole or in part, directly or indirectly, any portion of its right, title, or interests in any of its shares, stock, or other equity interests in Topco, to the extent such action would impair any of the U.S. income tax attributes of Topco, Borrower, Holdings or any of their subsidiaries including, for the avoidance of doubt, under section 382 of the Tax Code (or analogous provisions of state income tax law); provided, however, that, (1) with respect solely to this Section 7(b), upon receipt of written notice of any proposed Transfer or contract to Transfer of shares, stock or other equity interests in Topco, the Company shall (x) evaluate in good faith such proposed Transfer or contract to Transfer and, within 15 business days of the receipt of such notice, advise the proposing party as to whether such Transfer would result in an “ownership change” under Section 382 of the Internal Revenue Code (and to the extent applicable, U.S. Department of Treasury Regulations Section 1.1502-92) when viewed in the aggregate with any other proposed Transfers and (2) if the Company does not, within 15 business days, advise such proposing party that such proposed Transfer would be expected to result in such an “ownership change”, such Transfer shall not be prohibited by this Section 7(b).
 
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 		8.
Termination of Agreement.
 
(a)          This Agreement shall terminate as to all Parties or, if such termination arises under Section 8(e)(i) and (iv), the applicable Party, upon the receipt of written notice to such Parties, delivered in accordance with Section 22 hereof, from the Company Parties at any time after and during the continuance of any Company Termination Event.
 
(b)         This Agreement shall terminate with respect to a Consenting Stakeholder upon delivery to the other Parties of written notice, delivered in accordance with Section 22 hereof, from such Consenting Stakeholder at any time after and during the continuance of a Consenting Stakeholder Termination Event; provided, this Agreement shall remain in effect with respect to each other non-terminating Consenting Stakeholder unless and until such other Consenting Stakeholder separately terminates this Agreement as to itself pursuant to this Section 8(b).
 
(c)          This Agreement shall terminate with respect to each of HPS and Barclays upon delivery to the other Parties of written notice, delivered in accordance with Section 22 hereof, from HPS or Barclays, as applicable, at any time after and during the continuance of a First Lien Termination Event.
 
(d)          Notwithstanding any provision to the contrary in this Section 8, (A) except with respect to a Consenting Stakeholder Termination Event occurring under clause (ix) of the definition thereof, no Party may terminate this Agreement on account of a Company Termination Event or Consenting Stakeholder Termination Event, as applicable, caused by such Party’s failure to perform or comply in all material respects with the terms and conditions of this Agreement or where such Party is otherwise in breach of this Agreement (in each case unless such failure to perform, failure to comply, or breach arises from another Party’s breach of this Agreement that would otherwise be a Company Termination Event or Consenting Stakeholder Termination Event, as applicable) and (B) solely with respect to the Consenting First Lien Lenders, if (i) any Default that is, in the good faith determination of the Company, incapable of being cured or (ii) an Event of Default shall occur under the Credit Agreement, a Consenting First Lien Lender may terminate this Agreement on account of a Consenting Stakeholder Termination Event.
 
(e)          A “Company Termination Event” shall mean any of the following:
 
(i)          with respect to the applicable Consenting Stakeholder only, the breach in any material respect by any of the Consenting Stakeholders of any of the undertakings, representations, warranties, or covenants set forth herein in any material respect that remains uncured for a period of five (5) business days after the receipt of written notice of such breach pursuant to Section 22 hereof (as applicable);
 
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(ii)          the Special Committee, boards of directors, or members (as applicable) of the Company Parties reasonably determines in good faith based upon the advice of outside counsel that continued performance under this Agreement or pursuit of the Transaction would be inconsistent with the exercise of its fiduciary duties under applicable law; provided, however, that in the event a Company Party desires to terminate this Agreement pursuant to this Section 8(e)(ii) (such right to terminate this Agreement pursuant to this Section 8(e)(ii), the “Fiduciary Out”), the Company Party shall as soon as reasonably practicable but in no event less than one (1) day advance written notice to the Consenting First Lien Lenders, the Consenting Preferred Equityholders and Advent prior to the date such Company Party elects to terminate this Agreement pursuant to the Fiduciary Out advising the Consenting First Lien Lenders, the Consenting Preferred Equityholders and Advent that such Company Party intends to terminate this Agreement pursuant to the Fiduciary Out;
 
(iii)         the issuance by any Governmental Authority, including any regulatory authority or court of competent jurisdiction, of any ruling, judgment or order declaring this Agreement to be unenforceable, enjoining the consummation of a material portion of the Transaction or rendering illegal this Agreement or the Transaction, where such ruling, judgment or order has not been not stayed, reversed or vacated within twenty-five (25) calendar days after such issuance and where the Company has used commercially reasonable efforts to cause such ruling to be stayed, reversed, or vacated;
 
(iv)         if any Consenting Stakeholder (A) publicly announces their intention not to support the Transaction or (B) validly terminates this Agreement as to themselves pursuant to Section 8(b), in which case the Company can terminate as to such Consenting Stakeholder;
 
(v)          if the Closing Date Definitive Documents shall not have been executed by the requisite parties by the Outside Closing Date; or
 
(vi)         if the Transaction shall not have been consummated by the Outside Closing Date.
 
Notwithstanding the foregoing, any of the dates or deadlines set forth in this Section 8 may be extended in writing by agreement of the Company, the Consenting First Lien Lenders, the Consenting Preferred Equityholders and Advent (email being sufficient), provided, for the avoidance of doubt, that the Outside Closing Date shall only be extended in accordance with the terms of section 12 of this Agreement.
 
(f)          A “Consenting Stakeholder Termination Event” shall mean any of the following:
 
(i)          the material breach by any Company Party or another Consenting Stakeholder of (A) any covenant contained in this Agreement or (B) any other obligations of the Company Parties set forth in this Agreement, and, in each case, such breach remains uncured for a period of five (5) business days after receipt of written notice thereof pursuant to Section 22 hereof (as applicable);
 
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(ii)          the representations or warranties made by the Company will have been untrue in any material respect when made;
 
(iii)         the representations or warranties made by any Consenting Stakeholder will have been untrue in any material respect when made;
 
(iv)        the Definitive Documents and any amendments, modifications, or supplements thereto include terms that are materially inconsistent with the Transaction Term Sheet and are not otherwise reasonably acceptable to the Consenting Stakeholders who have consent rights over the applicable Definitive Document in accordance with Section 2(b) hereof, and such event remains unremedied for a period of five (5) business days following the Company Parties’ receipt of notice pursuant to Section 22 hereof (as applicable);
 
(v)         the issuance by any Governmental Authority, including any regulatory authority or court of competent jurisdiction, of any ruling, judgment or order declaring this Agreement to be unenforceable, enjoining the consummation of the Transaction or rendering illegal this Agreement or the Transaction, and either (A) such ruling, judgment or order has been issued at the request of or with the acquiescence of a Company Party, or (B) in all other circumstances, such ruling, judgment or order has not been not stayed, reversed or vacated within twenty-five (25) calendar days after such issuance;
 
(vi)         if any Company Party (A) proposes, supports or agrees in writing to pursue (including, for the avoidance of doubt, as may be evidenced by a duly executed term sheet, letter of intent, or similar document) an Alternative Transaction, or (B) validly terminates this Agreement as to themselves pursuant to Section 8(b);
 
(vii)        [reserved];
 
(viii)       if the Closing Date Definitive Documents shall not have been executed by the requisite parties by the Outside Closing Date;
 
(ix)         if the Transaction shall not have been consummated on or before the Outside Closing Date;
 
(x)          solely with respect to the Consenting First Lien Lenders, a First Lien Termination Event;
 
(xi)         with respect to any Consenting Stakeholder other than the Consenting First Lien Lenders, obligations under the Credit Agreement shall have been accelerated and/or one or more lenders shall have exercised remedies thereof; or
 
(xii)      with respect to Advent, this Agreement is terminated by (i) any of the Consenting First Lien Lenders or (ii) Consenting Preferred Equityholders that collectively beneficially own or control more than 50% of all issued and outstanding Preferred Stock as of the date of such termination.
 
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(g)          Mutual Termination. This Agreement may be terminated by mutual agreement of each Party upon the receipt of written notice delivered in accordance with Section 22 hereof.
 
(h)          Automatic Termination. This Agreement shall terminate automatically, without any further action required by any Party, upon:
 
(i)        the filing or commencement of any proceeding relating to any of the Company Parties under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or liquidation law of any jurisdiction, the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of any of the Company Parties or of any substantial part of their property;
 
(ii)          the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of any of the Company Parties or of any substantial part of their property;
 
(iii)        the making by any of the Company Parties of an assignment for the benefit of creditors or the admission by any of the Company Parties in writing of its inability to pay its debts generally as they become due; and
 
(iv)         the occurrence of the Closing Date.
 
For the avoidance of doubt, the termination events outlined in this Section 8 shall not survive the Closing Date.
 
(i)          Effect of Termination. Upon the termination of this Agreement as to a Party in accordance with this Section 8, if the Transaction has not been consummated, and except as provided in Section 16 hereof, this Agreement shall forthwith become void and of no further force or effect as to such Party and such Party shall, except as provided otherwise in this Agreement, be immediately released from its liabilities, forbearances, obligations, commitments, undertakings and agreements under or related to this Agreement and shall have all the rights and remedies that it would have had and shall be entitled to take all actions, whether with respect to the Transaction or otherwise, that it would have been entitled to take had it not entered into this Agreement, including all rights and remedies available to it under applicable law and any applicable agreements (including, for the avoidance of doubt, the Loan Documents); provided, however, that, in no event shall any such termination relieve a Party from liability for its breach or non-performance of its obligations hereunder prior to the date of such termination; provided, further, for the avoidance of doubt, that the Signing Date Definitive Documents shall only become effective in accordance with the respective terms thereof.
 
(j)          If the Transaction has not been consummated prior to the date of termination of this Agreement, nothing herein shall be construed as a waiver by any Party of any or all of such Party’s rights and the Parties expressly reserve any and all of their respective rights.  Pursuant to Federal Rule of Evidence 408 and any other applicable rules of evidence, this Agreement and all negotiations relating hereto shall not be admissible into evidence in any proceeding other than a proceeding to enforce its terms.
 
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 		9.
Definitive Documents; Good Faith Cooperation; Further Assurances.
 
Subject to the terms and conditions described herein, during the TSA Support Period, each Company Party, severally and jointly, and each Consenting Stakeholder, severally but not jointly, hereby covenants and agrees to reasonably cooperate with the other Parties in good faith in connection with, and shall exercise commercially reasonable efforts with respect to the pursuit, approval, implementation, and consummation of the Transaction pursuant to the Transaction Term Sheet and the Signing Date Definitive Documents, as well as the negotiation, drafting, execution (to the extent such Party is a party thereto), and delivery of the Closing Date Definitive Documents.  Furthermore, subject to the terms and conditions hereof, during the TSA Support Period each Consenting Stakeholder, severally but not jointly, shall each use reasonable efforts to take such action as may be reasonably necessary or reasonably requested by the other Parties to carry out the purposes and intent of this Agreement, including the making and filing of any required regulatory filings, and shall each refrain from taking any action that would frustrate the purpose and intent of this Agreement; provided, that, (x) any obligation, other than with respect to the commitment obligations in connection with the Delayed Draw Note Commitments, arising under this Section 9 shall not require any Consenting Stakeholder to, directly or indirectly, incur any non de minimis cost, expense, liability, or Claim and (y) for the avoidance of doubt, and notwithstanding anything herein or the Transaction Term Sheet to the contrary, in no instance shall any Closing Date Definitive Document cause, require, or in any way permit any Company Party or any of their affiliates to amend, modify, impair, or in any way alter any indemnification or contribution agreement, undertaking, or obligation in favor of any Advent Released Party currently in place as of the date hereof.
 

 		10.
Representations and Warranties.
 
(a)          Each Consenting Stakeholder, severally and not jointly, and each Company Party, severally and jointly, represent and warrant to the other Parties that the following statements are true, correct and complete as of the date hereof:
 
(i)        such Party is validly existing and in good standing under the laws of its jurisdiction of incorporation or organization, and has all requisite corporate, partnership, limited liability company or similar authority to enter into this Agreement and carry out the transactions contemplated hereby and perform its obligations contemplated hereunder, and the execution and delivery of this Agreement and the performance of such Party’s obligations hereunder have been duly authorized by all necessary corporate, limited liability company, partnership or other similar action on its part;
 
(ii)         the execution, delivery and performance by such Party of this Agreement does not and will not (A) violate any material provision of law, rule or regulation applicable to it or, as applicable, any of its subsidiaries or its charter or bylaws (or other similar governing documents) or those of any of its subsidiaries or (B) conflict with, result in a breach of or constitute (with due notice or lapse of time or both) a default under any material contractual obligation to which it or, as applicable, any of its subsidiaries is a party, other than any default contemplated by the Transaction;
 
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(iii)        the execution, delivery and performance by such Party of this Agreement does not and will not require any registration or filing with, consent or approval of, or notice to, or other action, with or by, any federal, state or Governmental Authority or regulatory body;
 
(iv)        this Agreement is the legally valid and binding obligation of such Party, enforceable against it in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or limiting creditors’ rights generally or by equitable principles relating to enforceability;
 
(v)        such Party (A) is a sophisticated party with respect to the subject matter of this Agreement and the transactions contemplated hereby, (B) has adequate information concerning the matters that are the subject of this Agreement and the transactions contemplated hereby, (C) has such knowledge and experience in financial and business matters of this type that it is capable of evaluating the merits and risks of entering into this Agreement and of making an informed investment decision, and has independently and without reliance upon any warranty or representation by, or information from, any other Party or any officer, employee, agent or representative thereof, of any sort, oral or written, except the warranties and representations expressly set forth in this Agreement, and based on such information as such Party has deemed appropriate, made its own analysis and decision to enter into this Agreement and the transaction contemplated hereby, and (D) acknowledges that it has entered into this Agreement voluntarily and of its own choice and not under coercion or duress;
 
(vi)        with respect to the Company, such Party is not aware of the occurrence of any event, fact or circumstance that, due to any fiduciary or similar duty to any other Person, would prevent it from taking any action required of it under this Agreement; and
 
(vii)        such Party is not currently engaged in any discussions, negotiations or other arrangements with respect to any Alternative Transaction.
 
(b)         Each Consenting First Lien Lender, severally and not jointly, represents and warrants to the other Parties that such Consenting First Lien Lender (A) is the beneficial owner of the aggregate principal amount of Term Loans or Revolving Loans, as applicable, set forth below its name on the signature page hereto, free and clear of any restrictions on transfer, liens, or options, warrants, purchase rights, contracts, commitments, claims, demands, and other encumbrances and does not own any other First Lien Loans, and/or (B) has sole investment and/or voting discretion and/or authority to vote on and provide consent or waivers with respect to such Term Loans or Revolving Loans.
 
(c)         Each Consenting Preferred Equityholder, severally and not jointly, represents and warrants to the other Parties that, as of the date hereof, each Consenting Preferred Equityholder (i) is the owner of the number of shares of Preferred Stock set forth below its name on the signature page hereto, free and clear of any restrictions on transfer, liens or options, warrants, purchase rights, contracts, commitments, claims, demands, and other encumbrances and does not own any other existing equity interests and (ii) has (A) sole investment or voting discretion with respect thereto, and (B) full power and authority to vote on and consent to matters concerning such equity interests or to exchange, assign, and transfer such equity interests.
 
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(d)         Advent, severally and not jointly, represents and warrants to the other Parties that, as of the date hereof, Advent (i) is the owner of the number of shares of Common Stock set forth below its name on the signature page hereto, free and clear of any restrictions on transfer, liens or options, warrants, purchase rights, contracts, commitments, claims, demands, and other encumbrances and does not own any other existing equity interests and (ii) has (A) sole investment or voting discretion with respect thereto, and (B) full power and authority to vote on and consent to matters concerning such equity interests or to exchange, assign, and transfer such equity interests.
 
(e)         Each Consenting Stakeholder represents and warrants to the other Parties that it (i) is an accredited investor (as such term is defined in Rule 501(a) of Regulation D promulgated under the Securities Act), (ii) understands that any securities to be acquired by it (if any) pursuant to the Transaction have not been registered under the Securities Act and that such securities are being offered and sold pursuant to the exemption from registration pursuant to Regulation D promulgated under the Securities Act, based in part upon such Consenting Stakeholder’s representations, as applicable, contained in this Agreement and cannot be sold unless subsequently registered under the Securities Act or an exemption from registration is available, (iii) has such knowledge and experience in financial and business matters that such Consenting Stakeholder is capable of evaluating the merits and risks of the securities to be acquired by it (if any) pursuant to the Transaction and understands and is able to bear any economic risks with such investment, (iv) is acquiring any securities to be acquired by it (if any) pursuant to the Transaction for its own account, for investment purposes only and not with a view to any distribution thereof that would not otherwise comply with the Securities Act and (v) did not decide to acquire any securities to be acquired by it (if any) pursuant to the Transaction as a result of any general solicitation or general advertising within the meaning of Rule 502 of Regulation D promulgated under the Securities Act.
 
(f)          Each Consenting Crossholder, severally and not jointly, represents and warrants to the other Parties that such Consenting Crossholder is the beneficial owner of the aggregate principal amount of Term Loans set forth below its name on the signature page hereto, free and clear of any restrictions on transfer, liens, or options, warrants, purchase rights, contracts, commitments, claims, demands, and other encumbrances and does not own any other Term Loans, and/or has sole investment and/or voting discretion and/or authority to vote on and provide consent or waivers with respect to such Term Loans.
 
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 		11.
Disclosure; Publicity.
 
The Company Parties shall submit drafts to counsel to the Consenting Stakeholders, respectively, of any press release or other public statements that constitute disclosure of the existence or terms of this Agreement or any amendment to the terms of this Agreement or otherwise announcing the Transaction or relating to the Transaction at least two (2) business days prior to disclosure, or if such submission two business days prior to disclosure is not possible, as soon as reasonably practicable prior to disclosure.  Except as required by applicable law, subpoena, or other legal process or regulation, and notwithstanding any provision of any other agreement between the Company and any Consenting Stakeholder to the contrary (other than in the Credit Agreement), no Party or its advisors shall disclose to any person (including, for the avoidance of doubt, any other Consenting Stakeholder), other than advisors to the Company, the principal amount or percentage of any debt or equity holdings of any Consenting Stakeholder without such Consenting Stakeholder’s prior written consent; provided, however, that (a) if such disclosure is required by law, subpoena, or other legal process or regulation, the disclosing Party shall, to the extent permitted by law, afford the relevant Consenting Stakeholder a reasonable opportunity to review and comment in advance of such disclosure and shall take commercially reasonable measures to limit such disclosure (the expense of which, if any, shall be borne by the relevant Consenting Stakeholder), (b) the foregoing shall not prohibit the disclosure of the aggregate percentage or aggregate principal amount of indebtedness or equity securities, as applicable, collectively held by the Consenting Stakeholders, (c) nothing in this Section 11 shall constitute a waiver or modification of any provision of those certain Confidentiality Agreements entered into between the Company and each Consenting Preferred Equityholder, and (d) nothing in this Section 11 shall prohibit any disclosures by HPS, Barclays or the Administrative Agent to any person to the extent such disclosure is permitted by the Credit Agreement, the Agreement Among Lenders or any other Loan Document. Notwithstanding the provisions in this Section 11, any Party may disclose, to the extent consented to in writing by a Consenting Stakeholder, such Consenting Stakeholder’s individual holdings.
 

 		12.
Amendments and Waivers.
 
This Agreement, including any exhibits or schedules hereto, may not be waived, modified, amended or supplemented except with the written consent of (i) the Company Parties, (ii) HPS, (iii)  each of the Consenting Preferred Equityholders, provided that, with respect to Consenting Preferred Equityholders in the case of this clause (iii), any extension to the Outside Closing Date to a date no later than August 31, 2023 shall only require the written consent of Consenting Preferred Equityholders that collectively beneficially own or control more than at least 75% of all issued and outstanding Preferred Stock as of the date of such extension, (iv) Advent and (v) Barclays  (including in its capacity as Administrative Agent with respect to Section 11 and Section 28), and any waiver, modification, amendment or supplement to this Section 12 shall require the written consent of all of the Parties, provided, that this Agreement may not be amended in a manner adverse to any Released Party with respect to the releases governed by Section 6 hereof without such Released Party’s prior written consent, provided, further, that respective counsel to each of the Parties may provide written consent to any extension to the Outside Signing Date or Outside Closing Date on behalf of their respective client(s) (email being a sufficient form of such written consent). For the avoidance of doubt, this Agreement shall not modify or amend Section 9.02 of the Credit Agreement.
 

 		13.
Effectiveness; Effect on Credit Agreement.
 
This Agreement shall become effective and binding on all Parties on the Support Effective Date.  The Credit Agreement, the Agreement Among Lenders and the other Loan Documents remain in full force and effect, except as expressly modified hereby.  Nothing contained in this Agreement shall be construed as a substitution or novation of the obligations of the Loan Parties outstanding under the Credit Agreement or instruments securing the same, which obligations shall remain in full force and effect, except as expressly modified hereby or as contemplated by the Signing Date Definitive Documents.  Nothing express or implied in this Agreement shall be construed as a release or other discharge of the Loan Parties from any of their obligations or liabilities under any Loan Document, and such obligations and liabilities shall remain in full force and effect, except as expressly modified hereby.
 
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 		14.
Governing Law; Jurisdiction; Waiver of Jury Trial
 
(a)         This Agreement shall be construed and enforced in accordance with, and the rights of the Parties shall be governed by, the law of the State of New York, without giving effect to the conflict of laws principles thereof.
 
Each of the Parties irrevocably agrees that any legal action, suit or proceeding arising out of or relating to this Agreement brought by any Party or its successors or assigns shall be brought and determined in any federal or state court in the Borough of Manhattan in the State of New York, and, in the event the Company becomes the subject of any bankruptcy cases under chapter 11 of title 11 of the United States Code, the presiding bankruptcy court, and each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such proceeding arising out of or relating to this Agreement or the Transaction.  Each of the Parties agrees not to commence any proceeding relating hereto or thereto except in the courts described above, other than proceedings in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court as described herein.  Each of the Parties further agrees that notice as provided herein shall constitute sufficient service of process and the Parties further waive any argument that such service is insufficient.  Each of the Parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any proceeding arising out of or relating to this Agreement or the Transaction, (i) any claim that it is not personally subject to the jurisdiction of the courts in New York as described herein for any reason, (ii) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (iii) that (A) the proceeding in any such court is brought in an inconvenient forum, (B) the venue of such proceeding is improper or (C) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
 
(b)          EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY (I) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (II) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
 

 		15.
Specific Performance/Remedies.
 
It is understood and agreed by the Parties that money damages would not be a sufficient remedy for any breach of this Agreement by any Party and each non-breaching Party shall be entitled to specific performance and injunctive or other equitable relief.  Each Party also agrees that it will not seek, and will waive any requirement for, the securing or posting of a bond in connection with any Party seeking or obtaining such relief.
 
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 		16.
Survival.
 
Notwithstanding the termination of this Agreement pursuant to Section 8 hereof, the agreements and obligations of the Parties in this Section 16, and Sections 6, 8(i), 8(j), 10, 11, 14, 15, 17, 18, 19, 20, and 24 shall survive such termination and shall continue in full force and effect in accordance with the terms hereof; provided, however, that any liability of a Party for failure to comply with the terms of this Agreement shall survive such termination.  For the avoidance of doubt, the Company's obligations to pay accrued and unpaid Fees and Expenses incurred in connection with the Transaction prior to the Company's exercise of the Fiduciary Out shall survive termination of this Agreement.
 

 		17.
Headings
 
The headings of the sections, paragraphs and subsections of this Agreement are inserted for convenience only and shall not affect the interpretation hereof or, for any purpose, be deemed a part of this Agreement.
 

 		18.
Successors and Assigns; Severability; Several Obligations.
 
This Agreement is intended to bind and inure to the benefit of the Parties and their respective successors, permitted assigns, heirs, and executors.  If any provision of this Agreement, or the application of any such provision to any Person or circumstance, shall be held invalid or unenforceable in whole or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part of such provision hereof and this Agreement shall continue in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.  Upon any such determination of invalidity, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a reasonably acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.  The agreements, representations and obligations of the Parties are, in all respects, ratable and several and neither joint nor joint and several.
 

 		19.
No Third-Party Beneficiaries.
 
Unless expressly stated herein, this Agreement shall be solely for the benefit of the Parties (and their respective successors, permitted assigns, heirs, and executors) and no other Person shall be a third-party beneficiary hereof; provided, that with respect to any Released Party, such Released Party shall be, and is deemed to be, a third-party beneficiary with respect to the releases granted pursuant to Section 6 hereof.
 
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 		20.
Prior Negotiations; Entire Agreement.
 
This Agreement, including the exhibits and schedules hereto (including the Transaction Term Sheet) and the Signing Date Definitive Documents constitute the entire agreement of the Parties, and supersedes all other prior negotiations, with respect to the subject matter hereof and thereof, except that the Parties acknowledge that any confidentiality agreements (if any) heretofore executed between the Company Parties, on the one hand, and each Consenting Stakeholder, on the other hand, as applicable, shall continue in full force and effect; provided, that, (a) in the event of a conflict between this Agreement and the Transaction Term Sheet, the Transaction Term Sheet shall control in all respects and (b) in the event of any conflict between the Transaction Term Sheet and any Signing Date Definitive Document, such Signing Date Definitive Document shall control in all respects.
 

 		21.
Counterparts.
 
This Agreement may be executed in counterparts, each of which shall be deemed to be an original, and all of which together shall be deemed to be one and the same agreement, with the effect as if all Parties had signed the same agreement.  Execution copies of this Agreement may be delivered by electronic mail in portable document format (pdf), which shall be deemed to be an original for the purposes of this paragraph.
 

 		22.
Notices.
 
All notices hereunder shall be deemed given if in writing and delivered, if contemporaneously sent by electronic mail, by overnight courier or by registered or certified mail (return receipt requested) to the following addresses:
 
 
(a)
If to the Company Parties:
 
ATI Physical Therapy, Inc.
790 Remington Blvd
Bolingbrook, IL 60440
Attention: Erik Kantz
Email: Erik.Kantz@atipt.com
With a copy to (which shall not constitute notice):
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
  Attention:
Ray C. Schrock, P.C.
Natasha S. Hwangpo

Email:
Ray.Schrock@weil.com
Natasha.Hwangpo@weil.com


(b)
If to HPS:
 
HPS Investment Partners, LLC
40 West 57th Street
New York, NY US 10019
Attn: Aman Malik
with a copy to:
-28-
Milbank LLP
55 Hudson Yards
New York, NY US 10001-2163
Attention: John Britton
Email: jbritton@milbank.com

(c)
If to the Consenting Preferred Equityholders:
 
Davis Polk & Wardwell LLP
450 Lexington Ave
New York, NY 10017
Attention: Brian Resnick
Email: brian.resnick@davispolk.com

(d)
If to Barclays:
 
Cahill Gordon & Reindel LLP
32 Old Slip
New York, NY 10005
Attention: David Barash
Email: dbarash@cahill.com

(e)
If to Advent:
 
Ropes & Gray LLP
191 N Upper Wacker Drive
32nd Floor
Chicago, IL 60606
Attention: Ryan Preston Dahl
Email: Ryan.Dahl@ropesgray.com
Any notice given by delivery, mail or courier shall be effective when received.  Any notice given by electronic mail shall be effective upon transmission.
 

 		23.
Joinder.
 
One or more additional Persons may become party hereto after the date of this Agreement by executing and delivering a Joinder Agreement to the Company.  Immediately upon the execution and delivery of a Joinder Agreement (and without any further action), each such additional Person will be bound by the terms of this Agreement and deemed to be a (i) “Consenting Stakeholder” and (ii) a “Party” for all purposes under this Agreement.  For the avoidance of doubt, each Person that executes a Joinder Agreement shall have all of the rights and obligations of a Consenting Stakeholder of the applicable class of Consenting Stakeholder hereunder.
 
-29-

 		24.
Reservation of Rights; No Admission.
 
(a)         Nothing contained herein shall limit the ability of any Party to consult with other Parties so long as such consultation or appearance is consistent with such Party’s obligations hereunder.
 
(b)          Except as expressly provided in this Agreement, nothing herein is intended to, or does, in any manner waive, limit, impair, or restrict the ability of each of the Parties to protect and preserve its rights, remedies, and interests, including its Claims against any of the other Parties (or their respective affiliates or subsidiaries).  This Agreement, including the Transaction Term Sheet, and the Signing Date Definitive Documents are part of a proposed settlement of matters that could otherwise be the subject of litigation among the Parties.  Pursuant to Rule 408 of the Federal Rules of Evidence and any other applicable rules of evidence, and any other applicable law, foreign or domestic, this Agreement and all negotiations relating hereto shall not be admissible into evidence in any proceeding other than a proceeding to enforce its terms.  This Agreement shall in no event be construed as or be deemed to be evidence of an admission or concession on the part of any Party of any claim or fault or liability or damages whatsoever.  Each of the Parties denies any and all wrongdoing or liability of any kind and does not concede any infirmity in the claims or defenses which it has asserted or could assert.
 

 		25.
No Offer; Representation by Counsel; Adequate Information.
 
(a)          This Agreement is not and shall not be deemed an offer with respect to the issue or sale of securities to any person or entity, or the solicitation of an offer to acquire or buy securities, in any jurisdiction where such offer or solicitation would be unlawful.
 
(b)          Each Party acknowledges that it has had an opportunity to receive information from the Company Parties and that it has been, or is part of a group that has been, or has had an opportunity to be, represented by counsel in connection with this Agreement and the transactions contemplated hereby.  Accordingly, any rule of law or any legal decision that would provide any Party with a defense to the enforcement of the terms of this Agreement against such Party based upon lack of legal counsel shall have no application and is expressly waived.
 

 		26.
Time is of the Essence.
 
The Parties acknowledge and agree that time is of the essence and that they must each use commercially reasonable efforts to effectuate and consummate the Transaction as soon as reasonably practicable.
 

 		27.
[Reserved].
 

 		28.
Administrative Agent Direction; Indemnity; Release.
 
Barclays, as Administrative Agent under the Credit Agreement, makes no representations as to the validity or sufficiency of this Agreement.  Each of the parties hereto acknowledges and agrees that Barclays Bank PLC is acknowledging this Agreement in its capacity as Administrative Agent under the Credit Agreement pursuant to direction from the Consenting First Lien Lenders signatory hereto.  In connection with the foregoing, the Consenting Stakeholders and the Borrower hereto acknowledge and agree that the terms of Article 8 and Article 9 of the Credit Agreement shall apply to the acknowledgment by the Administrative Agent of this Agreement and any action taken by the Administrative Agent in furtherance of this Agreement and the transactions described herein.
 
[Signature Pages to Follow]
 
-30-
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and, as applicable, delivered by their respective duly authorized officers, solely in their respective capacities as officers of the undersigned and not in any other capacity, as of the date first set forth above.
 
 
ATI PHYSICAL THERAPY INC.
     
 
By:
/s/ Joseph Jordan
 
Name:
Joseph Jordan
 
Title:
Chief Financial Officer

 
ATI HOLDINGS ACQUISITION, INC.
     
 
By:
/s/ Joseph Jordan
 
Name:
Joseph Jordan
 
Title:
Chief Financial Officer

 
WILCO INTERMEDIATE HOLDINGS, INC.
     
 
By:
/s/ Joseph Jordan
 
Name:
Joseph Jordan
 
Title:
Chief Financial Officer

[Signature Page to Transaction Support Agreement]
Subsidiary Guarantors:
 
ATI HOLDINGS OF ALABAMA, LLC
IDEAL PHYSICAL THERAPY OF TEXAS, LLC
ATI HOLDINGS, INC.
TOUCHSTONE HOLDCO LLC
ATI HOLDINGS MISSOURI, LLC
PROAXIS THERAPY, LLC
ADIENT ALASKA, LLC
ATI OF NEVADA AT DESERT VALLEY THERAPY, LLC
ATI HOLDINGS OF ARIZONA, LLC
ATI HOLDINGS, LLC
ATHLETIC & THERAPEUTIC INSTITUTE OF BOLINGBROOK, LLC
ATHLETIC & THERAPEUTIC INSTITUTE OF NAPERVILLE, LLC
ATHLETIC & THERAPEUTIC INSTITUTE OF MILWAUKEE, LLC
ATHLETIC & THERAPEUTIC INSTITUTE OF BOURBONNAIS, LLC
OHIO CENTERS FOR HAND AND PHYSICAL REHABILITATION, LLC
ADVANCED PHYSICAL THERAPY, LLC
COMMUNITY REHAB OF IOWA, LLC
PERFORMANCE REHABILITATION OF WESTERN NEW ENGLAND, LLC
MICHIGAN REHABILITATION SPECIALISTS OF FOWLERVILLE, LLC
QUANTUM PHYSICAL THERAPY CENTERS – YPSILANTI LLC
COMMUNITY REHAB, LLC
NEW CENTURY REHABILITATION, LLC
PHYSICAL THERAPY AT DAWN, LLC
ERHARDT PHYSICAL THERAPY AND SPORTS MEDICINE, LLC
WILLAMETTE SPINE CENTER PHYSICAL THERAPY AND REHABILITATION, LLC
MCMINNVILLE PHYSICAL THERAPY & SPORTS MEDICINE, LLC
PROAXIS GREENVILLE, LLC
PROAXIS THERAPY NC, LLC
PROAXIS THERAPY SC, LLC
MCM REHABILITATION, LLC
APPLE PHYSICAL THERAPY, LLC
 
By:
/s/ Joseph Jordan
  
 
Name:
Joseph Jordan
  
 
Title:
Chief Financial Officer
  

[Signature Page to Transaction Support Agreement]
 
HPS INVESTMENT PARTNERS, LLC
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
[Signature Page to Transaction Support Agreement]
 
HPS SPECIALTY LOAN FUND V, L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
 
HPS SPECIALTY LOAN FUND V-L, L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
 
SLIF V HOLDINGS, LLC
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
 
HPS SPECIALTY LOAN EUROPE FUND V, SCSP
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
[Signature Page to Transaction Support Agreement]
 
HPS SPECIALTY LOAN ONTARIO FUND V, L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
 
HPS SPECIALTY LOAN MASTER FUND (EUR) V L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
 
MORENO STREET DIRECT LENDING FUND, L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
 
SPECIALTY LOAN VG FUND, L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
[Signature Page to Transaction Support Agreement]
 
FALCON CREDIT FUND, L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
 
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director

 
SAFETY NATIONAL CASUALTY CORPORATION
 
By: HPS Investment Partners, LLC, as Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
 
HALITE 2020 DIRECT LIMITED
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
 
HC DIRECT LENDING FUND, L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
[Signature Page to Transaction Support Agreement]
 
HPS OCOEE SPECIALTY LOAN FUND, L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
 
HPS ELBE UNLEVERED DIRECT LENDING FUND SCSP
 
By: HPS Investment Partners, LLC, its Portfolio Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director

 
HPS SPECIALTY LOAN FUND TX, L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
 
PHILADELPHIA INDEMNITY INSURANCE COMPANY
 
By: HPS Investment Partners, LLC, as Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
[Signature Page to Transaction Support Agreement]
 
BUILD PRIVATE CREDIT, L.P.
 
By: HPS Investment Partners, LLC, as Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
 
HPS CORPORATE LENDING FUND
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
 
CACTUS DIRECT HOLDINGS, L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
 
SLF CX-2 HOLDINGS, L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
 
BRICKYARD DIRECT HOLDINGS, L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
[Signature Page to Transaction Support Agreement]
 
SLF V INTERNATIONAL-L HOLDINGS, L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
 
SLF V-L HOLDINGS, L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
 /s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director

 
SLF V-L HOLDINGS B, L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
 
SLF V INTERNATIONAL-L HOLDINGS B, L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director
 
[Signature Page to Transaction Support Agreement]
 
PRESIDIO LOAN HOLDINGS, L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director

 
VG HPS PRIVATE DEBT FUND L.P.
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
  
 
Name:
Aman Malik
 
Title:
Managing Director

[Signature Page to Transaction Support Agreement]
 
SIP V ONSHORE HOLDINGS MASTER L.P.
 
By: HPS Strategic Investment Management V, LLC, its investment manager
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Garrett Cockren
  
 
Name:
Garrett Cockren
 
Title:
Managing Director
 
 
SIP V HOLDINGS MASTER L.P.
 
By: HPS Strategic Investment Management V, LLC, its investment manager
 
By: HPS Investment Partners, LLC, its Investment Manager
 
 
 
 
By:
/s/ Garrett Cockren
  
 
Name:
Garrett Cockren
 
Title:
Managing Director
 
 
SIP V AP HOLDINGS MASTER L.P.
 
By: HPS Strategic Investment Management V, LLC, its investment manager
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Garrett Cockren
  
 
Name:
Garrett Cockren
 
Title:
Managing Director
 
[Signature Page to Transaction Support Agreement]
 
KHSU SPV LP LLC
   
 
By: Knighthead Capital Management, LLC, its investment advisor
     
 
By:
/s/  Laura Torrado
  
 
Name:
Laura L. Torrado
 
Title:
Authorized Signatory
 
[Signature Page to Transaction Support Agreement]
 
KNIGHTHEAD DISTRESSED OPPORTUNITIES FUND, L.P.
   
 
By: Knighthead Capital Management, LLC, its investment advisor
   
 
By:
/s/  Laura Torrado
  
 
Name:
Laura L. Torrado
 
Title:
General Counsel
 
[Signature Page to Transaction Support Agreement]
 
KNIGHTHEAD MASTER FUND, L.P.
   
 
By: Knighthead Capital Management, LLC, its Investment Manager
   
 
By:
/s/  Laura Torrado
  
 
Name:
Laura L. Torrado
 
Title:
General Counsel
 
[Signature Page to Transaction Support Agreement]
 
KNIGHTHEAD (NY) Fund, L.P.
     
 
By: Knighthead Capital Management, LLC, its Investment Advisor
   
 
By:
/s/  Laura Torrado
  
 
Name:
Laura L. Torrado
 
Title:
General Counsel
 
[Signature Page to Transaction Support Agreement]
 
MAM PT LLC
   
 
By: 
/s/ Lou Hanover
  
 
Name:
Lou Hanover
 
Title:
Managing Partner

[Signature Page to Transaction Support Agreement]
 
MARATHON DISTRESSED CREDIT MASTER FUND
     
 
By:
/s/ Lou Hanover
  
 
Name:
Lou Hanover
 
Title:
Managing Partner
 
[Signature Page to Transaction Support Agreement]
 
MARATHON DISTRESSED CREDIT FUND, LP
 
 
 
By:
/s/ Lou Hanover
  
 
Name:
Lou Hanover
 
Title:
Managing Partner

[Signature Page to Transaction Support Agreement]
 
MARATHON STEPSTONE MASTER FUND LP
     
 
By:
/s/ Lou Hanover
  
 
Name:
Lou Hanover
 
Title:
Managing Partner

[Signature Page to Transaction Support Agreement]
 
MCSP Sub, LLC
     
 
By:
/s/ Lou Hanover
  
 
Name:
Lou Hanover
 
Title:
Managing Partner

[Signature Page to Transaction Support Agreement]
 
ONEX CAPITAL SOLUTIONS HOLDINGS, LP
 
By: Onex Capital Solutions GP, LP, its general partner
 
By: Onex Capital Solutions GP, LLC, its general partner
   
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel

[Signature Page to Transaction Support Agreement]
 
ONEX SENIOR CREDIT II, LP
 
By: Onex Credit Partners, LLC, its investment manager
       
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel
  

[Signature Page to Transaction Support Agreement]
 
Onex Senior Credit Fund, LP.
 
By: Onex Credit Partners, LLC its investment manager
       
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel
  

[Signature Page to Transaction Support Agreement]
 
OCM Loan Holdings LLC
 
By: Onex Credit Management LLC, as Portfolio Manager
   
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel

[Signature Page to Transaction Support Agreement]
 
Gore Mutual Insurance Company
 
By: Onex Credit Management LLC, as Investment Manager
     
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel

[Signature Page to Transaction Support Agreement]
 
OCP CLO 2014-5, Ltd.
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel

[Signature Page to Transaction Support Agreement]
 
OCP CLO 2014-6, Ltd.
 
By: Onex Credit Partners, LLC, as Portfolio Manager
     
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel

[Signature Page to Transaction Support Agreement]
 
OCP CLO 2015-9, Ltd.
 
By: Onex Credit Partners, LLC, as Portfolio Manager
     
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel

[Signature Page to Transaction Support Agreement]
 
OCP CLO 2015-10, Ltd.
 
By: Onex Credit Partners, LLC, as Portfolio Manager
     
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel

[Signature Page to Transaction Support Agreement]
 
OCP CLO 2016-12, Ltd.
 
By: Onex Credit Partners, LLC, as Portfolio Manager
     
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel

[Signature Page to Transaction Support Agreement]
 
OCP CLO 2017-14, Ltd.
 
By: Onex Credit Partners, LLC, as Portfolio Manager
     
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel

[Signature Page to Transaction Support Agreement]
 
OCP CLO 2018-15, Ltd.
 
By: Onex Credit Partners, LLC, as Portfolio Manager
     
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel

[Signature Page to Transaction Support Agreement]
 
OCP CLO 2019-16, Ltd.
 
By: Onex Credit Partners, LLC, as Portfolio Manager
     
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel

[Signature Page to Transaction Support Agreement]
 
OCP CLO 2019-17, Ltd.
 
By: Onex Credit Partners, LLC, as Portfolio Manager
     
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel

[Signature Page to Transaction Support Agreement]
 
OCP CLO 2020-8R, Ltd.
 
By: Onex Credit Partners, LLC, as Portfolio Manager
     
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel

[Signature Page to Transaction Support Agreement]
 
OCP CLO 2020-18, Ltd.
 
By: Onex Credit Partners, LLC, as Portfolio Manager
     
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel

[Signature Page to Transaction Support Agreement]
 
OCP CLO 2020-19, Ltd.
 
By: Onex Credit Partners, LLC, as Portfolio Manager
     
 
By:
/s/ Steven Gutman
  
 
Name:
 Steven Gutman
 
Title:
General Counsel

[Signature Page to Transaction Support Agreement]
 
OCP CLO 2021-22, Ltd.
 
By: Onex Credit Partners, LLC, as Portfolio Manager
     
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel

[Signature Page to Transaction Support Agreement]
 
OCP CLO 2022-25, Ltd.
 
By: Onex Credit Partners, LLC, as Portfolio Manager
     
 
By:
/s/ Steven Gutman
  
 
Name:
Steven Gutman
 
Title:
General Counsel

[Signature Page to Transaction Support Agreement]
 
CASPIAN CAPITAL L.P. in its capacity as manager, advisor, sub-advisor or similar capacity on behalf of certain funds and accounts
   
 
By:
/s/ Dominick Cromartie
  
 
Name:
Dominick Cromartie
 
Title:
Authorized Signatory

[Signature Page to Transaction Support Agreement]
 
Acknowledged pursuant to the direction in Section 28:
 
 
 
 
BARCLAYS BANK PLC, as Administrative Agent
 
 
 
 
By:
/s/ Ronnie Glenn
  
 
Name:
Ronnie Glenn
 
Title:
Director

[Signature Page to Transaction Support Agreement]
 
BARCLAYS BANK PLC, solely in respect of its Portfolio Management Group (“PMG”) and not any other desk, unit, group, division, or affiliate of Barclays and solely in respect of the PMG’s Revolving Loans, as a Revolving Lender.  Other than as specifically set forth in Section 27 and 28 hereof, nothing in this Agreement shall bind Barclays Bank PLC or its affiliates to take or not take any action, or otherwise in any respect, other than with respect to its PMG and the PMG’s Revolving Loans.
     
 
By:
/s/ Ronnie Glenn
  
 
Name:
Ronnie Glenn
 
Title:
Director

[Signature Page to Transaction Support Agreement]

ADVENT INTERNATIONAL GPE VII LIMITED PARTNERSHIP
     
 
By:  GPE VII GP S.à r.l., General Partner
  
     
 
By:  Advent International GPE VII, LLC, Manager
/s/ Justin Nuccio
   
Justin Nuccio
  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady Morrison
 
Title:
Chief Legal Officer


ADVENT INTERNATIONAL GPE VII-B LIMITED PARTNERSHIP
     
 
By:  GPE VII GP S.à r.l., General Partner
  
     
 
By:  Advent International GPE VII, LLC, Manager
/s/ Justin Nuccio
   
Justin Nuccio
  By:  Advent International Corporation, Manager  
 
 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady Morrison
 
Title:
Chief Legal Officer
 
[Signature Page to Transaction Support Agreement]

ADVENT INTERNATIONAL GPE VII-C LIMITED PARTNERSHIP
     
 
By:  GPE VII GP S.à r.l., General Partner
  
     
 
By:  Advent International GPE VII, LLC, Manager
/s/ Justin Nuccio
   
Justin Nuccio
  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady Morrison
 
Title:
Chief Legal Officer


ADVENT INTERNATIONAL GPE VII-D LIMITED PARTNERSHIP
     
 
By:  GPE VII GP S.à r.l., General Partner
  
     
 
By:  Advent International GPE VII, LLC, Manager
/s/ Justin Nuccio
   
Justin Nuccio
  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady Morrison
 
Title:
Chief Legal Officer

[Signature Page to Transaction Support Agreement]

ADVENT INTERNATIONAL GPE VII-F LIMITED PARTNERSHIP
     
 
By:  GPE VII GP S.à r.l., General Partner
  
     
 
By:  Advent International GPE VII, LLC, Manager
/s/ Justin Nuccio
   
Justin Nuccio
  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady Morrison
 
Title:
Chief Legal Officer


ADVENT INTERNATIONAL GPE VII-G LIMITED PARTNERSHIP
     
 
By:  GPE VII GP S.à r.l., General Partner
  
     
 
By:  Advent International GPE VII, LLC, Manager
/s/ Justin Nuccio
   
Justin Nuccio
  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady Morrison
 
Title:
Chief Legal Officer

[Signature Page to Transaction Support Agreement]

ADVENT INTERNATIONAL GPE VII-A LIMITED PARTNERSHIP
     
 
By:  GPE VII GP Limited Partnership, General Partner
  
     
 
By:  Advent International GPE VII, LLC, General Partner

   

  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady Morrison
 
Title:
Chief Legal Officer


ADVENT INTERNATIONAL GPE VII-E LIMITED PARTNERSHIP
     
 
By:  GPE VII GP Limited Partnership, General Partner
  
     
 
By:  Advent International GPE VII, LLC, General Partner

   

  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady
 
Title:
Chief Legal Officer

[Signature Page to Transaction Support Agreement]

ADVENT INTERNATIONAL GPE VII-H LIMITED PARTNERSHIP
     
 
By:  GPE VII GP Limited Partnership, General Partner
  
     
 
By:  Advent International GPE VII, LLC, General Partner

   

  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady
 
Title:
Chief Legal Officer


ADVENT PARTNERS GPE VII LIMITED PARTNERSHIP
     
 
By:  Advent International GPE VII, LLC, General Partner
  
   

  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady Morrison
 
Title:
Chief Legal Officer

[Signature Page to Transaction Support Agreement]

ADVENT PARTNERS GPE VII CAYMAN LIMITED PARTNERSHIP
     
 
By:  Advent International GPE VII, LLC, General Partner
  
     
  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady Morrison
 
Title:
Chief Legal Officer


ADVENT PARTNERS GPE VII-A LIMITED PARTNERSHIP
     
 
By:  Advent International GPE VII, LLC, General Partner

   

  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady Morrison
 
Title:
Chief Legal Officer

[Signature Page to Transaction Support Agreement]

ADVENT PARTNERS GPE VII-A CAYMAN LIMITED PARTNERSHIP
     
 
By:  Advent International GPE VII, LLC, General Partner

   

  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady Morrison
 
Title:
Chief Legal Officer


ADVENT PARTNERS VII-B CAYMAN LIMITED PARTNERSHIP
     
 
By:  Advent International GPE VII, LLC, General Partner

   

  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady Morrison
 
Title:
Chief Legal Officer

[Signature Page to Transaction Support Agreement]

ADVENT PARTNERS GPE VII 2014 LIMITED PARTNERSHIP
     
 
By:  Advent International GPE VII, LLC, General Partner
  
   

  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady Morrison
 
Title:
Chief Legal Officer


ADVENT PARTNERS GPE VII 2014 CAYMAN LIMITED PARTNERSHIP
     
 
By:  Advent International GPE VII, LLC, General Partner
  
     
  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady Morrison
 
Title:
Chief Legal Officer

[Signature Page to Transaction Support Agreement]

ADVENT PARTNERS GPE VII-A 2014 LIMITED PARTNERSHIP
     
 
By:  Advent International GPE VII, LLC, General Partner
  
     
  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady Morrison
 
Title:
Chief Legal Officer


ADVENT PARTNERS GPE VII-A 2014 CAYMAN LIMITED PARTNERSHIP
     
 
By:  Advent International GPE VII, LLC, General Partner
  
   

  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady Morrison
 
Title:
Chief Legal Officer

[Signature Page to Transaction Support Agreement]

GPE VII ATI CO-INVESTMENT (DELAWARE) LIMITED PARTNERSHIP
     
 
By:  Advent International GPE VII, LLC, General Partner
  
   

  By:  Advent International Corporation, Manager  

 
By:
/s/  Amanda McGrady Morrison
  
 
Name:
Amanda McGrady Morrison
 
Title:
Chief Legal Officer

[Signature Page to Transaction Support Agreement]
Exhibit A
Transaction Term Sheet
Final Version
 
SUMMARY OF CERTAIN TERMS AND CONDITIONS
 
Capitalized terms used and not otherwise defined herein have the meanings set forth in the Existing Credit Facility.
I. Conditions Precedent
The effectiveness of the Transactions shall be subject to:
A.   After giving effect to the Transactions,

(a) John Maldonado will resign from the board of directors of Topco (the “Topco Board”) upon the closing of the Transaction,
(b)(i) the Preferred Equityholders shall have the right to appoint three additional directors to the Topco Board (resulting in the right of the Preferred Equityholders to appoint a total of four directors to the Topco Board and such that the Topco Board shall consist of 10 directors (or 11 directors if Andrew A. McKnight remains on the Topco Board) in total) and (ii) the EBITDA based fall-away provision for the director designation rights of the Preferred Equityholders set forth in clause (i) of the proviso in Section 3(a) of the certificate of designation for the Preferred Topco Stock will be deleted,
(c) the Topco Board will be declassified to effect, among other things, that all go-forward elections of directors to the Topco Board will be for terms of one year (for the avoidance of doubt, without affecting the length of the terms of directors of the Topco Board that are in effect on the date on which the Transactions are consummated), and
(d) Advent will no longer have the right to appoint five directors to the Topco Board and the Topco stockholders agreement will be terminated.
   
II. Additional Matters
Requiring Shareholder
Approval
Any corporate actions in connection with the Transactions that require shareholder approval, including without limitation, issuances of securities, voting rights for the New Second Lien PIK Convertible Notes on an “as-converted” basis, increase in authorized shares and amendments of the certificate of incorporation will be approved by the special committee and board of directors of Topco and recommended by the board of directors of Topco for approval by the shareholders of Topco at a shareholder meeting.  Promptly thereafter, Topco will file with the SEC and thereafter mail to its shareholders a Proxy Statement on Schedule 14A in connection with the foregoing transactions and promptly upon receipt of the approval of shareholders at the shareholder meeting, the Transactions will close.
   
III. Certain Additional Matters
The parties will negotiate in good faith regarding a Management Incentive Program (MIP) and other employee compensation matters.
 
Exhibit C-1
Investors’ Rights Agreement Amendment
FIRST AMENDMENT TO INVESTORS’ RIGHTS AGREEMENT
 
AMONG
 
ATI PHYSICAL THERAPY, INC.
 
AND
 
THE HOLDERS PARTY HERETO FROM TIME TO TIME
 
Dated as of [●], 2023
 
FIRST AMENDMENT TO INVESTORS’ RIGHTS AGREEMENT
 
This FIRST AMENDMENT TO INVESTORS’ RIGHTS AGREEMENT (this “Amendment”), dated as of [●], 2023, is made by and among ATI Physical Therapy, Inc., a Delaware corporation (the “Company”), and each of the Parties listed on Exhibit A of the Agreement (as defined below) from time to time as an “Investor” (each, an “Investor” and, collectively, the “Investors” and, together with the Company, the “Parties”).
 
RECITALS
 
A.          WHEREAS, the Parties entered into that certain Investors’ Rights Agreement on February 24, 2022 (as amended, modified, supplemented or restated from time to time in accordance with its terms, the “Agreement”).
 
B.          WHEREAS, the Parties now desire to amend the Agreement to provide for revisions to the director election rights and such other matters as are more fully set forth in this Amendment.
 
NOW, THEREFORE, in consideration of the foregoing premises and the respective representations, warranties, covenants and agreements contained herein and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties hereby agree as follows:
 
ARTICLE I
INCORPORATION OF RECITALS; DEFINED TERMS
 
SECTION 1.1    The foregoing recitals are incorporated into this Amendment by this reference and are deemed restated herein for all relevant purposes. Unless otherwise defined in this Amendment, all defined terms used herein (including in the Recitals) shall have the same meaning as set forth in the Agreement.
 
ARTICLE II
AMENDMENTS
 
SECTION 2.1     Section 1.1 of the Agreement is hereby amended and restated to read in its entirety as follows:
 
“Series A Preferred Director Designation.  Until such time after the Closing Date (as defined in the Purchase Agreement) that the Lead Investor ceases to hold at least 50.1% of the Series A Preferred Stock held by it as of the Closing Date, the holders of Series A Preferred Stock, voting as a separate class, shall have the right to designate and elect four (4) directors to serve on the Board of Directors (the “Series A Preferred Directors”); provided, that the Board of Directors shall consider in good faith, consistent with their review of other Board of Directors candidates, any qualified candidates proposed to the Company by the Investors, at least one of whom shall be unaffiliated with (and independent of) the Investors and shall meet the definition of “independent” under the listing standards of the New York Stock Exchange, and by the SEC.”
 
SECTION 2.2     Section 1.2 of the Agreement is hereby amended and restated to read in its entirety as follows:
 
1
“Vacancies and Removal.  To the extent not inconsistent with Section 141(k) of the General Corporation Law of the State of Delaware and the Company’s Governing Documents: (i) the Investors shall have the exclusive right to instruct that any Series A Preferred Director be removed from the Board of Directors, and the Company, the Board of Directors and each Investor shall take all Necessary Action to cause the removal of any director designated or elected by the Investors at the instruction of the Investors; and (ii) the Investors shall have the exclusive right to designate another director to fill a vacancy created by reason of death, removal or resignation of any Series A Preferred Director and the Company, the Board of Directors and the Investors shall take all Necessary Action to cause any such vacancy to be filled by a replacement candidate designated by the Investors (consistent with the other provisions of this Agreement and the Certificate of Designation) as promptly as reasonably practicable.”
 
SECTION 2.3     Section 4.8 of the Agreement is hereby amended and restated to read in its entirety as follows:
 
“Amendments; Waivers.  Any provision of this Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Holder Majority, or in the case of a waiver, by the Party against whom the waiver is to be effective.  No knowledge, investigation or inquiry, or failure or delay by the Company or any Investor in exercising any right hereunder will operate as a waiver thereof nor will any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.  No waiver of any right or remedy hereunder will be deemed to be a continuing waiver in the future or a waiver of any rights or remedies arising thereafter.”
 
SECTION 2.4     The definition of “Certificate of Designation” at Section 5.1 of the Agreement is hereby amended and restated to read in its entirety as follows:
 
“Certificate of Designation” means that certain Certificate of Designation of Series A Senior Preferred Stock of the Company, dated as of February 24, 2022, as amended and restated by that certain First Amended and Restated Certificate of Designation of Series A Senior Preferred Stock of the Company, dated as of [●], as amended, supplemented or modified from time to time.
 
ARTICLE III
MISCELLANEOUS
 
SECTION 3.1    Except as expressly amended pursuant to the terms of this Amendment, the Agreement shall remain in full force and effect in accordance with its original terms, and the Parties hereby ratify the Agreement as amended pursuant to this Amendment, each hereby expressly retaining all of its rights and remedies thereunder, as amended hereby.
 
SECTION 3.2     In the event that any of the provisions of this Amendment expressly conflict with the provisions of the Agreement, the provisions of this Amendment shall govern and control.
 
SECTION 3.3     This Amendment shall be governed by and construed in accordance with the Laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.
 
SECTION 3.4    This Agreement may be executed in two or more counterparts, each of which constitutes an original, and all of which taken together constitute one instrument.  A signature delivered by facsimile or other electronic transmission (including e-mail) will be considered an original signature.  Any Person may rely on a copy of this Agreement.

2
[Remainder of page intentionally left blank]
 
3
IN WITNESS WHEREOF, the Parties have caused this Amendment to be duly executed and delivered as of the date first above written.
 
 
COMPANY:
     
 
ATI PHYSICAL THERAPY, INC.
     
 
By:
  
 
Name:
Joseph Jordan
 
Title:
Chief Financial Officer

[Signature Page To First Amendment to Investors’ Rights Agreement]
 
INVESTORS:
     
 
KNIGHTHEAD MASTER FUND, L.P.
     
 
By: Knighthead Capital Management, LLC, its Investment Manager
     
 
By:
  
 
Name:
Laura Torrado
 
Title:
General Counsel
     
 
KNIGHTHEAD (NY) FUND, L.P.
     
 
By: Knighthead Capital Management, LLC, its Investment Manager
     
 
By:
  
 
Name:
Laura Torrado
 
Title:
General Counsel
     
 
KNIGHTHEAD ANNUITY & LIFE ASSURANCE COMPANY
     
 
By: Knighthead Capital Management, LLC, its Investment Manager
     
 
By:
  
 
Name:
Laura Torrado
 
Title:
General Counsel

[Signature Page To First Amendment to Investors’ Rights Agreement]
 
INVESTORS:

 
KNIGHTHEAD DISTRESSED OPPORTUNITIES FUND, L.P.
     
 
By: Knighthead Capital Management, LLC, its Investment Manager
     
 
By:
  
 
Name:
Laura Torrado
 
Title:
General Counsel
     
 
Knighthead Capital Management, LLC
 
280 Park Avenue, 22 Floor
 
New York, New York 10017
     
 
with a copy to:
   
 
Kirkland & Ellis LLP
 
601 Lexington Avenue
 
New York, New York 10022
 
Attention:  Tim Cruickshank; H. Thomas Felix
 
Email: tim.cruickshank@kirkland.com; tommy.felix@kirkland.com
 
[Signature Page To First Amendment to Investors’ Rights Agreement]
 
INVESTORS:

 
MARATHON ASSET MANAGEMENT, LP
     
 
By:
  
 
Name:
Louis Hanover
 
Title:
Chief Investment Officer
     
 
Marathon Asset Management, LP
 
One Bryant Park, 38th Floor
 
New York, New York 10036
 
Attention: Brent Wilson
 
Email: bwilson1@marathonfund.com

[Signature Page To First Amendment to Investors’ Rights Agreement]
 
INVESTORS:

 
ONEX CAPITAL SOLUTIONS HOLDINGS, LP
     
 
By: Onex Capital Solutions GP, LP, its general partner
   
 
By: Onex Capital Solutions GP, LLC, its general partner
     
 
By:
  
 
Name:
Steve Gutman
 
Title:
General Counsel
     
 
Onex Capital Solutions Holdings, LP
 
One Bryant Park, 38th Floor
 
New York, New York 10036

[Signature Page To First Amendment to Investors’ Rights Agreement]
 
INVESTORS:

 
CASPIAN SELECT CREDIT MASTER FUND, LTD.
     
 
By:
  
 
Name:
Richard A. Roman
 
Title:
Authorized Signatory
     
 
Caspian Capital LP
 
10 E. 53rd Street, 35th Floor
 
New York, New York 10022
     
 
CASPIAN SOLITUDE MASTER FUND, L.P.
     
 
By:
  
 
Name:
Richard A. Roman
 
Title:
Authorized Signatory
     
 
Caspian Capital LP
 
10 E. 53rd Street, 35th Floor
 
New York, New York 10022
     
 
CASPIAN HLSC1, LLC
     
 
By:
  
 
Name:
Richard A. Roman
 
Title:
Authorized Signatory
     
 
Caspian Capital LP
 
10 E. 53rd Street, 35th Floor
 
New York, New York 10022

[Signature Page To First Amendment to Investors’ Rights Agreement]
 
CASPIAN SC HOLDINGS, L.P.
     
 
By:
  
 
Name:
Richard A. Roman
 
Title:
Authorized Signatory
     
 
Caspian Capital LP
 
10 E. 53rd Street, 35th Floor
 
New York, New York 10022
     
 
SPRING CREEK CAPITAL, LLC
     
 
By:
  
 
Name:
Richard A. Roman
 
Title:
Authorized Signatory
     
 
Caspian Capital LP
 
10 E. 53rd Street, 35th Floor
 
New York, New York 10022
     
 
CASPIAN FOCUSED OPPORTUNITIES FUND, L.P.
     
 
By:
  
 
Name:
Richard A. Roman
 
Title:
Authorized Signatory
     
 
Caspian Capital LP
 
10 E. 53rd Street, 35th Floor
 
New York, New York 10022
     
 
BLACKSTONE ALTERNATIVE MULTI-STRATEGY SUB FUND IV, LLC (BXII)
     
 
By:
  
 
Name:
Richard A. Roman
 
Title:
Authorized Signatory
     
 
Caspian Capital LP
 
10 E. 53rd Street, 35th Floor
 
New York, New York 10022

[Signature Page To First Amendment to Investors’ Rights Agreement]
 
BLACKSTONE ALTERNATIVE MULTI-STRATEGY SUB FUND IV, LLC (BXIIB)
     
 
By:
  
 
Name:
Richard A. Roman
 
Title:
Authorized Signatory
     
 
Caspian Capital LP
 
10 E. 53rd Street, 35th Floor
 
New York, New York 10022
     
 
BLACKSTONE ALTERNATIVE INVESTMENT FUND PLC (BXIII)
     
 
By:
  
 
Name:
Richard A. Roman
 
Title:
Authorized Signatory
     
 
Caspian Capital LP
 
10 E. 53rd Street, 35th Floor
 
New York, New York 10022
     
 
BLACKSTONE ALTERNATIVE INVESTMENT FUND PLC (BXIIIB)
     
 
By:
  
 
Name:
Richard A. Roman
 
Title:
Authorized Signatory
     
 
Caspian Capital LP
 
10 E. 53rd Street, 35th Floor
 
New York, New York 10022

[Signature Page To First Amendment to Investors’ Rights Agreement]
Exhibit C-2
Certificate of Designation Amendment
FIRST AMENDED AND RESTATED CERTIFICATE OF DESIGNATION
 
OF
 
SERIES A SENIOR PREFERRED STOCK
 
OF
 
ATI PHYSICAL THERAPY, INC.
 
FILED IN THE OFFICE OF THE SECRETARY OF STATE OF DELAWARE
 
ON [●], 20231
 
Pursuant to Section 151 of the General Corporation Law of the State of Delaware
Pursuant to Section 151 of the General Corporation Law of the State of Delaware (the “DGCL”), ATI Physical Therapy, Inc., a corporation duly organized and validly existing under the DGCL (the “Issuer” or the “Company”), in accordance with the provisions of Section 103 thereof, does hereby submit the following:
WHEREAS, the Second Certificate of Incorporation of the Issuer (as amended, restated, supplemented or otherwise modified from time to time, the “Certificate of Incorporation”) authorizes the issuance of up to 1,000,000 shares of preferred stock, par value $0.0001 per share, of the Issuer (“Preferred Stock”) in one or more series; and, subject to limitations prescribed by Law, expressly authorizes the Board of Directors of the Issuer (the “Board of Directors”) to provide out of the unissued shares of the Preferred Stock for one or more series of Preferred Stock and to establish from time to time the number of shares to be included in each such series and to fix the voting rights, if any, designations, powers, preferences and relative, participating, optional, special and other rights, if any, of each such series and any qualifications, limitations and restrictions thereof as shall be stated in the resolution or resolutions adopted by the Board of Directors providing for the issuance of such series and included in a certificate of designation;
WHEREAS, on February 23, 2022, the Board of Directors approved and adopted that certain Certificate of Designation of Series A Senior Preferred Stock of the Issuer filed in the office of the Secretary of State of Delaware on February 24, 2022 (the “Certificate of Designation”), for purposes of issuing shares of Preferred Stock, with a par value of $0.0001 per share, designated as a series known as “Series A Senior Preferred Stock”, with each such share having voting rights, if any, designations, powers, preferences and relative, participating, optional, special and other rights, if any, and the qualification, limitations and restrictions, as set forth in the Certificate of Designation; and
WHEREAS, on April [●], 2023, pursuant to the authority conferred upon the Board of Directors by the Certificate of Incorporation and Section 151 of the Delaware General Corporation Law, the Board of Directors duly adopted the following resolution amending and restating the provisions of the Certificate of Designation to read in its entirety as set forth herein (this “First A&R Certificate of Designation”), and such resolution has not been modified, and is in full force and effect on the date hereof;
1 Note to Draft: To be filed on the date of closing of the transaction.
 
NOW THEREFORE, BE IT RESOLVED, that, pursuant to authority conferred upon the Board of Directors by the Certificate of Incorporation, the Board of Directors hereby provides out of the unissued shares of the Preferred Stock a series of Preferred Stock designated as “Series A Senior Preferred Stock” and authorizes for issuance 165,000 shares of the Series A Preferred Stock (as defined below), and hereby fixes the designations, powers, preferences and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions of the Series A Preferred Stock, as follows:
1.           Designation.
 
(a)          Series A Preferred Stock.  A total of 165,000 shares of Preferred Stock, with a par value of $0.0001 per share, shall be designated as a series known as “Series A Senior Preferred Stock”, with each such share having an initial Stated Value of $1,000 per share (the “Series A Preferred Stock”), which Series A Preferred Stock will have the respective designations, powers, preferences and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions set forth in this First A&R Certificate of Designation.
 
2.           Ranking; Liquidation.  With respect to (a) payment of dividends, (b) distribution of assets and (c) all other liquidation, winding up, dissolution, dividend and redemption rights, the Series A Preferred Stock shall rank senior in priority of payment to all Junior Stock in any liquidation, dissolution, winding up or distribution of the Company, and junior to any existing or future secured or unsecured Indebtedness and other liabilities (including trade payables) of the Company.
 
3.           Voting.
 
(a)          Generally.  The Holders have no voting rights with respect to the Series A Preferred Stock except as set forth in this First A&R Certificate of Designation, any other Related Agreement, or as otherwise required by law; provided, that the Holders, voting as a separate class, shall have the right to designate and elect four (4) directors to serve on the Board of Directors (the “Series A Directors”) until such time after the Initial Issue Date that the Lead Purchaser ceases to hold at least 50.1% of the Series A Preferred Stock held by it as of the Initial Issue Date.
 
(b)          Voting Power.  At the time of any vote or consent of any of the Holders under this First A&R Certificate of Designation, any other Related Agreement or as otherwise required by law, the voting power of one share of Series A Preferred Stock, that is otherwise entitled to vote, as a percentage of the aggregate voting power of all shares of Series A Preferred Stock, shall equal the product of (i) the quotient of (A) the Liquidation Value of such share of Series A Preferred Stock as of such time divided by (B) the aggregate Liquidation Value of all shares of Series A Preferred Stock as of such time multiplied by (ii) 100.
 
4.           Dividends.
 
(a)          Generally.  All Dividends, including Compounded Dividends, are prior to and in preference over any dividend on any Junior Stock and shall be declared and fully paid before any dividends are declared and paid, or any other distributions are made, on any Junior Stock.  Except as set forth in Section 6, Dividends shall be payable to the Holders as they appear on the records of the Company on the record date for such Dividends, which, to the extent the Board of Directors determines to declare Dividends in respect of any Dividend Period, shall be the date that is 15 days prior to the applicable Dividend Payment Date, and which record date and Dividend Payment Date, to the extent so determined, shall be declared by the Board of Directors during each Dividend Period on the date that is at least 20 days prior to the Dividend Payment Date and five days prior to the record date.
 
2
(b)          Dividend Calculation.  From and after the Initial Issue Date, preferential cumulative dividends (“Dividends”) shall accrue on each share of Series A Preferred Stock outstanding on a daily basis in arrears at the applicable Dividend Rate then in effect.  Dividends with respect to each Dividend Period shall be the sum of the dividends calculated on a daily basis during such period.  The daily dividend shall be calculated as the product of (i) the Stated Value of each share of the Series A Preferred Stock outstanding as of the Dividend Payment Date for such Dividend Period, and (ii) the applicable dividend rate specified in clause (c) below (the “Dividend Rate”) for each day elapsed during such Dividend Period divided by 360.  Dividends will be due and payable quarterly in arrears on each Dividend Payment Date by either (A) a cash payment or (B) to the extent not paid in cash, automatically compounded quarterly on each Dividend Payment Date; provided that, the Company may elect to pay in cash any Dividends due and payable pursuant to the preceding clause (i) only from and after the three-year anniversary of the Initial Issue Date. On each Dividend Payment Date related to a Dividend Period for which the Company does not for any reason (including because payment of any Dividend is prohibited by law) pay in cash all Dividends that accumulated during such Dividend Period, any such unpaid Dividends shall (whether or not earned or declared) become part of the Stated Value of such share as of the applicable Dividend Payment Date (“Compounded Dividends”); provided that, unless the Board of Directors shall otherwise notify the Holders on or prior to the fifth Business Day prior to the applicable Dividend Period, any such unpaid Dividends shall (whether or not earned or declared) become part of the Stated Value of such share as of the applicable Dividend Payment Date pursuant to this Section 4.
 
(c)          Dividend Rate.  The Dividend Rate for the Series A Preferred Stock shall initially be 12.00% per annum (the “Base Dividend Rate”); provided that, with respect to any Dividends that are paid in cash on a Dividend Payment Date, the Dividend Rate shall be decreased by 1.00%; provided, further, that the Company shall inform the Holders of the intention to pay in cash prior to the start of the applicable Dividend Period.
 
(d)          Increase to Dividend Rate.  The Base Dividend Rate shall be increased by (i) 1.00% per annum on the first day following the fifth (5th) anniversary of the Initial Issue Date and each one (1)-year anniversary thereafter; and (ii) 2.00% per annum upon the occurrence of either an Event of Noncompliance or the failure by the Issuer to redeem in full for cash all of the shares of Series A Preferred Stock upon a Mandatory Redemption Event (a “Redemption Failure”); provided that, in the case of clause (ii) (A) the applicable Dividend Rate shall be so increased only while such Event of Noncompliance is continuing or during the period commencing upon the occurrence of a Redemption Failure and ending on the date on which all shares of Series A Preferred Stock are redeemed, as applicable, and, (B) thereafter, such increase shall not apply to the applicable Dividend Rate at such time as such Event of Noncompliance or Redemption Failure, as applicable, has been cured or is no longer continuing.
 
5.          Redemption.
 
(a)          Redemption Generally.
 
(i)          Optional Redemption.
 
(A)          At any time and from time to time, from and after the Initial Issue Date, to the extent not prohibited by law, the Company may elect to redeem all outstanding shares of Series A Preferred Stock, or any portion thereof in an amount not less than the Minimum Portion, in cash at a redemption price per share of Series A Preferred Stock equal to the Redemption Price on the terms and subject to the conditions set forth in this Section 5 (an “Optional Redemption”).
 
3
(B)          Any election by the Company pursuant to this Section 5 shall be made by delivery to the Holders of written notice of the Company’s election to redeem, at least 10 days but no more than 60 days prior to the elected Redemption Date (each such date, an “Optional Redemption Date”), which notice shall indicate (1) the number of shares of Series A Preferred Stock being redeemed, (2) the Optional Redemption Date (or, to the extent not ascertainable at the time of such notice, a good faith estimate of the Optional Redemption Date), (3) the Redemption Price, and (4) the manner of and place designated for surrender (as set forth in Section 5(d)) of certificates representing shares of Series A Preferred Stock to be redeemed.  Any such notice may, at the Company’s discretion, be subject to one or more conditions precedent.  Any redemption that is effected pursuant to this Section 5 shall be made on a pro rata basis among the Holders in proportion to the aggregate Liquidation Value of the shares of Series A Preferred Stock held by such Holders.  For the avoidance of doubt, shares of Series A Preferred Stock are not redeemable at the Company’s election except pursuant to this Section 5.
 
(b)          Redemption Price.  The total price for each share of Series A Preferred Stock redeemed pursuant to Section 5(a) or Section 6 (the “Redemption Price”) shall be:
 
(i)         with respect to any Redemption Date occurring prior to the First Call Date, an amount per share of Series A Preferred Stock equal to the Make-Whole Amount as of the Redemption Date; and
 
(ii)        with respect to any Redemption Date occurring on or after the First Call Date, an amount per share of Series A Preferred Stock equal to (A)(x) the Liquidation Value of such share Series A Preferred Stock, multiplied by (y) the Redemption Percentage, plus (B) the aggregate accumulated and unpaid Dividends from the last Dividend Payment Date up to and including the Redemption Date.
 
(c)          Rights After a Redemption Date.  If any shares of Series A Preferred Stock are not redeemed on the applicable Redemption Date for any reason, until such shares are redeemed, all such unredeemed shares of Series A Preferred Stock shall remain outstanding and entitled to all of the designations, powers, preferences and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions of the Series A Preferred Stock set forth in this First A&R Certificate of Designation, including the right to accumulate and receive Dividends thereon as set forth in Section 4 until the date on which the Company redeems and pays in full the Redemption Price for such Series A Preferred Stock.
 
(d)          Surrender of Certificates.  The Holder of each share of Series A Preferred Stock to be redeemed pursuant to this Section 5 shall surrender the certificates representing such shares of Series A Preferred Stock to the Company, duly assigned or endorsed for transfer to the Company (or accompanied by duly executed share powers relating thereto), or, in the event the certificates are lost, stolen, missing, destroyed or mutilated, shall deliver an affidavit of loss, at the principal executive office of the Company or such other place as the Company may from time to time designate by notice to the Holders, and each surrendered certificate shall be canceled and retired and the Company shall thereafter make payment of the Redemption Price by certified check or wire transfer of immediately available funds; provided that to the extent such certificates represent a greater number of share of Series A Preferred Stock than the shares of Series A Preferred Stock actually redeemed, such Holder shall, in addition to receiving the payment of the Redemption Price for each redeemed share of Series A Preferred Stock, receive a new share certificate for the shares of Series A Preferred Stock not so redeemed.
 
(e)          Redemption Preference.  Any redemption under this Section 5 or Section 6 shall be in preference to and in priority over any dividend, distribution or redemption rights of any Junior Stock.
 
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6.          Mandatory Redemption Event.
 
(a)          Redemption.  Upon any (i) Liquidation Event, (ii) Bankruptcy Event, (iii) Change of Control Event or (iv) Forced Transaction Event (together with any Liquidation Event, Bankruptcy Event, Change of Control Event, each a “Mandatory Redemption Event”), the Company shall, to the extent not prohibited by law, redeem all of the shares of Series A Preferred Stock (such redemption, a “Mandatory Redemption”) on the applicable Redemption Date pursuant to Section 6(b) (the “Mandatory Redemption Date”), in cash at a price per share of Series A Preferred Stock equal to the then applicable Redemption Price of such share under Section 5(b).  If, on the Mandatory Redemption Date, the Company is prohibited by law from redeeming all shares of Series A Preferred Stock held by Holders, then the Company shall redeem such Series A Preferred Stock to the fullest extent not so prohibited.  Any shares of Series A Preferred Stock that are not redeemed pursuant to the immediately preceding sentence shall remain outstanding and entitled to all of the designations, powers, preferences and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions of the Series A Preferred Stock set forth in this First A&R Certificate of Designation, including the right to continue to accumulate and receive Dividends thereon as set forth in Section 4 and, under such circumstances, the redemption requirements provided hereby shall be continuous, so that at any time thereafter when the Company is not prohibited by law from redeeming such shares of Series A Preferred Stock, the Company shall immediately redeem such shares of Series A Preferred Stock at a price per share of Series A Preferred Stock equal to the Redemption Price as of the Mandatory Redemption Date in accordance with Section 5 and this Section 6, together with payment of an amount equal to the product of (i) the additional accumulated and unpaid Dividends following the Mandatory Redemption Date multiplied by (ii) the Redemption Percentage applicable as of the Mandatory Redemption Date (which Redemption Percentage shall be, for the avoidance of doubt, 106.0% prior to the First Call Date).
 
(b)          Redemption Mechanics.
 
(i)          Prior to commencing a Mandatory Redemption, the Company shall send a notice (the “Mandatory Redemption Notice”) to each Holder, which shall state:
 
(A)           that a Mandatory Redemption is being made and that all of such Holder’s shares of Series A Preferred Stock will be redeemed pursuant to this Section 6;
 
(B)           (1) the Redemption Price, (2) the bank or trust company with which the aggregate Redemption Price shall be deposited on or prior to the Mandatory Redemption Date and (3) the Mandatory Redemption Date (or, to the extent not ascertainable at the time of such notice, a good faith estimate of the Mandatory Redemption Date); and
 
(C)            a reasonably detailed description of the Mandatory Redemption Event, including the terms and conditions thereof.
 
(ii)        On or before any Mandatory Redemption Date, the Company shall deposit the amount of the applicable aggregate Redemption Price with a bank, trust company or exchange agent having an office in New York City irrevocably in trust for the benefit of such Holders.  On the Mandatory Redemption Date, the Company shall immediately cause to be paid in cash or public securities (or a combination thereof) the applicable Redemption Price for such shares of Series A Preferred Stock to such Holders.  Upon such payment in full, such shares of Series A Preferred Stock will be deemed to have been redeemed, whether or not the certificates for such shares of Series A Preferred Stock have been surrendered for redemption and canceled, and Dividends with respect to such redeemed shares of Series A Preferred Stock shall cease to accumulate and all designations, rights, preferences, powers, qualifications, restrictions and limitations of such redeemed shares of Series A Preferred Stock shall forthwith terminate.
 
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(iii)      In case fewer than all shares of Series A Preferred Stock represented by any certificate are redeemed in accordance with this Section 6, new certificates shall be issued representing the unredeemed shares of Series A Preferred Stock without cost to the Holder thereof.
 
(iv)        The Company shall comply, to the extent applicable, with the requirements of Section 14 of the Exchange Act and any other securities laws (or rules of any exchange on which any Series A Preferred Stock are then listed) in connection with a redemption under this Section 6.  To the extent there is any conflict between the notice or other timing requirements of this Section 6 and the applicable requirements of Section 14 of the Exchange Act, Section 14 of the Exchange Act shall govern.
 
(c)          Company Efforts.  The Company shall take such actions as are necessary to give effect to the provisions of Section 5 and this Section 6, including (i) in the case of a Change of Control Event, irrevocably and unconditionally offering each Holder the right to require the Company to redeem all shares of Series A Preferred Stock held by such Holder in connection with and as a condition to such Change of Control Event for a price per share of Series A Preferred Stock in cash equal to the Redemption Price and (ii) in the event the Company is prohibited by law from redeeming or is otherwise unable to redeem any shares of Series A Preferred Stock in connection with any Mandatory Redemption Event on the applicable Redemption Date, taking any action necessary or appropriate to remove promptly any impediments to its ability to redeem such shares of Series A Preferred Stock required to be so redeemed, including (A) to the extent not prohibited by law, reducing the stated capital of the Company or revaluing the assets of the Company to their fair market values under Section 154 of the DGCL if such revaluation would create surplus sufficient to make all or any portion of such Mandatory Redemption Event payment, and (B) borrowing the cash necessary to make such Mandatory Redemption Event payment to the extent it would not result in an Event of Noncompliance.  In the event of any Change of Control Event in which the Company is not the continuing or surviving corporation or entity, proper provision shall be made so that such continuing or surviving corporation or entity shall agree to carry out and observe the obligations of the Company under this First A&R Certificate of Designation.
 
7.          Exit Rights.
 
(a)          If any Event of Noncompliance shall occur, then, for so long as it is continuing, the Majority Holders shall have the right, exercisable by written notice to the Company (a “Sale/Refinancing Demand”), to require the Company to commence and to engage in a process (the “Sale/Refinancing Process”) in good faith within 30 days of receipt of the Sale/Refinancing Demand to consummate a transaction (the form of which would be determined by the Board of Directors, as applicable, in good faith) in which the Net Proceeds resulting therefrom would be used to redeem the shares of Series A Preferred Stock then outstanding at the then applicable Redemption Price in accordance with the terms hereof, which transaction may include:
 
(i)          a refinancing of the Series A Preferred Stock (a “Forced Refinancing”);
 
(ii)       a sale of the Company and its Subsidiaries, including a sale of all or substantially all of the assets, or a sale of certain assets, lines of business or divisions, in each case, of the Company and its Subsidiaries (a “Forced Sale”); or
 
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(iii)      a transaction other than a Forced Sale or a combination of the transactions described in the foregoing clauses (i) and (ii) (together with a Forced Refinancing and Forced Sale, each a “Forced Transaction”).
 
The Company shall, within 30 days of receipt of the Sale/Refinancing Demand, commence a comprehensive Sale/Refinancing Process in good faith and shall thereafter use its commercially reasonable efforts, subject to applicable law, to promptly consummate a Forced Transaction in accordance with this Section 7, including (A) selecting a nationally-recognized investment banking firm experienced in similar transactions in the industry in which the Company and its Subsidiaries are engaged to assist the Company with respect to a Forced Transaction (the “Investment Bank”), (B) cooperating with the Investment Bank and the Holders in the evaluation of such Forced Transactions, (C) facilitating a customary due diligence process in respect of any such Forced Transaction, including establishing, populating and maintaining an online “data room,” (D) executing customary documents consistent with the consummation of any such Forced Transaction, (E) making required governmental filings and using commercially reasonable efforts to obtain required third party consents necessary to consummate any such Forced Transaction and (F) providing any financial or other information or audit reasonably required by the proposed acquirer’s or lender’s financing sources, and shall consult with the Supermajority Holders with respect thereto.  The Company shall direct the Investment Bank to establish procedures reasonably acceptable to the Majority Holders to effect an orderly Forced Transaction with the objective of achieving the highest practicable value for the Company within a reasonable period of time.  The process undertaken in furtherance of such Sale/Refinancing Demand shall be conducted under the direction of the Board of Directors of the Company.
 
Notwithstanding anything to the contrary set forth herein, (1) at any time prior to the consummation of a Forced Transaction, the Majority Holders may withdraw such Sale/Refinancing Demand, in their sole discretion, by providing written notice of such withdrawal to the Board of Directors (a “Withdrawal Event”), (2) no Sale/Refinancing Demand shall be exercised if Holders of less than two-thirds of the then-outstanding shares of Series A Preferred Stock (which must include the Lead Purchaser for so long as it holds at least 50.1% of the shares of Series A Preferred Stock held by it as of the Initial Issue Date) (the “Supermajority Holders”) consent to the exercise of the Sale/Refinancing Demand, and (3) a Sale/Refinancing Demand may not be exercised on more than one occasion in any twelve (12)-month period.  Any shares of Series A Preferred Stock held by Advent shall be excluded from the numerator and the denominator for purposes of determining whether the Supermajority Holders is achieved.
 
(b)           Notwithstanding anything to the contrary in this Section 7(b), if (i) the Issuer has breached its obligations set forth in Section 7(a), a Forced Transaction that results in the redemption of all of the shares of Series A Preferred Stock at the applicable Redemption Price is not consummated within twelve (12) months of the receipt by the Company of any Sale/Refinancing Demand, or less than all of the shares of Series A Preferred Stock have been redeemed at the applicable Redemption Price within twelve (12) months of the receipt by the Company of any Sale/Refinancing Demand, and (ii) a Withdrawal Event has not occurred, then, upon the consent or approval of the Supermajority Holders, as evidenced by written notice to the Company, the Holders shall have the right, by written notice to the Company, to direct a process in good faith to refinance the then outstanding shares of Series A Preferred Stock and/or consummate a Forced Sale; provided, that, in the case of a Forced Refinancing, such Forced Refinancing must be on terms reasonably acceptable to the Company and, in the case of a Forced Sale, such Forced Sale must be on terms that maximize the equity value of the Company.  The Company and the Company’s Board of Directors shall (and shall request that the Company’s Affiliates) reasonably cooperate with the Supermajority Holders and the Investment Bank in such process and, subject to requirements under applicable law, the Company shall use its commercially reasonable to consummate a Forced Transaction as a result of such process.
 
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(c)          Promptly after, and no later than five Business Days following the date upon which the Company obtains actual knowledge thereof, the Company shall notify the Holders of the occurrence of any Event of Noncompliance (or any event that, if not timely cured, would constitute an Event of Noncompliance).
 
8.          Negative Covenants.
 
(a)          For so long as any shares of Series A Preferred Stock are outstanding, without the prior affirmative vote or written consent of the Majority Holders, the Company shall not (either directly or indirectly, including by merger, consolidation, operation of law or otherwise):
 
(i)          issue any new Equity Interests of the Company, or cause or permit any of its the Restricted Subsidiaries to issue any new Equity Interests, in each case, ranking (with respect to dividends or distributions or entitlement on a return of capital or assets in a winding up or otherwise) pari passu with, or senior to, the Series A Preferred Stock; provided, however, notwithstanding anything to the contrary herein, the Company shall be permitted to issue shares of Preferred Stock, with a par value of $0.0001 per share, designated as a series known as “Series B Senior Preferred Stock” (the “Series B Preferred Stock”), pursuant to and in accordance with the Second Lien Note Purchase Agreement;
 
(ii)         incur Indebtedness for borrowed money or Liens in order to secure any Indebtedness, in each case, except for (A) the Second Lien Indebtedness, (B) Guarantees of Indebtedness or other obligations of the Borrower or any of its Restricted Subsidiaries incurred in connection with any First Lien Facility and/or any Second Lien Indebtedness, (C) Indebtedness owed to or from any Wholly-Owned Subsidiary and/or (D) Permitted Liens;
 
(iii)       cause or permit the Borrower or any of its Restricted Subsidiaries to incur Indebtedness or Liens in order to secure any Indebtedness, in each case, except for Permitted Restricted Subsidiary Indebtedness and Permitted Restricted Subsidiary Liens;
 
(iv)        make any Restricted Payment, other than any Restricted Payment as a result of Optional Redemption, Mandatory Redemption, Dividend or any other payments with respect to the shares of Series A Preferred Stock in accordance with this First A&R Certificate of Designation;
 
(v)         make or hold, or cause or permit any Restricted Subsidiary to make or hold, any Investment that is not a Permitted Investment;
 
(vi)      enter, or cause or permit any Restricted Subsidiary to enter, into any transaction with any Affiliate of the Company or its Subsidiaries involving payment in excess of $1,000,000 in any individual transaction (it being understood that the threshold set forth above shall not apply to exempt more than $5,000,000 of payments from the application of this clause (vi)), on terms that are less favorable to the Company or such Restricted Subsidiary, as the case may be (as reasonably determined by the Company), than those that might be obtained at the time in a comparable arm’s-length transaction from a Person who is not an Affiliate, other than Permitted Affiliate Transactions;
 
(vii)       consummate any Change of Control unless, upon consummation of such Change of Control, the Series A Preferred Stock is redeemed in full in cash in accordance with this First A&R Certificate of Designation;
 
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(viii)     consummate, or cause or permit any Restricted Subsidiary to consummate, any Asset Disposition that is not a Permitted Asset Disposition; provided, that no later than the fifth Business Day following the receipt of net proceeds in respect of any Prepayment Asset Disposition in excess of $15,000,000 in the aggregate, the Company or the applicable Restricted Subsidiary shall apply the proceeds of such sale to repay Indebtedness (other than intercompany Indebtedness); provided, further, that if no Event of Noncompliance then exists, the Company and its Restricted Subsidiaries shall not be required to make a mandatory prepayment under this clause in respect of such proceeds to the extent (A) such proceeds are reinvested in the business of the Company and its Restricted Subsidiaries within 365 days following receipt thereof, or (B) the Company or any of its Restricted Subsidiaries has committed to so reinvest the such proceeds during such 365-day period and the such proceeds are so reinvested within 180 days after the expiration of such 365-day period; it being understood that if the proceeds have not been so reinvested prior to the expiration of the applicable period, the Company or its applicable Restricted Subsidiary shall promptly repay Indebtedness with the amount of such proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso);
 
(ix)      alter the designation of any Subsidiary that is a Restricted Subsidiary as of the Initial Issue Date to be an Unrestricted Subsidiary or make any Investment in or Restricted Payment in respect of any Unrestricted Subsidiary; provided, that the Company may at any time after the Initial Issue Date designate (or redesignate) any subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary if: (A) immediately after giving effect to such designation, no Event of Noncompliance exists; (B) as of the date of the designation thereof, such Unrestricted Subsidiary does not own any Capital Stock in any Restricted Subsidiary (unless such Restricted Subsidiary is also designated as an Unrestricted Subsidiary) or hold any Indebtedness of or any Lien on any property of the Company or its Restricted Subsidiaries (unless the Company or such Restricted Subsidiary is permitted to incur such Indebtedness or grant such Liens in favor of such Unrestricted Subsidiary pursuant to Sections 6.01 and 6.02 of the Credit Agreement as in effect on the First Amendment Effective Date); (C) at the time of any designation of a Restricted Subsidiary as an Unrestricted Subsidiary, the aggregate amount of the fair market value (as determined by the Company in good faith) of the assets of such subsidiary, together with the aggregate amount of the fair market value (as determined by the Company in good faith) of all assets transferred from Restricted Subsidiaries to Unrestricted Subsidiaries prior to such time, do not exceed $10,000,000; (D) no agreements evidencing Acceptable Practice Management Arrangements and/or Management Services Agreement or Material Intellectual Property may be transferred to an Unrestricted Subsidiary; and (E) at the time any Restricted Subsidiary is designated as an Unrestricted Subsidiary, such Restricted Subsidiary does not own any Material Intellectual Property or be party to an Acceptable Practice Management Arrangement.  The designation of any subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Company (or its applicable Restricted Subsidiary) therein at the date of designation in an amount equal to the portion of the fair market value of the net assets of such subsidiary attributable to the Company’s (or its applicable Restricted Subsidiary’s) equity interest therein as reasonably estimated by the Company (and such designation shall only be permitted to the extent such Investment is also permitted under Section 6.06 of the Credit Agreement as in effect on the Initial Issue Date).  The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the making, incurrence or granting, as applicable, at the time of designation of any then-existing Investment, Indebtedness or Lien of such subsidiary, as applicable; provided, that upon any re-designation of any Unrestricted Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue to have an Investment in the resulting Restricted Subsidiary in an amount (if positive) equal to (1) the Company’s “Investment” in such Restricted Subsidiary at the time of such re-designation, less (2) the portion of the fair market value of the net assets of such Restricted Subsidiary attributable to the Company’s equity therein at the time of such re-designation;
 
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(x)        amend, alter or repeal any provision of the Governing Documents of the Company or any of the Restricted Subsidiaries in a manner that is material and adverse to the Holders; it being understood and agreed that the amendments of the Governing Documents contemplated by the Transaction Support Agreement do not violate this clause (x);
 
(xi)       change, in any material respect, the nature of the Company’s and the Restricted Subsidiaries’ businesses, taken as a whole, as of the Initial Issue Date, in each case other than to engage in (A) similar, incidental, complementary, ancillary or related businesses and (B) such other lines of business to which the Majority Holders may consent (such consent not to be unreasonably withheld, conditioned or delayed);
 
(xii)      allow any Subsidiary of the Company that is a direct or indirect parent of Holdings or Successor Holdings (or the immediate parent of the Borrower or Successor Borrower) (each such Person, an “Intermediate Holdings”) to (A) incur any Indebtedness (other than Indebtedness incurred by (1) Holdings pursuant to (x) the Loan Guaranty (as defined in the Credit Agreement as in effect on the Initial Issue Date) and Guarantees by Holdings of Indebtedness or other obligations of the Borrower and/or any Restricted Subsidiary that is otherwise permitted under the Credit Agreement (as in effect on the First Amendment Effective Date) and this First A&R Certificate of Designation) and, in each case, corresponding obligations under any First Lien Facility and (y) the Note Guaranty (as defined in the Second Lien Note Purchase Agreement) and Guarantees by Holdings of Indebtedness or other obligations of the Borrower and/or any Restricted Subsidiary that is otherwise permitted under the Second Lien Note Purchase Agreement, and, in each case, corresponding obligations under any Second Lien Indebtedness and (2) any Intermediate Holdings pursuant to (x) the Parent Loan Guaranty (as defined in the Credit Agreement as in effect on the Initial Issue Date) and Guarantees by Intermediate Holdings of Indebtedness or other obligations of the Borrower and/or any Restricted Subsidiary that is otherwise permitted under the Credit Agreement (as in effect on the First Amendment Effective Date) and this First A&R Certificate of Designation) and, in each case, corresponding obligations under any First Lien Facility and (y) the Note Guaranty (as defined in the Second Lien Note Purchase Agreement) and Guarantees by Intermediate Holdings of Indebtedness or other obligations of the Company and/or any Subsidiary of the Company that is otherwise permitted under the Second Lien Note Purchase Agreement and, in each case, corresponding obligations under any Second Lien Indebtedness, (B) create or suffer to exist any Lien on any asset now owned or hereafter acquired by it (other than (1) Liens created by Holdings under the (x) Collateral Documents (as defined in the Credit Agreement as in effect on the First Amendment Effective Date) and, in each case, Liens securing obligations under any other First Lien Facility and (y) the Collateral Documents (as defined in the Second Lien Note Purchase Agreement as in effect on the First Amendment Effective Date) and, in each case, Liens securing obligations under any other Second Lien Indebtedness, (2) Liens on assets of Holdings securing Indebtedness of the type permitted to be incurred under clause (A) above,  (3) other Liens on assets of Holdings of the type permitted under the Credit Agreement as in effect on the Initial Issue Date (other than in respect of Indebtedness for borrowed money, (4) Liens created by Intermediate Holdings under the (x) Collateral Documents (as defined in the Credit Agreement as in effect on the First Amendment Effective Date) and, in each case, Liens securing obligations under any other First Lien Facility and (y) the Collateral Documents (as defined in the Second Lien Note Purchase Agreement as in effect on the First Amendment Effective Date) and, in each case, Liens securing obligations under any other Second Lien Indebtedness, (5) Liens on assets of Intermediate Holdings securing Indebtedness of the type permitted to be incurred under clause (A) above and (6) other Liens on assets of Intermediate Holdings of the type permitted under the Second Lien Purchase Agreement as in effect on the First Amendment Effective Date (other than in respect of Indebtedness for borrowed money)), and (C) consolidate or amalgamate with, or merge with or into, or convey, sell or otherwise transfer all or substantially all of its assets to, any Person; provided, that, so long as no Event of Noncompliance exists or would result therefrom, such Intermediate Holdings may consolidate or amalgamate with, or merge with or into, any other Person (other than the Company or any of its Subsidiaries) so long as Intermediate Holdings is the continuing or surviving Person and it is in compliance with this clause (xii); or
 
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(xiii)     conduct, transact or otherwise engage in any business or operations other than (A) the direct or indirect ownership and/or acquisition of the Equity Interests of any Subsidiary, (B) the maintenance of its legal existence, including the ability to incur fees, costs and expenses relating to such maintenance, (C) participating in tax, accounting and other administrative matters as a member of the consolidated group of the Company and its Subsidiaries, (D) the performance of its obligations under and in connection with this First A&R Certificate of Designation and any documentation governing any Series A Preferred Stock issued in compliance with this First A&R Certificate of Designation and the other agreements and transactions contemplated thereby and hereby, (E) any public offering of its or any of its direct or indirect parent’s common stock or any other issuance or registration of its Equity Interests for sale or resale not prohibited by this First A&R Certificate of Designation, including the costs, fees and expenses related thereto, (F) making any Restricted Payment or dividend or distribution or other transaction similar to a Restricted Payment and not otherwise prohibited by this First A&R Certificate of Designation, or any Investment in any Restricted Subsidiary (including, for the avoidance of doubt, the acquisition thereof), (G) incurring fees, costs and expenses relating to overhead and general operating including professional fees for legal, tax and accounting issues and paying taxes, (H) providing indemnification to officers and members of the Board of Directors, (I) activities incidental to the consummation of the Transactions, (J) guarantees of ordinary course obligations that do not constitute Indebtedness, (K) the performance of its obligations under and in connection with the certificate of designation for the Series B Preferred Stock and any documentation governing any Series B Preferred Stock issued in compliance with the Second Lien Note Purchase Agreement and the other agreements and transactions contemplated thereby and (L) activities incidental to the businesses or activities described in clauses (A) to (L) of this clause (xiii).  For so long as any Series A Preferred Stock is outstanding, the Company and each Intermediate Holdings shall own, directly or indirectly, all of the outstanding Equity Interests of the Borrower.
 
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(b)          In the event of (i) any reclassification, statutory exchange, merger, consolidation or other similar business combination of the Company with or into another Person, in each case, pursuant to which at least a majority of the common Capital Stock (but not the Series A Preferred Stock) is changed or converted into, or exchanged for, securities or other property of another Person, (ii) any reclassification, recapitalization or reorganization of the common Capital Stock (but not the Series A Preferred Stock) into securities of another Person or (iii) the conveyance, sale, lease, assignment, transfer or other disposition of all or substantially all of the Company’s assets or other properties (taken as a whole) (a “Reorganization Event”), each share of Series A Preferred Stock outstanding immediately prior to such Reorganization Event will, without the consent of the Holders and subject to all the other terms hereof, remain outstanding unless redeemed in accordance with this First A&R Certificate of Designation in connection with such Reorganization Event; provided, that in no event will the Company enter into or effect any such Reorganization Event if it would materially and adversely affect the rights of Holders. This provision shall similarly apply to successive Reorganization Events. To the extent that the Company is not the surviving or resulting entity in such Reorganization Event or will be dissolved in connection with such Reorganization Event, the Company shall not consummate any such transaction constituting a Reorganization Event unless proper provision shall be made in the agreements governing such Reorganization Event for the assumption of the obligations of the Company by such surviving or resulting entity in such Reorganization Event in accordance with this provision.
 
(c)           Actions Taken without Approval.  Any of the actions or omissions of the Company prohibited by this Section 8 (if taken without the prior written consent of the Majority Holders approving such action or omission) shall be ultra vires, null and void ab initio and of no force or effect. The Company shall not, and shall cause its Subsidiaries not to (either directly or indirectly, including by merger, consolidation, operation of law or otherwise), by amendment, modification, repeal, restatement, supplementation, termination or waiver of, or consent to any departure by the Company or any of its Subsidiaries from, any provision of this First A&R Certificate of Designation or any other Related Agreement or through any Mandatory Redemption Event, any Change of Control, any disposition or any other reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, agreement or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed under this First A&R Certificate of Designation or any other Related Agreement.
 
9.          Amendments and Waivers.
 
(a)          So long as any shares of Series A Preferred Stock remain outstanding, and unless a greater percentage is required by law, the Issuer shall not, without the affirmative vote or written consent of the Majority Holders, voting separately as one class, amend, alter or change the rights, preferences or privileges of the shares of Series A Preferred Stock, or waive the compliance of any of the covenants included in this First A&R Certificate of Designation or the Investors’ Rights Agreement; provided, however, that the Issuer shall not effect any of the following matters without the consent of each Holder that is adversely affected thereby:
 
(i)          reduce the Dividend Rate or alter the timing or method of payment of any Dividends pursuant to Section 4;
 
(ii)        reduce the Stated Value;
 
(iii)       alter any of the redemption provisions set forth in Sections 5 and 6, other than with respect to notice periods and other immaterial provisions; and
 
(iv)       alter any terms applicable to any Mandatory Redemption.
 
(b)          Any shares held by Advent shall be excluded from the numerator and the denominator for purposes of determining whether the Majority Holders is achieved.
 
10.          Cancellation; No Conversion Rights.  No shares of Series A Preferred Stock acquired by the Company by reason of redemption, purchase or otherwise shall be reissued or held in treasury for reissuance, and the Company shall take all necessary action to cause such shares of Series A Preferred Stock immediately to be canceled, retired and eliminated from the shares of Series A Preferred Stock which the Company shall be authorized to issue.  The Holders have no rights to convert any Series A Preferred Stock into any other Equity Interests of the Company.
 
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11.          Rights and Remedies of Holders.
 
(a)         The various provisions set forth under this First A&R Certificate of Designation are for the benefit of the Holders and, subject to the terms and conditions hereof and applicable law, will be enforceable by them, including by one or more actions for specific performance.
 
(b)          Except as expressly set forth herein, all remedies available under this First A&R Certificate of Designation, at law, in equity or otherwise, will be deemed cumulative and not alternative or exclusive of other remedies.  The exercise by any Holder of a particular remedy will not preclude the exercise of any other remedy.
 
12.          Definitions.  As used in this First A&R Certificate of Designation, the following terms shall have the meanings specified below:
 
“2021 Equity Incentive Plan” shall have the meaning assigned to such term in Section 8(a)(iv).
 
“Acceptable Practice Management Arrangements” has the meaning set forth in the Credit Agreement as in effect on the Initial Issue Date.
 
“Advent” shall mean 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).
 
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person.  For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
 
“Affiliated Practice” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
“Alternative Forced Transaction” means a transaction other than a Forced Refinancing or a Forced Sale, the Net Proceeds of which shall be used to redeem the Series A Preferred Stock in full at the then applicable Redemption Price in accordance with Section 5.
 
“APC Manager” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
“Asset Disposition” means: (a) the voluntary sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions of property or assets (including by way of a sale and leaseback transaction) of the Company or any Restricted Subsidiary (in each case other than Capital Stock of the Company) (each referred to in this definition as a “sale”; the term “sale” as a verb has a corresponding meaning), having a fair market value in excess of $2,000,000 in a single transaction or a series of related transactions and in excess of $5,000,000 in the aggregate for all such transactions; or (b) the issuance or sale of Capital Stock of any Restricted Subsidiary (other than issuances or sales to the Company or any Restricted Subsidiary); in each case, whether in a single transaction or a series of related transactions.
 
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“Available Excluded Contribution Amount” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
“Bankruptcy Event” means:
 
(1)          an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Company or any of its Subsidiaries (other than Immaterial Subsidiaries), or of all or substantially all of the property or assets of the Company or any of its Subsidiaries (other than Immaterial Subsidiaries), under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any of its Subsidiaries (other than Immaterial Subsidiaries) or for all or substantially all of the property or assets of the Company or any of its Subsidiaries (other than Immaterial Subsidiaries), or (iii) the winding-up or liquidation of the Company or any of its Subsidiaries (other than Immaterial Subsidiaries), and in the case of any proceeding described in this clause (1), such proceeding or petition shall continue in effect and undismissed or unstayed for 90 days or an order or decree approving or ordering any of the foregoing shall be entered; or
 
(2)          the Company or any of its Subsidiaries (other than Immaterial Subsidiaries) shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in clause (1) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any of its Subsidiaries (other than Immaterial Subsidiaries) or for all or substantially all of the property or assets of the Company or any of its Subsidiaries (other than Immaterial Subsidiaries), (iv) make a general assignment for the benefit of creditors, and in the case of any proceeding described in this clause (2), such proceeding or petition shall continue in effect and undismissed or unstayed for 90 days or an order or decree approving or ordering any of the foregoing shall be entered, or (v) commence any voluntary out-of-court restructuring transaction that has a material adverse impact on the Series A Preferred Stock or the rights of the Holders. For purposes of this definition, “Board of Directors” means the board of directors of the Company from time to time.
 
“Borrower” means ATI Holdings Acquisition, Inc.
 
“Business Day” means each day that is not a Legal Holiday.
 
“Capital Stock” means:
 
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(1)          in the case of a corporation, corporate stock;
 
(2)          in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
 
(3)          in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
 
(4)          any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
 
“Capital Lease” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
“Cash Equivalents” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
“Certificate of Designation” shall have the meaning assigned to such term in the recitals hereof.
 
“Certificate of Incorporation” shall have the meaning assigned to such term in the recitals hereof.
 
“Change of Control” means the occurrence of any of the following:
 
(a)          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 Initial Issue Date), of voting stock representing more than 50% of the total voting power of all of the outstanding voting stock of the Company; provided, that notwithstanding the provisions of this clause (a), no “Change of Control” shall be deemed to have occurred under this clause (a) 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;
 
(b)          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 First Amendment Effective Date), of voting stock representing more than 50% of the total voting power of all of the outstanding voting stock of Holdings; provided, that notwithstanding the provisions of this clause (b), no “Change of Control” shall be deemed to have occurred under this clause (b) 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; or
 
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(c)          the Borrower ceasing to be a direct or indirect Wholly-Owned Subsidiary of the Company.
 
For purposes of this definition, (i) 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 (ii) it is understood and agreed that any transaction resulting in a Successor Borrower or Successor Holdings (in each case as defined in the Credit Agreement in effect on the Initial Issue Date) in accordance with the terms of the Credit Agreement as in effect on the Initial Issue Date shall not give rise to a Change of Control.
 
“Change of Control Event” means the occurrence of a Change of Control.
 
“Common Stock” means any shares of common stock, with a par value of $0.01 per share, of the Company.
 
“Company” shall have the meaning assigned to such term in the recitals hereof.
 
“Compounded Dividends” shall have the meaning assigned to such term in Section 4(b).
 
“Consolidated Adjusted EBITDA” shall have the meaning assigned to such term in the Credit Agreement as in effect on the First Amendment Effective Date.
 
“Consolidated APC” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
“control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
 
“Credit Agreement” means that certain Credit Agreement, dated as of February 24, 2022, by and among the Borrower, Wilco Intermediate Holdings, Inc., the lenders from time to time party thereto, and Barclays Bank PLC, as administrative agent and collateral agent, as amended by (a) that certain Amendment No. 1 to Credit Agreement, dated as of March 30, 2022, and (b) that certain Amendment No. 2 to Credit Agreement, dated as of April [●], 2023 (“Amendment No. 2 to Credit Agreement”) and as further amended, restated, amended and restated, supplemented, extended, replaced, refinanced or otherwise modified from time to time; provided, that, where any term is defined herein by reference to the Credit Agreement “as in effect on the Initial Issue Date” or “as in effect on the First Amendment Effective Date” or any such similar qualification, such reference shall be deemed to be a reference to the Credit Agreement as it existed on the Initial Issue Date or the First Amendment Effective Date after giving effect to the Amendment No. 2 to Credit Agreement, as applicable, and shall not, for the avoidance of doubt, give effect to any amendment to the Credit Agreement consummated after effectiveness of Amendment No. 2 to Credit Agreement.
 
“Delaware LLC Division” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
“Derivative Transactions” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
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“DGCL” shall have the meaning assigned to such term in the recitals hereof.
 
“Dividend Payment Date” means the last day of each fiscal quarter of the Issuer following the Initial Issue Date (or, if such date is not a Business Day, the immediately succeeding Business Day).
 
“Dividend Period” means the period commencing on and including a Dividend Payment Date that ends on, but does not include, the next Dividend Payment Date; provided that the initial Dividend Period shall commence on and include the Initial Issue Date and end on, but not include, the first Dividend Payment Date.
 
“Dividend Rate” shall have the meaning assigned to such term in Section 4(b).
 
“Dividends” shall have the meaning assigned to such term in Section 4(b).
 
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.
 
“Event of Noncompliance” means any one of the following events:
 
(a)          failure by the Issuer to comply with its obligations, covenants or agreements contained in Section 9(a);
 
(b)          any breach of any material term of this First A&R Certificate of Designation (other than an event referred to in clause (a) above) or the Investors’ Rights Agreement, which breach remains uncured following 15 Business Days (which period shall be extended to 45 Business Days to the extent the breach is capable of being cured and the Issuer is using commercially reasonable efforts to cure such breach); and
 
(c)          a Bankruptcy Event.
 
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
 
“fair market value” means with respect to any investment, asset, property or liability, the value of the consideration obtainable in a sale of such investment, asset, property or liability at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset, investment, property or liability as determined in good faith by the Board of Directors.
 
“FASB” means the Financial Accounting Standards Board.
 
“Financial Covenants” shall have the meaning assigned to such term in the Credit Agreement as in effect on the First Amendment Effective Date.
 
“First A&R Certificate of Designation” shall have the meaning assigned to such term in the recitals hereof.
 
“First Amendment Effective Date” means the effective filing date of this First A&R Certificate of Designation.
 
“First Call Date” means February 24, 2024.
 
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“First Lien Facility” means the credit facilities governed by the Credit Agreement, including any Incremental Facility (as defined in the Credit Agreement) 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 or other Indebtedness, 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 First A&R Certificate of Designation.
 
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
 
“Fiscal Year” means the fiscal year of the Company ending December 31 of each calendar year.
 
“Forced Transaction Event” means the completion of a Forced Transaction following a Sale/Refinancing Demand.
 
“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, as in effect from time to time.
 
“Governing Documents” means, as to any Person, the certificate of incorporation and by‑laws, certificate of formation and operating agreement, or other organizational or governing documents of such Person.
 
“Holder” means, as of the relevant date, any Person that is the holder of record of at least one share of Series A Preferred Stock, as of such date.
 
“Holdings” means Wilco Intermediate Holdings, Inc.
 
“Immaterial Subsidiaries” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
“Immediate Family Members” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
“Incur” or “incur” means, with respect to any Indebtedness, Capital Stock or Lien, to issue, assume, guarantee, incur or otherwise become liable for such Indebtedness, Capital Stock or Lien, as applicable; provided that any Indebtedness, Capital Stock or Lien of a Person existing at the time such Person becomes a Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Subsidiary. The term “Incurrence” has a corresponding meaning.
 
“Indebtedness” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
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“Initial Issue Date” means February 24, 2022.
 
“Intermediate Holdings” shall have the meaning assigned to such term in Section 8(a)(xii).
 
“Investment” means (a) any purchase or other acquisition for consideration by the Company or any of its Restricted Subsidiaries of any of the Securities of any other Person (other than any Restricted Subsidiary), (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 Company, 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 Company or any of its Restricted Subsidiaries to any other Person.  Subject to Section 8(a)(ix), 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).
 
“Investors’ Rights Agreement” means the Investors’ Rights Agreement, dated as of the Initial Issue Date (as amended, restated, supplemented or otherwise modified from time to time), by and among the Company and the Holders party thereto.
 
“IP Rights” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
“Junior Stock” means Common Stock, any other preferred stock and any other Equity Interest of the Company (other than the Series A Preferred Stock).
 
“Lead Purchaser” means, collectively, Knighthead Master Fund, LP, Knighthead (NY) Fund, L.P., Knighthead Annuity & Life Assurance Company and Knighthead Distressed Opportunities Fund, L.P. and any of their Affiliates that are Holders.
 
“Legal Holiday” means a Saturday, a Sunday or a day on which commercial banking institutions are not required or authorized to be open in the State of New York.
 
“Lien” means any mortgage, pledge, 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); provided, that, for the avoidance of doubt, in no event shall an operating lease in and of itself be deemed to constitute a Lien.
 
“Liquidation Event” means an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking the liquidation, dissolution or winding up of the Company or any of its Subsidiaries (other than Immaterial Subsidiaries), and such proceeding or petition shall continue undismissed or unstayed for 90 days or an order or decree approving or ordering any of the foregoing shall be entered.
 
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“Liquidation Value” means, as of the relevant time and with respect to each share of Preferred Stock, the sum of (a) the Stated Value of such share as of such date, plus (b) any declared but unpaid Dividends on such share for the most recent Dividend Period as of such date (to the extent not part of the Stated Value of such Share as of such date), plus (c) the amount of accumulated and unpaid Dividends on such share from the last Dividend Payment Date to, but not including, such date (to the extent not part of the Stated Value of such share as of such date).
 
“Majority Holders” means, as of any date of determination, the Holders holding a majority of the then outstanding shares of Series A Preferred Stock (the affirmative vote or written consent of which must include the Lead Purchaser for so long as it holds at least 50.1% of the shares of Series A Preferred Stock held by it as of the Initial Issue Date). Any shares of Series A Preferred Stock held by Advent shall be excluded from the numerator and the denominator for purposes of determining whether a majority is achieved.
 
“Make-Whole Amount” means, with respect to any share of Series A Preferred Stock as of any Redemption Date occurring prior to the First Call Date, an amount equal to the present value (calculated as provided below) as of such date of the product of 106% multiplied by the Liquidation Value of such share of Series A Preferred Stock being redeemed (assuming that, for purposes of calculating such Liquidation Value, (a) such share of Series A Preferred Stock remained outstanding through the First Call Date, and (b) all scheduled, but not yet actually capitalized, Dividends (including, for the avoidance of doubt, any Dividends that would accrue from the Dividend Payment Date immediately prior to the First Call Date through the First Call Date) prior to the First Call Date have been capitalized and added to the then-outstanding Stated Value of such share of Series A Preferred Stock on each applicable Dividend Payment Date (in the case of scheduled Dividends) and the First Call Date (in the case of accrued Dividends since the Dividend Payment Date immediately prior to the First Call Date)), with the present value of such amount being computed using an annual discount rate equal to the rate on U.S. Treasury notes with a maturity closest to the applicable Redemption Date plus 50 basis points.
 
“Mandatory Redemption” shall have the meaning assigned to such term in Section 6(a).
 
“Mandatory Redemption Date” shall have the meaning assigned to such term in Section 6(a).
 
“Mandatory Redemption Event” shall have the meaning assigned to such term in Section 6(a).
 
“Mandatory Redemption Notice” shall have the meaning assigned to such term in Section 6(b)(i).
 
“Material Intellectual Property” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
“Minimum Portion” means, on any date, shares of Series A Preferred Stock for which the sum of the Stated Value thereof at such time is not less than $10,000,000 (unless the aggregate sum of the Stated Value of all shares of Series A Preferred Stock that would remain outstanding after such redemption would be less than $10,000,000, in which case “Minimum Portion” means all such shares of Series A Preferred Stock then outstanding).
 
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“Net Proceeds” of a transaction means the aggregate cash proceeds and the fair market value of any Cash Equivalents received by the Company or any of its Subsidiaries in respect of such transaction, net of the direct costs relating to such transaction, including legal, accounting and investment banking fees, payments made in order to obtain a necessary consent or required by applicable law, and brokerage and sales commissions, any relocation expenses incurred as a result thereof, other fees and expenses, including title and recordation expenses, taxes paid or payable as a result thereof or any transactions occurring or deemed to occur to effectuate a payment under this First A&R Certificate of Designation.
 
“Non-Consolidated APCs” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
“Optional Redemption” shall have the meaning assigned to such term in Section 5(a)(i)(A).
 
“Optional Redemption Date” shall have the meaning assigned to such term in Section 5.
 
“Permitted Affiliate Transaction” means:
 
(a)         any transaction between or among the Company and/or one or more Restricted Subsidiaries and/or Affiliated Practices (or any entity that becomes a Restricted Subsidiary or Affiliated Practice as a result of such transaction) to the extent permitted or not restricted by this First A&R Certificate of Designation;
 
(b)        any issuance, sale or grant of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of employment arrangements, stock options and stock ownership plans approved by the board of directors (or equivalent governing body) of the Company or any Restricted Subsidiary;
 
(c)         (i) any collective bargaining, employment or severance agreement or compensatory (including profit sharing) arrangement entered into by the Company or any of its Restricted Subsidiaries with their respective current or former officers, directors, members of management, managers, employees, consultants or independent contractors or those of the Company, (ii) any subscription agreement or similar agreement pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights with current or former officers, directors, members of management, managers, employees, consultants or independent contractors and (iii) transactions pursuant to any employee compensation, benefit plan, stock option plan or arrangement, any health, disability or similar insurance plan which covers current or former officers, directors, members of management, managers, employees, consultants or independent contractors or any employment contract or arrangement;
 
(d)          transactions permitted by Sections 6.01(d), (o) and (ee), 6.04 and 6.06(h), (m), (o), (t), (v), (y), (z) and (aa) of the Credit Agreement as in effect on the Initial Issue Date;
 
(e)          [reserved]
 
(f)         the payment or reimbursement of all indemnification obligations and expenses owed to any Investor and any of their respective directors, officers, members of management, managers, employees and consultants, whether currently due or paid in respect of accruals from prior periods;
 
(g)          the Transactions, including the payment of Transaction Costs, each as defined in the Credit Agreement as in effect on the Initial Issue Date;
 
(h)          (i) the Transactions (as defined in the Transaction Support Agreement) and the payment of transaction costs in connection therewith and (ii) the transactions contemplated by the Second Lien Note Purchase Agreement and/or any Second Lien Facility;
 
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(i)           Guarantees permitted by Section 8(a)(ii), Section 8(a)(iii) or Section 8(a)(xii);
 
(j)           transactions among the Company and its Restricted Subsidiaries and/or any Affiliated Practice that are otherwise permitted (or not restricted) under Section 8;
 
(k)         (i) the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, members of the board of directors (or similar governing body), officers, employees, members of management, managers, consultants and independent contractors of the Company and/or any of its Restricted Subsidiaries in the ordinary course of business and, in the case of payments to such Person in such capacity on behalf of the Company, to the extent attributable to the operations of the Company or its subsidiaries and (ii) payments or distributions required to be made to the Company’s directors, officers or Affiliates pursuant to any indemnification agreement or other obligation pursuant to which the Company or any of its Subsidiaries is bound in respect of indemnification, exculpation or advancement of expenses to directors, officers or agents of the Company or any of its Affiliates;
 
(l)          transactions with customers, clients, suppliers, joint ventures, purchasers or sellers of goods or services or providers of employees or other labor entered into in the ordinary course of business, which are (i) fair to the Company and/or its applicable Restricted Subsidiary in the good faith determination of the board of directors (or similar governing body) of the Company or the senior management thereof or (ii) on terms at least as favorable as might reasonably be obtained from a Person other than an Affiliate;
 
(m)         the payment of reasonable out-of-pocket costs and expenses related to registration rights and customary indemnities provided to shareholders under any shareholder agreement;
 
(n)          (i) any purchase by the Company of the Capital Stock of (or contribution to the equity capital of) the Company and (ii) any intercompany loan made by the Company to the Borrower or any Restricted Subsidiary and/or any Affiliated Practice;
 
(o)         any transaction approved by a majority of disinterested directors (or members of any similar governing body) of the Company (including at least one of the Series A Directors, the consent of whom shall not be unreasonably withheld, conditioned or delayed) in respect of which the Company delivers to the Majority Holders a letter addressed to the board of directors (or equivalent governing body) of the Company from an accounting, appraisal or investment banking firm of nationally recognized standing stating that such transaction is on terms that are either (i) no less favorable to the Company or the applicable Restricted Subsidiary than might be obtained at the time in a comparable arm’s length transaction from a Person who is not an Affiliate or (ii) fair to the Company or the relevant Restricted Subsidiary from a financial point of view;
 
(p)          any transaction consummated in connection with any Permitted Practice Subsidiary Restructuring (as defined in the Credit Agreement in effect on the Initial Issue Date);
 
(q)         any transaction (or series of related transactions) approved by a majority of the disinterested directors (or members of any similar governing body) of the Company (including at least one of the Series A Directors, the consent of whom shall not be unreasonably withheld, conditioned or delayed);
 
(r)          any investment by any Investor or the Company in Securities or Indebtedness of the Borrower and/or any Guarantor;
 
(s)          any payment to or from, and/or any transaction with, any joint venture in the ordinary course of business or consistent with past practice, industry practice or industry norms (including, any cash management activity related thereto); and
 
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(t)         any (i) Investment by any Affiliate in the Loans, loans, securities or other Indebtedness of the Company and/or any Restricted Subsidiary (and payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the investment is being offered by the Company or such Restricted Subsidiary generally to other investors on the same or more favorable terms and (ii) payments and/or distributions to Affiliates in respect of the Loans, loans, securities or Indebtedness of the Company or any Restricted Subsidiary in connection with the securities and other Indebtedness contemplated in the foregoing clause (i) or that were acquired from Persons other than the Company and the Restricted Subsidiaries, in each case, in accordance with the terms of such securities or Indebtedness.
 
“Permitted Acquisition” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
“Permitted Asset Disposition” means:
 
(a)        Dispositions (including of Capital Stock) as part of any Permitted Practice Subsidiary Restructuring and/or among the Company and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided, that any such Disposition made by any Company and/or any Restricted Subsidiary to any Person that is not the Company or any Restricted Subsidiary shall be (i) for fair market value (as reasonably determined by such Person) with at least 75% of the consideration for such Disposition consisting of Cash and Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 8(a)(v);
 
(b)        (i) the liquidation, dissolution or Delaware LLC Division of any Restricted Subsidiary if the Company determines in good faith that such liquidation, dissolution or Delaware LLC Division is in the best interests of the Company and the Company or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided, that, in the case of any liquidation, dissolution or Delaware LLC Division of the Company or any Restricted Subsidiary that results in a distribution of assets to any Restricted Subsidiary that is not a the Company or any Restricted Subsidiary, such distribution shall be treated as an Investment and shall comply with Section 8(a)(v), (ii) any merger, amalgamation, dissolution, liquidation, consolidation or Delaware LLC Division, the purpose of which is to effect (A) any Asset Disposition otherwise permitted under Section 6.03 of the Credit Agreement in effect on the Initial Issue Date or (B) any Investment permitted under Section 8(a)(v), and (iii) the conversion of the Company or any Restricted Subsidiary into another form of entity;
 
(c)          (i) Dispositions of inventory or equipment or immaterial assets in the ordinary course of business (including on an intercompany basis) and (ii) the leasing or subleasing of real property in the ordinary course of business;
 
(d)          Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Company, is (i) no longer useful in its business (or in the business of any Restricted Subsidiary of the Company) or (ii) otherwise economically impracticable to maintain;
 
(e)          Dispositions in the ordinary course of business of Cash and Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
 
(f)          Dispositions, mergers, amalgamations, consolidations or conveyances that constitute (i) Investments permitted pursuant to Section 8(a)(v), (ii) Permitted Liens and (iii) Restricted Payments permitted by Section 8(a)(iv);
 
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(g)          Dispositions for fair market value; provided, that, with respect to any such Disposition with a purchase price in excess of $10,000,000, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided, that, for purposes of the 75% Cash consideration requirement, (i) the amount of any Indebtedness or other liabilities of the Company or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto) that are assumed by the transferee of any such assets and for which the Company and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing), (ii) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (iii) any Security received by the Company or any Restricted Subsidiary from such transferee that is converted by such Person into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (iv) any non-Cash consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other non-Cash consideration received pursuant to this clause that is at that time outstanding, not in excess of $20,000,000 during the term of this Agreement, in each case, shall be deemed to be Cash); provided, further, that (A) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Noncompliance exists, (B) this provision shall not permit a Disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries and (C) the net proceeds of such disposition shall be applied and/or reinvested as (and to the extent) required by the Credit Agreement (as in effect on the First Amendment Effective Date);
 
(h)          to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
 
(i)           Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venture or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
 
(j)           Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof; provided that factoring or similar arrangements shall not be permitted pursuant to this clause (k);
 
(k)         Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Company and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
 
(l)          (i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
 
(m)         Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
 
(n)          Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
 
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(o)          Dispositions of non-core assets acquired in connection with any acquisition permitted hereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, within 90 days of the date of such acquisition, are designated in writing to the Majority Holders as being held for sale and not for the continued operation of the Company or any of its Restricted Subsidiaries or any of their respective businesses; provided, that (i) no Event of Noncompliance exists on the date on which the definitive agreement governing the relevant Disposition is executed, (ii) such Dispositions are for fair market value and (iii) the net proceeds of such disposition shall be applied and/or reinvested as (and to the extent) required by the Credit Agreement (as in effect on the First Amendment Effective Date);
 
(p)          exchanges or swaps, including transactions covered by Section 1031 of the Internal Revenue Code of 1986 (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Company) for like assets;
 
(q)          (i) non-exclusive licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Company or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable good faith determination of the Company, are not material to the conduct of the business of the Company or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
 
(r)          terminations or unwinds of Derivative Transactions;
 
(s)         Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of the Company and/or any Restricted Subsidiary; provided, that such Dispositions do not exceed $5,000,000 in the aggregate;
 
(t)           Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
 
(u)         any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary (as defined in the Credit Agreement as in effect on the Initial Issue Date) in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary (as defined in the Credit Agreement as in effect on the Initial Issue Date) in the U.S. or any other jurisdiction;
 
(v)          any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
 
(w)        Dispositions in connection with Sale and Lease-Back Transactions; provided, that, in the case of this clause (w), the fair market value of all property so disposed of after the Initial Issue Date shall not exceed the greater of $5,000,000 and 7.5% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period; provided, further, that Dispositions in connection with Sale and Lease-Back Transactions may be made solely under clause (w) of this definition and not under any other clause;
 
(x)         Dispositions for fair market value; provided, that, with respect to any such Disposition, the proceeds of such Disposition are used to make any mandatory prepayment (including applicable call protection) to the extent required under the Credit Agreement (as in effect on the First Amendment Effective Date); and
 
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(y)          to the extent applicable, the consummation of the Transactions (as defined in the Transaction Support Agreement).
 
“Permitted Holders” means Advent and the Specified Preferred Equityholders.
 
“Permitted Investment” means:
 
(a)          Cash or Investments that were Cash Equivalents at the time made;
 
(b)          Investments:
 
(i)          existing on the Initial Issue Date in the Borrower or in any Restricted Subsidiary,
 
(ii)         made after the Initial Issue Date among the Borrower and/or one or more Restricted Subsidiaries,
 
(iii)       in the form of loans or advances made in the ordinary course of business in any Affiliated Practice in connection with the provision of services to such Affiliated Practice under Acceptable Practice Management Arrangements, including any Investment contemplated by any Practice Loan Agreement (as defined in the Credit Agreement as in effect on the Initial Issue Date) and/or any Management Services Agreement (as defined in the Credit Agreement as in effect on the Initial Issue Date) (other than an Investment contemplated by clause (e) below) and/or the proceeds of which are used to pay management fees to the relevant APC Manager, working capital purposes or payroll or other ordinary course business expenses of such Affiliated Practice; provided, that any loans or advances made pursuant to this clause (b)(iii) to any Non-Consolidated APC shall not exceed $5,000,000 at any time outstanding,
 
(c)          Investments (i) constituting deposits, prepayments and/or other credits to suppliers, (ii) made in connection with obtaining, maintaining or renewing client and customer contracts and/or (iii) in the form of advances made to distributors, suppliers, licensors and licensees, in each case, in the ordinary course of business or, in the case of clause (iii), to the extent necessary to maintain the ordinary course of supplies to the Company or any Restricted Subsidiary;
 
(d)        Investments in (i) any Unrestricted Subsidiary and/or any Similar Business in an aggregate outstanding amount not to exceed $10,000,000 and (ii) any joint ventures and/or Similar Business in an aggregate outstanding amount not to exceed the greater of $6,500,000 and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
 
(e)         (i) Permitted Acquisitions, so long as after giving effect thereto on a Pro Forma Basis, the Borrower is in compliance with the then applicable Financial Covenant in the Credit Agreement as in effect on the First Amendment Effective Date, and (ii) any Investment in any Consolidated APC in an amount required to permit such Consolidated APC to consummate, directly or indirectly, a Permitted Acquisition;
 
(f)          Investments (i) existing on, or contractually committed to or contemplated as of, the Initial Issue Date and described on Schedule 6.06 to the Credit Agreement as in effect on the Initial Issue Date and (ii) any modification, replacement, renewal or extension of any Investment described in clause (i) above so long as no such modification, renewal or extension increases the amount of such Investment except by the terms thereof or as otherwise permitted by this definition;
 
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(g)          Investments received in lieu of Cash in connection with any Disposition that is permitted hereby and by Section 6.07 of the Credit Agreement as of the Initial Issue Date or any other disposition of assets not constituting a Disposition;
 
(h)          loans or advances to present or former employees, directors, members of management, officers, managers or consultants or independent contractors (or their respective Immediate Family Members) of any the Company, its subsidiaries and/or any joint venture to the extent permitted by Requirements of Law, in connection with such Person’s purchase of Capital Stock of the Company, either (i) in an aggregate principal amount not to exceed $1,000,000 at any one time outstanding or (ii) so long as the proceeds of such loan or advance are substantially contemporaneously contributed to the Company for the purchase of such Capital Stock;
 
(i)          Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business;
 
(j)          Investments consisting of (or resulting from) mergers, consolidations, amalgamations, liquidations, windings up, dissolutions or Dispositions permitted by clauses (b)(i), (c)(i) and (h) of Section 6.07 of the Credit Agreement as of the Initial Issue Date;
 
(k)            Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers;
 
(l)           Investments (including debt obligations and Capital Stock) received (i) in connection with the bankruptcy or reorganization of any Person, (ii) in settlement of delinquent obligations of, or other disputes with, customers, suppliers and other account debtors arising in the ordinary course of business, (iii) upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment and/or (iv) as a result of the settlement, compromise, resolution of litigation, arbitration or other disputes;
 
(m)          loans and advances of payroll payments or other compensation to present or former employees, directors, members of management, officers, managers or consultants of the Company or any Intermediate Holdings (to the extent such payments or other compensation relate to services provided to the Company and/or any subsidiary in the ordinary course of business);
 
(n)           Investments to the extent that payment therefor is made solely with Capital Stock of the Company or Qualified Capital Stock of any Restricted Subsidiary, in each case, to the extent not resulting in a Change of Control;
 
(o)          (i) Investments of any Restricted Subsidiary acquired after the Initial Issue Date, or of any Person acquired by, or merged into or consolidated or amalgamated with, the Company or any Restricted Subsidiary after the Initial Issue Date, in each case as part of an Investment otherwise permitted by this definition to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of the relevant acquisition, merger, amalgamation or consolidation and (ii) any modification, replacement, renewal or extension of any Investment permitted under clause (i) hereof so long as no such modification, replacement, renewal or extension thereof increases the original amount of such Investment except as otherwise permitted by this definition;
 
(p)          (i) Investments on the Initial Issue Date made in connection with the Transactions (as defined in the Credit Agreement as in effect on the Initial Issue Date) and (ii) to the extent applicable, Investments necessary to consummate the Transactions (as defined in the Transaction Support Agreement);
 
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(q)          Investments made after the Initial Issue Date by the Company and/or any of its Restricted Subsidiaries in an aggregate amount at any time outstanding not to exceed:
 
(i)          the greater of $6,500,000 and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, plus
 
(ii)        in the event that (A) the Company or any of its Restricted Subsidiaries makes any Investment after the Initial Issue Date in any Person that is neither a Restricted Subsidiary nor a Consolidated APC and (B) such Person subsequently becomes a party to the Credit Agreement, an amount equal to 100% of the fair market value of such Investment as of the date on which such Person becomes a party to the Credit Agreement;
 
(r)          [reserved]
 
(s)          (i) Guarantees of leases (other than Capital Leases) or of other obligations not constituting Indebtedness and (ii) Guarantees of the lease obligations of suppliers, customers, franchisees and licensees of the Company and/or its Restricted Subsidiaries, in each case, in the ordinary course of business;
 
(t)           [reserved]
 
(u)          [reserved]
 
(v)          Investments in subsidiaries in connection with internal reorganizations and/or restructurings and activities related to tax planning;
 
(w)         Investments under any Derivative Transaction of the type permitted under Section 6.01(s) of the Credit Agreement as of the Initial Issue Date;
 
(x)         Investments made in connection with any Permitted Practice Subsidiary Restructuring; provided, that the aggregate amount of Investments made in Non-Consolidated APCs pursuant to this clause (x), shall not exceed $5,000,000;
 
(y)          Investments made in joint ventures as required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture agreements and similar binding arrangements entered into in the ordinary course of business;
 
(z)         Investments made in connection with any nonqualified deferred compensation plan or arrangement for any present or former employee, director, member of management, officer, manager or consultant or independent contractor (or any Immediate Family Member thereof) of the Company, its subsidiaries and/or any joint venture;
 
(aa)        Investments in any Restricted Subsidiary and/or joint venture in connection with intercompany cash management arrangements and related activities in the ordinary course of business;
 
(bb)        Investments so long as, after giving effect thereto on a Pro Forma Basis, the Total Net Leverage Ratio does not exceed 4.50:1.00;
 
(cc)       any Investment made by any Unrestricted Subsidiary prior to the date on which such Unrestricted Subsidiary is designated as a Restricted Subsidiary so long as the relevant Investment was not made in contemplation of the designation of such Unrestricted Subsidiary as a Restricted Subsidiary; and
 
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(dd)        Investments consisting of the non-exclusive licensing in the ordinary course of business or contribution of IP Rights pursuant to joint marketing arrangements with other Persons.
 
Notwithstanding anything to the contrary in this definition, (A) this definition shall not permit any IP Separation Transaction and (B) the aggregate amount of assets held by all Subsidiaries that are designated as Unrestricted Subsidiaries together with the aggregate amount of Investments in Unrestricted Subsidiaries shall not exceed the $10,000,000 in the aggregate.
 
“Permitted Liens” means (a) statutory Liens (and rights of set-off) and other Liens imposed by applicable Requirements of Law, in each case incurred in the ordinary course of business, (b) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto, (c) Liens for taxes, assessments or other governmental charges or statutory obligations the payment of which is not required, (d) Liens (other than Liens securing debt for borrowed money) of the type described in clauses (d), (e), (f), (p), (v), (x) and (y) of Section 6.02 of the Credit Agreement and (e) Liens securing any Second Lien Facility and/or securing any First Lien Facility.
 
“Permitted Practice Subsidiary Restructuring” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
“Permitted Restricted Subsidiary Indebtedness” means (a) Indebtedness incurred pursuant to any First Lien Facility in an aggregate outstanding principal amount not to exceed the sum of (i) (A) 115% multiplied by (B) (x) $560,000,000 less (y) the amount of Term Loans (as defined in the Credit Agreement as in effect on the First Amendment Effective Date) purchased by the Issuer pursuant to the Master Assignment Agreement and cancelled, (ii) an amount not to exceed the “Incremental Cap” (as defined in the Credit Agreement as in effect on the First Amendment Effective Date) and (iii) the amount of any interest payable in kind with respect to any such Indebtedness, (b) Indebtedness permitted under Sections 6.01(a) (with respect to Secured Banking Services Obligations and Secured Hedging Obligations), (c), (d), (e), (f), (g), (h), (i), (k), (n), (o), (s), (t), (y), (aa), (bb), (cc) and (dd) of the Credit Agreement, (c) Second Lien Indebtedness and (d) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $6,500,000 and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, (e) Indebtedness of the any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the greater of $10,000,000 and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period and (f) any refinancing or replacement of any First Lien Facility or any such Incremental Facility (as defined in the Credit Agreement) after the First Amendment Effective Date so long as the aggregate outstanding principal amount of such Indebtedness does not exceed the amount permitted to be incurred under clause (a) of this definition, plus (i) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon, (ii) the amount of any underwriting discount, any other reasonable and customary fee, commission and/or expense (including any upfront fee, original issue discount and/or initial yield payment) incurred in connection with the relevant refinancing, (iii) an amount equal to any existing commitment unutilized thereunder and (iv) any additional amount permitted to be incurred pursuant to this definition (with any additional amount incurred in reliance on this clause (f)(iv) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted).
 
“Permitted Restricted Subsidiary Liens” means Liens securing any Permitted Restricted Subsidiary Indebtedness and any Permitted Liens.
 
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“Person” means any individual, corporation, limited liability company, partnership (including limited partnership), joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
 
“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution or winding up, including, in the case of the Company, the Series A Preferred Stock.
 
“Purchase Agreement” means the Series A Senior Preferred Stock Purchase Agreement, dated as of the Initial Issue Date (as amended, restated, supplemented or otherwise modified from time to time), by and among the Purchasers and the Company.
 
“Purchasers” shall have the meaning assigned to such term in the Purchase Agreement.
 
“Redemption Date” means an Optional Redemption Date or a Mandatory Redemption Date, as applicable.
 
“Redemption Failure” shall have the meaning assigned to such term in Section 4(d).
 
“Redemption Percentage” means, as of the relevant date, the applicable percentage under the heading “Redemption Percentage” set forth in the table below:
 
 
Period In Which Such Date Occurs
Redemption Percentage
 
If such date occurs on or after the First Call Date and prior to the first anniversary of the First Call Date
106.0%
 
If such date occurs on or after the first anniversary of the First Call Date and prior to the second anniversary of the First Call Date
103.0%
 
If such date occurs on or after the second anniversary of the First Call Date
100.0%
 
“Redemption Price” shall have the meaning assigned to such term in Section 5(b).
 
“Related Agreements” means this First A&R Certificate of Designation, the Investors’ Rights Agreement, and the Purchase Agreement.
 
“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.
 
“Restricted Payment” means (a) any dividend or other distribution on account of any shares of any class of the Capital Stock of the Company or any Restricted Subsidiary, except a dividend payable (i) in the case of the Company, solely in shares of Common Stock to the holders of such class and (ii) in the case of any Restricted Subsidiary, solely in shares of Qualified Capital Stock (as defined in the Credit Agreement as in effect on the Initial Issue Date) 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 Company 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 Company now or hereafter outstanding.
 
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“Restricted Subsidiary” means, as to any Person, any subsidiary of such Person that is not an Unrestricted Subsidiary.  Unless otherwise specified, “Restricted Subsidiary” shall mean any Restricted Subsidiary of the Company (including the Borrower and each Intermediate Holdings).
 
“Sale and Lease-Back Transactions” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
“Second Lien Facility” means the notes governed by the Second Lien Note Purchase Agreement, and one or more debt facilities or other financing arrangements (including indentures or note purchase agreements) providing for notes, loans or other indebtedness that replace or refinance such notes or other Indebtedness, including any such replacement or refinancing facility, indenture or note purchase agreement that increases or decreases the amount permitted to be borrowed or issued thereunder or alters the maturity thereof and whether by the same or any other agent, lender or group of lenders, and/or other debt facilities or other financing arrangements 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 notes or other Indebtedness (or any subsequent replacement thereof), in each case to the extent otherwise permitted or not restricted by this First A&R Certificate of Designation.
 
“Second Lien Indebtedness” means (a)(i) the aggregate principal amount of the Notes (as defined in the Second Lien Note Purchase Agreement) issued on the First Amendment Effective Date, plus (ii) the aggregate principal amount of the Notes (as defined in the Second Lien Note Purchase Agreement) issued under Section 2.03 of the Second Lien Note Purchase Agreement after the First Amendment Effective Date, which amount under this clause (ii) shall not exceed $25,000,000, plus (iii) Indebtedness incurred pursuant to any Second Lien Facility (including any Additional Notes (as defined in the Second Lien Note Purchase Agreement) in an aggregate outstanding principal amount not to exceed $150,000,000, plus (iv) the amount of any interest payable in kind with respect to the Indebtedness described in the foregoing clauses (i) through (iv) and (b) any refinancing or replacement of any Second Lien Facility after the First Amendment Effective Date so long as the aggregate outstanding principal amount of such Indebtedness does not exceed the amount permitted to be incurred under clause (a) of this definition, plus (i) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon, (ii) the amount of any underwriting discount, any other reasonable and customary fee, commission and/or expense (including any upfront fee, original issue discount and/or initial yield payment) incurred in connection with the relevant refinancing, (iii) an amount equal to any existing commitment unutilized thereunder and (iv) any additional amount permitted to be incurred pursuant to this definition (with any additional amount incurred in reliance on this clause (b)(iv) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted).
 
“Second Lien Note” means any “Note” as defined in the Second Lien Note Purchase Agreement.
 
“Second Lien Note Purchase Agreement” means that certain Note Purchase Agreement, dated as of [●], 2023, by and among, inter alios, the Company, the purchasers party thereto, and Wilmington Savings Fund Society, FSB, as purchaser representative, as amended, restated, amended and restated, supplemented, extended, replaced, refinanced or otherwise modified from time to time; provided, that, where any term is defined herein by reference to the Second Lien Note Purchase Agreement “as in effect on the First Amendment Effective Date” or any such similar qualification, such reference shall be deemed to be a reference to the Second Lien Note Purchase Agreement as it existed on the First Amendment Effective Date and shall not, for the avoidance of doubt, give effect to any amendment to the Second Lien Note Purchase Agreement.
 
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“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.
 
“Series A Preferred Stock” shall have the meaning assigned to such term in Section 1(a).
 
“Similar Business” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
“Specified Preferred Equityholder” 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).
 
“Stated Value” means, as of the relevant date and with respect to each share of Series A Preferred Stock, the sum of (a) $1,000 (adjusted as appropriate in the event of any stock or securities dividend, stock or securities split, stock or securities distribution, recapitalization or combination) plus (b) the aggregate Compounded Dividends with respect to such share as of such date.
 
“Subsidiary” means, with respect to any Person:
 
(a)        any corporation, association, or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof and
 
(b)       any partnership, joint venture, limited liability company or similar entity of which (i) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and (ii) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity;
 
For the avoidance of doubt, any entity that is owned at a 50% or less level (as described above) shall not be a “Subsidiary” for any purpose under this First A&R Certificate of Designation, regardless of whether such entity is consolidated on the Company’s or any Subsidiary’s financial statements.
 
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“Supermajority Holders” shall have the meaning assigned to such term in Section 7(a).
 
“Test Period” means, as of any date, (a) for purposes of determining actual compliance with the Credit Agreement, the period of four consecutive Fiscal Quarters then most recently ended for which financial statements under the Credit Agreement have been delivered (or are required to have been delivered) and (b) for any other purpose, the period of four consecutive Fiscal Quarters then most recently ended for which financial statements of the type described in the Credit Agreement, 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 required pursuant to the Credit Agreement, “Test Period” means the period of four consecutive Fiscal Quarters most recently ended for which financial statements of the Company are available.
 
“Total Net Leverage Ratio” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.
 
“Transaction Support Agreement” means the Transaction Support Agreement, dated as of March 15, 2023, by and among, inter alios, ATI Physical Therapy Inc., the Borrower, Holdings and the Consenting Stakeholders party thereto, as amended on April 15, 2023 and April [17], 2023, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time.
 
“Unrestricted Subsidiary” means any subsidiary of the Borrower that is listed on Schedule 5.10 of the Credit Agreement as in effect on the Initial Issue Date or designated by the Borrower as an Unrestricted Subsidiary after the Initial Issue Date pursuant to Section 5.10 of the Credit Agreement as in effect on the Initial Issue Date. Notwithstanding anything to the contrary contained herein, no APC Manager shall constitute an Unrestricted Subsidiary.
 
“U.S.” means the United States of America.
 
“Wholly Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Equity Interests of which (other than directors’ qualifying shares) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiary of such Person.
 
13.          Interpretation.
 
(a)           Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference.
 
(b)          The headings are for convenience only and shall not be given effect in interpreting this First A&R Certificate of Designation.  References herein to any Section or Article shall be to a Section or Article hereof unless otherwise specifically provided.
 
(c)         References herein to any law shall mean such law, including all rules and regulations promulgated under or implementing such law, as amended from time to time and any successor law unless otherwise specifically provided.  Except as otherwise stated in this First A&R Certificate of Designation, references in this First A&R Certificate of Designation to any contract(s) or written agreement(s) shall mean such contract or written agreement as in effect on the First Amendment Effective Date, regardless of any subsequent replacement, refunding, refinancing, extension, renewal, restatement, amendment, supplement or modification thereof or thereto and regardless of whether the Issuer is, remains, was, or has ever been, a party thereto.
 
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(d)          The use of the term “pari passu” with respect to the Preferred Stock, shall mean pari passu by reference to the Liquidation Value of such Preferred Stock at the relevant time.
 
(e)          The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this First A&R Certificate of Designation, refer to this First A&R Certificate of Designation as a whole and not to any particular provision of this First A&R Certificate of Designation.
 
(f)          The use of the masculine, feminine or neuter gender or the singular or plural form of words shall not limit any provisions of this First A&R Certificate of Designation.
 
(g)         The use herein of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter.
 
(h)          The word “will” shall be construed to have the same meaning as the word “shall”.  With respect to the determination of any period of time, “from” shall mean “from and including”.  The word “or” shall not be exclusive.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”.
 
(i)           The terms “lease” and “license” shall include “sub-lease” and “sub-license”, as applicable.
 
(j)           All references to “$”, currency, monetary values and dollars set forth herein shall mean U.S. dollars.
 
(k)          When the terms of this First A&R Certificate of Designation refer to a specific agreement or other document or a decision by any body or Person that determines the meaning or operation of a provision hereof, the secretary of the Company shall maintain a copy of such agreement, document or decision at the principal executive offices of the Company and a copy thereof shall be provided free of charge to any Holder who makes a request therefor.
 
(l)          Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided, that if the Company notifies the Holders that the Company requests an amendment to any provision hereof to eliminate theMaster effect of any change occurring after the Initial Issue Date in GAAP or in the application thereof on the operation of such provision, 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 shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.
 
(m)        Notwithstanding any other provision contained herein or 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, and all calculations and deliverables, as applicable, under this First A&R Certificate of Designation shall be made, prepared or available, as applicable, in accordance therewith.
 
34
(n)         Notwithstanding any other provision contained herein, 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 any election under FASB Accounting Standards Codification 805, 810 or 825 (or any other part of FASB Accounting Standards Codification having a similar result or effect), to value any Indebtedness at “fair value”.
 
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
35
IN WITNESS WHEREOF, the Company has caused this First A&R Certificate of Designation to be signed by a duly authorized officer this [●] day of [●], 2023.
 
 
ATI PHYSICAL THERAPY, INC.
     
 
By:
    
   
Name:Joseph Jordan
   
Title: Chief Financial Officer

[Signature Page to First Amended and Restated Series A Certificate of Designation]
Exhibit C-3

Consenting Preferred Equityholders’ Consent
ACTION BY WRITTEN CONSENT
OF THE SERIES A SENIOR PREFERRED STOCKHOLDERS
OF
ATI PHYSICAL THERAPY, INC.
[●], 2023
 
In accordance with Sections 228 and 242 of the Delaware General Corporation Law, the undersigned holders of the Series A Senior Preferred Stock (the “Series A Preferred Stock”) of ATI Physical Therapy, Inc. (the “Corporation”) hereby consent to and adopt the following resolutions (this “Consent”) (with the same force and effect as if duly adopted at a duly held special meeting of the stockholders held for that purpose) and to the actions authorized thereby:
 
Approval of First Amended and Restated Certificate of Designation
 
WHEREAS, the Board of Directors of the Corporation (the “Board”) has determined that it is advisable and in the best interests of the Corporation and its stockholders to approve that certain First Amended and Restated Certificate of Designation of Series A Senior Preferred Stock of the Corporation, in the form attached hereto as Exhibit A (the “First A&R Certificate of Designation”), pursuant to which, subject to receipt of the requisite approvals therefor and the filing thereof with the Secretary of State of Delaware, that certain Certificate of Designation of Series A Senior Preferred Stock of the Corporation (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Certificate of Designation”) shall be amended and restated;
 
WHEREAS, Section 9(a) of the Certificate of Designation provides, in pertinent part, that the Corporation shall not, without the affirmative vote or written consent of the Majority Holders (as defined in the Certificate of Designation), voting separately as one class, amend, alter or change the rights, preferences or privileges of the shares of Series A Preferred Stock, or waive the compliance of any of the covenants included in the Certificate of Designation or the Investors’ Rights Agreement (as defined in the Certificate of Designation); provided, however, that the Corporation shall not effect any of certain listed matters without the consent of each Holder (as defined in the Certificate of Designation) that is adversely affected thereby; and
 
WHEREAS, the undersigned holders of Series A Preferred Stock (as such, “Series A Preferred Stockholders”), constituting, as applicable, the Majority Holders or each Holder that is adversely affected thereby, deem it advisable and in the best interests of the Corporation and the Series A Preferred Stockholders to approve the First A&R Certificate of Designation.
 
NOW, THEREFORE, BE IT HEREBY RESOLVED, that the undersigned Series A Preferred Stockholders, constituting, as applicable, the Majority Holders or each Holder that is adversely affected thereby, hereby authorize and approve the First A&R Certificate of Designation including, without limitation, (a) the amendments to the Certificate of Designation effectuated thereby and (b) the filing thereof with the Secretary of State of Delaware.
 
Approval of First IRA Amendment
 
WHEREAS, the Board has determined it is advisable and is in the best interests of the Corporation and its stockholders to approve that certain First Amendment to Investors’ Rights Agreement, in the form attached hereto as Exhibit B (the “First IRA Amendment”), pursuant to which, subject to receipt of the requisite approvals therefor, that certain Investors’ Rights Agreement, dated as of February 24, 2022, by and among the Corporation and the Investors listed therein (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Investors’ Rights Agreement”) shall be amended;
 
WHEREAS, Section 4.8 of the Investors’ Rights Agreement provides, in pertinent part, that any provision of the Investors’ Rights Agreement may be amended or waived if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Holder Majority (as defined in the Investors’ Rights Agreement), or in the case of a waiver, by the Party (as defined in the Investors’ Rights Agreement) against whom the waiver is to be effective; and
 
WHEREAS, the undersigned Series A Preferred Stockholders, constituting the Holder Majority, deem it advisable and in the best interests of the Corporation and the Series A Preferred Stockholders to approve the First IRA Amendment.
 
NOW, THEREFORE, BE IT HEREBY RESOLVED, that the undersigned, constituting the Holder Majority, hereby authorize and approve the First IRA Amendment including, without limitation, the amendments to the Investors’ Rights Agreement effectuated thereby.
 
Approval of Proposed Transaction
 
WHEREAS, the Board has determined it is advisable and is in the best interests of the Corporation and its stockholders to approve the consummation of the transactions (collectively, the “Proposed Transaction”) contemplated by that certain Amended & Restated Transaction Support Agreement, dated as of April [●], 2023, by and among the Corporation, ATI Holdings Acquisition, Inc., Wilco Intermediate Holdings, Inc., Barclays Bank PLC, HPS Investment Partners, LLC, the Series A Preferred Stockholders signatory thereto and Advent International Corporation;
 
WHEREAS, Section 8 of the Certificate of Designation provides, in pertinent part, that, for so long as any shares of Series A Preferred Stock are outstanding, without the prior affirmative vote or written consent of the Majority Holders, the Corporation shall not (either directly or indirectly, including by merger, consolidation, operation of law or otherwise), take certain actions that are or may be taken as part of the Proposed Transaction, including, without implied limitation, (a) issuing any new Equity Interests (as defined in the Certificate of Designation) of the Corporation (subject to certain exceptions), (b) incurring Indebtedness for borrowed money or Liens (each, as defined in the Certificate of Designation) in order to secure any Indebtedness (subject to certain exceptions), (c) entering into certain transactions with Affiliates (as defined in the Certificate of Designation) of the Corporation, (d) consummating any Change of Control (as defined in the Certificate of Designation) unless, upon consummation of such Change of Control, the Series A Preferred Stock is redeemed in full in cash in accordance with the Certificate of Designation, or (e) amending, altering or repealing any provision of the Governing Documents (as defined in the Certificate of Designation) of the Corporation in a manner that is material and adverse to the Series A Preferred Stockholders; and
 
2
WHEREAS, the undersigned Series A Preferred Stockholders, constituting the Majority Holders, deem it advisable and in the best interests of the Corporation and the Series A Preferred Stockholders to (a) approve the Proposed Transaction and (b) consent to each action that is a part of the Proposed Transaction and which the Corporation is otherwise prohibited from taking pursuant to Section 8 of the Certificate of Designation without the prior affirmative vote or written consent of the Majority Holders (collectively, the “Majority Holder Transaction Approvals”).
 
NOW, THEREFORE, BE IT HEREBY RESOLVED, that the undersigned, constituting the Majority Holders, hereby authorize and approve the Proposed Transaction and provide the Majority Holder Transaction Approvals.
 
Acknowledgement and Waiver
 
WHEREAS, the Proposed Transaction may constitute a Bankruptcy Event, a Change of Control, and/or a Change of Control Event (in each case as defined in the Certificate of Designation);
 
WHEREAS, if the Proposed Transaction is deemed to constitute a Bankruptcy Event, a Change of Control, and/or a Change of Control Event, a Mandatory Redemption Event and/or an Event of Noncompliance (in each case as defined in the Certificate of Designation) would be triggered thereby; and
 
WHEREAS, the undersigned Series A Preferred Stockholders have determined that (a) the Proposed Transaction does not constitute a Bankruptcy Event, a Change of Control, or a Change of Control Event and, accordingly, the Proposed Transaction does not trigger a Mandatory Redemption Event and/or Event of Noncompliance, or (b) alternatively, if the Proposed Transaction constitutes a Bankruptcy Event, a Change of Control, and/or a Change of Control Event, then it is in the best interests of the Series A Preferred Stockholders to waive the Mandatory Redemption Event and/or Event of Noncompliance triggered thereby (clauses (a) and (b), collectively, the “Acknowledgement and Waiver”).
 
NOW, THEREFORE, BE IT HEREBY RESOLVED, that the undersigned Series A Preferred Stockholders hereby approve the Acknowledgement and Waiver.
 
Approval of Amendment and Restatement of the Corporation’s Second Amended and Restated Certificate of Incorporation (the “Second A&R COI”)
 
WHEREAS, the Board has determined it is advisable and is in the best interests of the Corporation and its stockholders to approve that certain Third Amended and Restated Certificate of Incorporation of the Corporation, in the form attached hereto as Exhibit D (the “Third A&R COI”), pursuant to which, subject to receipt of the requisite approvals therefor and the filing thereof with the Secretary of State of Delaware, the Second A&R COI shall be amended and restated; and
 
3
WHEREAS, the undersigned deem it advisable and in the best interests of the Corporation and the Series A Preferred Stockholders to approve the Third A&R COI.
 
NOW, THEREFORE, BE IT HEREBY RESOLVED, that the undersigned hereby authorize and approve the Third A&R COI including, without limitation, (a) the amendment and restatement of the Second A&R COI effectuated thereby and (b) the filing thereof with the Secretary of State of Delaware.
 
Approval of an Amendment to the then current Certificate of Incorporation of the Corporation to Implement a Reverse Stock Split
 
WHEREAS, the Board has determined it is advisable and is in the best interests of the Corporation and its stockholders to approve an amendment to the Second A&R COI or the Third A&R COI (depending on which is in force after the 2023 annual meeting of stockholders of the Corporation), in the form attached hereto as Exhibit D (the “Reverse Stock Split Amendment”), pursuant to which, subject to receipt of the requisite approvals therefor and the filing thereof with the Secretary of State of Delaware, the Second A&R COI or the Third A&R COI, as applicable, shall be amended to implement a reverse stock split (the “Reverse Stock Split”); and
 
WHEREAS, the undersigned deem it advisable and in the best interests of the Corporation and the Series A Preferred Stockholders to approve the Reverse Stock Split Amendment and the Reverse Stock Split.
 
NOW, THEREFORE, BE IT HEREBY RESOLVED, that the undersigned hereby authorize and approve the Reverse Stock Split Amendment including, without limitation, (a) the filing thereof with the Secretary of State of Delaware and (b) the Reverse Stock Split.
 
1
 
Omnibus Resolutions
 
RESOLVED, that this written consent may be executed in one or more original or facsimile counterparts, and all such counterparts taken together shall constitute one and the same document;
 
FURTHER RESOLVED, that that this Consent shall be delivered to the Corporation by delivery to its principal place of business, to an officer of the Corporation, and shall be retained in the records of the meetings of stockholders of the Corporation.
 
[Signature page follows.]
 
1 Approval of amendment to the Corporation’s 2021 Equity Incentive Plan (the “2021 Plan”) to increase the number of common shares available for issuance under the 2021 Plan TBD to the extent that such an approval right for the Series A Preferred Stockholders exists.
 
4
This Consent shall be effective as of the date first written above, which date is the date on which a majority of the holders of the Series A Preferred Stock approved this Consent.
 
 
KNIGHTHEAD MASTER FUND, L.P.
     
 
By: Knighthead Capital Management, LLC, its Investment Manager
     
 
By:

Name:
Laura Torrado
 
Title:
 General Counsel
     
 
KNIGHTHEAD (NY) FUND, L.P.
     
 
By: Knighthead Capital Management, LLC, its Investment Manager
     
 
By:

Name:
Laura Torrado
 
Title:
 General Counsel
     
 
KNIGHTHEAD ANNUITY & LIFE ASSURANCE CORPORATION
     
 
By: Knighthead Capital Management, LLC, its Investment Manager
     
 
By:

Name:
Laura Torrado
 
Title:
 General Counsel

[Signature Page to Action by Written Consent of the Series A senior Preferred Stockholders]

 
KNIGHTHEAD DISTRESSED OPPORTUNITIES FUND, L.P.
     
 
By: Knighthead Capital Management, LLC, its Investment Manager
     
 
By:

Name:
Laura Torrado
 
Title:
 General Counsel
 
[Signature Page to Action by Written Consent of the Series A senior Preferred Stockholders]

 
MARATHON ASSET MANAGEMENT, LP
     
 
By:

Name:
Louis Hanover
 
Title:
 Chief Investment Officer
 
[Signature Page To Action by Written Consent of the Series A senior Preferred Stockholders]

 
ONEX CAPITAL SOLUTIONS HOLDINGS, LP
     
 
By: Onex Capital Solutions GP, LP, its general partner


 
By: Onex Capital Solutions GP, LLC, its general partner
     
 
By:

Name: Steve Gutman
 
Title:
 General Counsel
 
[Signature Page To Action by Written Consent of the Series A senior Preferred Stockholders]
 
 
CASPIAN SELECT CREDIT MASTER FUND, LTD.
     
 
By:
  Name:
Richard A. Roman
 
Title:
 Authorized Signatory
     
 
CASPIAN SOLITUDE MASTER FUND, L.P.
     
 
By:
  Name:
Richard A. Roman
 
Title:
 Authorized Signatory
     
 
CASPIAN HLSC1, LLC
     
 
By:
  Name:
Richard A. Roman
 
Title:
 Authorized Signatory
     
 
CASPIAN SC HOLDINGS, L.P.
     
 
By:
  Name:
Richard A. Roman
 
Title:
 Authorized Signatory
     
 
SPRING CREEK CAPITAL, LLC
     
 
By:
  Name:
Richard A. Roman
 
Title:
 Authorized Signatory
     
 
CASPIAN FOCUSED OPPORTUNITIES FUND, L.P.
     
 
By:
  Name:
Richard A. Roman
 
Title:
 Authorized Signatory
     
 
BLACKSTONE ALTERNATIVE MULTI-STRATEGY SUB FUND IV, LLC (BXII)
     
 
By:

Name:
Richard A. Roman
 
Title:
 Authorized Signatory

[Signature Page To Action by Written Consent of the Series A senior Preferred Stockholders]

 
BLACKSTONE ALTERNATIVE MULTI-STRATEGY SUB FUND IV, LLC (BXIIB)
     
 
By:

Name:
Richard A. Roman
 
Title:
 Authorized Signatory
     
 
BLACKSTONE ALTERNATIVE INVESTMENT FUND PLC (BXIII)
     
 
By:
  Name:
Richard A. Roman
 
Title:
 Authorized Signatory
     
 
BLACKSTONE ALTERNATIVE INVESTMENT FUND PLC (BXIIIB)
     
 
By:
  Name:
Richard A. Roman
 
Title:
 Authorized Signatory

[Signature Page To Action by Written Consent of the Series A senior Preferred Stockholders]
 
EXHIBIT A

FIRST A&R CERTIFICATE OF DESIGNATION

(See Attached.)

EXHIBIT B

FIRST IRA AMENDMENT

(See Attached.)

EXHIBIT C

THIRD A&R COI

(See Attached.)

THIRD AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ATI PHYSICAL THERAPY, INC.
[•], 2023
ATI Physical Therapy, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY AS FOLLOWS:
1.   The name of the Corporation is “ATI Physical Therapy, Inc.” The Corporation was incorporated under the name Fortress Value Acquisition Corp. II by the filing of its original certificate of incorporation with the Secretary of State of the State of Delaware on June 10, 2020 (the “Original Certificate”).
2.    This Third Amended and Restated Certificate of Incorporation (the “Third Amended and Restated Certificate”), which amends, restates and integrates the provisions of the certificate of incorporation of the Corporation as heretofore in effect (the “Prior Certificate”), was duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware, as amended from time to time (the “DGCL”).
3.    The text of the Prior Certificate is hereby amended and restated in its entirety to read as follows:
ARTICLE I
NAME
The name of the corporation is ATI Physical Therapy, Inc. (the “Corporation”).
ARTICLE II
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL. In addition to the powers and privileges conferred upon the Corporation by law and those incidental thereto, the Corporation shall possess and may exercise all the powers and privileges that are necessary or convenient to the conduct, promotion or attainment of the business or purposes of the Corporation.
ARTICLE III
REGISTERED AGENT
The address of the Corporation’s registered office in the State of Delaware is Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware 19801, and the name of the Corporation’s registered agent at such address is The Corporation Trust Company.

ARTICLE IV
CAPITALIZATION
Section 4.1 Authorized Capital Stock. The total number of shares of all classes of capital stock, each with a par value of $0.0001 per share, which the Corporation is authorized to issue is 471,000,000 shares, consisting of (a) 450,000,000 shares of Class A common stock (the “Common Stock”), (b) 20,000,000 shares of Class F common stock (the “Class F Common Stock”) and (c) 1,000,000 shares of preferred stock (the “Preferred Stock”).
Section 4.2  Class F Common Stock. Upon the filing of the Certificate of Merger (the “Certificate of Merger”) with the Secretary of State of the State of Delaware as contemplated by the Agreement and Plan of Merger, dated as of February 21, 2021, by and among the Corporation, FVAC Merger Corp. II and Wilco Holdco, Inc., each share of Class F Common Stock outstanding immediately prior to the filing of the Certificate of Merger shall automatically be converted into one share of Common Stock without any action on the part of any person, including the Corporation, and concurrently with such conversion, the number of authorized shares of Class F Common Stock shall be reduced to zero. It is intended that the conversion of Class F Common Stock into Common Stock will be treated as a reorganization within the meaning of Section 368(a)(1)(E) of the Internal Revenue Code of 1986, as amended.
Section 4.3  Preferred Stock. The Board of Directors of the Corporation (the “Board”) is hereby expressly authorized to provide out of the unissued shares of the Preferred Stock for one or more series of Preferred Stock and  to establish from time to time the number of shares to be included in each such series and to fix the voting rights, if any, designations, powers, preferences and relative, participating, optional, special and other rights, if any, of each such series and any qualifications, limitations and restrictions thereof, as shall be stated in the resolution or resolutions adopted by the Board providing for the issuance of such series and included in a certificate of designation (a “Preferred Stock Designation”) filed pursuant to the DGCL, and the Board is hereby expressly vested with the authority to the full extent provided by law, now or hereafter, to adopt any such resolution or resolutions. Without limiting the generality of the foregoing, the resolution or resolutions providing for the creation and issuance of any series of Preferred Stock may provide that such series shall be superior or rank equally or be junior to any other series of Preferred Stock to the extent permitted by law and this Third Amended and Restated Certificate (including any Preferred Stock Designation). Except as otherwise required by law, holders of any series of Preferred Stock shall be entitled only to such voting rights, if any, as shall expressly be granted thereto by this Third Amended and Restated Certificate (including any Preferred Stock Designation).
Section 4.4  Common Stock.
 
(a)
Voting.

(i)    Except as otherwise required by law or this Third Amended and Restated Certificate (including any Preferred Stock Designation), the holders of the Common Stock shall exclusively possess all voting power with respect to the Corporation.
(ii)  Except as otherwise required by law or this Third Amended and Restated Certificate (including any Preferred Stock Designation), the holders of shares of Common Stock shall be entitled to one vote for each such share on each matter properly submitted to the stockholders on which the holders of the Common Stock are entitled to vote.
(iii)  Except as otherwise required by law or this Third Amended and Restated Certificate (including any Preferred Stock Designation), at any annual or special meeting of the stockholders of the Corporation, holders of the Common Stock shall have the exclusive right to vote for the election of directors and on all other matters properly submitted to a vote of the stockholders. Notwithstanding the foregoing, except as otherwise required by law or this Third Amended and Restated Certificate (including any Preferred Stock Designation), holders of Common Stock shall not be entitled to vote on any amendment to this Third Amended and Restated Certificate (including any amendment to any Preferred Stock Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series of Preferred Stock are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Third Amended and Restated Certificate (including any Preferred Stock Designation) or the DGCL.
(b)   Dividends. Subject to applicable law and the rights, if any, of the holders of any outstanding series of the Preferred Stock, the holders of shares of Common Stock shall be entitled to receive such dividends and other distributions (payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the Board from time to time out of any assets or funds of the Corporation legally available therefor and shall share equally on a per share basis in such dividends and distributions.
(c)   Liquidation, Dissolution or Winding Up of the Corporation. Subject to applicable law and the rights, if any, of the holders of any outstanding series of the Preferred Stock, in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of shares of Common Stock shall be entitled to receive all the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of Common Stock held by them.
(d)   Transfer Rights. Subject to applicable law and the transfer restrictions set forth in Article VII of the Amended and Restated Bylaws of the Corporation (as such may be amended from time to time, the “Bylaws”), shares of Common Stock and the rights and obligations associated therewith shall be fully transferable to any transferee.
Section 4.5  Rights and Options. The Corporation has the authority to create and issue rights, warrants and options entitling the holders thereof to acquire from the Corporation any shares of its capital stock of any class or classes, with such rights, warrants and options to be evidenced by or in instrument(s) approved by the Board. The  Board is empowered to set the exercise price, duration, times for exercise and other terms and conditions of such rights, warrants or options; provided, however, that the consideration to be received for any shares of capital stock issuable upon exercise thereof may not be less than the par value thereof.
Section 4.6  No Class Vote on Changes in Authorized Number of Shares of Stock. Subject to the rights of the holders of any outstanding series of Preferred Stock, the number of authorized shares of any class or classes of stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of at least a majority of the voting power of the stock of the Corporation entitled to vote thereon irrespective of the provisions of Section 242(b)(2) of the DGCL.
ARTICLE V
BOARD OF DIRECTORS
Section 5.1  Board Powers. The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. In addition to the powers and authority expressly conferred upon the Board by statute, this Third Amended and Restated Certificate or the Bylaws, the Board is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the DGCL, and this Third Amended and Restated Certificate and any Bylaws adopted by the stockholders.
Section 5.2  Number, Election and Term.
(a)   The number of directors of the Corporation, shall be fixed from time to time in the manner provided in the Bylaws.
(b)   Subject to Section 5.5 hereof, any director elected or appointed prior to the date of the 2023 annual meeting of stockholders shall serve for the remainder of the term of the class of directors to which such director was originally elected or appointed. Each director elected at the 2023 annual meeting of stockholders shall be elected for a one-year term expiring at the 2024 annual meeting of stockholders. Each director elected at the 2024 annual meeting of stockholders shall be elected for a one-year term expiring at the 2025 annual meeting of stockholders. At the 2025 annual meeting of stockholders and at each annual meeting of stockholders thereafter, all directors shall be elected for a one-year term expiring at the next annual meeting of stockholders. Subject to Section 5.5 hereof, each director shall serve from the date of such director’s election or appointment and until such director’s term expires and such director’s successor is duly elected and qualified, subject, however, to such director’s earlier death, resignation or removal. In no case shall a decrease in the number of directors shorten the term of any incumbent director. Subject to the rights of the holders of one or more series of Preferred Stock, voting separately by class or series, to elect directors pursuant to the terms of one or more series of Preferred Stock, the election of directors shall be determined by a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon.
(c)   Unless and except to the extent that the Bylaws shall so require, the election of directors need not be by written ballot.
Section 5.3  Newly Created Directorships and Vacancies. Subject to Section 5.5 hereof, newly created directorships resulting from an increase in the number of directors and any vacancies on the Board resulting from death, resignation or removal may be filled solely and exclusively by a majority vote of the remaining directors then in office, even if less than a quorum, or by a sole remaining director (and not by stockholders), and any director so chosen shall hold office until the next annual meeting of stockholders and until his or her successor has been duly elected and qualified, subject, however, to such director’s earlier death, resignation or removal.
Section 5.4  Removal. Subject to Section 5.5 hereof and except as otherwise required by law, any or all of the directors may be removed from office at any time, with or without cause, by the affirmative vote of holders of a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
Section 5.5   Preferred Stock - Directors. Notwithstanding any other provision of this Article V, and except as otherwise required by law, whenever the holders of one or more series of the Preferred Stock shall have the right, voting separately by class or series, to elect one or more directors, the term of office, the filling of vacancies, the removal from office and other features of such directorships shall be governed by the terms of such series of the Preferred Stock as set forth in this Third Amended and Restated Certificate (including any Preferred Stock Designation).
ARTICLE VI
BYLAWS
In furtherance and not in limitation of the powers conferred upon it by law, the Board shall have the power and is expressly authorized to adopt, amend, alter or repeal the Bylaws. The affirmative vote of a majority of the Board shall be required to adopt, amend, alter or repeal the Bylaws. The Bylaws also may be adopted, amended, altered or repealed by the stockholders; provided, however, that in addition to any vote of the holders of any class or series of capital stock of the Corporation required by law or by this Third Amended and Restated Certificate (including any Preferred Stock Designation), the affirmative vote of the holders of at least a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders to adopt, amend, alter or repeal the Bylaws; provided further, however, amendments or repeals of Article VIII of the Bylaws shall require the affirmative vote of the stockholders holding at least 65% of the voting power of all outstanding shares of capital stock of the Corporation; and, provided further, however, that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the Board that would have been valid if such Bylaws had not been adopted.
ARTICLE VII
MEETINGS OF STOCKHOLDERS; ACTION BY WRITTEN CONSENT
Section 7.1  Meetings. Subject to the rights, if any, of the holders of any outstanding series of the Preferred Stock, and to the requirements of applicable law, special meetings of stockholders of the Corporation may be called only by the Chairman of the Board, the Chief Executive Officer of the Corporation, or the Board pursuant to a resolution adopted by a majority of the Board, and the ability of the stockholders to call a special meeting is hereby specifically denied. Except as provided in the foregoing sentence, special meetings of stockholders may not be called by another person or persons. Any such special meeting so called may be postponed, adjourned, rescheduled or cancelled by the Board or other person calling the meeting.
Section 7.2  Advance Notice. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.
Section 7.3  Action by Written Consent. Except as may be otherwise provided for or fixed pursuant to this Third Amended and Restated Certificate (including any Preferred Stock Designation), any action required or permitted to be taken by the stockholders of the Corporation must be effected by a duly called annual or special meeting of such stockholders and may not be effected by written consent of the stockholders.
ARTICLE VIII
LIMITED LIABILITY; INDEMNIFICATION
Section 8.1  Limitation of Director Liability. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty by such director as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended unless they violated their duty of loyalty to the Corporation or its stockholders, acted in bad faith, knowingly or intentionally violated the law, authorized unlawful payments of dividends, unlawful stock purchases or unlawful redemptions, or derived improper personal benefit from their actions as directors. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.
Section 8.2   Indemnification and Advancement of Expenses.
(a)  To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify, defend and hold harmless each person who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative or investigative, including an action by or in the right of the Corporation to procure a judgment in its favor (each, a “proceeding”) by reason of the fact that he or she is or was a director or officer of the Corporation or any of its subsidiaries or, while a director or officer of the Corporation or any of its subsidiaries or, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees and disbursements, judgments, fines, Employment Retirement Income Security Act of 1974 excise taxes, damages, claims and penalties and amounts paid in settlement) reasonably incurred by such indemnitee in connection with such proceeding. The Corporation shall, to the fullest extent not prohibited by applicable law, pay as incurred the expenses (including attorneys’ fees) incurred by an indemnitee in defending or otherwise participating in any proceeding in advance of its final disposition (including by making payment directly to applicable third parties if requested by the indemnitee); provided, however, that, to the extent required by applicable law, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer of the Corporation (and not in any other capacity in which service was or is rendered by such indemnitee including, without limitation, service to an employee benefit plan), shall be made only upon the Corporation’s receipt of an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined that the indemnitee is not entitled to be indemnified under this Section 8.2 or otherwise. The rights to indemnification and advancement of expenses conferred by this Section 8.2 shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this Section 8.2(a), except for proceedings to enforce rights to indemnification (which are, for the avoidance of doubt, indemnified proceedings) and advancement of expenses, the Corporation shall indemnify and advance expenses to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was, or is, authorized by the Board.
(b)  The rights to indemnification and advancement of expenses conferred on any indemnitee by this Section 8.2 shall not be exclusive of any other rights that any indemnitee may have or hereafter acquire under law, this Third Amended and Restated Certificate, the Bylaws, an agreement, vote of stockholders or disinterested directors, or otherwise.
(c)   Any repeal or amendment of this Section 8.2 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Third Amended and Restated Certificate inconsistent with this Section 8.2, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.
(d)   This Section 8.2 shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other than indemnitees.
ARTICLE IX
CORPORATE OPPORTUNITY
Section 9.1  The doctrine of corporate opportunity, or any other analogous doctrine, shall not apply with respect to the Corporation or any of its officers or directors, or any of their respective affiliates, in circumstances where the application of any such doctrine would conflict with any fiduciary duties or contractual obligations they may have as of the date of this Third Amended and Restated Certificate or in the future. In addition to the foregoing, the doctrine of corporate opportunity shall not apply to any other corporate opportunity with respect to any of the directors or officers of the Corporation unless such corporate opportunity is offered to such person solely in his or her capacity as a director or officer of the Corporation and such opportunity is one the Corporation is legally and contractually permitted to undertake and would otherwise be reasonable for the Corporation to pursue.
Section 9.2  Without limiting the foregoing, to the extent permitted by applicable law, each of Advent International Corporation and its successors and Affiliates (as defined in Section 10.3) and any of their respective managed investment funds and portfolio companies (but excluding the Corporation and its subsidiaries) and their respective partners, members, directors, employees, stockholders, agents and any successor by operation of law (including by merger) of any such Person (each, an “Exempted Person”) shall not have any fiduciary duty to refrain from engaging directly or indirectly in the same or similar business activities or lines of business as the Corporation or any of its subsidiaries, except as otherwise expressly provided in any agreement entered into between the Corporation and such Exempted Person. To the fullest extent permitted by applicable law and subject to Section 9.1, the Corporation, on behalf of itself and its subsidiaries, renounces any interest or expectancy of the Corporation and its subsidiaries in, or in being offered an opportunity to participate in, business opportunities that are from time to time available to the Exempted Persons, even if the opportunity is one that the Corporation or its subsidiaries might reasonably be deemed to have pursued or had the ability or desire to pursue if granted the opportunity to do so, and each such Exempted Person shall have no duty to communicate or offer such business opportunity to the Corporation (and there shall be no restriction on the Exempted Persons using the general knowledge and understanding of the industry in which the Corporation operates which it has gained as an Exempted Person in considering and pursuing such opportunities or in making investment, voting, monitoring, governance or other decisions relating to other entities or securities) and, to the fullest extent permitted by applicable law and subject to Section 9.1, shall not be liable to the Corporation or any of its subsidiaries or stockholders for breach of any fiduciary or other duty, as a director or officer or otherwise, by reason of the fact that such Exempted Person pursues or acquires such business opportunity, directs such business opportunity to another person or fails to present such business opportunity, or information regarding such business opportunity, to the Corporation or its subsidiaries, or uses such knowledge and understanding in the manner described herein, in each case, except as otherwise expressly provided in any agreement entered into between the Corporation and such Exempted Person. In addition to and notwithstanding the foregoing, a corporate opportunity shall not be deemed to belong to the Corporation if it is a business opportunity that the Corporation is not financially able or contractually permitted or legally able to undertake, or that is, from its nature, not in the line of the Corporation’s business or is of no practical advantage to it or that is one in which the Corporation has no interest or reasonable expectancy. Any person or entity purchasing or otherwise acquiring any interest in any shares of stock of the Corporation shall be deemed to have notice of the provisions of this Article IX.
Section 9.3  Neither the alteration, amendment, addition to or repeal of this Article IX, nor the adoption of any provision of this Third Amended and Restated Certificate (including any Preferred Stock Designation) inconsistent with this Article IX, shall eliminate or reduce the effect of this Article IX in respect of any business opportunity first identified or any other matter occurring, or any cause of action, suit or claim that, but for this Article IX, would accrue or arise, prior to such alteration, amendment, addition, repeal or adoption. This Article IX shall not limit any protections or defenses available to, or indemnification or advancement rights of, any director or officer of the Corporation under this Third Amended and Restated Certificate, the Bylaws or applicable law.
ARTICLE X
BUSINESS COMBINATIONS
Section 10.1  Opt Out of DGCL 203. The Corporation shall not be governed by Section 203 of the DGCL.
Section 10.2  Limitations on Business Combinations. Notwithstanding the foregoing, from the time that the opt-out in Section 10.1 becomes effective, the Corporation shall not engage in any business combination, at any point in time at which the Common Stock is registered under Section 12(b) or 12(g) of the Securities Exchange Act of 1934, as amended, with any interested stockholder for a period of three years following the time that such stockholder became an interested stockholder, unless:
(a)   prior to such time, the Board approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;
(b)  upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the Corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned by: (i) persons who are directors and also officers; or (ii) employee stock plans in which employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer; or
(c)   at or subsequent to such time, the business combination is approved by the Board and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of at least two-thirds of the outstanding voting stock of the Corporation which is not owned by the interested stockholder.
Section 10.3 Definitions. For purposes of this Article X, the term:
(a)   “Affiliate” means, with respect to any person, any other person that controls, is controlled by, or is under common control with such person.
 (b)  “associate,” when used to indicate a relationship with any person, means: (i) any corporation, partnership, unincorporated association or other entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of 20% or more of any class of voting stock; (ii) any trust or other estate in which such person has at least a 20% beneficial interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of such person, or any relative of such spouse, who has the same residence as such person.
(c)   “business combination,” when used in reference to the Corporation and any interested stockholder of the Corporation, means:
(i)    any merger or consolidation of the Corporation or any direct or indirect majority-owned subsidiary of the Corporation: (A) with the interested stockholder; or (B) with any other corporation, partnership, unincorporated association or other entity if the merger or consolidation is caused by the interested stockholder and as a result of such merger or consolidation Section 10.2 is not applicable to the surviving entity;
(ii)   any sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except proportionately as a stockholder of the Corporation, to or with the interested stockholder, whether as part of a dissolution or otherwise, of assets of the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation which assets have an aggregate market value equal to 10% or more of either the aggregate market value of all the assets of the Corporation determined on a consolidated basis or the aggregate market value of all the outstanding stock of the Corporation;
(iii) any transaction which results in the issuance or transfer by the Corporation or by any direct or indirect majority-owned subsidiary of the Corporation of any stock of the Corporation or of such subsidiary to the interested stockholder, except: (A) pursuant to the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which securities were outstanding prior to the time that the interested stockholder became such; (B) pursuant to a merger under Section 251(g) of the DGCL; (C) pursuant to a dividend or distribution paid or made, or the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary which security is distributed, pro rata to all holders of a class or series of stock of the Corporation subsequent to the time the interested stockholder became such; (D) pursuant to an exchange offer by the Corporation to purchase stock made on the same terms to all holders of said stock; or (E) any issuance or transfer of stock by the Corporation; provided, however, that in no case under items (C) – (E) of this subsection (iii) shall there be an increase in the interested stockholder’s proportionate share of the stock of any class or series of the Corporation or of the voting stock of the Corporation (except as a result of immaterial changes due to fractional share adjustments);
(iv)   any transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation which has the effect, directly or indirectly, of increasing the proportionate share of the stock of any class or series, or securities convertible into the stock of any class or series, of the Corporation or of any such subsidiary which is owned by the interested stockholder, except as a result of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption of any shares of stock not caused, directly or indirectly, by the interested stockholder; or
(v)   any receipt by the interested stockholder of the benefit, directly or indirectly (except proportionately as a stockholder of the Corporation), of any loans, advances, guarantees, pledges, or other financial benefits (other than those expressly permitted in subsections “(i)”-“(iv)” above) provided by or through the Corporation or any direct or indirect majority-owned subsidiary.
(d)   “control,” including the terms “controlling,” “controlled by” and “under common control with,” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting stock, by contract, or otherwise. A person who is the owner of 20% or more of the outstanding voting stock of the Corporation, partnership, unincorporated association or other entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary. Notwithstanding the foregoing, a presumption of control shall not apply where such person holds voting stock, in good faith and not for the purpose of circumventing this Article X, as an agent, bank, broker, nominee, custodian or trustee for one or more owners who do not individually or as a group have control of such entity.
 (e)  “Exempt Transferee” means (i) any person that acquires (other than in an Excluded Transfer) directly from Advent International Corporation or any of its Affiliates or successors, ownership of voting stock of the Corporation, and is designated in writing by the transferor as an “Exempt Transferee” for the purpose of this Article X; and (ii) any person that acquires (other than in an Excluded Transfer) directly from a person described in clause “(i)” of this definition or from any other Exempt Transferee ownership of voting stock of the Corporation, and is designated in writing by the transferor as an “Exempt Transferee” for the purpose of this Article X.
(f)   “Excluded Transfer” means (i) a transfer to a person that is not an Affiliate of the transferor, which transfer is by gift or otherwise not for value, including a transfer by dividend or distribution by the transferor, (ii) a transfer in a public offering that is registered under the Securities Act of 1933, as amended (the “Securities Act”), (iii) a transfer to one or more broker-dealers or their affiliates pursuant to a firm commitment purchase agreement for an offering that is exempt from registration under the Securities Act, (iv) a transfer made through the facilities of a registered securities exchange or automated inter-dealer quotation system and (v) a transfer made in compliance with the manner of sale limitations of Rule 144(f) under the Securities Act or any successor rule or provision.
(g)   “interested stockholder” means any person (other than the Corporation or any direct or indirect majority-owned subsidiary of the Corporation) that: (i) is the owner of 15% or more of the outstanding voting stock of the Corporation; or (ii) is an Affiliate or associate of the Corporation and was the owner of 15% or more of the outstanding voting stock of the Corporation at any time within the three year period immediately prior to the date on which it is sought to be determined whether such person is an interested stockholder; or (iii) an Affiliate or associate of any such person described in clauses “(i)” and “(ii)”; provided, however, that the term “interested stockholder” shall not include: (A) Sponsor Holders or their transferees, any Exempt Transferee or any of their respective Affiliates or successors or any “group”, or any member of any such group, to which such persons are a party under Rule 13d-5 of the Exchange Act; or (B) any person whose ownership of shares in excess of the 15% limitation set forth herein is the result of (x) any action taken solely by the Corporation, or (y) share redemptions by existing stockholders; provided, that such person specified in this clause “(B)” shall be an interested stockholder if thereafter such person acquires additional shares of voting stock of the Corporation, except as a result of further corporate action not caused, directly or indirectly, by such person. For the purpose of determining whether a person is an interested stockholder, the voting stock of the Corporation deemed to be outstanding shall include stock deemed to be owned by the person through application of the definition of “owner” below but shall not include any other unissued stock of the Corporation which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion rights, warrants or options, or otherwise.
(h)   “owner,” including the terms “own” and “owned,” when used with respect to any stock, means a person that individually or with or through any of its Affiliates or associates:
(i)    beneficially owns such stock, directly or indirectly; or
(ii)   has: (A) the right to acquire such stock (whether such right is exercisable immediately or only after the passage of time) pursuant to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options, or otherwise; provided, however, that a person shall not be deemed the owner of stock tendered pursuant to a tender or exchange offer made by such person or any of such person’s Affiliates or associates until such tendered stock is accepted for purchase or exchange; or (B) the right to vote such stock pursuant to any agreement, arrangement or understanding; provided, however, that a person shall not be deemed the owner of any stock because of such person’s right to vote such stock if the agreement, arrangement or understanding to vote such stock arises solely from a revocable proxy or consent given in response to a proxy or consent solicitation made to 10 or more persons; or
(iii)  has any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or consent as described in item (B) of subsection “(ii)” above), or disposing of such stock with any other person that beneficially owns, or whose Affiliates or associates beneficially own, directly or indirectly, such stock.
(i)    “person” means any individual, corporation, partnership, unincorporated association or other entity.
(j)    “stock” means, with respect to any corporation, capital stock and, with respect to any other entity, any equity interest.
 (k)  “Sponsor Holders” means the investment funds affiliated with Advent International Corporation and their successors and Affiliates.
(l)   “voting stock” means stock of any class or series entitled to vote generally in the election of directors.
ARTICLE XI
AMENDMENT OF THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
The Corporation reserves the right at any time and from time to time to amend, alter, change or repeal any provision contained in this Third Amended and Restated Certificate (including any Preferred Stock Designation), and other provisions authorized by the laws of the State of Delaware at the time in force that may be added or inserted, in the manner now or hereafter prescribed by this Third Amended and Restated Certificate and the DGCL; and, except as set forth in Article VIII, all rights, preferences and privileges of whatever nature herein conferred upon stockholders, directors or any other persons by and pursuant to this Third Amended and Restated Certificate in its present form or as hereafter amended are granted subject to the right reserved in this Article XI. Notwithstanding any other provisions of this Third Amended and Restated Certificate of Incorporation or any provision of law which might otherwise permit a lesser vote or no vote, but in addition to any affirmative vote of the holders of any particular class or series of the Corporation required by law or by this Certificate of Incorporation or any certificate of designation filed with respect to a series of Preferred Stock, the affirmative vote of the holders at least 66.7% of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required to alter, amend or repeal Article V.
IN WITNESS WHEREOF, ATI Physical Therapy, Inc. has caused this Third Amended and Restated Certificate to be duly executed and acknowledged in its name and on its behalf by an authorized officer as of the date first set forth above.
 
ATI PHYSICAL THERAPY, INC.
     
 
By:
  
 
Name:
  
 
Title:
  

EXHIBIT D

REVERSE STOCK SPLIT AMENDMENT

(See Attached.)

CERTIFICATE OF AMENDMENT
to the
THIRD AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
of
ATI PHYSICAL THERAPY, INC.

ATI PHYSICAL THERAPY, INC., a corporation organized and existing under the General Corporation Law of the State of Delaware (the “Corporation”), does hereby certify as follows:

FIRST: The name of the Corporation is ATI Physical Therapy, Inc.
SECOND: The Corporation’s Second Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware (the “Secretary of State”) on June 16, 2021 (the “Certificate of Incorporation”).

THIRD: ARTICLE IV of the Corporation’s Certificate of Incorporation is hereby amended by inserting the following subsection (a) at the end of section 4.1:

(a) Reverse Stock Split. Effective as of 5:00 Eastern Time (the “Effective Time”) on [the date this Certificate of Amendment to the Certificate of Incorporation is filed with the Secretary of State] each (__) shares of the Corporation’s Common Stock issued and outstanding or held by the Corporation in treasury stock immediately prior to the Effective Time (the “Prior Common Stock”) shall automatically without further action on the part of the Corporation or any holder of Common Stock be reclassified, combined, converted and changed into one (1) fully paid and nonassessable share of Common Stock and shall represent one share of Common Stock from and after the Effective Time (the “Reverse Stock Split”). The par value of the Common Stock following the Reverse Stock Split shall remain at $0.0001 per share. Each certificate that immediately prior to the Effective Time represented shares of Common Stock (“Old Certificates”) shall thereafter represent that number of shares of Common Stock into which the shares of Common Stock represented by the Old Certificate shall have been combined, subject to the elimination of fractional share interests as described below. Notwithstanding the foregoing, no fractional shares shall be issued to the holders of record of Prior Common Stock in connection with the Reverse Stock Split and, instead, each fractional share resulting from the Reverse Stock Split shall be automatically rounded up to the nearest whole number.

FOURTH: The Board of Directors and the stockholders of the Corporation have duly approved and adopted the foregoing amendment in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware.

IN WITNESS WHEREOF, the Corporation has caused this Certificate of Amendment to be duly adopted and executed in its corporate name and on its behalf by its duly authorized officer as of the _________ day of _________, 2023.

ATI PHYSICAL THERAPY, INC.

By:________________
Name:
Title:

B-1
Exhibit C-4
Registration Rights Agreement

ATI PHYSICAL THERAPY, INC.
REGISTRATION RIGHTS AGREEMENT
 
PREAMBLE
 
THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is made as of June [•], 2023 (the “Effective Date”) by and among ATI Physical Therapy, Inc., a Delaware corporation (the “Company”), and the other parties signatory hereto and any additional parties identified on the signature pages of any joinder agreement executed and delivered pursuant hereto from time to time (collectively, the “Holders” and each individually a, “Holder”). Except as otherwise specified herein, all capitalized terms used in this Agreement are defined in Exhibit A attached hereto.
 
RECITALS
 
WHEREAS, the Company and ATI Holdings Acquisition, Inc., a Delaware corporation and an indirect subsidiary of the Company (the “Borrower”), have agreed to exchange certain Term Loans under the First Lien Facility (each as defined in that certain First Lien Credit Agreement) for an issuance of the Notes, pursuant to and in accordance with the terms and the conditions set forth in the Note Purchase Agreement, dated as of April 17, 2023 (the “Note Purchase Agreement”), by and among the Company, the Borrower, Wilco Intermediate Holdings, Inc., a Delaware corporation (“Holdings”), the Holders initially party thereto and Wilmington Savings Fund Society, FSB, in its capacities as purchaser representative and collateral agent for the Holders and the other secured parties (the “Purchaser Representative”);
 
WHEREAS, the Notes are convertible into shares of the Company’s Class A common stock, $0.0001 par value per share (the “Common Stock”), at the Conversion Price (as defined in the Note Purchase Agreement), from time to time at each Holder’s election on the terms and conditions set forth in the Note Purchase Agreement; and
 
WHEREAS, pursuant to that certain Amended & Restated Transaction Support Agreement, dated as of April 17, 2023, by and among the Borrower, the Company, the Holders and the other parties thereto, the Company has agreed to provide certain registration rights with respect to the Convertible Notes Shares under the Securities Act and under applicable state securities laws.
 
NOW, THEREFORE, in consideration of the parties entering into the Note Purchase Agreement and this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
 
AGREEMENT
 
Section 1.      Shelf Registrations.
 
(a)      Filing. The Company shall use its reasonable best efforts to file, on or prior to the date that is forty-five (45) days after the Closing Date (the “Filing Date”), a Registration Statement for a Shelf Registration on Form S-3 (the “Form S-3 Shelf”) or, if the Company is ineligible to use a Form S-3 Shelf, a Registration Statement for a Shelf Registration on Form S-1 (the “Form S-1 Shelf,” and together with the Form S-3 Shelf (and any Subsequent Shelf Registration), the “Shelf”) covering the resale of the Registrable Securities on a delayed or continuous basis. The Company shall use reasonable best efforts to cause the Shelf to become effective by the date that is sixty (60) days after the Filing Date; provided, that such sixty (60)-day period shall be extended to ninety (90) days after the Filing Date if the Shelf is reviewed by, and receives comments from, the SEC. The Shelf shall provide for the resale of Registrable Securities from time to time, and pursuant to any method or combination of methods legally available to, and requested by, any Holder, which may include underwritten marketed offerings, underwritten block trades, registered broker trades, or any other method of distribution elected by any such Holder. The Company shall use its reasonable best efforts to maintain the Shelf in accordance with the terms hereof, and shall prepare and file with the SEC such amendments, including post-effective amendments, and supplements as may be necessary to keep such Shelf effective and in compliance with the provisions of the Securities Act until such time as there are no longer any Registrable Securities. In the event the Company files a Form S-1 Shelf, the Company shall use its reasonable best efforts to convert the Form S-1 Shelf (and any Subsequent Shelf Registration) to a Form S-3 Shelf as soon as practicable after the Company is eligible to use Form S-3.
 
(b)      Subsequent Shelf Registration.  If any Shelf ceases to be effective under the Securities Act for any reason at any time while Registrable Securities are still outstanding, the Company shall use all reasonable efforts to as promptly as is reasonably practicable cause such Shelf to again become effective under the Securities Act (including obtaining the prompt withdrawal of any order suspending the effectiveness of such Shelf), and shall use all reasonable efforts to as promptly as is reasonably practicable amend such Shelf in a manner reasonably expected to result in the withdrawal of any order suspending the effectiveness of such Shelf or file an additional Registration Statement as a Shelf Registration (a “Subsequent Shelf Registration”) registering the resale from time to time by the Holders thereof of all securities that are Registrable Securities as of the time of such filing. If a Subsequent Shelf Registration is filed, the Company shall use all reasonable efforts to (i) cause such Subsequent Shelf Registration to become effective under the Securities Act as promptly as is reasonably practicable after the filing thereof (it being agreed that the Subsequent Shelf Registration shall be an Automatic Shelf Registration Statement if the Company is a WKSI) and (ii) keep such Subsequent Shelf Registration continuously effective and usable until there are no longer any Registrable Securities. Any such Subsequent Shelf Registration shall be on Form S-3 to the extent that the Company is eligible to use such form. Otherwise, such Subsequent Shelf Registration shall be on another appropriate form and shall provide for the registration of such Registrable Securities for resale by any Holder in accordance with any method of distribution elected by any such Holder.
 
(c)       At least ten (10) Business Days prior to the Filing Date, the Company shall use its reasonable best efforts to notify each Holder in writing (which may be by email) of the information reasonably necessary about the Holder to include such Holder’s Registrable Securities in such Registration Statement. Notwithstanding anything else in this Agreement, the Company shall not be obligated to include such Holder’s Registrable Securities in such Registration Statement to the extent the Company has not received such information, on or prior to the third Business Day prior to the first anticipated filing date of a Registration Statement pursuant to this Section 1.
 
2
Section 2.    Suspension of Sales; Adverse Disclosure.  Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice), or until it is advised in writing by the Company that the use of the Prospectus may be resumed. If the filing, initial effectiveness or continued use of a Registration Statement at any time would require the Company to make an Adverse Disclosure or would require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s control, the Company may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time, but in no event more than 45 days, determined in good faith by the Company to be necessary for such purpose; provided that such right to delay or suspend shall be exercised by the Company not more than two times, which may be consecutive, in any 12-month period. In the event the Company exercises its rights under the preceding sentence, each of the Holders shall suspend, immediately upon their receipt of the notice referred to above, its use of the Prospectus relating to any sale or offer to sell Registrable Securities. The Company shall immediately notify the holders of Registrable Securities of the expiration of any period during which it exercised its rights under this Section 2.
 
Section 3.     Company Undertakings.  Whenever Registrable Securities are registered or sold pursuant to this Agreement, the Company shall use all reasonable efforts to effect the registration and the sale of such Registrable Securities as soon as reasonably practicable in accordance with the intended method of disposition thereof (excluding for the avoidance of doubt an underwritten offering that is registered pursuant to the Shelf) and pursuant thereto the Company shall as expeditiously as possible:
 
(a)      at least three (3) Business Days before filing a Registration Statement or Prospectus or any amendments or supplements thereto, at the Company’s expense, furnish to the Holders copies of all such documents, other than exhibits or documents that are incorporated by reference, proposed to be filed and such other documents reasonably requested by the Holders (which may be furnished by email), which documents shall be subject to the review and comment of the counsel to the Holders (solely with respect to information regarding the Holders or the intended plan of distribution of the Registrable Securities held by the Holders);
 
(b)     notify the Holders of the effectiveness of each Registration Statement and prepare and file with the SEC such amendments and supplements to such Registration Statement and the Prospectus used in connection therewith as may be necessary to keep such Registration Statement effective for a period ending on the date on which all Registrable Securities have been sold under such Registration Statement or have otherwise ceased to be Registrable Securities, and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statement;
 
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(c)      with respect to an offering of Registrable Securities, furnish to the Holders, without charge, such number of copies of the applicable Registration Statement, each amendment and supplement thereto, the Prospectus included in such Registration Statement (including each preliminary Prospectus, final Prospectus, and any other Prospectus (including any Prospectus filed under Rule 424, Rule 430A or Rule 430B and any “issuer free writing prospectus” as such term is defined under Rule 433)), all exhibits and other documents filed therewith and such other documents as the Holders may reasonably request including in order to facilitate the disposition of the Registrable Securities owned by any Holders, and upon request, a copy of any and all transmittal letters or other correspondence to or received from, the SEC or any other Governmental Entity relating to such offer;
 
(d)     use all reasonable efforts (x) to register or qualify such Registrable Securities under such other securities or blue sky laws of such jurisdictions as the Holders reasonably request, (y) to keep such registration or qualification in effect for so long as such Registration Statement remains in effect, and (z) to do any and all other acts and things which may be reasonably necessary or advisable to enable the Holders to consummate the disposition in such jurisdictions of the Registrable Securities owned by it (provided that the Company shall not be required to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this subsection, (B) subject itself to taxation in any such jurisdiction or (C) consent to general service of process in any such jurisdiction);
 
(e)       notify the Holders and their counsel: (x) at any time when a Prospectus relating to the applicable Registration Statement is required to be delivered under the Securities Act, (A) upon discovery that, or upon the happening of any event as a result of which, such Registration Statement, or the Prospectus or Free Writing Prospectus relating to such Registration Statement, or any document incorporated or deemed to be incorporated therein by reference contains an untrue statement of a material fact or omits any fact necessary to make the statements in the Registration Statement or the Prospectus or Free Writing Prospectus relating thereto not misleading or otherwise requires the making of any changes in such Registration Statement, Prospectus, Free Writing Prospectus or document, and, at the request of the Holders, the Company shall promptly prepare a supplement or amendment to such Prospectus or Free Writing Prospectus, furnish a reasonable number of copies of such supplement or amendment to the Holders, its counsel and file such supplement or amendment with the SEC so that, as thereafter delivered to the purchasers of such Registrable Securities, such Prospectus or Free Writing Prospectus as so amended or supplemented shall not contain an untrue statement of a material fact or omit to state any fact necessary to make the statements therein not misleading, (B) as soon as the Company becomes aware of any comments or inquiries by the SEC or any requests by the SEC or any Federal or state Governmental Entity for amendments or supplements to a Registration Statement or related Prospectus or Free Writing Prospectus covering Registrable Securities or for additional information relating thereto, (C) as soon as the Company becomes aware of the issuance or threatened issuance by the SEC of any stop order suspending or threatening to suspend the effectiveness of a Registration Statement covering the Registrable Securities or (D) of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption from qualification of any Registrable Security for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose; and (y) when each Registration Statement or any amendment thereto has been filed with the SEC and when each Registration Statement or the related Prospectus or Free Writing Prospectus or any Prospectus supplement or any post-effective amendment thereto has become effective;
 
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(f)        use its reasonable best efforts to cause all such Registrable Securities to be listed on the Principal Market;
 
(g)       provide and cause to be maintained a transfer agent and registrar for all such Registrable Securities from and after the effective date of the applicable Registration Statement;
 
(h)       permit the Holders and their counsel and any other attorney, accountant or other agent retained by the Holders to participate, at each such Person’s own expense (except as provided in Section 4) (including, but not limited to, reviewing, commenting on and attending all meetings) in the preparation of such Registration Statement;
 
(i)       in the event of the issuance or threatened issuance of any stop order suspending the effectiveness of a Registration Statement, or of any order suspending or preventing the use of any related Prospectus or suspending the qualification of any security included in such Registration Statement for sale in any jurisdiction, the Company shall use all reasonable efforts promptly to (x) prevent the issuance of any such stop order, and in the event of such issuance, to obtain the withdrawal of such order and (y) obtain the withdrawal of any order suspending or preventing the use of any related Prospectus or Free Writing Prospectus or suspending qualification of any Registrable Securities included in such Registration Statement for sale in any jurisdiction at the earliest practicable date;
 
(j)      with respect to each Free Writing Prospectus or other materials to be included in the Disclosure Package, ensure that no Registrable Securities be sold “by means of” (as defined in Rule 159A(b)) such Free Writing Prospectus or other materials without the prior written consent of the Holders, which Free Writing Prospectuses or other materials shall be subject to the review of its counsel;
 
(k)      provide or maintain a CUSIP number for the Registrable Securities prior to the effective date of the first Registration Statement including Registrable Securities;
 
(l)       promptly notify in writing the Holders (which notice may be by email) (x) when such Registration Statement or related Prospectus or Free Writing Prospectus or any Prospectus amendment or supplement or post- effective amendment has been filed, and, with respect to any such Registration Statement or any post-effective amendment, when the same has become effective and (y) of any written comments by the SEC and by the blue sky or securities commissioner or regulator of any state with respect thereto;
 
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(m)      (i) prepare and file with the SEC such amendments and supplements to each Registration Statement as  may be necessary to comply with the provisions of the Securities Act, including post-effective amendments to each Registration Statement as may be necessary to keep such Registration Statement continuously effective for the applicable time period required hereunder, and if applicable, file any Registration Statements pursuant to Rule 462(b); (ii) cause the related Prospectus to be supplemented by any required Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force); (iii) comply with the provisions of the Securities Act and the Exchange Act and any applicable securities exchange or other recognized trading market with respect to the disposition of all securities covered by such Registration Statement during such period in accordance with the intended methods of disposition set forth in such Registration Statement as so amended or in such Prospectus as so supplemented; (iv) provide additional information related to each Registration Statement as requested by, and obtain any required approval necessary from, the SEC or any Federal or state Governmental Entity; and (v) respond promptly to any comments received from the SEC and request acceleration of effectiveness promptly after it learns that the SEC will not review the Registration Statement or after it has satisfied comments received from the SEC;
 
(n)      within the deadlines specified by the Securities Act, make all required filing fee payments in respect of any Registration Statement or Prospectus used under this Agreement (and any offering covered thereby);
 
(o)       use its reasonable best efforts to deliver all the necessary documentation to cause the Company’s transfer agent to remove any restrictive legend on any Registrable Securities, as promptly as practicable and no later than two (2) business days after such request, when such Registrable Securities are sold (or proposed to be sold) pursuant to Rule 144 or the Registration Statement or may be sold without restriction or limitation under Rule 144, in each case in accordance with customary practice. In connection therewith, if required by the Company’s transfer agent, the Company will use its reasonable best efforts to promptly cause an opinion of counsel to be delivered to and maintained with its transfer agent, together with any other authorizations, certificates and directions required by the transfer agent that authorize and direct the transfer agent to deliver such Registrable Securities without any such legend. If restrictive legends are no longer required for the Registrable Securities pursuant to the foregoing, the Company shall, reasonably promptly following any request therefor from a Holder, accompanied by such customary and reasonably acceptable representations and other documentation referred to above establishing that restrictive legends are no longer required, deliver to the transfer agent irrevocable instructions that the transfer agent shall make a new, unlegended entry for the securities; and
 
(p)       use all reasonable efforts to take all other actions necessary to effect the registration and sale of the Registrable Securities contemplated hereby.
 
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Section 4.      Registration Expenses.
 
All Registration Expenses shall be borne by the Company. All Selling Expenses relating to Registrable Securities registered shall be borne by the Holders.
 
Section 5.      Indemnification and Contribution.
 
(a)     Indemnification by the Company.  The Company agrees to indemnify and hold harmless each of the Holders and their respective Affiliates, directors, officers, employees, members, managers and agents and each Person who controls any of the Holders within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable Law, from and against any losses, claims, expenses, damages and liabilities or whatever kind (including legal or other expenses reasonably incurred in connection with investigating, preparing or defending same and the cost of enforcing any right to indemnification hereunder) (collectively, “Losses”) to which they or any of them may become subject insofar as such Losses (or actions in respect thereof) arise out of or are based upon (x) any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or the Disclosure Package, or any preliminary, final or summary Prospectus or Free Writing Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (y) any violation or alleged violation by the Company of the Securities Act, the Exchange Act, any other federal law, any state or foreign securities law, or any rule or regulation promulgated under of the foregoing laws, relating to the offer or sale of the Registrable Securities, and in any such case, the Company agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating, preparing or defending any such Loss, claim, damage, liability, action or investigation (whether or not the indemnified party is a party to any proceeding); provided, however, that the Company will not be liable in any case to the extent that any such Loss arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of the Holders specifically for inclusion therein, including any notice, questionnaire or information provided pursuant to Section 1(c) herein. This indemnity agreement will be in addition to any liability which the Company may otherwise have.
 
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(b)      Indemnification by the Holders.  Each of the Holders agrees, severally but not jointly, to indemnify and hold harmless the Company and each of its Affiliates, directors, employees, members, managers and agents and each Person who controls the Company within the meaning of either the Securities Act or the Exchange Act, to the fullest extent permitted by applicable Law, from and against any and all Losses to which they or any of them may become subject insofar as such Losses arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in a Registration Statement as originally filed or in any amendment thereof, or in the Disclosure Package or any Holder Free Writing Prospectus, preliminary, final or summary Prospectus included in any such Registration Statement, or in any amendment thereof or supplement thereto, or arise out of or are based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, to the extent, but only to the extent, that any such untrue statement or alleged untrue statement or omission or alleged omission is contained in any written information furnished to the Company by or on behalf of such Holder specifically for inclusion therein; provided, however, that the total amount to be indemnified by any Holder pursuant to this Section 5(b) shall be limited to the net proceeds (after deducting underwriters’ discounts and commissions) received by such Holder in the offering to which such Registration Statement or Prospectus relates; provided further that no Holder shall be liable in any case to the extent that prior to the filing of any such Registration Statement or Disclosure Package, or any amendment thereof or supplement thereto, it has furnished in writing to the Company, information expressly for use in, and within a reasonable period of time prior to the effectiveness of such Registration Statement or Disclosure Package, or any amendment thereof or supplement thereto which corrected or made not misleading information previously provided to the Company. This indemnity agreement will be in addition to any liability which the Holders may otherwise have.
 
(c)      Notification.  If any Person shall be entitled to indemnification under this Section 5 (each, an “Indemnified Party”), such Indemnified Party shall give prompt written notice to the party required to provide indemnification (each, an “Indemnifying Party”) of any claim or of the commencement of any proceeding as to which indemnity is sought. The Indemnifying Party shall have the right, exercisable by giving written notice to the Indemnified Party as promptly as reasonably practicable after the receipt of written notice from such Indemnified Party of such claim or proceeding, to assume, at the Indemnifying Party’s expense, the defense of any such claim or litigation, with counsel reasonably satisfactory to the Indemnified Party and, after notice from the Indemnifying Party to such Indemnified Party of its election to assume the defense thereof, the Indemnifying Party will not (so long as it shall continue to have the right to defend, contest, litigate and settle the matter in question in accordance with this Section 5(c) be liable to such Indemnified Party hereunder for any legal expenses and other expenses subsequently incurred by such Indemnified Party in connection with the defense thereof; provided, however, that an Indemnified Party shall have the right to employ separate counsel in any such claim or litigation, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless the Indemnifying Party shall have failed within a reasonable period of time after receipt of written notice from such Indemnified Party of such claim or proceeding to assume such defense and the Indemnified Party is or would reasonably be expected to be materially prejudiced by such delay. The failure of any Indemnified Party to give notice as provided herein shall relieve an Indemnifying Party of its obligations under this Section 5 only to the extent that the failure to give such notice is materially prejudicial or harmful to such Indemnifying Party’s ability to defend such action. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the prior written consent of each Indemnified Party (which consent shall not be unreasonably withheld or delayed), consent to entry of any judgment or enter into any settlement which does not include an unconditional release of such Indemnified Party from all liability in respect to such claim or litigation. The indemnity agreements contained in this Section 5 shall not apply to amounts paid in settlement of any claim, loss, damage, liability or action if such settlement is effected without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld or delayed. The indemnification set forth in this Section 5 shall be in addition to any other indemnification rights or agreements that an Indemnified Party may have. An Indemnifying Party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such Indemnifying Party with respect to such claim, unless in the reasonable judgment of any Indemnified Party a conflict of interest may exist between such Indemnified Party and any other Indemnified Parties with respect to such claim.
 
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(d)      Contribution.  If the indemnification provided for in this Section 5 is held by a court of competent jurisdiction to be unavailable to an Indemnified Party, other than pursuant to its terms, with respect to any Losses or action referred to therein, then, subject to the limitations contained in this Section 5, the Indemnifying Party, in lieu of indemnifying such Indemnified Party hereunder, shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses or action in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party, on the one hand, and the Indemnified Party, on the other, in connection with the actions, statements or omissions that resulted in such Losses or action, as well as any other relevant equitable considerations. The relative fault of the Indemnifying Party, on the one hand, and the Indemnified Party, on the other hand, shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made (or omitted) by, or relates to information supplied by such Indemnifying Party or such Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section 5(d) was determined solely upon pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding sentence of this Section 5(d). Notwithstanding the foregoing, the amount any Holder will be obligated to contribute pursuant to this Section 5(d) will be limited to an amount equal to the net proceeds received by such Holder in respect of the Registrable Securities sold pursuant to the offering of Registrable Securities which gives rise to such obligation to contribute. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.
 
Section 6.      General Provisions.
 
(a)       Amendments and Waivers.  Except as otherwise provided herein, the provisions of this Agreement may be amended, modified or waived only with the prior written consent of the Company and Holders holding at least a majority of the then outstanding Registrable Securities (assuming for such purpose that all of the outstanding Notes were converted into Convertible Note Shares); provided, however, that notwithstanding the foregoing, any party may give a waiver as to itself; provided, further, that no amendment, modification or waiver that adversely affects one Holder shall be effective against such Holder without the prior written consent of such Holder. The failure or delay of any Person to enforce any of the provisions of this Agreement will in no way be construed as a waiver of such provisions and will not affect the right of such Person thereafter to enforce each and every provision of this Agreement in accordance with its terms. A waiver or consent to or of any breach or default by any Person in the performance by that Person of his, her or its obligations under this Agreement will not be deemed to be a consent or waiver to or of any other breach or default in the performance by that Person of the same or any other obligations of that Person under this Agreement.
 
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(b)      Remedies.  The parties to this Agreement will be entitled to enforce their rights under this Agreement specifically (without posting a bond or other security), to recover damages caused by reason of any breach of any provision of this Agreement and to exercise all other rights existing in their favor. The parties hereto agree and acknowledge that a breach of this Agreement would cause irreparable harm and money damages would not be an adequate remedy for any such breach and that, in addition to any other rights and remedies existing hereunder, any party will be entitled to specific performance and/or other injunctive relief from any court of law or equity of competent jurisdiction (without posting any bond or other security) in order to enforce or prevent violation of the provisions of this Agreement.
 
(c)       Severability.  Whenever possible, each provision of this Agreement will be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited, invalid, illegal or unenforceable in any respect under any applicable law or regulation in any jurisdiction, such prohibition, invalidity, illegality or unenforceability will not affect the validity, legality or enforceability of any other provision of this Agreement in such jurisdiction or in any other jurisdiction, but this Agreement will be reformed, construed and enforced in such jurisdiction as if such prohibited, invalid, illegal or unenforceable provision had never been contained herein.
 
(d)      Entire Agreement.  Except as otherwise provided herein, this Agreement contains the complete agreement and understanding among the parties hereto with respect to the subject matter hereof and supersedes and preempts any prior understandings, agreements or representations by or among the parties hereto, written or oral, which may have related to the subject matter hereof in any way.
 
(e)      Assignment.  Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto (whether by operation of Law or otherwise) without the prior written consent of the other party.
 
(f)       Confidentiality.  The Holders agree to treat as confidential the receipt of any notice hereunder and the information contained therein, and not to disclose or use the information contained in any such notice (or the existence thereof) without the prior written consent of the Company until such time as the information contained therein is or becomes available to the public generally (other than as a result of disclosure by the Holders in breach of the terms of this Agreement).
 
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(g)     Notices.  Any notice, demand or other communication to be given under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given (i) when delivered personally to the recipient, (ii) when sent by electronic mail or facsimile if sent during normal business hours of the recipient; but if not, then on the next Business Day, (iii) one Business Day after it is sent to the recipient by reputable overnight courier service (charges prepaid) or (iv) three Business Days after it is mailed to the recipient by first class mail, return receipt requested. Such notices, demands and other communications will be sent to the Company at the address specified on the signature page hereto and to any holder, or at such address or to the attention of such other Person as the recipient party has specified by prior written notice to the sending party. Any party may change such party’s address for receipt of notice by giving prior written notice of the change to the sending party as provided herein. The Company’s address is:
 
c/o ATI Physical Therapy, Inc.
790 Remington Blvd., Bolingbrook, Illinois, 60440
Attention: Erik Kantz, Chief Legal Officer and Corporate Secretary
E-mail: Erik.Kantz@atipt.com
 
With a copy (which does not constitute notice under this Agreement) to:
 
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY 10153
Attention: Alexander D. Lynch, Esq.
E-mail: alex.lynch@weil.com
 
If to the Holders, to the Purchaser Representative on their behalf at:
 
Wilmington Savings Fund Society, FSB
500 Delaware Ave.
Wilmington, DE 19801
Attention: ATI Holdings Acquisition, Inc.
E-mail: phealy@wsfsbank.com
 
With a copy (which does not constitute notice under this Agreement) to:
 
Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
Attention: Gregg Bateman
Email: bateman@sewkis.com

And

Davis Polk & Wardwell LLP
450 Lexington Avenue
New York, NY 10017
Attention: Dan Gibbons, Esq.
E-mail: dan.gibbons@davispolk.com
 
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or to such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party.
 
(h)      Business Days.  If any time period for giving notice or taking action hereunder expires on a day that is not a Business Day, the time period will automatically be extended to the Business Day immediately following such Saturday, Sunday or legal holiday.
 
(i)        Applicable Law; Exclusive Jurisdiction; Jury Waiver.
 
(i)        This Agreement, and all rights, obligations, claims, causes of action (whether in contract, tort or statute) or other matter that may result from, arise out of, be in connection with or relating to this Agreement, or the negotiation, administration, performance, or enforcement of this Agreement (the “Relevant Matters”), shall be governed by, and construed and enforced in accordance with, the internal Laws of the State of New York, regardless of the Laws that might otherwise govern under applicable principles of conflicts of Laws thereof, including its statutes of limitations.
 
(ii)      Each of the parties irrevocably consents to the exclusive jurisdiction and venue of, and agrees not to commence any legal proceedings with respect to a Relevant Matter except in, any federal or New York State Court sitting in the borough of Manhattan, in the city of New York (or any appellate court therefrom) in connection with any Relevant Matter. By execution and delivery of this Agreement, each party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and to the appellate courts therefrom solely for the purposes of disputes in connection with any Relevant Matter and not as a general submission to such jurisdiction or with respect to any other dispute, matter or claim whatsoever. The parties hereby waive any right to stay or dismiss any action or proceeding in connection with any Relevant Matter brought before the foregoing courts on the basis of (i) any claim that it is not personally subject to the jurisdiction of the above-named courts for any reason or that it or any of its property is immune from the above-described legal process, that such action or proceeding is brought in an inconvenient forum, that venue for the action or proceeding is improper or that this Agreement may not be enforced in or by such courts, or (iii) any other defense that would hinder or delay the levy, execution or collection of any amount to which any party is entitled pursuant to any final judgment of any court having jurisdiction.
 
(iii)     EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE ACTIONS OF ANY PARTY IN NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT, OR ANY OTHER RELEVANT MATTER.
 
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(j)      Descriptive Headings; Interpretation.  The descriptive headings of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. The use of the word “including” in this Agreement will be by way of example rather than by limitation.
 
(k)      No Strict Construction.  The language used in this Agreement will be deemed to be the language chosen by the parties hereto to express their mutual intent, and no rule of strict construction will be applied against any party.
 
(l)       Counterparts.  This Agreement may be executed in multiple counterparts, any one of which need not contain the signature of more than one party, but all such counterparts taken together will constitute one and the same agreement.
 
(m)    Electronic Delivery.  This Agreement, the agreements referred to herein, and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent executed and delivered by means of a photographic, photostatic, facsimile or similar reproduction of such signed writing using a facsimile machine or electronic mail will be treated in all manner and respects as an original agreement or instrument and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto or to any such agreement or instrument, each other party hereto or thereto will re-execute original forms thereof and deliver them to all other parties. No party hereto or to any such agreement or instrument will raise the use of a facsimile machine or electronic mail to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or electronic mail as a defense to the formation or enforceability of a contract and each such party forever waives any such defense.
 
(n)     Further Assurances.  In connection with this Agreement and the transactions contemplated hereby, the Holders agree to execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and the transactions contemplated hereby.
 
(o)      Third-Party Beneficiaries.  No term or provision of this Agreement is intended to be, or shall be, for the benefit of any Person not a party hereto, and no such other Person shall have any right or cause of action hereunder, except  as otherwise expressly provided herein.
 
(p)      Rule 144.  With a view to making available to the Holders the benefits of Rule 144, the Company covenants that so long as any Holder holds Registrable Securities it will (x) make available information necessary to comply with Rule 144, if available with respect to resales of the Registrable Securities under the Securities Act, at all times, and (y) take such further action as any Holder may reasonably request, all to the extent required from time to time to enable it to sell Registrable Securities without registration under the Securities Act within the limitation of the exemptions provided by Rule 144.
 
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(q)      Termination.  Notwithstanding anything to the contrary contained herein, from the first day on which each of the Holders ceases to hold Registrable Securities, then this Agreement shall expire and terminate automatically; provided, however, that Exhibit A, and Sections 4 through 6 shall survive the termination of this Agreement.
 
*          *          *          *          *

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IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the date first written above.
 
 
ATI PHYSICAL THERAPY, INC.
   
 
By:
/s/ [•]
   
Name:
 [•]
   
Title:
 [•]

[Signature Page to Registration Rights Agreement]

[HOLDER]
 
By:
/s/ [•]
  

Name:
 [•]

Title:
 [•]

Email Address: [•]

Address for Notice to Holder: [•]

Address for Delivery (if not same as address for notice): [•]
Aggregate amount of Notes held: [●]
 
[HOLDER]
 
By:
/s/ [•]
  

Name:
 [•]

Title:
 [•]

Email Address: [•]

Address for Notice to Holder: [•]

Address for Delivery (if not same as address for notice): [•]
Aggregate amount of Notes held: [●]
 
[Signature Page to Registration Rights Agreement]
 
EXHIBIT A
 
DEFINITIONS
 
Capitalized terms used in this Agreement have the meanings set forth in the Note Purchase Agreement and, to the extent not defined therein, below.
 
“Adverse Disclosure” means any public disclosure of material non-public information, which disclosure, in the good faith judgment of the Company (i) would be required to be made in any Registration Statement or Prospectus in order for the applicable Registration Statement or Prospectus not to contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein (in the case of any Prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would not be required to be made at such time if the Registration Statement were not being filed, and (iii) the Company has a bona fide business purpose for not making such information public.
 
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person. For purposes of this definition, the term “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of that Person, whether through the ownership of voting securities or partnership or other ownership interests, by Contract or otherwise at any time and for so long as such control exists.
 
“Agreement” has the meaning set forth in the preamble.
 
“Automatic Shelf Registration Statement” means an “automatic shelf registration statement” as defined in Rule 405.
 
“Board” means the board of directors of the Company.
 
“Business Day” means any day except a Saturday, a Sunday or other day on which the SEC or banking institutions in New York, New York are authorized or required by law, regulation or executive order to be closed.
 
“Common Stock” has the meaning set forth in the recitals.
 
“Company” has the meaning set forth in the preamble and shall include its successor(s).
 
“Convertible Note Shares” means collectively the shares of Common Stock issuable upon conversion of the Notes in accordance with their terms, as such number may be adjusted pursuant to the provisions thereof.
 
“Director” means a member of the Board until such individual’s death, disability, disqualification, resignation, or removal.
 
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“Disclosure Package” means, with respect to any offering of securities, (i) the preliminary Prospectus, (ii) the number of securities included in the offering; (iii) each Free Writing Prospectus and (iv) all other information that is deemed, under Rule 159 promulgated under the Securities Act, to have been conveyed to purchasers of securities at the time of sale of such securities (including a contract of sale).
 
“Effective Date” has the meaning set forth in the preamble.
 
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, or any successor federal law then in force, together with all rules and regulations promulgated thereunder.
 
 “Filing Date” has the meaning specified in Section 1(a).
 
“FINRA” means the Financial Industry Regulatory Authority.
 
 “First Lien Credit Agreement” means that certain Amended and Restated 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, to be dated as of April 15, 2023), among the Borrower, Holdings, the lenders party thereto and Barclays Bank PLC, as administrative agent and collateral agent.
 
“Form S-1 Shelf” has the meaning specified in Section 1(a).
 
“Form S-3 Shelf” has the meaning specified in Section 1(a).
 
“Free Writing Prospectus” means a free-writing prospectus, as defined in Rule 405.
 
“Governmental Entity” means any government, political subdivision, governmental, administrative, self-regulatory or regulatory entity or body, department, commission, board, agency or instrumentality, or other legislative, executive or judicial governmental entity, and any court, tribunal, judicial or arbitral body, in each case whether federal, national, state, county, municipal, provincial, local, foreign or multinational.
 
“Holder Free Writing Prospectus” means each Free Writing Prospectus prepared by or on behalf of any of the Holders or used or referred to by any of the Holders in connection with the offering of Registrable Securities.
 
“Indemnified Party” has the meaning specified in Section 5(c).
 
“Indemnifying Party” has the meaning specified in Section 5(c).
 
“Losses” has the meaning set forth in Section 5(a).
 
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“Misstatement” shall mean an untrue statement of a material fact or an omission to state a material fact required to be stated in a Registration Statement or Prospectus, or necessary to make the statements in a Registration Statement or Prospectus (in the case of any Prospectus, in the light of the circumstances under which they were made), not misleading.
 
“Note Purchase Agreement” has the meaning set forth in the preamble.
 
“Notes” has the meaning set forth in the Note Purchase Agreement.
 
“NYSE” means the New York Stock Exchange.
 
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or Governmental Entity or other entity.
 
“Principal Market” means the NYSE or if the NYSE is not the principal market for the Common Stock, then the principal securities exchange or securities market on which the Common Stock is then traded.
 
“Prospectus” means the prospectus used in connection with a Registration Statement.
 
 “Registrable Securities” means the Convertible Note Shares, if any, delivered or deliverable by the Company pursuant to the Note Purchase Agreement; provided, however, that as to any Registrable Securities, such securities shall cease to constitute Registrable Securities upon the earliest to occur of: (i) the date on which such securities are disposed of pursuant to an effective Registration Statement under the Securities Act; (ii) the date on which such securities cease to be outstanding; or (iii) with respect to any Holder, at such time as (A) the Convertible Note Shares held by such Holder may be sold without registration and without any limitations, including restrictions on volume, manner of sale or other limitations or restrictions pursuant to Rule 144 (or any successor rule promulgated thereafter by the SEC) or (B) such Holder ceases to hold any Notes or Convertible Note Shares.
 
“Registration Expenses” means all expenses (other than underwriting discounts and commissions) arising from or incident to the registration of Registrable Securities in compliance with this Agreement, including:
 
i.          stock exchange, SEC, FINRA and other registration and filing fees,
 
ii.         all fees and expenses incurred in connection with complying with any securities or blue sky laws (including fees, charges and disbursements of counsel for the underwriters in connection with blue sky qualifications of the Registrable Securities),
 
iii.        all printing, messenger and delivery expenses,
 
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iv.        the fees, charges and disbursements of counsel to the Company and of its independent public accountants and any other accounting and legal fees, charges and expenses incurred by the Company (including any expenses arising from any special audits or “comfort letters” required in connection with or incident to any sale of Registrable Securities pursuant to a registration),
 
v.         the fees and expenses incurred in connection with the listing of the Registrable Securities on the Principal Market, and
 
vi.        reasonable and documented out-of-pocket fees, charges and disbursements of one counsel to the Holders, including, for the avoidance of doubt, any expenses of such counsel incurred in connection with the filing or amendment of any Registration Statement, Prospectus or Free Writing Prospectus hereunder (provided that in no event shall such fees, charges and disbursements of counsel exceed $100,000);
 
provided that in no instance shall Registration Expenses include Selling Expenses.
 
“Registration Statement” means any registration statement filed pursuant to the terms of this Agreement.
 
“Relevant Matters” has the meaning set forth in Section 6(i)(i).
 
“Rule 144”, “Rule 159”, “Rule 159A(b),” “Rule 405”, “Rule 415”, “Rule 424”, “Rule 430A”, “Rule 430B”, “Rule 433” and “Rule 462(b)” mean, in each case, such rule promulgated under the Securities Act (or any successor provision) by the SEC, as the same will be amended from time to time, or any successor rule then in force.
 
“SEC” means the United States Securities and Exchange Commission.
 
“Securities Act” means the Securities Act of 1933, as amended from time to time, or any successor federal law then in force, together with all rules and regulations promulgated thereunder.
 
“Selling Expenses” means the underwriting fees, discounts, selling commissions, underwriter marketing costs and stock transfer taxes applicable to all Registrable Securities registered by any Holder and legal fees and expenses not included within the definition of Registration Expenses.
 
“Shelf” has the meaning set forth in Section 1(a).
 
“Shelf Registration” means a registration of securities pursuant to a registration statement filed with the SEC in accordance with and pursuant to Rule 415.
 
“Subsequent Shelf Registration” has the meaning specified in Section 1(b).
 
“Transfer” means any sale, transfer, assignment or other disposition of (whether with or without consideration and whether voluntary or involuntary or by operation of law) of Common Stock.
 
“WKSI” means a “well-known seasoned issuer” as defined under Rule 405.
 
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Exhibit C-5
Series B Certificate of Designation
CERTIFICATE OF DESIGNATION
 
OF
 
SERIES B PREFERRED STOCK
 
OF
 
ATI PHYSICAL THERAPY, INC.
 
FILED IN THE OFFICE OF THE SECRETARY OF STATE OF DELAWARE
 
ON JUNE [●], 2023
 

Pursuant to Section 151 of the General Corporation Law of the State of Delaware


Pursuant to Section 151 of the General Corporation Law of the State of Delaware (the “DGCL”), ATI Physical Therapy, Inc., a corporation duly organized and validly existing under the DGCL (the “Issuer” or the “Company”), in accordance with the provisions of Section 103 thereof, does hereby submit the following:

WHEREAS, the Second Certificate of Incorporation of the Issuer (as amended, restated, supplemented or otherwise modified from time to time, the “Certificate of Incorporation”) authorizes the issuance of up to 1,000,000 shares of preferred stock, par value $0.0001 per share, of the Issuer (“Preferred Stock”) in one or more series; and expressly authorizes the Board of Directors of the Issuer (the “Board of Directors”), subject to limitations prescribed by law, to provide out of the unissued shares of the Preferred Stock for one or more series of Preferred Stock and to establish from time to time the number of shares to be included in each such series and to fix the voting rights, if any, designations, powers, preferences and relative, participating, optional, special and other rights, if any, of each such series and any qualifications, limitations and restrictions thereof, as shall be stated in the resolution or resolutions adopted by the Board of Directors providing for the issuance of such series and included in a certificate of designation; and

WHEREAS, on April [●], 2023, the Board of Directors approved and adopted the following certificate of designation (this “Certificate of Designation” or this “Certificate”) for purposes of issuing shares of Preferred Stock, with a par value of $0.0001 per share, designated as a series known as “Series B Preferred Stock”, with each such share having the designations, powers, preferences and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions, as set forth in this Certificate of Designation.

NOW THEREFORE, BE IT RESOLVED, that, pursuant to authority conferred upon the Board of Directors by the Certificate of Incorporation, the Board of Directors hereby provides out of the unissued shares of the Preferred Stock a series of Preferred Stock designated as “Series B Preferred Stock” and authorizes for issuance up to 450,000 shares of the Series B Preferred Stock (as defined below), and hereby fixes the designations, powers, preferences and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions of the Series B Preferred Stock, as follows:

1.          Designation.  A total of 450,000 shares of Preferred Stock, with a par value of $0.0001 per share, shall be designated as a series known as “Series B Preferred Stock” (the “Series B Preferred Stock”), which Series B Preferred Stock will have the respective designations, powers, preferences and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions set forth in this Certificate of Designation. For the avoidance of doubt, the Company may issue fractional shares of Series B Preferred Stock, and a fractional share of Series B Preferred Stock shall have the corresponding fractional rights, obligations and liabilities of a whole share of Series B Preferred Stock; provided, that for purposes of Section 3, any such fractional share shall be rounded down to the nearest whole share of Series B Preferred Stock.
 
2.           Ranking; Liquidation; No Other Economic Rights.
 
(a)          With respect to (i) payment of dividends, (ii) distribution of assets and (iii) all other liquidation, winding up, dissolution, dividend and redemption rights, the Series B Preferred Stock shall rank junior to any existing or future secured or unsecured indebtedness and other liabilities (including trade payables) of the Company and junior in priority of payment to all Senior Stock (as defined below) in any redemption, liquidation, dissolution, winding up or distribution of the Company (collectively, “Senior Payment Obligations”), and senior to Common Stock. For purposes of this Certificate of Designation, “Senior Stock” shall mean any Capital Stock of the Company ranking senior (as to dividend rights, redemption rights, and upon liquidation, dissolution or winding up, as applicable) to the Series B Preferred Stock, including the shares of Preferred Stock designated as “Series A Senior Preferred Stock”.
 
(b)           In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, the holders of shares of Series B Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Company available for distribution to its stockholders, after satisfying any Senior Payment Obligations and before any payment in respect of any Common Stock, an amount per share equal to $0.0001. If upon any such liquidation, dissolution or winding up of the Company, the assets of the Company available for distribution to its stockholders shall be insufficient to pay the holders of shares of Series B Preferred Stock the full amount to which they shall be entitled under this Section 2(b), the holders of shares of Series B Preferred Stock shall, in respect of their shares of Series B Preferred Stock, share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.
 
(c)           Except as expressly set forth in this Section 2 or in Section 4, the Series B Preferred Stock shall not have any (i) dividend, distribution, redemption or liquidation rights, (ii) right to receive any distribution of any of the Company’s assets, or (iii) rights in respect of the liquidation, winding up or dissolution of the Company.
 
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3.           Voting.
 
(a)           Except as otherwise required by law or the Certificate of Incorporation or any Preferred Stock Designation (as defined in the Certificate of Incorporation), each share of Series B Preferred Stock shall entitle the Holder thereof to cast that number of votes as is equal to the number of votes that such Holder would be entitled to cast if such Holder was deemed to have converted such share of Series B Preferred Stock into Common Stock, on the terms and conditions set forth in Section 5, on the record date for determining the stockholders of the Company eligible to vote on such matter, on all matters on which stockholders of the Company generally are entitled to vote as specified in Section 3(b); provided, that a Holder will not be entitled to cast any votes in respect of any share of Series B Preferred Stock for which the corresponding Stapled Second Lien PIK Convertible Note has been repaid, repurchased, redeemed or converted as of the relevant record date for such matter.
 
(b)           Except as otherwise required by law or the Certificate of Incorporation or any Preferred Stock Designation, at any annual or special meeting of the stockholders of the Company, holders of Series B Preferred Stock shall have the right to vote for the election of directors and on all other matters properly submitted to a vote of the holders of Common Stock.  The holders of Series B Preferred Stock (on an as-converted basis) and the holders of Common Stock shall vote together as a single class on all such matters. Notwithstanding the foregoing, except as otherwise required by law or the Certificate of Incorporation or any Preferred Stock Designation, holders of Series B Preferred Stock shall not be entitled to vote on any amendment to the Certificate of Incorporation or any Preferred Stock Designation that relates solely to the terms of one or more outstanding series of Preferred Stock (other than the Series B Preferred Stock) if the holders of such affected series of Preferred Stock are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to the Certificate of Incorporation or the DGCL.
 
4.           Dividend Rights.  On each Dividend Payment Date, the Holder of each share of Series B Preferred Stock shall receive a dividend in kind, in the form of additional shares of Series B Preferred Stock as set forth in Section 11.02(c) in the Note Purchase Agreement.
 
5.           Deemed Conversion.  Solely for purposes of determining the number of votes each share of Series B Preferred Stock shall entitle the Holder thereof to cast for any matter on which, pursuant to Section 3, the Holders are entitled to vote, the Series B Preferred Stock shall be deemed to be convertible into Common Stock as follows:
 
(a)            Conversion Ratio.  Each share of Series B Preferred Stock shall be deemed to be convertible, at any time and from time to time, and without the payment of additional consideration by the applicable Holder, into such number of fully paid and non-assessable shares of Common Stock as is determined by dividing the Series B Original Issue Price (as defined below) by the Series B Conversion Price (as defined below) in effect at the time of such deemed conversion.  The “Series B Original Issue Price” shall mean $1,000 per share of Series B Preferred Stock, subject to appropriate adjustment in the event of any stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock.  The “Series B Conversion Price” shall initially be equal to [$0.2574]1.  Such initial Series B Conversion Price, and the rate at which shares of Series B Preferred Stock may be deemed converted into shares of Common Stock, shall be adjusted from time to time if any Conversion Adjustment Event occurs (with the Series B Conversion Price being adjusted in the same manner and on the same terms applicable to the corresponding adjustment to the Conversion Price (as defined in the Note Purchase Agreement), and with the applicable Conversion Terms being incorporated herein mutatis mutandis).
  
1 Subject to adjustment for any reverse stock splits consummated prior to the filing of this Certificate of Designation.

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(b)           Effect of Recapitalizations; Reclassifications and Changes of Common Stock.  In the case of any Merger Event (as defined in the Note Purchase Agreement), the anti-dilution and other adjustments set forth in the Conversion Terms shall be applied with respect to the Series B Preferred Stock in a manner as nearly equivalent as is possible to the adjustments provided for in this Section 5; provided, however, that the Issuer shall not be permitted to effectuate, or otherwise become a party to, any Merger Event, if such Merger Event would cause any Second Lien PIK Convertible Notes then outstanding to become convertible into any shares of Capital Stock of any Person other than the Issuer, unless (x) the shares of Series B Preferred Stock then outstanding are converted into or exchanged for shares of Successor Preferred Stock (as defined below), and (y) such shares of Successor Preferred Stock have voting rights as nearly as equivalent as is possible to the Series B Preferred Stock. If, in the case of any Merger Event, the Reference Property (as defined in the Note Purchase Agreement) includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, then, in such Merger Event, such other Person shall agree to undertake the obligations of the Issuer in this Agreement and shall undertake such additional obligations to protect the interests of the holders of the Notes as the Issuer shall reasonably consider necessary by reason of the foregoing.
 
(c)           No Actual Conversion.  Notwithstanding anything to the contrary in this Certificate of Designation, shares of Series B Preferred Stock shall be deemed converted into Common Stock solely for the purposes expressly set forth herein, but in no event shall any shares of Series B Preferred Stock actually be converted into or exchanged for Common Stock.
 
6.          Mandatory Forfeiture.
 
(a)          At any time and from time to time, upon the occurrence of a Forfeiture Triggering Event, to the extent not prohibited by law, any applicable Forfeitable Shares shall be deemed to be immediately forfeited and cancelled for no consideration on the terms and subject to the conditions set forth in this Section 6 (a “Mandatory Forfeiture”) without any further action by the Company.
 
(b)          Written notice of any Mandatory Forfeiture pursuant to this Section 6 shall be given by the Company within 15 Business Days following the applicable forfeiture date (each such date, a “Mandatory Forfeiture Date”), which notice shall indicate (1) the number of Forfeitable Shares that have been forfeited and cancelled and (2) the Mandatory Forfeiture Date.  For the avoidance of doubt, shares of Series B Preferred Stock are not redeemable, forfeitable or cancellable (i) at the Holder’s election or (ii) at the Company’s election except, in the case of this clause (ii), pursuant to this Section 6.
 
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7.          Mandatory Transfers; Restrictions on Transfer.
 
(a)            In connection with any assignment, sale, disposal or other transfer of a Stapled Second Lien PIK Convertible Note by a Holder to an Eligible Transferee, such Holder shall be deemed to have substantially concurrently assigned, sold, disposed of or transferred to such Eligible Transferee the corresponding shares of Series B Preferred Stock, and such Eligible Transferee shall thereafter be the Holder of such shares of Series B Preferred Stock and the corresponding Stapled Second Lien PIK Convertible Note(s).
 
(b)          No Holder shall, directly or indirectly, assign, sell, offer to sell, pledge, mortgage, hypothecate, encumber, dispose of or otherwise consummate or permit any like transfer or encumbrance of any Series B Preferred Stock held by such Holder, in each case other than to an Eligible Transferee of such Holder and then only together with a proportional interest in the applicable Stapled Second Lien PIK Convertible Note.
 
8.        Tax Treatment.  The Holders and the Company agree that for U.S. federal (and applicable state and local) income tax purposes (a) the Series B Preferred Stock and Stapled Second Lien PIK Convertible Notes shall be treated as a single integrated instrument and (b) such single integrated instrument shall be treated as indebtedness of the Company (in each case, including as a result of the transfer restrictions provided in Section 7), and none of the Holders or the Company shall file any tax return or take any position contrary or inconsistent with such treatment described in clause (a) or (b) unless otherwise required by a “determination” within the meaning of Section 1313(a) of the Internal Revenue Code of 1986, as amended (or any analogous provision of applicable state or local income tax law).
 
9.        Amendments and Waivers.  So long as any shares of Series B Preferred Stock remain outstanding, and unless a greater percentage is required by law, the Issuer shall not, without the affirmative vote or written consent of the Majority Holders, voting separately as one class, amend, alter or change the rights, preferences or privileges of the shares of Series B Preferred Stock, or waive the compliance of any of the covenants included in this Certificate of Designation.
 
10.        Cancellation; No Conversion Rights.  No shares of Series B Preferred Stock acquired by the Company by reason of redemption, purchase or otherwise shall be reissued or held in treasury for reissuance, and the Company shall take all necessary action to cause such shares of Series B Preferred Stock immediately to be canceled, retired and eliminated from the shares of Series B Preferred Stock which the Company shall be authorized to issue.  The Holders have no rights to convert any Series B Preferred Stock into any other Equity Interests of the Company.
 
11.         Rights and Remedies of Holders.
 
(a)            The various provisions set forth under this Certificate of Designation are for the benefit of the Holders and, subject to the terms and conditions hereof and applicable law, will be enforceable by them, including by one or more actions for specific performance.
 
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(b)            Except as expressly set forth herein, all remedies available under this Certificate of Designation, at law, in equity or otherwise, will be deemed cumulative and not alternative or exclusive of other remedies.  The exercise by any Holder of a particular remedy will not preclude the exercise of any other remedy.
 
12.          Definitions.  As used in this Certificate of Designation, the following terms shall have the meanings specified below:
 
“Business Day” shall have the meaning assigned to such term in the Note Purchase Agreement.
 
“Capital Stock” means:
 
(1)         in the case of a corporation, corporate stock;
 
(2)        in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;
 
(3)         in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and
 
(4)         any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.
 
“Certificate of Designation” shall have the meaning assigned to such term in the recitals hereof.
 
“Certificate of Incorporation” shall have the meaning assigned to such term in the recitals hereof.
 
“Common Stock” means any shares of Class A common stock, with a par value of $0.0001 per share, of the Company.
 
“Company” shall have the meaning assigned to such term in the recitals hereof.
 
“Conversion Adjustment Events” means, collectively, the events specified in Section 10.04 of the Note Purchase Agreement (each of which, for the avoidance of doubt, is intended to result in an adjustment to the Series B Conversion Price hereunder which corresponds to the adjustment to the Conversion Price under the Note Purchase Agreement).
 
“Conversion Terms” means the terms, conditions and other provisions set forth in Article 10 of the Note Purchase Agreement.
 
“DGCL” shall have the meaning assigned to such term in the introductory paragraph hereof.
 
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“Dividend Payment Date” shall mean, with respect to any share of Series B Preferred Stock, the Interest Payment Date associated with the corresponding Stapled Second Lien PIK Convertible Note.
 
“Eligible Transferee” shall have the meaning assigned to such term in the Note Purchase Agreement.
 
“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.
 
“Forfeitable Shares” shall mean any shares of Series B Preferred Stock that have become subject to a Forfeiture Triggering Event.
 
“Forfeiture Triggering Event” shall mean, with respect to any share of Series B Preferred Stock, each date, if any, on which the corresponding Stapled Second Lien PIK Convertible Note has been repaid, repurchased, redeemed or converted.
 
“Holder” means, as of the relevant date, any Person that is the holder of record of at least one share of Series B Preferred Stock, as of such date.
 
“Initial Issue Date” means June [●], 2023.
 
“Interest Payment Date” shall have the meaning assigned to such term in the Note Purchase Agreement.
 
“Majority Holders” means, as of any date of determination, the Holders holding a majority of the then-outstanding shares of Series B Preferred Stock.
 
“Mandatory Forfeiture” shall have the meaning assigned to such term in Section 6(a).
 
“Mandatory Forfeiture Date” shall have the meaning assigned to such term in Section 6(b).
 
“Note Purchase Agreement” means that certain Note Purchase Agreement, dated as of April [●], 2023, by and among the Company, ATI Holdings Acquisition, Inc., a Delaware corporation, Wilco Intermediate Holdings, Inc., a Delaware corporation, the Purchasers from time to time party thereto and Wilmington Savings Fund Society, FSB, as the purchaser representative and collateral agent for the Purchasers, as the same may be amended, modified, supplemented and/or restated from time to time.
 
“Person” means any individual, corporation, limited liability company, partnership (including limited partnership), joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.

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“Preferred Stock” shall have the meaning assigned to such term in the recitals hereof.
 
“Purchasers” shall have the meaning assigned to such term in the Note Purchase Agreement.
 
“Second Lien PIK Convertible Notes” shall mean the subordinated second lien PIK convertible notes issued pursuant to the Note Purchase Agreement.
 
“Series B Preferred Stock” shall have the meaning assigned to such term in Section 1.
 
“Stapled Second Lien PIK Convertible Note” shall mean, with respect to any share of Series B Preferred Stock, a corresponding principal amount of Second Lien PIK Convertible Notes held by the Holder of such share, with 1 (one) share of Series B Preferred Stock corresponding to $1,000 principal amount of Second Lien PIK Convertible Notes.
 
“Successor Preferred Stock” shall mean, as applied to the Capital Stock of any Person, means Capital Stock of such Person of any class or classes, regardless of designation, that ranks prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to shares of Capital Stock of any other class of such Person.
 
“U.S.” means the United States of America.
 
13.        Interpretation.
 
(a)          Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference.
 
(b)          The headings are for convenience only and shall not be given effect in interpreting this Certificate of Designation.  References herein to any Section shall be to a Section hereof unless otherwise specifically provided.
 
(c)          References herein to any law shall mean such law, including all rules and regulations promulgated under or implementing such law, as amended from time to time and any successor law unless otherwise specifically provided.  Except as otherwise stated in this Certificate of Designation, references in this Certificate of Designation to any contract(s) or written agreement(s) shall mean such contract or written agreement, regardless of any subsequent replacement, refunding, refinancing, extension, renewal, restatement, amendment, supplement or modification thereof or thereto and regardless of whether the Issuer is, remains, was, or has ever been, a party thereto.
 
(d)          The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Certificate of Designation, refer to this Certificate of Designation as a whole and not to any particular provision of this Certificate of Designation.
 
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(e)          The use of the masculine, feminine or neuter gender or the singular or plural form of words shall not limit any provisions of this Certificate of Designation.
 
(f)          The use herein of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter.
 
(g)         The word “will” shall be construed to have the same meaning as the word “shall”.  With respect to the determination of any period of time, “from” shall mean “from and including”.  The word “or” shall not be exclusive.  The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”.
 
(h)          The terms “lease” and “license” shall include “sub-lease” and “sub-license”, as applicable.
 
(i)           All references to “$”, currency, monetary values and dollars set forth herein shall mean U.S. dollars.
 
(j)          When the terms of this Certificate of Designation refer to a specific agreement or other document or a decision by any body or Person that determines the meaning or operation of a provision hereof, the secretary of the Company shall maintain a copy of such agreement, document or decision at the principal executive offices of the Company and a copy thereof shall be provided free of charge to any Holder who makes a request therefor.
 
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
 
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IN WITNESS WHEREOF, the Company has caused this Certificate of Designation to be signed by a duly authorized officer this [●] day of June, 2023.
 
ATI PHYSICAL THERAPY, INC.




By:

Name:

Title:

[Signature Page to Series B Certificate of Designation]
Exhibit 10.2

Execution Version

AMENDMENT NO. 2 TO CREDIT AGREEMENT
 
AMENDMENT NO. 2 TO CREDIT AGREEMENT, dated as of April 17, 2023 (this “Agreement”), by and among ATI Holdings Acquisition, Inc., a Delaware corporation (the “Borrower”), Wilco Intermediate Holdings, Inc., a Delaware corporation (“Holdings”), each Subsidiary Guarantor (as defined in the Existing Credit Agreement referred to below) party hereto (together with Holdings, the “Guarantors”), the Lenders (as defined in the Existing Credit Agreement referred to below) executing this Agreement as a “Lender” on the signature pages hereto (the “Consenting Lenders”), HPS Investment Partners, LLC (“HPS”), as Lender Representative (as defined in the Existing Credit Agreement referred to below) (the “Lender Representative”) and Barclays Bank PLC (“Barclays”), as Administrative Agent (as defined in the Existing Credit Agreement referred to below) (the “Administrative Agent”).
 
W I T N E S S E T H:
 
WHEREAS, Holdings, the Borrower, the Lenders party thereto, HPS, as Arranger and Lender Representative, the Administrative Agent and Barclays, as Issuing Bank (in each case, as defined therein) are party to that certain Credit Agreement, dated as of February 24, 2022 (as amended by Amendment No. 1 to Credit Agreement, dated as of March 30, 2022, and as further amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Credit Agreement”);
 
WHEREAS, the Loan Parties and the Administrative Agent are party to that certain Pledge and Security Agreement, dated as of February 24, 2022 (as amended, restated, amended and restated, supplemented or otherwise modified prior to the date hereof, the “Existing Security Agreement”; the Existing Security Agreement, as amended hereby, the “Amended Security Agreement”);
 
WHEREAS, ATI Physical Therapy Inc. (“Parent”), Holdings, the Borrower, the Lender Representative, the Administrative Agent and certain Lenders have entered into that certain Amended and Restated Transaction Support Agreement, dated as of April 17, 2023, among Parent, Holdings, the Borrower, the Guarantors, the Administrative Agent, the Lender Representative, the Lenders party thereto, the holders of the Preferred Shares party thereto (such holders of Preferred Shares, individually, a “Consenting Preferred Equityholder” and, collectively, the “Consenting Preferred Equityholders”) and the Affiliates of Advent International Corporation party thereto (as amended, restated, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, and together with the exhibits and attachments thereto, the “Transaction Support Agreement”);
 
WHEREAS, in connection with the Transaction Support Agreement, among other things, (A) pursuant to that certain Master Assignment and Assumption Agreement, dated of April 17, 2023, among the Lenders party thereto, as Assignees Entities, and identified on the signature pages hereto as “Crossholder Lenders” (individually, a “Crossholder Lender” and, collectively, the “Crossholder Lenders”), Parent, Wilco Holdco, Inc., a Delaware corporation and an immediate subsidiary of Parent (“Intermediate Parent” and, together with Parent, collectively, the “Parent Loan Guarantors”) and the Borrower (the “Assignment and Assumption Agreement”), the Crossholder Lenders shall exchange Term Loans in the aggregate principal amount of $100 million (the “Specified Existing Term Loans”) for their respective share of new Indebtedness issued by Parent in the form of subordinated second lien PIK exchangeable notes (the “Second Lien PIK Notes”), and upon the acquisition of the Specified Existing Term Loans by Parent, Parent shall immediately contribute, assign and transfer the Specified Existing Term Loans to Intermediate Parent, and immediately thereafter Intermediate Parent shall contribute, assign and transfer the Specified Existing Term Loans to its immediate subsidiary, Holdings, and immediately thereafter Holdings shall contribute, assign and transfer the Specified Existing Term Loans to the Borrower, and immediately thereafter the Specified Existing Term Loans shall be automatically and immediately cancelled (such purchase, exchange and contribution transactions and cancellation, the “Crossholder Lender Term Loan Exchange and Cancellation”), (B) the Consenting Preferred Equityholders shall provide a $25 million delayed draw new money financing also in the form of Second Lien PIK Exchangeable Notes and (C) the Second Lien PIK Notes will be governed by a Second Lien Note Purchase Agreement, dated April 17, 2023, among Holdings, the Borrower, Wilmington Savings Fund Society, FSB as the Purchaser Representative (the “Second Lien Purchaser Representative”), and the Crossholder Lenders and Consenting Preferred Equityholders party thereto as Purchasers (the “Second Lien Note Purchase Agreement”), and shall be guaranteed solely by the Guarantors and secured solely by the Collateral on a second priority basis subject to the Second Lien Intercreditor and Subordination Agreement referred to below which provides for the Second Lien PIK Notes to be junior and subordinate in right of payment to the Obligations and junior and subordinate in right of lien priority to the Liens securing the Obligations (the Crossholder Lender Term Loan Exchange and Cancellation, the issuance of the Second Lien PIK Notes and the entry into the Second Lien Note Documents (as defined in the Amended Credit Agreement) and the other “Transactions” contemplated in the Transaction Support Agreement, collectively, the “Second Amendment Effective Date Transactions”);
 
WHEREAS, in connection with the Second Amendment Effective Date Transactions, the Required Lenders and the Required Revolving Lenders have agreed to waive compliance with the requirement under Section 5.01(b) of the Existing Credit Agreement to deliver an audit that is not subject to certain “going concern” explanatory paragraphs or like statements for the Fiscal Year ending December 31, 2022 (the “Specified Reporting Provision”); and
 
WHEREAS, the Borrower, the Guarantors, the Consenting Lenders constituting the Required Lenders and the Required Revolving Lenders, the Lender Representative and the Administrative Agent have agreed to amend each of the Existing Credit Agreement and the Existing Security Agreement on the terms and subject to the conditions set forth herein on the Second Amendment Effective Date.
 
NOW, THEREFORE, in consideration of the covenants and 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:
 
SECTION 1.       Defined Terms.  Capitalized terms used but not defined herein shall have the respective meanings assigned to such terms in the Existing Credit Agreement, as amended by this Agreement (the “Amended Credit Agreement”).
 
SECTION 2.       Waiver.  Subject to the occurrence of the Second Amendment Effective Date, effective as of the date on which compliance with the Specified Reporting Provision was otherwise required, the Administrative Agent (acting at the direction of the Consenting Lenders constituting the Required Lenders and the Required Revolving Lenders) and each Consenting Lender party hereto hereby waive the requirement to comply with the Specified Reporting Provision for the Fiscal Year ended December 31, 2022.  The limited waiver in this Section 2 is limited in nature and nothing contained herein is intended or shall be deemed or construed (i) to constitute a waiver of any existing or future Defaults or Events of Default (other than, for the avoidance of doubt, the waiver of any Default or Event of Default resulting from the failure to comply with the Specified Reporting Provision for the Fiscal Year ended December 31, 2022) or compliance with any term or provision of any Loan Document or applicable law (other than the Specified Reporting Provision for the Fiscal Year ended December 31, 2022) or (ii) to establish a custom or course of dealing between the Loan Parties, on the one hand, and the Administrative Agent, the Lender Representative and/or any Lender, on the other hand.
 
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SECTION 3.      Exchange and Cancellation of Term Loans of Crossholder Lenders.  The parties hereto acknowledge and agree that all of the Specified Existing Term Loans purchased by Parent from the Crossholder Lenders, and subsequently contributed by Parent via Intermediate Parent and Holdings to the Borrower pursuant to the Assignment and Assumption Agreement, are deemed automatically and immediately cancelled (without the need of any action by any Person) upon the consummation of the acquisition of the Specified Existing Term Loans by Parent and contribution by Parent via Intermediate Parent and Holdings to the Borrower pursuant to the Assignment and Assumption Agreement.  The Administrative Agent is hereby authorized to, and upon the Second Amendment Effective Date shall promptly, update the Register to reflect the cancellation of the Specified Existing Term Loans.
 
SECTION 4.      Amendments to Credit Agreement and Security Agreement.  Subject to the occurrence of the Second Amendment Effective Date, effective as of the Second Amendment Effective Date,
 
(a)         the Existing Credit Agreement is hereby amended and restated in its entirety to delete the stricken text (indicated textually in the same manner as the following examples: stricken text and stricken text) and to add the underlined text (indicated textually in the same manner as the following examples: double-underlined text and double-underlined text) as set forth in Exhibit A attached hereto; and
 
(b)          the Existing Security Agreement is hereby amended as follows:
 
(i)           The introductory paragraph to the Existing Security Agreement is hereby restated in entirety as follows:
 
“THIS PLEDGE AND SECURITY AGREEMENT (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Security Agreement”) is entered into as of February 24, 2022, by and among ATI Holdings Acquisition, Inc., a Delaware corporation (the “Borrower”), Wilco Intermediate Holdings, Inc., a Delaware corporation (“Holdings”), each of the subsidiaries listed on the signature pages hereto or that becomes a party hereto pursuant to Section 7.10(a) (the “Subsidiary Grantors”), each Parent Loan Guarantor that becomes a party hereto pursuant to Section 7.10(b) (the Parent Loan Guarantors, together with Holdings, the Borrower and the Subsidiary Grantors, collectively, the “Grantors”), and Barclays Bank PLC (“Barclays”), in its capacity as administrative agent and collateral agent for the Secured Parties (as defined below) (in such capacities, the “Administrative Agent”).”
 
(ii)          The following recital shall be added to the Preliminary Statement of the Existing Security Agreement:
 
“WHEREAS, each Parent Loan Guarantor will derive substantial direct and indirect benefits from the making of the Loans to the Borrower pursuant to the Credit Agreement (which benefits are hereby acknowledged by each Parent Loan Guarantor).”
 
(iii)        Section 7.10 of the Existing Security Agreement is hereby restated in its entirety as follows:
 
“Section 7.10.  Additional Grantors.
 

 (a)
Upon the execution and delivery by any Restricted Subsidiary of a Joinder Agreement, such Restricted Subsidiary shall become a Grantor hereunder with the same force and effect as if such Restricted Subsidiary was originally named as a Grantor herein.  The execution and delivery of any such instrument shall not require the consent of any other Grantor or any other Person.  The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Security Agreement.
 
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 (b)
Upon the execution and delivery by any Parent Loan Guarantor of a Joinder Agreement, such Parent Loan Guarantor shall become a Grantor hereunder with the same force and effect as if such Parent Loan Guarantor was originally named as a Grantor herein.  The execution and delivery of any such instrument shall not require the consent of any other Grantor or any other Person.  The rights and obligations of each Grantor hereunder shall remain in full force and effect notwithstanding the addition of any new Grantor as a party to this Security Agreement.”
 
SECTION 5.      Representations and Warranties.  Each Loan Party represents and warrants to the Administrative Agent and the Lenders that, as of the date hereof, (a) the representations and warranties set forth in Article 3 of the Existing Credit Agreement and in each of the other Loan Documents are true and correct in all material respects on the date hereof as if made on and as of the date hereof (or, if any such representation or warranty is expressly stated to have been made as of a specific date, such representation or warranty shall be true and correct in all material respects as of such specific date), and as if each reference in such Article 3 of the Existing Credit Agreement to “this Agreement” referred to the Existing Credit Agreement, and (b) no Default or Event of Default has occurred and is continuing as of the date hereof.  No representation or warranty is made in this Section 4 with respect to compliance with the Specified Reporting Provision for the Fiscal Year ended December 31, 2022.
 
SECTION 6.      Conditions to Signing.  This Agreement (other than (i) the limited waiver set forth in Section 2 and (ii) the amendments to the Existing Credit Agreement and the Existing Security Agreement set forth in Section 3, which shall, in each case, become effective on the Second Amendment Effective Date) shall become effective as of the date hereof (the “Second Amendment Signing Date”), upon satisfaction of the following conditions:
 
(a)         Execution.  The Administrative Agent and the Lender Representative shall have received counterparts of this Agreement executed by the Borrower, Holdings, the Guarantors, the Administrative Agent, the Lender Representative, the Required Lenders and the Required Revolving Lenders.
 
(b)         Assignment and Assumption Agreement. The Administrative Agent and the Lender Representative shall have received a copy of the Assignment and Assumption Agreement, duly executed by the parties thereto.
 
(c)          Second Lien Note Purchase Agreement. The Administrative Agent and the Lender Representative shall have received copies of the Second Lien Note Purchase Agreement and the other Second Lien Note Documents, duly executed by the parties thereto.
 
(d)        Intercreditor Agreement and Agreement Among Lenders. The Administrative Agent and the Lender Representative shall have received copies of (i) the Second Lien Intercreditor and Subordination Agreement and (ii) an amendment to the AAL dated the date hereof (the “Amended Agreement Among Lenders”).
 
(e)        Preferred Equity Documents. The Administrative Agent and the Lender Representative shall have received a copy of the Transaction Support Agreement which shall, among other things, exhibit final versions of the following: (i) the Certificate of Designation Amendment, (ii) the Investors’ Rights Agreement Amendment, (iii) the Series B Certificate of Designation and (iv) the Series A Preferred Stockholder Consent (in each case, as defined in the Transaction Support Agreement).
 
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SECTION 7.      Conditions to Effectiveness of Amendment.  The limited waiver set forth in Section 2 hereof and the amendments to the Existing Credit Agreement and the Existing Security Agreement set forth in Section 3 hereof shall, in each case, become effective upon the satisfaction (or waiver by the Required Lenders and the Required Revolving Lenders, under the Existing Credit Agreement) of the following conditions precedent (the date of such satisfaction or waiver being the “Second Amendment Effective Date”):
 
(a)          Fees and Expenses.  Without duplication of any obligation under the Transaction Support Agreement, Borrower shall have paid all reasonable and documented out-of-pocket fees, charges and disbursements due and payable under the Loan Documents on or prior to the Second Amendment Effective Date on the Second Amendment Effective Date, including, without limitation, all reasonable and documented out-of-pocket fees, charges and disbursements of the Administrative Agent, Cahill Gordon & Reindel LLP, primary counsel to the Administrative Agent, the Lender Representative and Milbank LLP, primary counsel to the Lender Representative, in each case, to the extent the Borrower has received a reasonably detailed invoice therefor at least two Business Days prior to the Second Amendment Effective Date (or such later date to which the Borrower may reasonably agree).
 
(b)         Initial Budget.  The Administrative Agent and the Lender Representative shall have received an initial budget for the Borrower in substantially the form agreed by the Borrower, the Lender Representative and Barclays, as a Revolving Lender, prior to the date hereof, which budget shall include the 13-week statement of anticipated cash receipts and disbursements of the Borrower and its subsidiaries, set forth on a weekly basis, commencing with the first Thursday following the Second Amendment Effective Date.
 
(c)        No Default; Representations and Warranties. The Administrative Agent and the Lender Representative shall have received a certificate dated as of the Second Amendment Effective Date signed by a Responsible Officer of the Borrower certifying that (i) as of the Second Amendment Effective Date, immediately after giving effect to the Second Amendment Effective Date Transactions, no Default or Event of Default shall have occurred and be continuing and (ii) as of the Second Amendment Effective Date, immediately after giving effect to the Second Amendment Effective Date Transactions, the representations and warranties of the Loan Parties set forth in the Loan Documents shall be true and correct in all material respects (without duplication of any materiality qualifier therein), except that any such representation and warranty that expressly relates to a given date or period shall be true and correct in all material respects (without duplication of any materiality qualifier therein) as of the respective date or for the respective period, as the case may be.
 
(d)        Governance. (i) The capitalization and governance of Parent and its Subsidiaries shall be materially consistent with the provisions relating thereto in Transaction Support Agreement and, if not materially consistent with the provisions relating thereto in the Transaction Support Agreement, otherwise reasonably satisfactory to the Administrative Agent and the Lender Representative and (ii) the Administrative Agent and the Lender Representative shall have received copies of all amendments to the Organizational Documents of Parent dated on or about the Second Amendment Effective Date to give effect to the Second Amendment Effective Date Transactions, each of which, to the extent not otherwise addressed in Section 7(j) below, shall be in form and substance reasonably satisfactory to the Administrative Agent and the Lender Representative.
 
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(e)        Legal Opinions.  The Administrative Agent and the Lender Representative shall have received a customary legal opinion of Weil, Gotshal & Manges LLP, in its capacity as Delaware and New York counsel for the Loan Parties, dated as of the Second Amendment Effective Date and addressed to the Administrative Agent and the Lenders party to the Second Amendment and in form and substance reasonably satisfactory to the Administrative Agent and the Lender Representative.
 
(f)          Ancillary Deliverables.  The Administrative Agent and the Lender Representative shall have received, for each Loan Party:
 
(i)          as of the Second Amendment Effective Date, a certificate of the secretary or other officer of such Loan Party in charge of maintaining books and records of such Loan Party, dated as of the Second Amendment Effective Date, (A) certifying as to the names and signatures of each officer of such Loan Party authorized to execute and deliver this Agreement, (B) attaching complete and correct copies of the Organizational Documents of such Loan Party as in effect on the date of such certification (or certifying that such Organizational Documents have not been amended or otherwise modified since the Closing Date) and (C) attaching resolutions of such Loan Party’s Board of Directors or other appropriate governing body approving and authorizing the execution, delivery and performance of this Agreement and the Amended Credit Agreement;
 
(ii)         as of the Second Amendment Effective Date, certificates attesting to the good standing of such Loan Party in its jurisdiction of organization, dated as of a recent date; and
 
(iii)        as of the Second Amendment Effective Date, a completed Perfection Certificate signed by a Responsible Officer of each Loan Party together with all attachments contemplated thereby;
 
(iv)        Crossholder Lender Term Loan Exchange and Cancellation.  Term Loans of the Crossholder Lenders in the aggregate principal amount of $100,000,000 shall have been purchased by Parent, contributed by Parent via Intermediate Parent and Holdings to the Borrower and thereafter cancelled in accordance with the Assignment and Assumption Agreement and the Crossholder Lender Term Loan Exchange and Cancellation shall have been consummated.
 
(g)          Outside Date.  The Second Amendment Effective Date shall have occurred on or before the Outside Closing Date (as defined in the Transaction Support Agreement).
 
(h)         Transaction Support Agreement.  The Transaction Support Agreement shall not have been terminated, or terminated with respect to any Company Party (as defined in the Transaction Support Agreement) 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 Second Amendment Effective Date.  Each of the (i) Second Lien Intercreditor and Subordination Agreement (as in effect on the date hereof), (ii) the Amended Agreement Among Lenders (as in effect on the date hereof), (iii) the Assignment and Assumption Agreement (as in effect on the date hereof) and (iv) Second Lien Note Purchase Agreement (as in effect on the date hereof) shall be in full force and effect and the Second Amendment Effective Date Transactions shall, contemporaneously with the occurrence of the Second Amendment Effective Date, be consummated.
 
(i)          Shareholder Vote.
 
(i)          Parent shall have convened and held an annual or special meeting of its stockholders (the “Issuance Approval Meeting”) at which the stockholders of Parent are asked to approve the issuance of all shares of common stock issuable upon the conversion of the Second Lien PIK Notes as provided for in the Second Lien Note Purchase Agreement and the matters referenced in the Transaction Term Sheet exhibited to the Transaction Support Agreement requiring shareholder approval pursuant to (i) applicable listing rules of the New York Stock Exchange, (ii) the Delaware General Corporation Law and/or (iii) the Issuer’s existing certificate of incorporation (the “Issuance Approval”), and the proxy statement related to such Issuance Approval Meeting shall have included a recommendation by Parent’s board of directors (subject to the fiduciary duties of Parent’s board of directors) that the stockholders of Parent vote in favor of such proposal.
 
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(ii)         The Administrative Agent and the Lender Representative shall have received evidence that the Issuance Approval has been obtained.
 
(j)          Preferred Equity Documents. The Administrative Agent and the Lender Representative shall have received copies of (i) the Certificate of Designation Amendment, (ii) the Investors’ Rights Agreement Amendment, (iii) the Series B Certificate of Designation and (iv) the Series A Preferred Stockholder Consent (in each case, as defined in the Transaction Support Agreement), in each case, in form and substance consistent with the forms of such documents exhibited to the Transaction Support Agreement (or with such changes as are reasonably satisfactory to the Administrative Agent and the Lender Representative) and duly executed by the parties thereto.
 
(k)         Parent Guarantors.
 
(i)        The Administrative Agent and the Lender Representative shall have received (A) a copy of the Parent Loan Guaranty, in the form attached as Exhibit B hereto, and (B) the Joinder Agreement to the Security Agreement, in the form attached as Exhibit C hereto (in each case with such changes as are reasonably satisfactory to the Administrative Agent and the Lender Representative), in each case, duly executed by each of the Parent Loan Guarantors.
 
(ii)         The Administrative Agent and the Lender Representative shall have received an acknowledgment to the Second Lien Intercreditor and Subordination Agreement (in the form of the acknowledgment thereto signed by the Loan Parties) duly executed by each of the Parent Loan Guarantors.
 
(iii)       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 Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral, in each case, required to be delivered pursuant to any Collateral Document by the Parent Loan Guarantors, shall be in proper form for filing, registration or recordation.
 
(iv)         The Administrative Agent and the Lender Representative shall have received, for each Parent Loan Guarantor:
 
(A)       as of the Second Amendment Effective Date, a certificate of the secretary or other officer of such Parent Loan Guarantor in charge of maintaining books and records of such Parent Loan Guarantor, dated as of the Second Amendment Effective Date, (A) certifying as to the names and signatures of each officer of such Parent Loan Guarantor authorized to execute and deliver this Agreement, (B) attaching complete and correct copies of the Organizational Documents of such Parent Loan Guarantor as in effect on the date of such certification  and (C) attaching resolutions of such Parent Loan Guarantor’s Board of Directors or other appropriate governing body approving and authorizing the execution, delivery and performance of the Loan Documents to which it is a party;
 
(B)       as of the Second Amendment Effective Date, certificates attesting to the good standing of such Parent Loan Guarantor in its jurisdiction of organization, dated as of a recent date; and
 
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(C)        as of the Second Amendment Effective Date, a completed Perfection Certificate signed by a Responsible Officer of each Parent Loan Guarantor, together with all attachments contemplated thereby.
 
SECTION 8.       Additional Monthly Reporting.
 
(a)       Not later than the fourth Thursday of each calendar month ending after the Second Amendment Signing Date, commencing with Thursday, May 25, 2023 (the “Initial Cash Flow Forecast”), the Borrower shall deliver to the Administrative Agent a rolling 13 week cash flow projection of the Borrower and its Subsidiaries on a consolidated basis, in substantially the form and detail agreed by the Borrower, the Administrative Agent and the Lender Representative prior to the Second Amendment Signing Date or such other form to which the Administrative Agent and the Lender Representative may agree, and in the case of any such cash flow projection delivered pursuant to this Section 8(a) after the Initial Cash Flow Forecast, 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.
 
(b)         Not later than the second and fourth Thursday of each calendar month ending after the Second Amendment Signing Date, commencing with May 4, 2023, the Borrower shall deliver to the Administrative Agent the bank ledger total cash balance of the Borrower and its Subsidiaries as of the immediately preceding Business Day.
 
(c)          (i)         With respect to the month ending on or about March 31, 2023, by not later than May 15, 2023, the Borrower shall deliver to the Administrative Agent (A) the consolidated statements of income of Parent or the Borrower for such month and for the period from the beginning of the current Fiscal Year to the end of such month, setting forth in comparative form the corresponding figures for the corresponding period of the previous Fiscal Year, all in reasonable detail and (B) without duplication, a monthly reporting packet in substantially the form and detail agreed by the Borrower, the Administrative Agent and the Lender Representative prior to the Second Amendment Signing Date (this clause (b), the “Monthly Reporting Package”) for such month; and
 
(ii)        Within 30 days after the end of each month, commencing with the month ending April 30, 2023, the Borrower shall deliver to the Administrative Agent (A) the consolidated balance sheet of Parent or the Borrower as at the end of such month and the related consolidated statements of income and cash flows of Parent or the Borrower 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) without duplication, the Monthly Reporting Package for such month.
 
This Section 8 shall be superseded by the provisions of Sections 5.01(j) and 5.01(l) of the Amended Credit Agreement, and shall cease to apply, from and after the Second Amendment Effective Date.  The parties hereto agree that the failure of the Borrower to comply with this Section 8 shall be a Default under the Credit Agreement and subject to Section 7.01(e) of the Credit Agreement.
 
SECTION 9.     Register.  The Borrower and the Required Lenders hereby consent to the sharing of the Register with the Lender Representative in connection with the Second Amendment Effective Date Transactions and hereby authorizes the Administrative Agent to share the register with the Lender Representative on or prior to the Second Amendment Effective Date (and during the period from the Second Amendment Effective Date to the date that is five (5) Business Days thereafter).
 
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SECTION 10.     Effects on Loan Documents.
 
(a)         On and after the Second Amendment Effective Date, each reference in any Loan Document to “the Credit Agreement” shall mean and be a reference to the Amended Credit Agreement and each reference in the Existing Credit Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import shall mean and be a reference to the Amended Credit Agreement.  On and after the Second Amendment Effective Date, each reference in any Loan Document to “the Security Agreement” shall mean and be a reference to the Amended Security Agreement and each reference in the Existing Security Agreement to “this Agreement,” “hereunder,” “hereof” or words of like import shall mean and be a reference to the Amended Security Agreement.
 
(b)         Except as specifically amended hereby, all Loan Documents (including the Loan Guaranties and all Collateral Documents) and the obligations of the Loan Parties under the Loan Documents shall continue to be in full force and effect and are hereby in all respects ratified and confirmed and shall not be affected by this Agreement.  Each Loan Party hereby acknowledges and agrees that, after giving effect to this Agreement, all of its respective obligations, guarantees, pledges, grants of Liens, liabilities and other agreements or commitments under the Loan Documents to which it is a party, as such obligations, guarantees, pledges, grants of Liens, liabilities and other agreements or commitments have been amended by this Agreement, are reaffirmed, and remain in full force and effect.
 
(c)         Except as specifically amended hereby, the execution, delivery and effectiveness of this Agreement shall not operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of the Loan Documents or in any way limit, impair or otherwise affect the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents.  This Agreement and the Amended Credit Agreement shall not constitute a novation of the Existing Credit Agreement or the other Loan Documents.  This Agreement and the Amended Security Agreement shall not constitute a novation of the Existing Security Agreement.
 
(d)        This Agreement and the other Loan Documents constitute the entire agreement among the parties hereto with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties hereto with respect to the subject matter hereof.
 
(e)         The Borrower and the other parties hereto acknowledge and agree that, on and after the Second Amendment Effective Date, this Agreement shall constitute a Loan Document for all purposes of the Amended Credit Agreement.
 
SECTION 11.   APPLICABLE LAW.  THIS AGREEMENT (OTHER THAN AS EXPRESSLY SET FORTH IN ANY OTHER LOAN DOCUMENT) AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT (OTHER THAN AS EXPRESSLY SET FORTH IN ANY OTHER LOAN DOCUMENT), WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.  Sections 9.10(b), 9.10(c), 9.10(d) and 9.11 of the Amended Credit Agreement are incorporated herein by reference, mutatis mutandis.
 
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SECTION 12.     Miscellaneous.
 
(a)          This Agreement shall be binding upon and inure to the benefit of the Loan Parties and their respective successors and permitted assigns, and upon the Administrative Agent and the Lenders and their respective successors and permitted assigns.
 
(b)        To the extent permitted by applicable Requirements of Law, any provision of any Amendment held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
 
(c)        This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  Delivery of an executed counterpart of a signature page to this Agreement by facsimile or by email as a “.pdf” or “.tif” attachment shall be effective as delivery of a manually executed counterpart of this Agreement.  It is understood and agreed that, subject to any Requirement of Law, the words “execution”, “signed”, “signature”, “delivery” and words of like import in or relating to any Loan Document shall be deemed to include any Electronic Signature, delivery or the keeping of any record in electronic form, each of which shall have the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar state laws based on the Uniform Electronic Transactions Act.
 
(d)         The Consenting Lenders, constituting the Required Lenders and the Required Revolving Lenders hereby direct the Administrative Agent to execute this Amendment, the Second Lien Intercreditor and Subordination Agreement, the Amendment to the Agreement Among Lenders and the Transaction Support Agreement.  In reliance on the direction by the Consenting Lenders, constituting the Required Lenders and the Required Revolving Lenders and the provisions of Articles 8 and 9 of the Credit Agreement, the Administrative Agent has executed this Amendment, the Second Lien Intercreditor and Subordination Agreement, the Amendment to Agreement Among Lenders and the Transaction Support Agreement.
 
[Remainder of page intentionally left blank.]
 
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IN IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Agreement as of the date first above written.
 
WILCO INTERMEDIATE HOLDING, INC., as Holdings

 

By:
/s/ Joseph Jordan

   

Name: Joseph Jordan

Title: Chief Financial Officer

   

ATI HOLDINGS ACQUISITION, INC., as the Borrower

 

By:
/s/ Joseph Jordan

 

Name: Joseph Jordan

Title: Chief Financial Officer
 
[Signature Page to Amendment No. 2 to Credit Agreement]
 
 
Subsidiary Guarantors:
   
 
ATI HOLDINGS OF ALABAMA, LLC
 
IDEAL PHYSICAL THERAPY OF TEXAS, LLC
 
ATI HOLDINGS, INC.
 
TOUCHSTONE HOLDCO LLC
 
ATI HOLDINGS MISSOURI, LLC
 
PROAXIS THERAPY, LLC
 
ADIENT ALASKA, LLC
 
THI OF NEVADA AT DESERT VALLEY THERAPY, LLC
 
ATI HOLDINGS OF ARIZONA, LLC
 
ATI HOLDINGS, LLC
 
ATHLETIC & THERAPEUTIC INSTITUTE OF BOLINGBROOK, LLC
 
ATHLETIC & THERAPEUTIC INSTITUTE OF NAPERVILLE, LLC
 
ATHLETIC & THERAPEUTIC INSTITUTE OF MILWAUKEE, LLC
 
ATHLETIC & THERAPEUTIC INSTITUTE OF BOURBONNAIS, LLC
 
OHIO CENTERS FOR HAND AND PHYSICAL REHABILITATION, LLC
 
ADVANCED PHYSICAL THERAPY, LLC
 
COMMUNITY REHAB OF IOWA, LLC
 
PERFORMANCE REHABILITATION OF WESTERN NEW ENGLAND, LLC
 
MICHIGAN REHABILITATION SPECIALISTS OF FOWLERVILLE, LLC
 
QUANTUM PHYSICAL THERAPY CENTERS – YPSILANTI LLC
 
COMMUNITY REHAB, LLC
 
NEW CENTURY REHABILITATION, LLC
 
PHYSICAL THERAPY AT DAWN, LLC
 
ERHARDT PHYSICAL THERAPY AND SPORTS MEDICINE, LLC
 
WILLAMETTE SPINE CENTER PHYSICAL THERAPY AND REHABILITATION, LLC
 
MCMINNVILLE PHYSICAL THERAPY & SPORTS MEDICINE, LLC
 
PROAXIS GREENVILLE, LLC
 
PROAXIS THERAPY NC, LLC
 
PROAXIS THERAPY SC, LLC
 
MCM REHABILITATION, LLC
 
APPLE PHYSICAL THERAPY, LLC

 
By:
/s/ Joseph Jordan
 
Name: Joseph Jordan
 
Title: Chief Financial Officer

[Signature Page to Amendment No. 2 to Credit Agreement]

 
BARCLAYS BANK PLC,
 
as Administrative Agent
   
 
By:
/s/ Ronnie Glenn
 
Name: Ronnie Glenn
 
Title: Director

[Signature Page to Amendment No. 2 to Credit Agreement]

 
REVOLVING LENDERS
     
 
BARCLAYS BANK PLC, as a Revolving Lender
     
 
By:
/s/ Ronnie Glenn
 
Name: Ronnie Glenn
 
Title: Director
 
[Signature Page to Amendment No. 2 to Credit Agreement]

 
HPS INVESTMENT PARTNERS, LLC,
 
as Lender Representative
     
 
By:
/s/ Aman Malik
 
Name: Aman Malik
 
Title: Managing Director

[Signature Page to Amendment No. 2 to Credit Agreement]

 
TERM LENDERS
   
 
HPS SPECIALTY LOAN FUND V, L.P., as a Lender
 
By: HPS Investment Partners, LLC, its Investment Manager
   
 
By:
/s/ Aman Malik
 
Name: Aman Malik
 
Title: Managing Director

 
HPS SPECIALTY LOAN FUND V-L, L.P., as a Lender
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
 
Name: Aman Malik
 
Title: Managing Director

 
SLIF V HOLDINGS, LLC, as a Lender
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
 
Name: Aman Malik
 
Title: Managing Director

 
HPS SPECIALTY LOAN EUROPE FUND V, SCSP, as a Lender
 
By: HPS Investment Partners, LLC, its Investment Manager
     
 
By:
/s/ Aman Malik
 
Name: Aman Malik
 
Title: Managing Director

[Signature Page to Amendment No. 2 to Credit Agreement]

 
HPS SPECIALTY LOAN ONTARIO FUND V, L.P., as a Lender
 
By: HPS Investment Partners, LLC, its Investment Manager
   
 
By:
/s/ Aman Malik
 
Name: Aman Malik
 
Title: Managing Director
   
 
HPS SPECIALTY LOAN MASTER FUND (EUR) V L.P., as a Lender
 
By: HPS Investment Partners, LLC, its Investment Manager
   
 
By:
/s/ Aman Malik
 
Name: Aman Malik
 
Title: Managing Director
   
 
MORENO STREET DIRECT LENDING FUND, L.P., as a Lender
 
By: HPS Investment Partners, LLC, its Investment Manager
   
 
By:
/s/ Aman Malik
 
Name: Aman Malik
 
Title: Managing Director
   
 
SPECIALTY LOAN VG FUND, L.P., as a Lender
 
By: HPS Investment Partners, LLC, its Investment Manager
   
 
By:
/s/ Aman Malik
 
Name: Aman Malik
 
Title: Managing Director

[Signature Page to Amendment No. 2 to Credit Agreement]

 
FALCON CREDIT FUND, L.P., as a Lender
 
By: HPS Investment Partners, LLC, its Investment Manager
   
 
By:
/s/ Aman Malik
 
Name: Aman Malik
 
Title: Managing Director
   
 
SAFETY NATIONAL CASUALTY CORPORATION, as a Lender
 
By: HPS Investment Partners, LLC, as Investment Manager
   
 
By:
/s/ Aman Malik
 
Name: Aman Malik
 
Title: Managing Director
   
 
HALITE 2020 DIRECT LIMITED, as a Lender
 
By: HPS Investment Partners, LLC, its Investment Manager
   
 
By:
/s/ Aman Malik
 
Name: Aman Malik
 
Title: Managing Director
   
 
HC DIRECT LENDING FUND, L.P., as a Lender
 
By: HPS Investment Partners, LLC, its Investment Manager
   
 
By:
/s/ Aman Malik
 
Name: Aman Malik
 
Title: Managing Director

[Signature Page to Amendment No. 2 to Credit Agreement]
HPS OCOEE SPECIALTY LOAN FUND, L.P., as a Lender

By: HPS Investment Partners, LLC, its Investment Manager

 

By:
/s/ Aman Malik

Name: Aman Malik

Title: Managing Director

 

HPS ELBE UNLEVERED DIRECT LENDING FUND SCSP, as a Lender

By: HPS Investment Partners, LLC, its Portfolio Manager

 

By:
/s/ Aman Malik

Name: Aman Malik

Title: Managing Director

 

HPS SPECIALTY LOAN FUND TX, L.P., as a Lender

By: HPS Investment Partners, LLC, its Investment Manager

 

By:
/s/ Aman Malik

Name: Aman Malik

Title: Managing Director

 

PHILADELPHIA INDEMNITY INSURANCE COMPANY, as a Lender

By: HPS Investment Partners, LLC, as Investment Manager

 

By:
/s/ Aman Malik

Name: Aman Malik

Title: Managing Director

[Signature Page to Amendment No. 2 to Credit Agreement]
BUILD PRIVATE CREDIT, L.P., as a Lender

By: HPS Investment Partners, LLC, as Investment Manager

 

By:
/s/ Aman Malik

Name: Aman Malik

Title: Managing Director

 

HPS CORPORATE LENDING FUND, as a Lender

By: HPS Investment Partners, LLC, its Investment Manager

 

By:
/s/ Aman Malik

Name: Aman Malik

Title: Managing Director

 

CACTUS DIRECT HOLDINGS, L.P., as a Lender

By: HPS Investment Partners, LLC, its Investment Manager

 

By:
/s/ Aman Malik

Name: Aman Malik

Title: Managing Director

 

SLF CX-2 HOLDINGS, L.P., as a Lender

By: HPS Investment Partners, LLC, its Investment Manager

 

By:
/s/ Aman Malik

Name: Aman Malik

Title: Managing Director

 

BRICKYARD DIRECT HOLDINGS, L.P., as a Lender

By: HPS Investment Partners, LLC, its Investment Manager

 

By:
/s/ Aman Malik

Name: Aman Malik

Title: Managing Director

[Signature Page to Amendment No. 2 to Credit Agreement]
SLF V INTERNATIONAL-L HOLDINGS, L.P., as a Lender

By: HPS Investment Partners, LLC, its Investment Manager

 

By:
/s/ Aman Malik

Name: Aman Malik

Title: Managing Director


SLF V-L HOLDINGS, L.P., as a Lender

By: HPS Investment Partners, LLC, its Investment Manager

 

By:
/s/ Aman Malik

Name: Aman Malik

Title: Managing Director

 

SLF V-L HOLDINGS B, L.P., as a Lender

By: HPS Investment Partners, LLC, its Investment Manager

 

By:
/s/ Aman Malik

Name: Aman Malik

Title: Managing Director

 

SLF V INTERNATIONAL-L HOLDINGS B, L.P., as a Lender

By: HPS Investment Partners, LLC, its Investment Manager

 

By:
/s/ Aman Malik

Name: Aman Malik

Title: Managing Director

[Signature Page to Amendment No. 2 to Credit Agreement]

 
PRESIDIO LOAN HOLDINGS, L.P., as a Lender
 
By: HPS Investment Partners, LLC, its Investment Manager
   
 
By:
/s/ Aman Malik
 
Name: Aman Malik
 
Title: Managing Director
   
 
VG HPS PRIVATE DEBT FUND L.P., as a Lender
 
By: HPS Investment Partners, LLC, its Investment Manager
   
 
By:
/s/ Aman Malik
 
Name: Aman Malik
 
Title: Managing Director

[Signature Page to Amendment No. 2 to Credit Agreement]

 
SIP V ONSHORE HOLDINGS MASTER L.P., as a Lender
 
By: HPS Strategic Investment Management V, LLC, its investment manager
 
By: HPS Investment Partners, LLC, its Investment Manager
   
 
By:
/s/ Garrett Cockren
 
Name: Garrett Cockren
 
Title: Managing Director
   
 
SIP V HOLDINGS MASTER L.P., as a Lender
 
By: HPS Strategic Investment Management V, LLC, its investment manager
 
By: HPS Investment Partners, LLC, its Investment Manager
   
 
By:
/s/ Garrett Cockren
 
Name Garrett Cockren
 
Title: Managing Director
   
 
SIP V AP HOLDINGS MASTER L.P., as a Lender
 
By: HPS Strategic Investment Management V, LLC, its investment manager
 
By: HPS Investment Partners, LLC, its Investment Manager
   
 
By:
/s/ Garrett Cockren
 
Name: Garrett Cockren
 
Title: Managing Director

[Signature Page to Amendment No. 2 to Credit Agreement]
 
CROSSHOLDER LENDERS

 

KHSU SPV LP LLC, as a Lender

 

By: Knighthead Capital Management, LLC, its Investment Manager

 

By:
/s/ Laura L. Torrado

Name: Laura L. Torrado

Title: General Counsel

 

KNIGHTHEAD MASTER FUND, L.P., as a Lender

 

By: Knighthead Capital Management, LLC, its Investment Manager

 

By:
/s/ Laura L. Torrado

Name: Laura L. Torrado

Title: General Counsel

 

KNIGHTHEAD (NY) FUND, L.P., as a Lender

 

By: Knighthead Capital Management, LLC, its Investment Advisor

 

By:
/s/ Laura L. Torrado

Name: Laura L. Torrado

Title: General Counsel

[Signature Page to Amendment No. 2 to Credit Agreement]
 
 
CROSSHOLDER LENDERS
   
 
MARATHON DISTRESSED CREDIT MASTER FUND, as a Lender
   
 
By:
/s/ Lou Hanover
 
Name: Lou Hanover
 
Title: Managing Partner
   
 
MARATHON STEPSTONE MASTER FUND LP, as a Lender
   
 
By:
/s/ Lou Hanover
 
Name: Lou Hanover
 
Title: Managing Partner
   
 
MCSP Sub, LLC, as a Lender
   
 
By:
/s/ Lou Hanover
 
Name: Lou Hanover
 
Title: Managing Partner

[Signature Page to Amendment No. 2 to Credit Agreement]

 
CROSSHOLDER LENDERS
   
 
OCP CLO 2020-8R, LTD., as a Lender
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2014-5, LTD., as a Lender
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2014-6, LTD, as a Lender
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2015-9, LTD., as a Lender
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel

[Signature Page to Amendment No. 2 to Credit Agreement]

 
OCP CLO 2015-10, LTD., as a Lender
 
By: Onex Credit Partners, LLC, as Portfolio Manger
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2016-12, LTD., as a Lender
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2017-14, LTD., as a Lender
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2018-15, LTD., as a Lender
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel

[Signature Page to Amendment No. 2 to Credit Agreement]

 
ONEX SENIOR CREDIT II, LP, as a Lender
 
By: Onex Credit Partners, LLC, its investment manager
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2019-16, LTD., as a Lender
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
ONEX SENIOR CREDIT FUND, LP., as a Lender
 
By: Onex Credit Partners, LLC its investment manager
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2019-17, LTD., as a Lender
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel

[Signature Page to Amendment No. 2 to Credit Agreement]

 
OCP CLO 2020-18, LTD., as a Lender
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2020-19 LIMITED, as a Lender
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
GORE MUTUAL INSURANCE COMPANY, as a Lender
 
By: Onex Credit Management LLC, as Investment Manager
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
ONEX CAPITAL SOLUTIONS HOLDINGS LP, as a Lender
 
By: Onex Capital Solutions GP, LP, its general partner
 
By: Onex Capital Solutions GP, LLC, its general partner
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel

[Signature Page to Amendment No. 2 to Credit Agreement]

 
OCM LOAN HOLDINGS LLC, as a Lender
 
By: Onex Credit Management LLC, as Portfolio Manager
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2021-22, LTD., as a Lender
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2022-25, LTD., as a Lender
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
/s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel

[Signature Page to Amendment No. 2 to Credit Agreement]
 
EXHIBIT A to Amendment No. 2

Amendments to Credit Agreement

[SEE ATTACHED]

INCORPORATING AMENDMENT NO. 1
DATED AS OF MARCH 30, 2022


CREDIT AGREEMENT
 
dated as of February 24, 2022

among

ATI HOLDINGS ACQUISITION, INC.,
as the Borrower,

WILCO INTERMEDIATE HOLDINGS, INC.,
 as Holdings,

THE FINANCIAL INSTITUTIONS PARTY HERETO,
as Lenders,

and

BARCLAYS BANK PLC,
as Administrative Agent,

BARCLAYS BANK PLC
as an Issuing Bank

HPS INVESTMENT PARTNERS, LLC
as Arranger
 
TABLE OF CONTENTS
 
   
Page
     
ARTICLE 1
     
DEFINITIONS
     
Section 1.01.
Defined Terms
1
Section 1.02.
Classification of Loans and Borrowings
70
Section 1.03.
Terms Generally
70
Section 1.04.
Accounting Terms; GAAP
72
Section 1.05.
Effectuation of Transactions
7374
Section 1.06.
Timing of Payment or Performance
7374
Section 1.07.
Times of Day
7374
Section 1.08.
Currency Equivalents Generally
7374
Section 1.09.
Cashless Rollovers
7475
Section 1.10.
[Reserved]
75
Section 1.11.
Certain Calculations and Tests
75
Section 1.12.
Benchmark Replacement Setting
7677
Section 1.13.
[Reserved]
7778
Section 1.14.
Certain Determinations
7778
Section 1.15.
Conflicts
78
Section 1.16.
Confidentiality; Privilege
7879
 
ARTICLE 2
     
THE CREDITS
     
Section 2.01.
Commitments
7879
Section 2.02.
Loans and Borrowings
79
Section 2.03.
Requests for Borrowings
80
Section 2.04.
Swingline Loans
8081
Section 2.05.
Letters of Credit
82
Section 2.06.
[Reserved]
8788
Section 2.07.
Funding of Borrowings
8788
Section 2.08.
Type; Interest Elections
88
Section 2.09.
Termination and Reduction of Commitments
8889
Section 2.10.
Repayment of Loans; Evidence of Debt
8990
Section 2.11.
Prepayment of Loans
9091

i
Section 2.12.
Fees
9495
Section 2.13.
Interest
9697
Section 2.14.
Alternate Rate of Interest
9899
Section 2.15.
Increased Costs
9899
Section 2.16.
[Reserved]
99100
Section 2.17.
Taxes
99100
Section 2.18.
Payments Generally; Allocation of Proceeds; Sharing of Payments
103104
Section 2.19.
Mitigation Obligations; Replacement of Lenders
105106
Section 2.20.
Illegality
106107
Section 2.21.
Defaulting Lenders
107108
Section 2.22.
Incremental Credit Extensions
109110
Section 2.23.
Extensions of Loans and Revolving Credit Commitments
113114
 
ARTICLE 3
     
REPRESENTATIONS AND WARRANTIES
     
Section 3.01.
Organization; Powers
116117
Section 3.02.
Authorization; Enforceability
116117
Section 3.03.
Governmental Approvals; No Conflicts
116117
Section 3.04.
Financial Condition; No Material Adverse Effect
116118
Section 3.05.
Properties
117118
Section 3.06.
Litigation and Environmental Matters
117118
Section 3.07.
Compliance with Laws; Healthcare Laws
117119
Section 3.08.
Investment Company Status
118119
Section 3.09.
Taxes
118119
Section 3.10.
ERISA
118120
Section 3.11.
Disclosure
118120
Section 3.12.
Solvency
119120
Section 3.13.
Capitalization and Subsidiaries
119120
Section 3.14.
Security Interest in Collateral
119121
Section 3.15.
Labor Disputes
120121
Section 3.16.
Federal Reserve Regulations
120121
Section 3.17.
Sanctions; PATRIOT ACT and FCPA.
120121
 
ARTICLE 4
     
CONDITIONS
     
Section 4.01.
Closing Date
121122

ii
Section 4.02.
Each Credit Extension
123124
 
ARTICLE 5
     
AFFIRMATIVE COVENANTS
     
Section 5.01.
Financial Statements and Other Reports
124125
Section 5.02.
Existence
126128
Section 5.03.
Payment of Taxes
126128
Section 5.04.
Maintenance of Properties
127128
Section 5.05.
Insurance
127129
Section 5.06.
Inspections
127129
Section 5.07.
Maintenance of Book and Records
128129
Section 5.08.
Compliance with Laws
128129
Section 5.09.
Environmental
128130
Section 5.10.
Designation of Subsidiaries
128130
Section 5.11.
Use of Proceeds
129130
Section 5.12.
Covenant to Guarantee Obligations and Give Security
129131
Section 5.13.
[Reserved]
132133
Section 5.14.
Further Assurances
132133
Section 5.15.
Post-Closing Covenant
133134
Section 5.16.
Affiliated Practices
133134
 
ARTICLE 6
     
NEGATIVE COVENANTS
     
Section 6.01.
Indebtedness
133135
Section 6.02.
Liens
138140
Section 6.03.
[Reserved]
141144
Section 6.04.
Restricted Payments; Restricted Debt Payments
142144
Section 6.05.
Burdensome Agreements
146148
Section 6.06.
Investments
147150
Section 6.07.
Fundamental Changes; Disposition of Assets
150153
Section 6.08.
[Reserved]
154156
Section 6.09.
Transactions with Affiliates
154156
Section 6.10.
Conduct of Business
156158
Section 6.11.
Amendments or Waivers of Certain Documents
156158
Section 6.12.
Amendments of or Waivers with Respect to Restricted Debt
157159
Section 6.13.
Fiscal Year
157159

iii
Section 6.14.
Permitted Activities of Holdings
157159
Section 6.15.
Financial Covenant
157160
 
ARTICLE 7
     
EVENTS OF DEFAULT
 
Section 7.01.
Events of Default
161163
 
ARTICLE 8
     
THE ADMINISTRATIVE AGENT
 
Section 8.01.
Appointment and Authorization of Administrative Agent
164167
Section 8.02.
Rights as a Lender
164167
Section 8.03.
Exculpatory Provisions
164168
Section 8.04.
Exclusive Right to Enforce Rights and Remedies
165169
Section 8.05.
Reliance by Administrative Agent
165169
Section 8.06.
Delegation of Duties
166169
Section 8.07.
Successor Administrative Agent
166170
Section 8.08.
Non-Reliance on Administrative Agent
167171
Section 8.09.
Collateral and Guaranty Matters
167171
Section 8.10.
Intercreditor Agreements
169173
Section 8.11.
Indemnification of Administrative Agent
169173
Section 8.12.
Withholding Taxes
169173
Section 8.13.
Administrative Agent May File Proofs of Claim
170174
Section 8.14.
Erroneous Payments
170174
 
ARTICLE 9
     
MISCELLANEOUS
 
Section 9.01.
Notices
172176
Section 9.02.
Waivers; Amendments
175179
Section 9.03.
Expenses; Indemnity
180184
Section 9.04.
Waiver of Claim
181186
Section 9.05.
Successors and Assigns
181186
Section 9.06.
Survival
189194
Section 9.07.
Counterparts; Integration; Effectiveness
189194
Section 9.08.
Severability
190194
Section 9.09.
Right of Setoff
190194
Section 9.10.
Governing Law; Jurisdiction; Consent to Service of Process
190195

iv
Section 9.11.
Waiver of Jury Trial
191196
Section 9.12.
Headings
192196
Section 9.13.
Confidentiality
192196
Section 9.14.
No Fiduciary Duty
193197
Section 9.15.
Several Obligations
193198
Section 9.16.
USA PATRIOT Act
193198
Section 9.17.
Disclosure of Agent Conflicts
193198
Section 9.18.
Appointment for Perfection
193198
Section 9.19.
Interest Rate Limitation
194198
Section 9.20.
Intercreditor Agreements
194198
Section 9.21.
Conflicts
195199
Section 9.22.
Release of Guarantors
195199
Section 9.23.
Acknowledgement and Consent to Bail-In of Affected Financial Institutions
195199
Section 9.24.
Certain ERISA Matters
195200
Section 9.25.
Acknowledgement Regarding Any Supported QFCs
197201

SCHEDULES:
 
Schedule 1.01(a)
–
Commitment Schedule
Schedule 1.01(b)
–
Dutch Auction
Schedule 1.01(c)
–
Mortgages
Schedule 1.01(d)
–
Existing Letters of Credit
Schedule 1.01(e)
–
Closing Date Collateral Documents and Loan Guarantees
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 5.10
–
Unrestricted Subsidiaries[reserved]
Schedule 5.15
–
Post-Closing Obligations
Schedule 6.01
–
Existing Indebtedness
Schedule 6.02
–
Existing Liens
Schedule 6.06
–
Existing Investments
Schedule 7.01
–
Waterfall Cushions
Schedule 9.01
–
Borrower’s Website Address for Electronic Delivery

EXHIBITS:
 
Exhibit A-1
–
Form of Affiliated Lender Assignment and Assumption
Exhibit A-2
–
Form of Assignment and Assumption
Exhibit B
–
Form of Borrowing Request
Exhibit C
–
Form of Intellectual Property Security Agreement
Exhibit D
–
Form of Compliance Certificate
Exhibit E
–
[Reserved]
Exhibit F
–
Form of Intercompany Note
Exhibit G
–
[Reserved]

v
Exhibit H
–
Form of Interest Election Request
Exhibit I
–
Form of Guaranty Agreement
Exhibit J
–
Form of Perfection Certificate
Exhibit K
–
Form of Joinder Agreement
Exhibit L
–
Form of Promissory Note
Exhibit M
–
Form of Pledge and Security Agreement
Exhibit N
–
Form of Letter of Credit Request
Exhibit O-1
–
Form of U.S. Tax Compliance Certificate (For Foreign Lenders
   
That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit O-2
–
Form of U.S. Tax Compliance Certificate (For Foreign Participants
   
That Are Not Partnerships For U.S. Federal Income Tax Purposes)
Exhibit O-3
–
Form of U.S. Tax Compliance Certificate (For Foreign Participants
   
That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit O-4
–
Form of U.S. Tax Compliance Certificate (For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)
Exhibit P
–
Form of Solvency Certificate
Exhibit Q
–
Form of Management Services Agreement
Exhibit R
–
Form of Securities Transfer Restriction Agreement
Exhibit S
–
Form of Therapy Director Agreement

vi
CREDIT AGREEMENT
 
CREDIT AGREEMENT, dated as of February 24, 2022, (this “Agreement”), by and among ATI Holdings Acquisition, Inc., a Delaware corporation (the “Borrower”), Wilco Intermediate Holdings, Inc., a Delaware corporation (“Holdings”), the Lenders from time to time party hereto, Barclays Bank PLC (“Barclays”), in its capacities as administrative agent and collateral agent for the Secured Parties (in such capacities and together with its successors and assigns, the “Administrative Agent”) and as an Issuing Bank and HPS Investment Partners, LLC (“HPS”) as Arranger (in such capacity, the “Arranger”).
 
RECITALS
 
A.          Substantially concurrently with the consummation of the Closing Date, all existing indebtedness for borrowed money of the Borrower that is outstanding under that certain First Lien Credit Agreement, dated as of May 10, 2016 (as amended, restated, amended and restated, supplemented or otherwise modified and in effect on the date hereof, the “Existing Credit Agreement”), by and among, inter alios, the Borrower, Holdings, the lenders from time to time party thereto and Barclays Bank PLC, as administrative agent will be repaid in full and all commitments, guarantees, liens and security interest thereunder shall be terminated and released (the “Refinancing”).
 
B.           The Borrower has requested that the Lenders extend credit under this Agreement in the form of (i) Initial Term Loans in an original aggregate principal amount equal to $500,000,000 and (ii) an Initial Revolving Facility with an available amount of $50,000,000.
 
C.          The Lenders are willing to extend such credit to the Borrower on the terms and subject to the conditions set forth herein.  Accordingly, the parties hereto agree as follows:
 
ARTICLE 1
 
DEFINITIONS
 
Section 1.01.        Defined Terms.  As used in this Agreement, the following terms have the meanings specified below:
 
“AAL” shall mean the Amended and Restated Agreement Among Lenders dated as of the date hereofApril 17, 2023, among the Initial First Out Lenders party thereto, the Initial Last Out Lenders party thereto, the Administrative Agent and the Lender Representative.
 
“ABR” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Alternate Base Rate.
 
“ABR Loans” means Loans bearing interest based upon the ABR.
 
“Acceptable Debtor-In-Possession Financing” means any debtor-in-possession or similar financing (a) incurred by Holdings, the Borrower or a Restricted Subsidiary following a voluntary petition by Holdings, the Borrower 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;
 
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(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 Borrower, that are not materially less favorable to the Lenders than those set forth in the form of securities transfer restriction agreement attached hereto as Exhibit R or such other terms as are (i) reasonably acceptable to the Administrative Agent and the Lender Representative and/or (ii) in the good faith judgment of the Borrower, 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 Borrower, that are not materially less favorable to the Lenders than those set forth in the form of therapy director agreement attached hereto as Exhibit S or such other terms as are (i) reasonably acceptable to the Administrative Agent and the Lender Representative and/or (ii) in the good faith judgment of the Borrower, 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 Loan 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 Loan 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 Lenders or which in the good faith judgment of the Borrower, 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.
 
“ACH” means automated clearing house transfers.
 
“Acqui-Novo Facility” means any existing physical therapy clinic that has been acquired by the Borrower, any Restricted Subsidiary and/or any Affiliated Practice.
 
“Additional Agreement” has the meaning assigned to such term in Article 8.
 
“Additional Commitment” means any commitment hereunder added pursuant to Sections 2.22 or 2.23.
 
“Additional Loans” means any Additional Revolving Loans and any Additional Term Loans.
 
“Additional Revolving Credit Commitments” means any revolving credit commitment added pursuant to Sections 2.22 or 2.23.
 
“Additional Revolving Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of all Additional Revolving Loans of such Lender, plus the aggregate outstanding amount at such time of such Lender’s LC Exposure and Swingline Exposure, in each case, attributable to its Additional Revolving Credit Commitment.
 
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“Additional Revolving Lender” means any Lender with an Additional Revolving Credit Commitment or any Additional Revolving Credit Exposure.
 
“Additional Revolving Loans” means any revolving loan added hereunder pursuant to Sections 2.22 or 2.23.
 
“Additional Term Lender” means any Lender with an Additional Term Loan Commitment or an outstanding Additional Term Loan.
 
“Additional Term Loan Commitment” means any term commitment added pursuant to Sections 2.22 or 2.23.
 
“Additional Term Loans” means any term loan added pursuant to Sections 2.22 or 2.23.
 
“Adjusted Daily Simple SOFR” means an interest rate per annum equal to (a) the Daily Simple SOFR, plus (b) the spread adjustment selected or recommended by the Relevant Governmental Body for a SOFR-based rate having approximately the same length as the Corresponding Tenor for the Adjusted Term SOFR Rate; provided, that if the Adjusted Daily Simple SOFR as so determined would be less than the Floor, such rate shall be deemed to be equal to the Floor for the purposes of this Agreement.
 
“Adjusted Term SOFR Rate” means (a) solely with respect to the Initial Term Loans, the greater of (i) the Term SOFR Rate and (ii) 1.00% per annum and (b) solely with respect to the Initial Revolving Loans, the Term SOFR Rate plus the Term SOFR Adjustment.
 
“Adjustment Date” means the date of delivery of financial statements required to be delivered pursuant to Section 5.01(a) or Section 5.01(b), as applicable.
 
“Administrative Agent” has the meaning assigned to such term in the preamble to this Agreement.
 
“Administrative Questionnaire” means a customary administrative questionnaire in the form provided by the Administrative Agent.
 
“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 Holdings, any Parent Loan Guarantor, the Borrower 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 Holdings, any Parent Loan Guarantor, the Borrower or any of its Restricted Subsidiaries, threatened in writing, against or affecting Holdings, the Borrower or any of its Restricted Subsidiaries or any property of Holdings, any Parent Loan Guarantor, the Borrower or any of its Restricted Subsidiaries.
 
“Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution.
 
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“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 Administrative Agent, the Arranger, any Lender (other than, to the extent such Person otherwise constitutes an Affiliate, any Affiliated Lender or any Debt Fund Affiliate) or any of their respective Affiliates shall be considered an Affiliate of Holdings or any subsidiary thereof. Notwithstanding the foregoing, solely with respect to Section 6.09, (i) each Sponsor shall be deemed an Affiliate of the Loan 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. For purposes of this Agreement and the other Loan Documents, Jefferies LLC and its Affiliates shall be deemed to be Affiliates of Jefferies Finance LLC and its Affiliates.
 
“Affiliated Lender” means, collectively, (i) any Non-Debt Fund Affiliate, (ii) Holdings and each Parent Loan Guarantor, (iii) the Borrower, and any subsidiary of the Borrower, (iv) any Affiliated Practice and, (v) any holder of Preferred Shares and any Affiliate thereof (it being understood and agreed that if any holder of Preferred Shares subsequently transfers all of its Preferred Shares, such Person shall no longer constitute an Affiliated Lender by virtue of this clause (v) unless it, or any of its Affiliates, then holds or subsequently acquires Preferred Shares) and (vi) any holder of any of the Second Lien PIK Notes or any other Specified Junior Debt and any Affiliate thereof.
 
“Affiliated Lender Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Affiliated Lender (with the consent of any party whose consent is required by Section 9.05) and accepted by the Administrative Agent in the form of Exhibit A-1 or any other form approved by the Administrative Agent and the Borrower.
 
“Affiliated Lender Cap” has the meaning assigned to such term in Section 9.05(g)(iv).
 
“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.
 
“Alternate Base Rate” means, for any day, a rate per annum equal to the highest of (a) the Federal Funds Effective Rate in effect on such day plus 0.50%, (b) to the extent ascertainable, the Adjusted Term SOFR Rate (which rate shall be calculated based upon an Interest Period of one month and shall be determined on a daily basis and, for the avoidance of doubt, the Adjusted Term SOFR Rate for any day shall be based on the rate determined on such day at 11:00 a.m. (London time)) plus 1.00%, (c) the Prime Rate and (d) solely with respect to Initial Term Loans, 2.00%.  Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Term SOFR Rate, as the case may be, shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or the Adjusted Term SOFR Rate, as the case may be.
 
“APC Manager” has the meaning assigned to such term in the definition of “Management Services Agreement”.
 
“Applicable Percentage” means, (a) with respect to any Term Lender of any Class, a percentage equal to a fraction the numerator of which is the aggregate outstanding principal amount of the Term Loans and unused Additional Term Loan Commitments of such Term Lender under the applicable Class and the denominator of which is the aggregate outstanding principal amount of the Term Loans and unused Term Commitments of all Term Lenders under the applicable Class and (b) with respect to any Revolving Lender of any Class, the percentage of the aggregate amount of the Revolving Credit Commitments of such Class represented by such Lender’s Revolving Credit Commitment of such Class; provided that for purposes of Section 2.21 and otherwise herein (except with respect to Section 2.11(a)(ii)), when there is a Defaulting Lender, such Defaulting Lender’s Revolving Credit Commitment shall be disregarded for any relevant calculation.  In the case of clause (b), in the event that the Revolving Credit Commitments of any Class have expired or been terminated, the Applicable Percentage of any Revolving Lender of such Class shall be determined on the basis of the Revolving Credit Exposure of such Revolving Lender attributable to its Revolving Credit Commitment of such Class, giving effect to any assignment thereof.
 
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“Applicable Rate” means:
 
(a)        with respect to any Initial Term Loan, the rate per annum applicable to the relevant Class of Loans set forth below under the caption “ABR Spread” or “SOFR Benchmark Spread”, as the case may be, based upon the Secured Net Leverage Ratio; provided, that in the event that the Borrower makes a PIK Election with respect to any portion of the Initial Term Loans, then the applicable spread set forth below shall be increased by 0.50% in each of the categories in the table set forth below; and provided, further, that until the first Adjustment Date following the completion of at least one full Fiscal Quarter ended after the Closing Date, the “Applicable Rate” for any Initial Term Loan shall be the applicable rate per annum set forth below in Category 1 (as such rate may be increased in accordance with the immediately preceding proviso):
 
Secured Net Leverage Ratio
ABR Spread
SOFR Benchmark Spread
Category 1
6.25%
7.25%
Greater than 7.00 to 1.00
    
     
Category 2
6.00%
7.00%
Less than or equal to 7.00 to 1.00
    
     
Category 3
5.75%
6.75%
Less than or equal to 5.75 to 1.00
    
     

(b)          with respect to (i) any Initial Revolving Loan or Swingline Loan, the rate per annum applicable to the relevant Class of Loans set forth below under the caption “ABR Spread” or “SOFR Benchmark Spread” or (ii) any Swingline Loan, the rate per annum applicable to the relevant Class of Loans set forth below under the caption “ABR Spread” based upon the Secured Net Leverage Ratio; provided, that until the first Adjustment Date following the completion of at least one full Fiscal Quarter ended after the Closing Date, the “Applicable Rate” for any Initial Revolving Loan or Swingline Loan shall be the applicable rate per annum set forth below in Category 1:
 
Secured Net Leverage Ratio
ABR Spread
SOFR Benchmark Spread
Category 1
3.00%
4.00%
Greater than 5.00 to 1.00
    
     
Category 2
2.75%
3.75%
Less than or equal to 5.00 to 1.00
    
     
Category 3
2.50%
3.50%
Less than or equal to 4.00 to 1.00
    

The Applicable Rate with respect to any Initial Term Loan, Initial Revolving Loan and Swingline Loan shall be adjusted quarterly on a prospective basis on each Adjustment Date based upon the Secured Net Leverage Ratio in accordance with the table above; provided, that at the election of the Required Term Lenders or the Required Revolving Lenders, as applicable, if financial statements are not delivered when required pursuant to Section 5.01(a) or (b), as applicable, the “Applicable Rate” for any Initial Term Loan, Initial Revolving Loan or Swingline Loan shall be the rate per annum set forth above in Category 1 until such financial statements are delivered in compliance with Section 5.01(a) or (b), as applicable.

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“Applicable Revolving Credit Percentage” means, with respect to any Revolving Lender at any time, the percentage of the Total Revolving Credit Commitment at such time represented by such Revolving Lender’s Revolving Credit Commitments at such time; provided that for purposes of Section 2.21, when there is a Defaulting Lender, any such Defaulting Lender’s Revolving Credit Commitment shall be disregarded in the relevant calculations.  In the event that (a) the Revolving Credit Commitments of any Class have expired or been terminated in accordance with the terms hereof (other than pursuant to Article 7), the Applicable Revolving Credit Percentage shall be recalculated without giving effect to the Revolving Credit Commitments of such Class or (b) the Revolving Credit Commitments of all Classes have terminated (or the Revolving Credit Commitments of any Class have terminated pursuant to Article 7), the Applicable Revolving Credit Percentage shall be determined based upon the Revolving Credit Commitments (or the Revolving Credit Commitments of such Class) most recently in effect, giving effect to any assignments thereof.
 
“Approved Fund” means, with respect to any Lender, 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 Lender, (b) any Affiliate of such Lender or (c) any entity or any Affiliate of any entity that administers, advises or manages such Lender.
 
“Arranger” has the meaning assigned to such term in the preamble to this Agreement.
 
“Assignment Agreement” means, collectively, each Assignment and Assumption and each Affiliated Lender Assignment and Assumption.
 
“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 9.05), and accepted by the Administrative Agent in the form of Exhibit A-2 or any other form approved by the Administrative Agent and the Borrower.
 
“Available Amount” means, at any time, an amount equal to, without duplication:
 
(a)          the sum of:
 
(i)          $5,000,000[reserved]; plus
 
(ii)         an amount, not less than zero for any period, equal to the Retained Excess Cash Flow Amount (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 5.00:1.00); 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 Second Lien PIK Notes or any other Specified Junior Debt into Capital Stock, (x) constituting a Cure Amount, an Available Excluded Contribution Amount or a Contribution Indebtedness Amount, (y) received from the Borrower, 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 Borrower or any of its Restricted Subsidiaries, plus the amount of Cash Equivalents received by the Borrower 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 Borrower, 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
 
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(iv) the aggregate principal amount of any Indebtedness (including any Disqualified Capital Stock) of the Borrower or any Restricted Subsidiary issued after the Closing Date (other than Indebtedness or such Disqualified Capital Stock issued to the Borrower, any Restricted Subsidiary or any Affiliated Practice), which has been converted into or exchanged for Capital Stock of the Borrower, any Restricted Subsidiary or any Parent Company that does not constitute Disqualified Capital Stock, together with the fair market value of any Cash Equivalents received by the Borrower or such Restricted Subsidiary upon such exchange or conversion, in each case, during the period from and including the day immediately following the Closing Date through and including such time; plus
 
(i)          [reserved]; plus
 
(ii)        the net proceeds received by the Borrower 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 Borrower, any Restricted Subsidiary or any Affiliated Practice) of any Investment made pursuant to Section 6.06(r)(i); plus
 
(iii)       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 Borrower 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) an amount equal to the sum of (A) the amount of any Investments made by the Borrower or any Restricted Subsidiary pursuant to Section 6.06(r)(i) in any Unrestricted Subsidiary (in an amount not to exceed the original amount of such Investment) that has been re-designated as a Restricted Subsidiary or has been merged, consolidated or amalgamated with or into, or is liquidated, wound up or dissolved into, the Borrower or any Restricted Subsidiary and (B) the fair market value (as determined by the Borrower in good faith) of the assets of any Unrestricted Subsidiary that have been transferred, conveyed or otherwise distributed (in an amount not to exceed the original amount of the Investment in such Unrestricted Subsidiary) to the Borrower or any Restricted Subsidiary, 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 amount of any Declined Proceeds; minus

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(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 Preferred Shares contributed to the Borrower shall not, (ii) any proceeds of the Second Lien PIK Notes or any other Specified Junior Debt or (iii) the conversion or exchange of the Second Lien PIK Notes or any other Specified Junior Debt 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 Borrower or any of its Restricted Subsidiaries after the Closing Date from:
 
(a)          contributions in respect of Qualified Capital Stock of the Borrower (other than any amounts received from any Restricted Subsidiary of the Borrower or any Affiliated Practice), and
 
(b)        the sale of Qualified Capital Stock of the Borrower (other than (x) to any Restricted Subsidiary of the Borrower 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 Borrower 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 Preferred Shares contributed to the Borrower shall not, (ii) any proceeds of the Second Lien PIK Notes or any other Specified Junior Debt or (iii) the conversion or exchange of the Second Lien PIK Notes or any other Specified Junior Debt into Capital Stock of any Person, increase the Available Excluded Contribution Amount.
 
“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (a) if the then-current Benchmark is a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period or (b) otherwise, any payment period for interest calculated with reference to such Benchmark, as applicable, pursuant to this Agreement as of such date.
 
“Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected 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.
 
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“Banking Services Obligations” means any and all obligations of any Loan 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 between any Loan Party and (a) a counterparty that is (or is an Affiliate of) the Administrative Agent, any Lender or the Arranger as of the Closing Date or at the time such arrangement is entered into and/or (b) any other Person designated by the Borrower to the Administrative Agent, in each case, that have been designated to the Administrative Agent in writing by the Borrower as being Banking Services Obligations for purposes of the Loan Documents, it being understood that each counterparty thereto shall be deemed (A) to appoint the Administrative Agent as its agent under the applicable Loan Documents and (B) to agree to be bound by the provisions of Article 8, Section 9.03 and Section 9.10 as if it were a Lender.
 
“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.
 
“Barclays” has the meaning assigned to such term in the preamble to this Agreement.
 
“Benchmark” means, initially, the Adjusted Term SOFR Rate; provided that if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 2.14(b).
 
“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrative Agent for the applicable Benchmark Replacement Date:
 
(a)         the Adjusted Daily Simple SOFR;
 
(b)         the sum of: (i) the alternate benchmark rate that has been selected by the Administrative Agent and the Borrower as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (A) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (B) any evolving or then-prevailing market convention for determining a benchmark rate as a replacement for the then-current Benchmark for Dollar-denominated syndicated credit facilities at such time and (ii) the related Benchmark Replacement Adjustment.
 
If the Benchmark Replacement as determined pursuant to clause (a) or (b) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents.
 
“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an unadjusted Benchmark Replacement for any applicable Interest Period and Available Tenor for any setting of such unadjusted Benchmark Replacement, the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower for the applicable Corresponding Tenor giving due consideration to (a) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable unadjusted Benchmark Replacement by the Relevant Governmental Body on the applicable Benchmark Replacement Date and/or (b) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of such Benchmark with the applicable unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.  Each Benchmark Replacement Adjustment shall be subject to the consent of the Borrower (not to be unreasonably withheld or delayed).
 
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“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Alternate Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent and the Borrower decide may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents).
 
“Benchmark Replacement Date” means, with respect to any Benchmark the earliest to occur of the following events with respect to the then-current Benchmark: (a) in the case of clause (a) or (b) of the definition of “Benchmark Transition Event,” the later of (i) the date of the public statement or publication of information referenced therein and (ii) the date on which the administrator of such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide all Available Tenors of such Benchmark (or such component thereof) or in the case of clause (c) of the definition of “Benchmark Transition Event,” the first date on which such Benchmark (or the published component used in the calculation thereof) has been determined and announced by the regulatory supervisor for the administrator of such Benchmark (or such component thereof) to be no longer representative; provided, that such non-representativeness will be determined by reference to the most recent statement or publication referenced in such clause (c) and even if any Available Tenor of such Benchmark (or such component thereof) continues to be provided on such date.  For the avoidance of doubt, (A) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (B) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).
 
“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark:
 
(a)         a public statement or publication of information by or on behalf of the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof);
 
(b)         a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof), the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark (or such component), a resolution authority with jurisdiction over the administrator for such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark (or such component), which states that the administrator of such Benchmark (or such component) has ceased or will cease to provide all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark (or such component thereof); or
 
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(c)         a public statement or publication of information by the regulatory supervisor for the administrator of such Benchmark (or the published component used in the calculation thereof) announcing that all Available Tenors of such Benchmark (or such component thereof) are no longer representative.  For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).
 
“Benchmark Unavailability Period” means, with respect to any Benchmark, the period (if any) (a) beginning at the time that a Benchmark Replacement Date pursuant to clauses (a) or (b) of that definition has occurred if, at such time, no Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 1.12 and (b) ending at the time that a Benchmark Replacement has replaced the then-current Benchmark for all purposes hereunder and under any Loan Document in accordance with Section 2.14.
 
“Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.
 
“Borrower” has the meaning assigned to such term in the recitals to this Agreement.
 
“Borrower Materials” has the meaning assigned to such term in Section 9.01(d).
 
“Borrowing” means any Loans of the same Type and Class made, converted or continued on the same date and, in the case of SOFR Benchmark Loan, as to which a single Interest Period is in effect.
 
“Borrowing Request” means a request by the Borrower for a Borrowing in accordance with Section 2.03 and substantially in the form attached hereto as Exhibit B or such other form that is reasonably acceptable to the Administrative Agent and the Borrower.
 
“Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City are authorized or required by law to remain closed; provided that when used in connection with a SOFR Benchmark Loan, the term “Business Day” shall also exclude any day that is not a US Government Securities Day
 
“Capital Expenditures” means, with respect to the Borrower 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 Borrower 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.
 
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“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 Borrower that is subject to regulation as an insurance company (or any Restricted Subsidiary thereof).
 
“Cash” means, money, currency or credit balance in any Deposit Account, 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 Moody’s (or, if at any time neither S&P nor Moody’s 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 Moody’s (or, if at any time neither S&P nor Moody’s 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 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 Moody’s; 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 Administrative Agent and the Lender Representative, engaged by the Borrower to act as an operational and cash flow consultant; it being understood and agreed that any of FTI Consulting, Alvarez & Marshal, Stax, Conway Mackenzie, Baker Tilly, Ernst & Young and Huron Consulting Group are reasonably acceptable to the Administrative Agent and the Lender Representative.
 
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“Cash Flow Forecast” means the 13-week cash flow forecast delivered pursuant to Section 7 of the Second Amendment and Section 5.01(j).
 
“Cash Flow Reporting Period” means the period commencing on the Second Amendment Effective Date and ending on the first date thereafter on which (a) Consolidated Adjusted EBITDA of the Borrower and its subsidiaries for a Test Period is greater than $50,000,000 and (b) the Borrower shall have delivered to the Administrative Agent and the Lender Representative a certificate of a Responsible Officer (which may be a Compliance Certificate), in form reasonably satisfactory to the Administrative Agent and the Lender Representative, showing such calculation in reasonable detail.
 
“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 Lender or any Issuing Bank (or, for purposes of Section 2.15(b), by any lending office of such Lender or such Issuing Bank or by such Lender’s or such Issuing Bank’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 2.15, (x) the Dodd-Frank Wall 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 Borrower 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 Parent; provided, that notwithstanding the provisions of this clause (a), no “Change of Control” shall be deemed to have occurred under this clause (a) 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 Parent; or
 
(b)        a Responsible Officer of the Borrower 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 Holdings; provided, that notwithstanding the provisions of this clause (b), no “Change of Control” shall be deemed to have occurred under this clause (b) 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 Holdings; or
 
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(c)          the Borrower ceasing to be a direct or indirect Wholly-Owned Subsidiary of Holdings; or
 
(d)         the Borrower ceasing to be a direct or indirect Wholly-Owned Subsidiary of Parent; or
 
(e)          (d) a “Change of Control” (or equivalent term) occurs under the Series A Preferred Shares 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 Borrower or successor 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.
 
“Class”, when used with respect to (a) any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, are Initial Term Loans, Additional Term Loans of any series established as a separate “Class” pursuant to Section 2.22, or 2.23, Initial Revolving Loans or Additional Revolving Loans of any series established as a separate “Class” pursuant to Section 2.22, or 2.23 or Swingline Loans, (b) any Commitment, refers to whether such Commitment is an Initial Term Loan Commitment, an Additional Term Loan Commitment of any series established as a separate “Class” pursuant to Section 2.22 or 2.23, an Initial Revolving Credit Commitment or an Additional Revolving Credit Commitment of any series established as a separate “Class” pursuant to Section 2.22 or 2.23 or a commitment to make Swingline Loans, (c) any Lender, refers to whether such Lender has a Loan or Commitment of a particular Class and (d) any Revolving Credit Exposure, refers to whether such Revolving Credit Exposure is attributable to a Revolving Credit Commitment of a particular Class.
 
“Closing Date” means February 24, 2022, the date on which the conditions specified in Section 4.01 were satisfied (or waived in accordance with Section 9.02).
 
“CME Term SOFR Administrator” means CME Group Benchmark Administration, Limited as administrator of the forward-looking term Secured Overnight Financing Rate (SOFR) (or a successor administrator).
 
“Code” means the Internal Revenue Code of 1986, as amended.
 
“Collateral” means any and all property of any Parent Loan Guarantor or any Loan Party subject (or purported to be subject) to a Lien under any Collateral Document and any and all other property of any Parent Loan Guarantor or any Loan 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, any other Loan 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:
 
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(a)         on the Closing Date, the Administrative Agent shall have received (i) each Collateral Document and Loan Guaranty listed on Schedule 1.01(e), duly executed by each Loan 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 Holdings 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 Loan Party;
 
(b)         after the Closing Date, the Administrative Agent shall have received in the case of (x) any Restricted Subsidiary that is required to become a Loan Party after the Closing Date (including by ceasing to be an Excluded Subsidiary) and (y) the Parent Loan Guarantors:
 
(i)         (A) a Joinder Agreement, (B) if the Parent Loan Guarantor or 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 C 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 Administrative Agent may reasonably request, (E) a joinder to each applicable Intercreditor Agreement in substantially the form attached as an exhibit thereto or such other form to which the Administrative Agent may reasonably agree and (F) a joinder to the Intercompany Note; and
 
(ii)        each item of Collateral that such Restricted Subsidiary or Parent Loan Guarantor 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 Administrative Agent, for the benefit of the Secured Parties, in such categories of assets (other than Excluded Assets) as the Borrower and Administrative Agent may reasonably agree; and
 
(c)       the Administrative Agent 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 Administrative Agent and the Borrower):
 
(i)         evidence that (A) counterparts of such Mortgage have been duly executed, acknowledged and delivered by the relevant Loan Party and Parent Loan Guarantors 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 Administrative Agent may reasonably deem necessary in order to create a valid and subsisting Lien on such Material Real Estate Asset in favor of the Administrative Agent 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 Administrative Agent;
 
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(ii)       one or more fully paid policies of title insurance (the “Mortgage Policies”) in an amount reasonably acceptable to the Administrative Agent (not to exceed the fair market value of the Material Real Estate Asset covered thereby (as reasonably determined by the Borrower)) issued by a nationally recognized title insurance company in the applicable jurisdiction that is reasonably acceptable to the Administrative Agent, 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 Administrative Agent may reasonably request to the extent the same are available in the applicable jurisdiction;
 
(iii)       customary legal opinions of local counsel for the relevant Loan Party or Parent Loan Guarantor, as applicable, in the jurisdiction in which such Material Real Estate Asset is located, and if applicable, in the jurisdiction of formation of the relevant Loan Party or Parent Loan Guarantor, as applicable, in each case as the Administrative Agent 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 Administrative Agent may in its 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 Loan Document to the contrary, if any mortgage tax or similar tax or charge is owed on the entire amount of the 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 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 Administrative Agent and the Borrower, which in the case of clause (y) will result in a limitation of the Obligations secured by the Mortgage to such amount.
 
“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 to the Administrative Agent pursuant to the definition of “Collateral and Guarantee Requirement”, (v) the Perfection Certificate (including any Perfection Certificate delivered to the Administrative Agent pursuant to the definition of “Collateral and Guarantee Requirement”) and (vi) each of the other instruments and documents pursuant to which any Parent Loan Guarantor or any Loan Party grants (or purports to grant) a Lien on any Collateral as security for payment of the Secured Obligations.
 
“Commercial Letter of Credit” means any Letter of Credit issued for the purpose of providing the primary payment mechanism in connection with the purchase of any materials, goods or services by the Borrower or any of its subsidiaries in the ordinary course of business of such Person.
 
“Commercial Tort Claim” has the meaning set forth in Article 9 of the UCC.
 
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“Commitment” means, with respect to each Lender, such Lender’s Initial Term Loan Commitment, Initial Revolving Credit Commitment and Additional Commitment, as applicable, in effect as of such time.
 
“Commitment Fee Letter” means that certain Fee Letter, dated as of February 24, 2022, by and among the Borrower and the Arranger.
 
“Commitment Fee Rate” means, on any date (a) with respect to the Initial Revolving Credit Commitments, 0.50% per annum and (b) with respect to Additional Revolving Credit Commitments of any Class, the rate or rates per annum specified in the applicable Incremental Facility Amendment or Extension Amendment.
 
“Commitment Schedule” means the Schedule attached hereto as Schedule 1.01(a).
 
“Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.).
 
“Company Competitor” means any competitor of the Borrower 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 or any Excluded Party) 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 Borrower 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 D.
 
“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;
 
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(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);
 
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(viii)     (A) (1) Transaction Costs and (2) to the extent incurred or accrued on or prior to December 31, 2023, Second Amendment 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 $20,000,00015,000,000;
 
(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 $9,000,0006,000,000;
 
(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 itstheir 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 the Borrower 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;
 
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(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)(xixxiv), 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 Net 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 Administrative Agent, in each case, delivered to the Administrative Agent (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
 
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(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 Borrower) 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 Borrower 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 Borrower by annualizing the Consolidated Adjusted EBITDA attributable to the relevant comparable (as determined by the Borrower 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
 
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(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, the Series A Preferred Shares issued on the Closing Date and any subsequent public or private offering of equity interests of the Borrower 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)         it is agreed that for the purpose of calculating the Total Net Leverage Ratio and the Secured Net Leverage Ratio for any period that includes the Fiscal Quarters ended March 31, 2021, June 30, 2021, September 30, 2021 or December 31, 2021, (i) Consolidated Adjusted EBITDA for the Fiscal Quarter ended March 31, 2021 shall be deemed to be $7,794,426, (ii) Consolidated Adjusted EBITDA for the Fiscal Quarter ended June 30, 2021 shall be deemed to be $30,434,327, (iii) Consolidated Adjusted EBITDA for the Fiscal Quarter ended September 30, 2021 shall be deemed to be $12,622,058 and (iv) Consolidated Adjusted EBITDA for the Fiscal Quarter ended December 31, 2021 shall be deemed to be $5,821,977 in each case, as adjusted on a Pro Forma Basis, as applicable (such deemed Consolidated Adjusted EBITDA for any such Fiscal Quarter, “Deemed EBITDA”), provided, that the amounts set forth in clauses (c)(ii), (c)(xii), (c)(xiii), (c)(xiv), (c)(xv), (e), and (f) of the definition of Consolidated Adjusted EBITDA in respect of any period during which Deemed EBITDA is being used, shall not be duplicative of amounts included in Deemed EBITDA as of the Closing Date;
 
(2)          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
 
(3)          for the avoidance of doubt, the Shared EBITDA Cap shall not exceed 25% of Consolidated Adjusted EBITDA.
 
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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 Borrower in accordance with GAAP.
 
“Consolidated First Lien Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total Debt outstanding on such date that is (a) incurred pursuant to the Loan Documents or (b) secured by a Lien on the Collateral that does not rank junior to the Liens on the Collateral securing the Secured Obligations. For the avoidance of doubt, and without duplication of the provisions of the definition of “Consolidated Total Debt”, “Consolidated First Lien Debt” shall be calculated net of the Unrestricted Cash Amount.
 
“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 Administrative Agent 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 Loan 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,
 
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(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 Borrower, 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 Holdings (or any other Parent Company), the Borrower 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,
 
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(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 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 Borrower determines in good faith that the cumulative effects thereof are not material to the interests of the Lenders, 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)          solely for the purpose of calculating Excess Cash Flow, the income or loss of any Person accrued prior to the date on which such Person becomes a Restricted Subsidiary or Consolidated APC of such Person or is merged into or consolidated with such Person or any Restricted Subsidiary or Consolidated APC of such Person or the date that such other Person’s assets are acquired by such Person or any Restricted Subsidiary or Consolidated APC of such Person,
 
(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 Secured Debt” means, as to any Person at any date of determination, the aggregate principal amount of Consolidated Total Debt outstanding on such date that is secured.  It is understood and agreed that the Second Lien PIK Notes and any Specified Junior Debt that is secured shall be included in the determination of Consolidated Secured Debt.
 
“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.
 
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“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 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 Borrower 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 Borrower 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.   It is understood and agreed that the Second Lien PIK Notes and any Specified Junior Debt shall be included in the determination of Consolidated Total Debt.
 
“Consolidated Working Capital” means, as at any date of determination, the excess of Current Assets over Current Liabilities.
 
“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, in form and substance reasonably satisfactory to the Administrative Agent, among the Administrative Agent, the financial institution or other Person at which such account is maintained or with which such entitlement or contract is carried and the Parent Loan Guarantor or Loan Party maintaining such account, effective to grant “control” (as defined under the applicable UCC) over such account to the Administrative Agent.
 
“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.
 
“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding any Business Day adjustment) as such Available Tenor.
 
“Credit Extension” means each of (i) the making of a Revolving Loan or Swingline Loan (other than any Letter of Credit Reimbursement Loan or any Revolving Loan resulting from the application of Section 2.04(b)) or (ii) the issuance, amendment, modification, renewal or extension of any Letter of Credit (other than any such amendment, modification, renewal or extension that does not increase the Stated Amount of the relevant Letter of Credit).
 
“Credit Facilities” means the Revolving Facility and the Term Facility.
 
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“Crossholder Lender Term Loan Exchange and Cancellation” has the meaning assigned to such term in the Second Amendment.
 
“Crossholder Lenders” means the Term Lenders executing the Assignment and Assumption Agreement (as defined in to the Second Amendment) and constituting Crossholder Lenders under the Second Amendment.
 
“Cure Amount” means, collectively, the Leverage Covenant Cure Amount and the Liquidity Covenant Cure Amount.
 
“Current Assets” means, at any date, all assets of the Borrower, its Restricted Subsidiaries and Consolidated APCs which under GAAP would be classified as current assets (excluding any (i) cash or Cash Equivalents (including cash and Cash Equivalents held on deposit for third parties by the Borrower, any Restricted Subsidiary and/or any Consolidated APC), (ii) permitted loans to third parties, (iii) deferred bank fees and derivative financial instruments related to Indebtedness, (iv) the current portion of current and deferred Taxes and (v) management fees receivables).
 
“Current Liabilities” means, at any date, all liabilities of the Borrower, its Restricted Subsidiaries and/or Consolidated APCs which under GAAP would be classified as current liabilities, other than (i) current maturities of long term debt, (ii) outstanding revolving loans and letter of credit exposure, (iii) accruals of Consolidated Interest Expense (excluding Consolidated Interest Expense that is due and unpaid), (iv) obligations in respect of derivative financial instruments related to Indebtedness, (v) the current portion of current and deferred Taxes, (vi) liabilities in respect of unpaid earnouts or unpaid acquisition, disposition or refinancing related expenses and deferred purchase price holdbacks, (vii) accruals relating to restructuring reserves, (viii) liabilities in respect of funds of third parties on deposit with the Borrower, any Restricted Subsidiary and/or any Consolidated APC, (ix) management fees payables, (x) the current portion of any Capital Lease obligation, (xi) the current portion of any other long term liability for Indebtedness, (xii) accrued settlement costs, (xiii) non-cash compensation costs and expenses and (xiv) any other liabilities that are not Indebtedness and will not be settled in Cash or Cash Equivalents during the next succeeding twelve month period after such date.
 
“Daily Simple SOFR” means, for any day (a “SOFR Rate Day”), a rate per annum equal SOFR for the day (such day “SOFR Determination Date”) that is five (5) U.S. Government Securities Business Day prior to (a) if such SOFR Rate Day is a U.S. Government Securities Business Day, such SOFR Rate Day or (b) if such SOFR Rate Day is not a U.S. Government Securities Business Day, the U.S. Government Securities Business Day immediately preceding such SOFR Rate Day, in each case, as such SOFR is published by the SOFR Administrator on the SOFR Administrator’s Website.  Any change in Daily Simple SOFR due to a change in SOFR shall be effective from and including the effective date of such change in SOFR without notice to the Borrower.
 
“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.
 
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“Debt FX Hedge” means any Hedge Agreement entered into for the purpose of hedging currency-related risks in respect of any Indebtedness of the type described in the definition of “Consolidated Total Debt”.
 
“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.
 
“Declined Proceeds” has the meaning assigned to such term in Section 2.11(b)(v).
 
“Default” means any event or condition which upon notice, lapse of time or both would become an Event of Default.
 
“Defaulting Lender” means any Person that has (a) defaulted in (or is otherwise unable to perform) its obligations under this Agreement, including its obligations (x) to make a Loan within two Business Days of the date required to be made by it hereunder or (y) to fund its participation in a Letter of Credit or Swingline Loan required to be funded by it hereunder within two Business Days of the date such obligation arose or such Loan, Letter of Credit or Swingline Loan was required to be made or funded, unless, in the case of subclause (x) above, such Person notifies the Administrative Agent in writing that such failure is the result of such Person’s good faith determination that a condition precedent to funding (specifically identified and including the particular default, if any) has not been satisfied, (b) notified the Administrative Agent, any Issuing Bank or the Swingline Lender or the Borrower 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 or other obligations under this Agreement or under agreements in which it commits to extend credit generally (unless such writing indicates that such position is based on such Person’s good faith determination that a condition precedent (specifically identified and including the particular default, if any) to funding a Loan cannot be satisfied), (c) failed, within two Business Days after the request of the Administrative Agent or the Borrower, to confirm in writing that it will comply with the terms of this Agreement relating to its obligations to fund prospective Loans and participations in then outstanding Letters of Credit or Swingline Loans; provided that such Person shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent, (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 Borrower and the Administrative Agent have each determined that such Person intends, and has all approvals required to enable it (in form and substance satisfactory to the Borrower and the Administrative Agent), to continue to perform its obligations hereunder; provided that no Person shall be deemed to be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock in such Lender or its parent by any Governmental Authority; provided that such action does not result in or provide such Lender 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.
 
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“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.
 
“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 Borrower or its subsidiaries shall be a Derivative Transaction.
 
“Designated Non-Cash Consideration” means the fair market value (as determined by the Borrower in good faith) of non-Cash consideration received by the Borrower or any Restricted Subsidiary in connection with any Disposition pursuant to Section 6.07(h) that is designated as Designated Non-Cash Consideration pursuant to a certificate of a Responsible Officer of the Borrower, setting forth the basis of such valuation (which amount will be reduced by the amount of Cash or Cash Equivalents received in connection with a subsequent sale or conversion of such Designated Non-Cash Consideration to Cash or Cash Equivalents).
 
“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 Borrower, 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 Borrower in a writing delivered to the Administrative Agent.
 
“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 Borrower.
 
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“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 clause (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 party 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 Preferred Shares 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 Holdings, the Borrower 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 Borrower (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 Administrative Agent and the Lender Representative on or prior to February 24, 2022, (ii) any Person that is identified in writing to the Administrative Agent and the Lender Representative after the Closing Date (provided, that any Person so identified after the Closing Date must be reasonably acceptable to the Administrative Agent and Lender Representative), (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 Administrative Agent and the Lender Representative (each such person, a “Disqualified Lending Institution”);
 
(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 Administrative Agent and the Lender 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 Administrative Agent and the Lender 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); and
 
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(c)         any Affiliate or Representative of any Arranger and/or any Lender that is engaged as a principal primarily in private equity or venture capital (any Person described in this clause (c), an “Excluded Party”);
 
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 Loans under the applicable Credit Facility prior to the delivery of such notice.
 
The Borrower 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 Borrower shall be permitted to redesignate such Person as a Disqualified Institution without the consent of the Administrative Agent, the Lender Representative or any other Person upon written notice to the Administrative Agent and the Lender 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).
 
“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.
 
“Dutch Auction” has the meaning assigned to such term on Schedule 1.01(b) hereto.
 
“ECF Prepayment Amount” has the meaning assigned to such term in Section 2.11(b)(i).
 
“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 Yield” means, as to any Indebtedness, the effective yield applicable thereto calculated by the Administrative Agent in consultation with the Borrower in a manner consistent with generally accepted financial practices, taking into account (a) interest rate margins, (b) interest rate floors (subject to the proviso set forth below), (c) any amendment to the relevant interest rate margins and interest rate floors prior to the applicable date of determination and (d) original issue discount and upfront or similar fees (based on an assumed four-year average life to maturity or lesser remaining average life to maturity), but excluding (i) any customary arrangement, commitment, structuring, underwriting fee, in each case, that is paid or payable by the Borrower to arrangers (and that is not shared with lenders generally), (ii) ticking, unused line fees and/or amendment fees (regardless of whether any such fees are paid to or shared in whole or in part with any lender) and (iii) any other customary fee that is not paid directly by the Borrower generally to all relevant lenders ratably; provided, however, that (A) to the extent that the Adjusted Term SOFR Rate (with an Interest Period of three months) or Alternate Base Rate (without giving effect to any floor specified in the definition thereof) is less than any floor applicable to the Term Loans in respect of which the Effective Yield is being calculated on the date on which the Effective Yield is determined, the amount of the resulting difference will be deemed added to the interest rate margin applicable to the relevant Indebtedness for purposes of calculating the Effective Yield and (B) to the extent that the Adjusted Term SOFR Rate (for a period of three months) or Alternate Base Rate (without giving effect to any floor specified in the definition thereof) is greater than any applicable floor on the date on which the Effective Yield is determined, the floor will be disregarded in calculating the Effective Yield.
 
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“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 Assignee” means (a) any Lender, (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 Lender, (d) any Approved Fund of any Lender and (e) to the extent permitted under Section 9.05(g), any Affiliated Lender or any Debt Fund Affiliate; provided that in any event, “Eligible Assignee” shall not include (i) any natural person, (ii) any Disqualified Institution or (iii) except as permitted under Section 2.22(b) or Section 9.05(g), the Borrower or any of its Affiliates.
 
“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 Borrower 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 Borrower 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.
 
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“ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by the Borrower 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 Borrower 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 Borrower or any Restricted Subsidiary or any ERISA Affiliate from a Multiemployer Plan resulting in the imposition of Withdrawal Liability on the Borrower or any Restricted Subsidiary or any ERISA Affiliate, notification of the Borrower 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 Borrower 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 Borrower 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.
 
“Erroneous Payment” has the meaning assigned to such term in Section 8.14(a).
 
“Erroneous Payment Return Deficiency” has the meaning assigned to such term in Section 8.14(a).
 
“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 Article 7.
 
“Excess Cash Flow” means, for any Excess Cash Flow Period, any amount (if positive) equal to:
 
(a)         Consolidated Adjusted EBITDA for such Excess Cash Flow Period (without giving effect to clauses (e), (f) and (g) of the definition thereof, the amounts added back in reliance on which shall be deducted in determining Excess Cash Flow); plus
 
(b)         any extraordinary, unusual or non-recurring cash gain during such Excess Cash Flow Period (whether or not accrued in such Excess Cash Flow Period) to the extent not otherwise included in Consolidated Adjusted EBITDA (including any component definition used therein); plus
 
(c)        any foreign currency exchange gain actually realized and received in cash in U.S. Dollars (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), net of any loss from foreign currency translation; plus
 
(d)          reserved; plus
 
(e)          an amount equal to all Cash received for such period on account of any net non-Cash gain or income from any Investment deducted in a previous period pursuant to clause (s)(ii) of this definition; plus
 
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(f)        the decrease, if any, in Consolidated Working Capital from the first day to the last day of such Excess Cash Flow Period, but excluding any such decrease in Consolidated Working Capital arising from (i) the acquisition or Disposition of any Person by the Borrower, any Restricted Subsidiary or any Consolidated APC, (ii) the reclassification during such period of current assets to long term assets and current liabilities to long term liabilities, (iii) the application of purchase and/or recapitalization accounting and/or (iv) the effect of any fluctuation in the amount of accrued and contingent obligations under any Hedge Agreement; minus
 
(g)         the amount, if any, which, in the determination of Consolidated Adjusted EBITDA (including any component definitions used therein) for such Excess Cash Flow Period, has been included in respect of income or gain from any Disposition outside of the ordinary course of business (including Dispositions constituting covered losses or taking of assets referred to in the definition of “Net Insurance/Condemnation Proceeds”) of the Borrower, any Restricted Subsidiary and/or any Consolidated APC; minus
 
(h)         cash payments actually made in respect of the following (without duplication):
 
(i)         any Investment permitted by Section 6.06 (other than Investments (i) in Cash or Cash Equivalents, (ii) in any Restricted Subsidiary,  any Consolidated APC and/or Non-Consolidated APC or (iii) made pursuant to Section 6.06(r)(i)) and/or any Restricted Payment permitted by Section 6.04(a) (other than pursuant to Section 6.04(a)(iii)(A)) and actually made in cash during such Excess Cash Flow Period or, at the option of the Borrower, made prior to the date the Borrower is required to make a payment of Excess Cash Flow in respect of such Excess Cash Flow Period, (A) except to the extent the relevant Investment and/or Restricted Payment is financed with the proceeds of long term funded Indebtedness (other than revolving Indebtedness) and (B) without duplication of any amounts deducted from Excess Cash Flow for a prior Excess Cash Flow Period;
 
(ii)        any realized foreign currency exchange loss actually paid or payable in cash (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);
 
(iii)        the aggregate amount of any extraordinary, unusual or non-recurring cash Charge (whether or not incurred in such Excess Cash Flow Period) excluded in calculating Consolidated Adjusted EBITDA (including any component definition used therein);
 
(iv)       consolidated Capital Expenditures actually made in cash during such Excess Cash Flow Period or, at the option of the Borrower, made prior to the date the Borrower is required to make a payment of Excess Cash Flow in respect of such Excess Cash Flow Period, (A) except to the extent financed with the proceeds of long term funded Indebtedness (other than revolving Indebtedness) and (B) without duplication of any amount deducted from Excess Cash Flow for a prior Excess Cash Flow Period;
 
(v)        any long-term liability, excluding the current portion of any such liability (other than Indebtedness) of the Borrower, any Restricted Subsidiary and/or any Consolidated APC;
 
(vi)       any cash Charge added back in calculating Consolidated Adjusted EBITDA pursuant to clause (c) of the definition thereof or excluded from the calculation of Consolidated Net Income in accordance with the definition thereof;
 
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(vii)       the aggregate amount of expenditures actually made by the Borrower, any Restricted Subsidiary and/or, without duplication, any Consolidated APC during such Fiscal Year (including any expenditure for the payment of financing fees) to the extent that such expenditures are not expensed; minus
 
(i)          the aggregate principal amount of (i) all optional prepayments of Indebtedness (other than any optional prepayment of (A) Indebtedness under the Loan Documents that is prepaid, repurchased, redeemed or otherwise retired prior to such date, in each case, that is deducted in calculating the amount of any Excess Cash Flow payment in accordance with Section 2.11(b)(i) or (B) revolving Indebtedness except to the extent any related commitment is permanently reduced in connection with such repayment), (ii) all mandatory prepayments and scheduled repayments of Indebtedness during such Excess Cash Flow Period to the extent required due to a Prepayment Asset Sale or the receipt of Net Insurance/Condemnation Proceeds that resulted in an increase to Consolidated Net Income and not in excess of the amount of such increase and (iii) the aggregate amount of any premium, make-whole or penalty payment actually paid in cash by the Borrower, any Restricted Subsidiary and/or any Consolidated APC during such period that are required to be made in connection with any prepayment of Indebtedness, in each case, except to the extent financed with long term funded Indebtedness (other than revolving Indebtedness); minus
 
(j)          Consolidated Interest Expense actually paid or payable in cash by the Borrower, any Restricted Subsidiary and/or any Consolidated APC during such Excess Cash Flow Period; minus
 
(k)         Taxes (inclusive of Taxes paid or payable under tax sharing agreements or arrangements and/or in connection with any intercompany distribution) paid or payable by Borrower, any Restricted Subsidiary and/or any Consolidated APC with respect to such Excess Cash Flow Period; minus
 
(l)           the increase, if any, in Consolidated Working Capital from the first day to the last day of such Excess Cash Flow Period (or, in the case of the Excess Cash Flow Period ending on December 31, 2022, from the first day to the last day of the Test Period ending on such date), but excluding any such increase in Consolidated Working Capital arising from (i) the acquisition or Disposition of any Person by the Borrower, any Restricted Subsidiary and/or any Consolidated APC, (ii) the reclassification during such period of current assets to long term assets and current liabilities to long term liabilities, (iii) the application of purchase and/or recapitalization accounting and/or (iv) the effect of any fluctuation in the amount of accrued and contingent obligations under any Hedge Agreement; minus
 
(m)        the amount of any Tax obligation of the Borrower, any Restricted Subsidiary and/or any Consolidated APC that is estimated in good faith by the Borrower as due and payable (but is not currently due and payable) by the Borrower, any Restricted Subsidiary and/or any Consolidated APC as a result of the repatriation of any dividend or similar distribution of net income of any Foreign Subsidiary to the Borrower, any Restricted Subsidiary and/or any Consolidated APC; minus
 
(n)        without duplication of amounts deducted from Excess Cash Flow in respect of a prior period, at the option of the Borrower, the aggregate consideration (i) required to be paid in Cash by the Borrower, any Restricted Subsidiary and/or any Consolidated APC pursuant to binding contracts entered into prior to or during such period relating to Capital Expenditures, acquisitions or Investments and Restricted Payments described in clause (h)(i) above and/or (ii) otherwise committed or budgeted to be made in connection with Capital Expenditures, acquisitions or Investments and/or Restricted Payments described in clause (h)(i) above (clauses (i) and (ii), the “Scheduled Consideration”) (other than Investments in (A) Cash and Cash Equivalents and (B) the Borrower, any Restricted Subsidiary and/or any Consolidated APC) to be consummated or made during the period of four consecutive Fiscal Quarters of the Borrower following the end of such period (except, in each case, to the extent financed with long term funded Indebtedness (other than revolving Indebtedness)); provided that to the extent the aggregate amount actually utilized to finance such Capital Expenditures, acquisitions or Investments or Restricted Payments during such subsequent period of four consecutive Fiscal Quarters is less than the Scheduled Consideration, the amount of the resulting shortfall shall be added to the calculation of Excess Cash Flow at the end of such subsequent period of four consecutive Fiscal Quarters; minus
 
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(o)         amounts added to Consolidated Net Income, in each case to the extent paid in cash, under clauses (c)(ii), (c)(v), (c)(viii), (c)(ix), (c)((xi), (c)(xii), (c)(xiii), (c)(xiv), (h) and/or (i) of the definition of “Consolidated Adjusted EBITDA”; minus
 
(p)         cash payments (other than in respect of Taxes, which are governed by clause (k) above) made during such Excess Cash Flow Period for any liability the accrual of which in a prior Excess Cash Flow Period resulted in an increase in Excess Cash Flow in such prior period (provided that there was no other deduction to Consolidated Adjusted EBITDA or Excess Cash Flow related to such payment), except to the extent financed with long term funded Indebtedness (other than revolving Indebtedness); minus
 
(q)         cash expenditures made in respect of any Hedge Agreement during such period to the extent (i) not otherwise deducted in the calculation of Consolidated Net Income or Consolidated Adjusted EBITDA and (ii) not financed with long term funded Indebtedness (other than revolving Indebtedness); minus
 
(r)         amounts paid in Cash (except to the extent financed with long term funded Indebtedness (other than revolving Indebtedness)) during such period on account of (i) items that were accounted for as non-Cash reductions of Consolidated Net Income or Consolidated Adjusted EBITDA in a prior period and (ii) reserves or amounts established in purchase accounting to the extent such reserves or amounts are added back to, or not deducted from, Consolidated Net Income; minus
 
(s)        an amount equal to the sum of (i) the aggregate net non-cash loss on any non-ordinary course Disposition by the Borrower, any Restricted Subsidiary and/or any Consolidated APC during such period (other than any Disposition among the Borrower, any Restricted Subsidiaries and/or any Consolidated APC during such period) to the extent included in arriving at Consolidated Net Income and (ii) the aggregate net non-Cash gain or income from any non-ordinary course Investment to the extent included in arriving at Consolidated Adjusted EBITDA.
 
“Excess Cash Flow Period” means each full Fiscal Year of the Borrower commencing with the Fiscal Year ending on December 31, 2023.
 
“Exchange Act” means the Securities Exchange Act of 1934 and the rules and regulations of the SEC promulgated thereunder.
 
“Excluded Account” means any Deposit Account (a) that is an escrow, fiduciary, trust or similar account for the benefit of third parties (other than Holdings or any Restricted Subsidiary), (b) holding cash collateral for a third party (other than Holdings or any Restricted Subsidiary) subject to a Lien permitted under Section 6.02, (c) used by any Loan Party or any Parent Loan Guarantor 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). Notwithstanding anything to the contrary contained herein, no Deposit Account that is subject to a Lien securing the Second Lien Notes Obligations or any Specified Junior Debt shall be an Excluded Account.
 
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“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, (ii) Unrestricted Subsidiaries and/or (iiiii) 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 Parent Loan Guarantor or any Loan Party as reasonably determined by the Borrower and specified in a written notice to the Administrative Agent,
 
(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 Loan Party,
 
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(i)           Commercial Tort Claims with a value (as reasonably estimated by the Borrower) 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 Holdings, any Parent Loan Guarantor, the Borrower or any Subsidiary of the Borrower) 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 Administrative Agent and the Borrower have reasonably determined in writing that the cost, burden, difficulty or consequence (including any effect on the ability of the Borrower 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, (i) no Management Services Agreement, no other agreement constituting an Acceptable Practice Management Arrangement nor any other agreement among a Loan Party and an Affiliated Practice relating to the provision of management services, or any of the rights and interests of any Loan Party under any of the foregoing agreements or any proceeds thereof shall constitute Excluded Assets., and (ii) no asset that is subject to a Lien securing the Second Lien Note Obligations or any Specified Junior Debt shall be an Excluded Asset.  For the avoidance of doubt, “Excluded Assets” shall not include any proceeds, products, substitutions or replacements of Excluded Assets (unless such proceeds, products, substitutions or replacements would otherwise 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 Loan 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 Loan Guaranty (in each case, at the time such Restricted Subsidiary became a Subsidiary) or (iii) with respect to which the provision of a Loan Guaranty would result in material adverse tax consequences as reasonably determined by the Borrower, where the Borrower notifies the Administrative Agent in writing of such determination,
 
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(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 Loan Parties);
 
(i)           any Unrestricted Subsidiary[reserved],
 
(j)         any Restricted Subsidiary acquired by the Borrower 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 Loan Guaranty (which prohibition was not implemented in contemplation of such Restricted Subsidiary becoming a subsidiary in order to avoid the requirement of providing a Loan Guaranty) and/or
 
(k)        any other Restricted Subsidiary with respect to which, in the reasonable judgment of the Administrative Agent and the Borrower, the burden or cost of providing a Loan 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 Swap Obligation” means, with respect to any Loan Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Loan Guaranty of such Loan Guarantor of, or the grant by such Loan Guarantor of a security interest to secure, such Swap Obligation (or any Loan Guaranty thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) (a) by virtue of such Loan Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act and the regulations thereunder (determined after giving effect to Section 3.20 of the Loan Guaranty and any other “keepwell”, support or other agreement for the benefit of such Loan Guarantor) at the time the Loan Guaranty of such Loan Guarantor or the grant of such security interest becomes effective with respect to such Swap Obligation or (b) in the case of any Swap Obligation that is subject to a clearing requirement pursuant to section 2(h) of the Commodity Exchange Act, because such Loan Guarantor is a “financial entity,” as defined in section 2(h)(7)(C) of the Commodity Exchange Act, at the time the guarantee provided by (or grant of such security interest by, as applicable) such Loan Guarantor becomes or would become effective with respect to such Swap Obligation.  If any Swap Obligation arises under a master agreement governing more than one swap, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Loan Guaranty or security interest is or becomes illegal.
 
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“Excluded Taxes” means, with respect to the Administrative Agent, any Lender or Issuing Bank, or any other recipient of any payment to be made by or on account of any obligation of any Loan Party under any Loan 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 Lender, 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 Lender (other than a Lender that became a Lender pursuant to an assignment under Section 2.19(b)) with respect to an applicable interest in a Loan or Commitment pursuant to a Requirement of Law in effect on the date on which such Lender (i) acquires such interest in the applicable Commitment or, if such Lender did not fund the applicable Loan pursuant to a prior Commitment, on the date such Lender acquires its interest in such Loan or (ii) designates a new lending office, except in each case to the extent that, pursuant to Section 2.17, amounts with respect to such Tax were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in a Loan or Commitment or to such Lender immediately before it designated a new lending office, (d) any Tax imposed as a result of a failure by the Administrative Agent, such Lender or any Issuing Bank or Swingline Lender to comply with Sections 2.17(f) or (j) and (e) any U.S. federal withholding Tax under FATCA.
 
“Existing Credit Agreement” has the meaning assigned to such term in the recitals to this Agreement.
 
“Existing Letters of Credit” means any letter of credit previously issued that (a) will remain outstanding on and after the Closing Date and (b) is listed on Schedule 1.01(d).
 
“Extended Revolving Credit Commitment” has the meaning assigned to such term in Section 2.23(a).
 
“Extended Revolving Loans” has the meaning assigned to such term in Section 2.23(a).
 
“Extended Term Loans” has the meaning assigned to such term in Section 2.23(a).
 
“Extension” has the meaning assigned to such term in Section 2.23(a).
 
“Extension Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (to the extent required by Section 2.23) and the Borrower executed by each of (a) Holdings, the Parent Loan Guarantors, the Borrower and the Subsidiary Guarantors, (b) the Administrative Agent and (c) each Lender that has accepted the applicable Extension Offer pursuant hereto and in accordance with Section 2.23.
 
“Extension Offer” has the meaning assigned to such term in Section 2.23(a).
 
“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 Borrower 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.
 
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“Fee Letter” means, collectively, the Upfront Fee Letter, the Commitment Fee Letter and Revolving Facility Fee Letter.
 
“Financial Covenants” means, collectively, the Minimum Liquidity Covenant and the Maximum SecuredFirst Lien Net Leverage Covenant.
 
“Financial Model” means the final model made available by the Borrower to the Arranger and the Administrative Agent prior to the Closing Date.
 
“First Lien Net Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated First Lien Debt outstanding as of the last day of the most recently ended Test Period to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended, in each case of the Borrower, its Restricted Subsidiaries and Consolidated APCs on a consolidated basis.
 
“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.
 
“Fiscal Year” means the fiscal year of the Borrower ending December 31 of each calendar year.
 
“Fixed Incremental Amount” means (a) the greater of (i) $10,000,000 and (ii) an amount equal to 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period minus (b) the aggregate outstanding principal amount of all Incremental Facilities incurred or issued in reliance on the Fixed Incremental Amount after giving effect to any reclassification of such Incremental Facilities.
 
“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.
 
“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to the Term SOFR Rate.
 
“Foreign Lender” means any Lender or Issuing Bank that is not a “United States person” within the meaning of Section 7701(a)(30) of the Code.
 
“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).
 
“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).
 
“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.
 
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“Governmental Authorization” means any permit, license, authorization, approval, plan, directive, consent order or consent decree of or from any Governmental Authority.
 
“Granting Lender” 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 monetary other 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.
 
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“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 “Stark 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 Loan 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.
 
“HPS” has the meaning assigned to such term in the preamble to this Agreement.
 
“HPS Lenders” means, collectively, HPS and each controlled investment Affiliate and/or managed account of HPS, in each case, to the extent constituting Lenders at the applicable time of determination.
 
“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 Borrower (a) the assets of which do not exceed 2.50% of Consolidated Total Assets of the Borrower 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 Borrower 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 Borrower 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 Borrower (or its applicable Parent Company) delivered pursuant to Section 4.01 hereof.
 
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“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:
 
(a)          the Fixed Incremental Amount, plus
 
(b)          [reserved],
 
(c)          [reserved],
 
(d) (i) the amount of any optional prepayment of any Loan in accordance with Section 2.11(a) and/or the amount of any permanent reduction of any Revolving Credit Commitment and (ii) the amount paid in Cash in respect of any reduction in the outstanding amount of any Term Loan resulting from any assignment of such Term Loan to (and/or assignment and/or purchase of such Term Loan by) Holdings, the Borrower and/or any Restricted Subsidiary; provided that (A) for each of clauses (i), and (ii), the relevant prepayment, redemption, repurchase or assignment and/or purchase was not funded with the proceeds of any long-term Indebtedness (other than revolving Indebtedness) and (B) no Incremental Facility that is senior in right of payment or with respect to security as compared to the relevant Class of prepaid or reduced loans or commitments may be incurred in reliance on this clause (d), plus
 
(d)          [reserved], plus
 
(e)         an unlimited amount so long as, in the case of this clause (e), after giving effect to the relevant Incremental Facility, (i) if such Incremental Facility is secured by a lien on the Collateral that is pari passu with the Lien securing the Secured Obligations that are secured on a first lien basis, the Secured Net Leverage Ratio does not exceed 4.50:1.00, (ii) if such Incremental Facility is secured by a lien on the Collateral that is junior to the lien securing the Secured Obligations that are secured on a first lien basis, the Secured Net Leverage Ratio does not exceed 5.00:1.00 or (iii) if such Incremental Facility is unsecured, the Total Net Leverage Ratio does not exceed 5.50:1.00, in each case described in this clause (e), calculated on a Pro Forma Basis, including the application of the proceeds thereof (in the case of each of clause (i), (ii) and (iii) without “netting” the cash proceeds of the applicable Incremental Facility or any other simultaneous incurrence of debt on the consolidated balance sheet of the Borrower) and in the case of any Incremental Revolving Facility or any Incremental Term Facility structured as a “delayed draw” facility then being incurred or established, assuming a full drawing of such Incremental Revolving Facility or Incremental Term Facility structured as a “delayed draw” facility, as applicable (this clause (e), the “Incremental Incurrence-Based Component”);
 
provided that:
 
(i)          any Incremental Facility may be incurred under one or more of clauses (a) through (e) of this definition as selected by the Borrower in its sole discretion,
 
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(ii)        if any Incremental Facility is intended to be incurred under clause (e) of this definition and any other clause of this definition in a single transaction or series of related transaction, (A) the incurrence of the portion of such Incremental Facility to be incurred or implemented under clause (e) of this definition shall be calculated first without giving effect to any Incremental Facilities to be incurred under any other clause of this definition, but giving full pro forma effect to the use of proceeds of the entire amount of such Incremental Facility and the related transactions, and (B) the incurrence of the portion of such Incremental Facility to be incurred or implemented under the other applicable clauses of this definition shall be calculated thereafter,
 
(iii)      any portion of any Incremental Facility that is incurred under clauses (a) or (d) of this definition will be automatically reclassified as having been incurred under clause (e) of this definition if, at any time after the incurrence thereof, when financial statements required pursuant to Section 5.01(a) or (b) are delivered or, if earlier, become internally available, such portion of such Incremental Facility would, using the figures reflected in such financial statements, be permitted under the Secured Net Leverage Ratio or Total Net Leverage Ratio test, as applicable, set forth in clause (e) of this definition; it being understood and agreed that once such Incremental Facility is reclassified in accordance with the preceding sentence, it shall not further be reclassified as having been incurred under the provision of this definition in reliance on which such Incremental Facility was originally incurred.
 
“Incremental Commitment” means any commitment made by a lender to provide all or any portion of any Incremental Facility or Incremental Loan.
 
“Incremental Facilities” has the meaning assigned to such term in Section 2.22(a).
 
“Incremental Facility Amendment” means an amendment to this Agreement that is reasonably satisfactory to the Administrative Agent (solely for purposes of giving effect to Section 2.22) and the Borrower executed by each of (a) Holdings and the Borrower, (b) the Administrative Agent and (c) each Lender that agrees to provide all or any portion of the Incremental Facility being incurred pursuant thereto and in accordance with Section 2.22.
 
“Incremental Incurrence-Based Component” has the meaning assigned to such term in the definition of “Incremental Cap”.
 
“Incremental Lender” a Lender providing an Incremental Facility.
 
“Incremental Loans” has the meaning assigned to such term in Section 2.22(a).
 
“Incremental Revolving Credit Commitments” means any commitment made by a lender to provide all or any portion of any Incremental Revolving Facility or Incremental Revolving Loan.
 
“Incremental Revolving Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of all Incremental Revolving Loans of such Lender, plus the aggregate outstanding amount at such time of such Lender’s LC Exposure and Swingline Exposure, in each case, attributable to its Incremental Revolving Credit Commitment.
 
“Incremental Revolving Facility” has the meaning assigned to such term in Section 2.22(a).
 
“Incremental Revolving Facility Lender” has the meaning assigned to such term in Section 2.22(b).
 
“Incremental Revolving Loans” has the meaning assigned to such term in Section 2.22(a).
 
“Incremental Term Commitment” means any commitment made by a lender to provide all or any portion of any Incremental Term Facility or Incremental Term Loan.
 
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“Incremental Term Facility” has the meaning assigned to such term in Section 2.22(a).
 
“Incremental Term Lender” means, with respect to any Incremental Term Facility, each Lender providing any portion of such Incremental Term Facility.
 
“Incremental Term Loans” has the meaning assigned to such term in Section 2.22(a).
 
“Incurrence-Based Amounts” has the meaning assigned to such term in Section 1.11(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, the First Lien 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.
 
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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) 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; provided 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 Loan Party under any Loan Document.
 
“Indemnitee” has the meaning assigned to such term in Section 9.03(b).
 
“Information” has the meaning assigned to such term in Section 3.11.
 
“Initial Revolving Credit Commitment” means, with respect to each Lender, the commitment of such Lender to make Initial Revolving Loans (and acquire participations in Letters of Credit and Swingline Loans) hereunder as set forth on the Commitment Schedule, or in the Assignment Agreement pursuant to which such Lender assumed its Initial Revolving Credit Commitment, as applicable, as the same may be (a) reduced from time to time pursuant to Sections 2.09 or 2.19, (b) reduced or increased from time to time pursuant to assignments by or to such Lender pursuant to Section 9.05 or (c) increased pursuant to Section 2.22.  The aggregate amount of the Initial Revolving Credit Commitments as of the Closing Date is $50,000,000.
 
“Initial Revolving Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of all Initial Revolving Loans of such Lender, plus the aggregate amount at such time of such Lender’s LC Exposure and Swingline Exposure attributable to its Initial Revolving Credit Commitment.
 
“Initial Revolving Credit Maturity Date” means the date that is five years after the Closing Date.
 
“Initial Revolving Facility” means the Initial Revolving Credit Commitments and the Initial Revolving Loans and other extensions of credit thereunder.
 
“Initial Revolving Lender” means any Lender with an Initial Revolving Credit Commitment or any Initial Revolving Credit Exposure.
 
“Initial Revolving Loan” means any revolving loan made by the Initial Revolving Lenders to the Borrower pursuant to Section 2.01(a)(ii).
 
“Initial Term Lender” means any Lender with an Initial Term Loan Commitment or an outstanding Initial Term Loan.
 
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“Initial Term Loan Commitment” means, with respect to each Term Lender on the Closing Date, the commitment of such Term Lender to make Initial Term Loans hereunder in an aggregate amount not to exceed the amount set forth opposite such Term Lender’s name on the Commitment Schedule, as the same may be (a) reduced from time to time pursuant to Section 2.09 and (b) reduced or increased from time to time pursuant to (x) assignments by or to such Term Lender pursuant to Section 9.05 or (y) increased from time to time pursuant to Section 2.22. The initial aggregate amount of the Initial Term Loan Commitments on the Closing Date was $500,000,000.00.
 
“Initial Term Loan Maturity Date” means the date that is six years after the Closing Date.
 
“Initial Term Loans” means a term loan made by the Initial Term Lender to the Borrower pursuant to Section 2.01(a).
 
“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 Loan Party or any Parent Loan Guarantor to the Administrative Agent, 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 C hereto.
 
“Intercompany Note” means a promissory note substantially in the form of Exhibit F.
 
“Intercreditor Agreement” means, (i) with respect to the Second Lien PIK Notes and any other Specified Junior Debt, the Second Lien Intercreditor and Subordination Agreement (or, in the case of any other Specified Junior Debt, an intercreditor and subordination agreement the terms of which are not less favorable to the Administrative Agent and the Lenders than the Second Lien Intercreditor and Subordination Agreement) and (ii) with respect to any other Indebtedness, any intercreditor or subordination agreement, as applicable, the terms of which are reasonably acceptable to the Borrower, the Administrative Agent and the Lender Representative.
 
“Interest Election Request” means a request by the Borrower in the form of Exhibit H hereto or another form reasonably acceptable to the Administrative Agent to convert or continue a Borrowing in accordance with Section 2.08.
 
“Interest Payment Date” means (a) with respect to any ABR Loan, the last Business Day of each Fiscal Quarter (commencing with the first full Fiscal Quarter ended after the Closing Date) and the maturity date applicable to such ABR Loan and (b) with respect to any SOFR Benchmark Loan, the last day of the Interest Period applicable to the Borrowing of which such Loan is a part and, in the case of a SOFR Benchmark Loan with an Interest Period of more than three months’ duration, each day that would have been an Interest Payment Date had successive Interest Periods of three months’ duration been applicable to such Borrowing.
 
“Interest Period” means with respect to any SOFR Benchmark Borrowing, the period commencing on the date of such Borrowing and ending on the numerically corresponding day in the calendar month that is one, three or six months (or, to the extent available to all relevant affected Lenders, twelve months or a shorter period) thereafter, as the Borrower may elect; provided, that (i) if any Interest Period would end on a day other than a Business Day, such Interest Period shall be extended to the next succeeding Business Day unless such next succeeding Business Day would fall in the next calendar month, in which case such Interest Period shall end on the next preceding Business Day and (ii) any Interest Period that commences on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the last calendar month of such Interest Period) shall end on the last Business Day of the last calendar month of such Interest Period.  For purposes hereof, the date of a Borrowing initially shall be the date on which such Borrowing is made and thereafter shall be the effective date of the most recent conversion or continuation of such Borrowing.
 
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“Intermediate Parent” means Wilco Holdco, Inc, a Delaware corporation.
 
“Investment” means (a) any purchase or other acquisition for consideration by the Borrower or any of its Restricted Subsidiaries of any of the Securities of any other Person (other than any Loan 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 Borrower, 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 Borrower 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 Loan 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.
 
“IP Rights” has the meaning assigned to such term in Section 3.05(c).
 
“IP Separation Transaction” means (a) any Disposition by any Loan Party of any Material Intellectual Property to (i) any subsidiary of the Borrower that is not a Loan Party or (ii) any Consolidated APC, Non-Consolidated APC or any other Affiliated Practice and/or (b) any Investment by any Loan Party in the form of a contribution of Material Intellectual Property to (i) any subsidiary that is not a Loan Party or (ii) any Consolidated APC, Non-Consolidated APC or any other Affiliated Practice.
 
“IRS” means the U.S. Internal Revenue Service.
 
“Issuing Bank” means, as the context may require, (a) Barclays and  (b) each other Revolving Lender that is appointed as an Issuing Bank in accordance with Section 2.05(i) hereof.  Each Issuing Bank may, in its discretion, arrange for one or more Letters of Credit to be issued by any branch or Affiliate of such Issuing Bank, in which case the term “Issuing Bank” shall include any such branch or Affiliate with respect to Letters of Credit issued by such branch or Affiliate.
 
“Joinder Agreement” means (i) in the case of any subsidiary of Borrower that becomes a Loan Party after the Closing Date, a Joinder Agreement substantially in the form of Exhibit K or such other form that is reasonably satisfactory to the Administrative Agent and the Borrower; 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. ; (ii) in the case of Parent and Intermediate Parent, a Joinder Agreement substantially in the form of Exhibit C to the Second Amendment (with such changes as are reasonably satisfactory to the Administrative Agent and the Lender Representative), and (iii) in the case of any other parent of Holdings that becomes a Parent Loan Guarantor, a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent, the Lender Representative and the Borrower.
 
“Junior Indebtedness” means any Indebtedness of the types described in clauses (a) and (c) of the definition of “Indebtedness” (other than Indebtedness among Holdings, Borrower and/or its subsidiaries) of the Borrower or any of its Restricted Subsidiaries that is expressly contractually subordinated in right of payment to the Obligations. For the avoidance of doubt, the Term Loans hereunder do not constitute Junior Indebtedness.
 
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“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 Holdings, the Borrower and/or its subsidiaries) that is expressly junior or subordinated to the Lien securing the Credit Facilities on the Closing Date.
 
“JV Entity” means any bona fide joint venture with a third party in respect of which the Borrower and/or a Restricted Subsidiary own less than 100% of the Capital Stock (other than any Wholly-Owned Subsidiary).
 
“Key Performance Indicators” means, supplemental tables of key performance metrics substantially in the form agreed to by the Borrower and the Arranger prior to the Closing Date (and on file with the Lender Representative and the Administrative Agent).with respect to any Compliance Certificate, the information required by Section 5.01(c)(iii) for the last month in the period covered by such Compliance Certificate
 
“Latest Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any Loan or commitment hereunder at such time, including the latest maturity or expiration date of any Term Loan, Term Commitment, Revolving Loan or Revolving Credit Commitment.
 
“Latest Revolving Credit Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any Revolving Loan or Revolving Credit Commitment hereunder at such time.
 
“Latest Term Loan Maturity Date” means, as of any date of determination, the latest maturity or expiration date applicable to any Term Loan hereunder at such time.
 
“LC Collateral Account” has the meaning assigned to such term in Section 2.05(j).
 
“LC Disbursement” means a payment or disbursement made by an Issuing Bank pursuant to a Letter of Credit.
 
“LC Exposure” means, at any time, the sum of (a) the aggregate undrawn amount of all outstanding Letters of Credit at such time and (b) the aggregate principal amount of all LC Disbursements that have not yet been reimbursed at such time.  The LC Exposure of any Revolving Lender at any time shall equal its Applicable Percentage of the aggregate LC Exposure at such time.
 
“Legal Reservations” means the application of the relevant Debtor Relief Laws, general principles of equity and/or principles of good faith and fair dealing.
 
“Lender Representative” means (a) prior to the Lender Representative Transition Date, HPS and (b) on and after the Lender Representative Transition Date, the Administrative Agent.
 
“Lender Representative Transition Date” means the first date occurring after the Closing Date on which HPS Lenders own, as Lenders of record, Loans and/or unused Commitments representing less than 35% of the sum of the total outstanding Loans and unused Commitments at such time.
 
“Lenders” means the Term Lenders, the Revolving Lenders and any other Person that becomes a party hereto pursuant to an Assignment Agreement, other than any such Person that ceases to be a party hereto pursuant to an Assignment Agreement.
 
“Letter of Credit” means any Standby Letter of Credit or Commercial Letter of Credit issued pursuant to this Agreement.
 
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“Letter of Credit Reimbursement Loan” has the meaning assigned to such term in Section 2.05(e).
 
“Letter-of-Credit Right” has the meaning set forth in Article 9 of the UCC.
 
“Letter of Credit Request” means a request by the Borrower for a new Letter of Credit or an amendment to any existing Letter of Credit in accordance with Section 2.05 and substantially in the form of Exhibit N hereto or such other form that is reasonably satisfactory to the relevant Issuing Bank and the Borrower.
 
“Letter of Credit Sublimit” means $10,000,000, subject to increase in accordance with Section 2.22 hereof.
 
“Leverage Covenant Cure Amount” has the meaning assigned to such term in Section 6.15(b).
 
“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” shall mean 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.
 
“Liquidity Covenant Cure Amount” has the meaning assigned to such term in Section 6.15(a)(ii).
 
“Liquidity Covenant Test Date” has the meaning assigned to such term in Section 6.15(a)(i).
 
“Liquidity Report” has the meaning assigned to such term in Section 5.01(d).
 
“Loan Documents” means this Agreement, any Promissory Note, each Loan Guaranty, the Collateral Documents, any Intercreditor Agreement to which the Borrower is a party, each Incremental Facility Amendment, each Extension Amendment and any other document or instrument designated by the Borrower and the Administrative Agent as a “Loan Document”.  Any reference in this Agreement or any other Loan Document to a Loan Document shall include all appendices, exhibits or schedules thereto.
 
“Loan Guarantor” means Holdings and any Subsidiary Guarantor. Any entity (other than, for purposes of this Agreement, the Parent Loan Guarantors) that guarantees the Second Lien PIK Notes and Specified Junior Debt shall be a Loan Guarantor.
 
“Loan Guaranty” means, collectively, (i) the Guaranty Agreement, substantially in the form of Exhibit I hereto, executed by each Loan Guarantor and the Administrative Agent for the benefit of the Secured Parties, as supplemented in accordance with the terms of Section 5.12 hereof, and (ii) the Parent Loan Guaranty.
 
“Loan Parties” means Holdings, the Borrower and each Subsidiary Guarantor.  It is understood and agreed that, for purposes of this Agreement, the Parent Loan Guarantors are not Loan Parties.
 
“Loans” means any Initial Term Loan, any Additional Term Loan, any Revolving Loan, any Swingline Loan or any Additional Revolving Loan.
 
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“Make-Whole Amount” means, with respect to any prepayment of the Initial Term Loans on any date of determination prior to the second anniversary of the ClosingSecond Amendment Effective Date, an amount equal to the sum of (i) the present value, as determined in accordance with customary financial practices, at such date, of all required remaining scheduled interest payments due on the principal amount of the Initial Term Loans so prepaid on such date until (but not including) the second anniversary of the ClosingSecond Amendment Effective Date (which, for the avoidance of doubt, shall (i) include any PIK Interest that has not been capitalized and added to principal as though such interest is payable in cash and (ii) exclude interest that has accrued as of such date with respect to such Initial Term Loans so prepaid but remains unpaid as of such date), discounted at the rate of interest computed using a discount rate equal to the Treasury Rate plus 0.50% plus (ii) 3.00% of the principal amount of such Initial Term Loans being so prepaid on such date.  It is understood and agreed that accrued and unpaid PIK Interest that is capitalized and added to the principal amount of the Initial Term Loans on any date of repayment or prepayment shall constitute Initial Term Loans subject to the Make-Whole Amount.
 
“Management Investors” means the present and former officers, directors, managers, employees and members of management of the Borrower, any Parent Company and/or any subsidiary of the Borrower.
 
“Management Services Agreement” means, with respect to any Physical Therapy Entity, a management or administrative services agreement (or similar agreement) between any Loan 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 Borrower, that are not materially less favorable to the Lenders than those set forth in the form attached hereto as Exhibit Q or such other terms as are (i) reasonably acceptable to the Administrative Agent and the Lender Representative and/or (ii) in the good faith judgment of the Borrower, 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.
 
“Material Adverse Effect” means a material adverse effect on (a) the business, assets, financial condition or results of operations, in each case, of the Borrower and its Restricted Subsidiaries, taken as a whole, (b) the rights and remedies (taken as a whole) of the Administrative Agent under the applicable Loan Documents or (c) the ability of the Loan Parties, together with the Parent Loan Guarantors, (taken as a whole) to perform their payment obligations under the applicable Loan Documents.
 
“Material Debt Instrument” means any physical instrument evidencing any Indebtedness for borrowed money which is required to be pledged and delivered to the Administrative Agent (or its bailee) pursuant to the Security Agreement.
 
“Material Intellectual Property” means any intellectual property owned by any Loan Party that is, in the good faith determination of the Borrower, material to the operation of the business of the Borrower and its Restricted Subsidiaries, taken as a whole.
 
“Material Real Estate Asset” means (a) on the Closing Date, each Real Estate Asset listed on Schedule 1.01(c) and (b) any “fee-owned” Real Estate Asset located in the US, any state thereof or the District of Columbia that is acquired by any Loan Party and/or any Parent Loan Guarantor after the Closing Date having a fair market value (as determined by the Borrower 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 (a) with respect to the Initial Revolving Facility, the Initial Revolving Credit Maturity Date, (b) with respect to the Initial Term Loans, the Initial Term Loan Maturity Date, (c) with respect to any Incremental Facility, the final maturity date set forth in the applicable Incremental Facility Amendment, and (d) with respect to any Extended Revolving Credit Commitment or Extended Term Loans, the final maturity date set forth in the applicable Extension Amendment.
 
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“Maximum SecuredFirst Lien Net Leverage Covenant” has the meaning assigned to such term in Section 6.15(b).
 
“Maximum PIK Amount” has the meaning assigned to such term in Section 2.13(e).
 
“Maximum Rate” has the meaning assigned to such term in Section 9.19.
 
“Maximum Revolving Lender Cash Management/Secured Hedge Amount” means $5,000,000.
 
“Minimum Extension Condition” has the meaning assigned to such term in Section 2.23(b).
 
“Minimum Liquidity Covenant” has the meaning assigned to such term in Section 6.15(a)(i).
 
“Moody’s” means Moody’s 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 which conveys or evidences a Lien in favor of the Administrative Agent, for the benefit of the Administrative Agent 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 Borrower 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.
 
“Net Insurance/Condemnation Proceeds” means an amount equal to:  (a) any Cash payments or proceeds (including Cash Equivalents) received by the Borrower or any of its Restricted Subsidiaries (i) under any casualty insurance policy in respect of a covered loss thereunder of any assets of the Borrower or any of its Restricted Subsidiaries or (ii) as a result of the taking of any assets of the Borrower or any of its Restricted Subsidiaries by any Person pursuant to the power of eminent domain, condemnation or otherwise, or pursuant to a sale of any such assets to a purchaser with such power under threat of such a taking, in each case, other than any amount that is attributable to business interruption proceeds, minus (b) (i) any actual out-of-pocket costs and expenses incurred by the Borrower or any of its Restricted Subsidiaries in connection with the adjustment, settlement or collection of any claims of the Borrower or the relevant Restricted Subsidiary in respect thereof, (ii) payment of the outstanding principal amount of, premium or penalty, if any, and interest and other amounts on any Indebtedness (other than the Loans and any Indebtedness secured by a Lien on the Collateral that is pari passu with or expressly subordinated to the Lien on the Collateral securing any Secured Obligation) that is secured by a Lien on the assets in question and that is required to be repaid or otherwise comes due or would be in default under the terms thereof as a result of such loss, taking or sale, (iii) in the case of a taking, the reasonable out-of-pocket costs of putting any affected property in a safe and secure position, (iv) any selling costs and out-of-pocket expenses (including reasonable broker’s fees or commissions, legal fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith transfer and similar Taxes and the Borrower’s good faith estimate of income Taxes paid or payable (including pursuant to Tax sharing arrangements or any intercompany distribution)) in connection with any sale or taking of such assets as described in clause (a) of this definition, it being understood and agreed that, the reduction of any net operating loss resulting from such Disposition shall be deemed to constitute an income Tax “paid or payable” for purposes of this clause (iv), (v) any amounts provided as a reserve in accordance with GAAP against any liabilities under any indemnification obligation or purchase price adjustments associated with any sale or taking of such assets as referred to in clause (a) of this definition (provided that to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Insurance/Condemnation Proceeds) and (vi) in the case of any covered loss or taking from any non-Wholly-Owned Subsidiary, the pro rata portion thereof (calculated without regard to this clause (vi)) attributable to minority interests and not available for distribution to or for the account of the Borrower or a Wholly-Owned Subsidiary as a result thereof.
 
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“Net Proceeds” means (a) with respect to any Disposition (including any Prepayment Asset Sale), the Cash proceeds (including Cash Equivalents and Cash proceeds subsequently received (as and when received) in respect of non-cash consideration initially received), net of (i) selling costs and out-of-pocket expenses (including reasonable broker’s fees or commissions, legal fees, accountants’ fees, investment banking fees, survey costs, title insurance premiums, and related search and recording charges, transfer taxes, deed or mortgage recording taxes, other customary expenses and brokerage, consultant and other customary fees actually incurred in connection therewith and transfer and similar Taxes and the Borrower’s good faith estimate of income Taxes paid or payable (including pursuant to any Tax sharing arrangement and/or any intercompany distribution) in connection with such Disposition); it being understood and agreed that, the reduction in the amount of any net operating loss resulting from such Disposition shall be deemed to constitute an income Tax “paid or payable” for purposes of this clause (i), (ii) amounts provided as a reserve in accordance with GAAP against any liabilities under any indemnification obligation or purchase price adjustment associated with such Disposition (provided that to the extent and at the time any such amounts are released from such reserve, such amounts shall constitute Net Proceeds), (iii) the principal amount, premium or penalty, if any, interest and other amounts on any Indebtedness (other than the Loans, the Indebtedness under the Second Lien PIK Notes and any other Specified Junior Debt and any other Indebtedness secured by a Lien on the Collateral that is pari passu with or expressly subordinated to the Lien on the Collateral securing any Secured Obligation) which is secured by the asset sold in such Disposition and which is required to be repaid or otherwise comes due or would be in default and is repaid (other than any such Indebtedness that is assumed by the purchaser of such asset), (iv) Cash escrows (until released from escrow to the Borrower or any of its Restricted Subsidiaries) from the sale price for such Disposition, (v) in the case of any Disposition by any non-Wholly-Owned Subsidiary, the pro rata portion of the Net Proceeds thereof (calculated without regard to this clause (v)) attributable to any minority interest and not available for distribution to or for the account of the Borrower or a Wholly-Owned Subsidiary as a result thereof and (vi) any amount used to repay or return any customer deposit required to be repaid or returned as a result of such Disposition; and (b) 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 Borrower in accordance with GAAP.
 
“Non-Debt Fund Affiliate” means any Investor (which is an Affiliate of Holdings) and any Affiliate of any such Investor, other than any Debt Fund Affiliate.
 
“Non-Defaulting Revolving Lenders” has the meaning assigned to such term in Section 2.21(d)(i).
 
“Non-Loan Party Debt Cap” means $10,000,000.
 
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“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 Loans, all LC Exposure, 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 Loan Party or any Parent Loan Guarantor to the Lenders or to any Lender, the Administrative Agent, any Issuing Bank or any indemnified party arising under the Loan Documents in respect of any Loan or Letter of Credit, whether direct or indirect (including those acquired by assumption), absolute, contingent, due or to become due, now existing or hereafter arising.
 
“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 Loan 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 Lender, any Issuing Bank or the Administrative Agent, Taxes imposed as a result of a present or former connection between such recipient and the jurisdiction imposing such Tax (other than connections arising solely from such recipient 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 Loan Document, or sold or assigned an interest in any Loan or Loan 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 Loan Document or from the execution, delivery or enforcement of, or otherwise with respect to, any Loan 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 2.19(b)).
 
“Outstanding Amount” means (a) with respect to any Term Loan, Revolving Loan and/or Swingline Loan on any date, the amount of the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Term Loan and/or Revolving Loan, as the case may be, occurring on such date, (b) with respect to any Letter of Credit, the aggregate amount available to be drawn under such Letter of Credit after giving effect to any changes in the aggregate amount available to be drawn under such Letter of Credit or the issuance or expiry of such Letter of Credit, including as a result of any LC Disbursement and (c) with respect to any LC Disbursement on any date, the amount of the aggregate outstanding amount of such LC Disbursement on such date after giving effect to any disbursements with respect to any Letter of Credit occurring on such date and any other changes in the aggregate amount of such LC Disbursement as of such date, including as a result of any reimbursements by the Borrower of such unreimbursed LC Disbursement.
 
“Parent” means ATI Physical Therapy Inc., a Delaware corporation.
 
“Parent Company” means Holdings and any other Person of which the Borrower is an indirect Wholly-Owned Subsidiary.
 
“Parent Loan Guarantors” means the Parent, Intermediate Parent and any other parent company of Holdings that becomes a party to the Parent Loan Guaranty from time to time.
 
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“Parent Loan Guaranty” means the Parent Loan Guaranty, dated as of the Second Amendment Effective Date, executed by each Parent Loan Guarantor and the Administrative Agent for the benefit of the Secured Parties.
 
“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 Borrower 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 J.
 
“Perfection Requirements” means (a) with respect to any Parent Loan Guarantor or any Loan 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 Parent Loan Guarantor or each Loan 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 Administrative Agent for the benefit of the Secured Parties and the delivery to the Administrative Agent 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 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 Loan Documents.
 
“Permitted Acquisition” means any acquisition made by the Borrower, 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 Borrower or any of its Restricted Subsidiaries, substantially all of the assets of the relevant target that are legally permitted to be owned by the Borrower 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 Borrower’s or any Restricted Subsidiary’s equity ownership in such Restricted Subsidiary or (y) any joint venture for the purpose of increasing the Borrower’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 transaction, 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 Borrower, any Restricted Subsidiary and/or any Consolidated APC as a result of such Investment; provided that:
 
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(a)        the total consideration paid during the term of this Agreement in respect of such acquisitions of assets by Restricted Subsidiaries that are not Loan Parties or that are not owned by the Borrower 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 Loan 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  $5,000,000; provided, that at the time of such acquisition (or such later date as the Administrative Agent 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 Borrower 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 Loan Party or (ii) any assets that are not transferred to a Loan Party and such Restricted Subsidiary subsequently becomes a Loan Party or such assets are subsequently transferred to a Loan Party, respectively, the amount available under the Specified Investment Cap shall be proportionately increased as a result thereof.
 
“Permitted Holders” means (a) the Investors and, (b) the Specified Preferred Equityholders 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 Borrower has approved such Practice Subsidiary Restructuring;
 
(b)         the Borrower has determined in good faith that such Practice Subsidiary Restructuring (i) is in the best interests of the business of the Borrower and its Restricted Subsidiaries, taken as a whole, and (ii) will not have a material and adverse impact on the financial condition of the Borrower and its Restricted Subsidiaries, taken as a whole, or the ability of the Borrower to satisfy its payment obligations under the Credit Facilities;
 
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(c)         (i) the Consolidated Adjusted EBITDA attributable to the Borrower, 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 Borrower, 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 Loan Party will use commercially reasonable efforts to cause each Person subject to a Practice Subsidiary Restructuring to transfer to a Loan 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 Borrower, to comply with any Requirements of Law and any other asset with respect to which the Borrower 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 Borrower 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.
 
“PIK Election” has the meaning assigned to such term in Section 2.13(e).
 
“PIK Interest” shall mean (i) any interest payable in respect of any Initial Term Loans in respect of which a PIK Election has been made and (ii) interest at the Second Amendment PIK Rate.
 
“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.
 
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) maintained by the Borrower 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”.
 
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“Practice Subsidiary” means a subsidiary of the Borrower the primary business of which consists of operating one or more physical therapy practices.
 
“Practice Subsidiary Restructuring” means the transfer by the Borrower 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.
 
“Preferred Shares” means the non-convertible preferred shares issued by the Parent on or prior to the Closing Date pursuant to the Preferred Shares Certificate of Designation, with an aggregate initial liquidation preference of not more than $165,000,000.
 
“Preferred Shares Certificate of Designation” means that certain Certificate of Designation of Series A Non-Convertible Senior Preferred Stock of ATI Physical Therapy, Inc. filed in the office of the Secretary of State of Delaware on or prior to February 24, 2022.
 
“Prepayment Asset Sale” means any Disposition by the Borrower or its Restricted Subsidiaries made pursuant to Section 6.07(h), Section 6.07(q) and Section 6.07(bb).
 
“Prepayment Premium” has the meaning assigned to such term in Section 2.12(f).
 
“Preferred Shares” means, collectively, the Series A Preferred Shares and the Series B Preferred Shares.
 
“Preferred Shares Certificates of Designation” means, collectively, the Series A Certificate of Designation and the Series B Certificate of Designation.
 
“Primary Obligor” has the meaning assigned to such term in the definition of “Guarantee”.
 
“Prime Rate” means the rate of interest last quoted by The Wall Street Journal (or another national publication reasonably selected by the Administrative Agent) as the “Prime Rate” in the U.S. or, if The Wall Street Journal (or such other publication) ceases to quote such rate, the highest per annum interest rate published by the Federal Reserve Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any similar rate quoted therein (as reasonably determined by the Administrative Agent) or any similar release by the Federal Reserve Board (as reasonably determined by the Administrative Agent).
 
“Pro Forma Basis” or “pro forma effect” means, with respect to any determination of the First Lien Net Leverage Ratio, the Total Net Leverage Ratio, the Secured Net Leverage Ratio, Consolidated Adjusted EBITDA or Consolidated Total Assets (including 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 Borrower and/or any Restricted Subsidiary, (ii) any designation of a Restricted Subsidiary as an Unrestricted Subsidiary,[reserved], (iii) the implementation of any Business Optimization Initiative relating to a cost-savings action and/or (iv) at the election of the Borrower, 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,
 
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(b)        in the case of (i) any Permitted Acquisition or other Investment, (ii) any designation of any Unrestricted Subsidiary as a Restricted Subsidiary,[reserved], (iii) any transaction described in clause (h) of the definition of “Subject Transaction” and/or (iv) at the election of the Borrower, 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 Borrower 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 Borrower 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 Borrower 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 Borrower;
 
(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 Borrower 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, other than, for the avoidance of doubt, for purposes of Section 6.15(a), 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.
 
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It is hereby agreed that for purposes of determining pro forma compliance with Section 6.15(a) prior to the last day of the first Fiscal Quarter after the Closing Date, the applicable level shall be the level cited in Section 6.15(a).  Notwithstanding anything to the contrary set forth in the immediately preceding paragraph, for the avoidance of doubt, when calculating the Secured Net Leverage Ratio or the First Lien Net Leverage Ratio for purposes of the definition of “Applicable Rate” and for purposes of any Financial Covenant (other than for the purpose of determining pro forma compliance with the Financial Covenants as a condition to taking any action under this Agreement), the events described in the immediately preceding paragraph that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.
 
“Promissory Note” means a promissory note of the Borrower payable to any Lender or its registered assigns, in substantially the form of Exhibit L hereto, evidencing the aggregate outstanding principal amount of Loans of the Borrower to such Lender resulting from the Loans made by such Lender.
 
“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 Sarbanes-Oxley 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.
 
“Public Lender” has the meaning assigned to such term in Section 9.01(d).
 
“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 Loan Party and/or any Parent Loan Guarantor in and to real property (including, but not limited to, land, improvements and fixtures thereon).
 
“Reference Time” means, with respect to any setting of the then-current Benchmark, (a) if such Benchmark is the Adjusted Term SOFR Rate, 5:00 a.m. (Chicago time) on the day that is two Business Days preceding the date of such setting, and (b) if such Benchmark is not the Adjusted Term SOFR Rate, the time determined by the Administrative Agent in its reasonable discretion.
 
“Refinancing” has the meaning assigned to such term in the recitals to this Agreement.
 
“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).
 
“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.
 
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“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 Lender that is an Approved Fund, any other Approved Fund that is managed by the same investment advisor as such Lender 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 Excess Cash Flow Percentage” means, as of any date of determination, (a) if the Secured Net Leverage Ratio is greater than 4.00:1.00, 50%, (b) if the Secured Net Leverage Ratio is less than or equal to 4.00:1.00 and greater than 3.50:1.00, 25%, and (c) if the Secured Net Leverage Ratio is less than or equal to 3.50:1.00, 0%; it being understood and agreed that, for purposes of this definition as it applies to the determination of the amount of Excess Cash Flow that is required to be applied to prepay the Term Loans under Section 2.11(b)(i) for any Excess Cash Flow Period, the Secured Net Leverage Ratio shall be determined on the scheduled date of prepayment.
 
“Required Lenders” means, at any time, Lenders having Loans or unused Commitments representing more than 50% of the sum of the total Loans and such unused commitments at such time.
 
“Required Revolving Lenders” means, at any time, Lenders having Revolving Loans, Additional Revolving Loans, unused Revolving Credit Commitments or unused Additional Revolving Credit Commitments representing more than 50% of the sum of the total Revolving Loans, Additional Revolving Loans and such unused commitments at such time.
 
“Required Term Lenders” means, at any time, Lenders having Term Loans, Additional Term Loans, unused Term Loan Commitments or unused Additional Term Loan Commitments representing more than 50% of the sum of the total Term Loans, Additional Terms Loans and such unused commitments 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.
 
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“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 Loan Party.  Any document delivered hereunder that is signed by a Responsible Officer of any Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and/or other action on the part of such Loan Party, and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan 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 Borrower that such financial statements fairly present, in all material respects, in accordance with GAAP, the consolidated financial condition of the Borrower 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 Amount” has the meaning set forth in Section 2.11(b)(iv)(C).
 
“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 Borrower 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 Borrower 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 Borrower or any Restricted Subsidiary now or hereafter outstanding.
 
“Restricted Subsidiary” means, as to any Person, any subsidiary of such Person that is not an Unrestricted Subsidiary.  Unless otherwise specified, “Restricted Subsidiary” shall mean any Restricted Subsidiarysubsidiary of the Borrower.
 
“Retained Excess Cash Flow Amount” means, at any date of determination, an amount, determined on a cumulative basis, that is equal to the aggregate cumulative sum of the Excess Cash Flow that is not required to be applied as a mandatory prepayment under Section 2.11(b)(i) for all Excess Cash Flow Periods ending after the Closing Date and prior to such date (prior to giving effect to any dollar-for-dollar reduction in respect of voluntary prepayments or repurchases as therein provided); provided that such amount shall not be less than zero for any Excess Cash Flow Period.
 
“Revolving Credit Commitment” means any Initial Revolving Credit Commitment and any Additional Revolving Credit Commitment.
 
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“Revolving Credit Exposure” means, with respect to any Lender at any time, the aggregate Outstanding Amount at such time of such Lender’s Initial Revolving Credit Exposure and Additional Revolving Credit Exposure.
 
“Revolving Facility” means the Initial Revolving Facility, any Incremental Revolving Facility, any facility governing Extended Revolving Credit Commitments and any Extended Revolving Loans.
 
“Revolving Facility Fee Letter” means that certain Fee Letter, dated as of February 24, 2022, by and among, inter alios, the Borrower and the Administrative Agent.
 
“Revolving Lender” means any Initial Revolving Lender and any Additional Revolving Lender.  Unless the context otherwise requires, the term “Revolving Lenders” shall include the Swingline Lender.
 
“Revolving Loans” means any Initial Revolving Loans and any Additional Revolving Loans.
 
“Revolving Remedies Request” has the meaning set forth in the penultimate provision in the last paragraph of Section 7.01.
 
“RP/RDP Shared Cap” means the greater of $3,250,000 and 5% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period1,000,000.
 
“S&P” means Standard & Poor’s Financial Services LLC, a subsidiary of the McGraw-Hill Companies, Inc.
 
“Sale and Lease-Back Transaction” means any arrangement providing for the leasing by the Borrower or any of its Restricted Subsidiaries of any property, which property has been or is to be sold or transferred by the Borrower or such Restricted Subsidiary in contemplation of such leasing.
 
“Sanctions” has the meaning assigned to such term in Section 3.17(a).
 
“Scheduled Consideration” has the meaning assigned to such term in the definition of “Excess Cash Flow”.
 
“SEC” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any or all of its functions.
 
“Second Amendment” means that certain Amendment No. 2 to Credit Agreement dated as of April 17, 2023 among Holdings, the Borrower, the Guarantors party thereto, the Lenders party thereto, the Lender Representative and the Administrative Agent.
 
“Second Amendment Additional Revolving Rate” means an interest rate equal to 1.00% per annum.
 
“Second Amendment Effective Date” has the meaning assigned to such term in the Second Amendment.
 
“Second Amendment Effective Date Transactions” has the meaning assigned to such term in the Second Amendment.
 
“Second Amendment PIK Rate” means an interest rate equal to 1.00% per annum.
 
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“Second Amendment Rate Enhancement Sunset Date” means the first date occurring after the Second Amendment Signing Date for which (i) Consolidated Adjusted EBITDA of the Borrower and its subsidiaries for two consecutive Test Periods ending after the Second Amendment Signing Date is greater than $50,000,000 and (ii) the Borrower shall have delivered a certificate of a Responsible Officer to the Administrative Agent and the Lender Representative (which may be a Compliance Certificate), in form reasonably satisfactory to the Administrative Agent and the Lender Representative, showing such calculation in reasonable detail.
 
“Second Amendment Signing Date” means April 17, 2023.
 
“Second Amendment Transaction Costs” means expenses and other transaction costs payable or otherwise borne by the Parent and/or its subsidiaries in connection with the Second Amendment Effective Date Transactions.
 
“Second Lien Agent” means Wilmington Savings Fund Society, FSB.
 
“Second Lien Intercreditor and Subordination Agreement” means that certain Second Lien Intercreditor and Subordination Agreement dated as of April 17, 2023 among the Administrative Agent and the Second Lien Agent, as acknowledged by the Loan Parties and the Parent Loan Guarantors.
 
“Second Lien Noteholders” means the “Purchasers” as such term is defined in the Second Lien Note Purchase Agreement.
 
“Second Lien Note Documents” means the “Note Documents” as such term is defined in the Second Lien Note Purchase Agreement.
 
“Second Lien Note Purchase Agreement” means the Second Lien Note Purchase Agreement dated as of April 17, 2023 among Parent, as issuer, Intermediate Parent, Holdings, the Borrower, the Second Lien Noteholders and the Second Lien Agent, as amended, restated, supplemented and otherwise modified from time to time in a manner not prohibited by this Agreement and the Second Lien Intercreditor and Subordination Agreement.
 
“Second Lien Note Obligations” means the “Obligations” as such term is defined in the Second Lien Note Purchase Agreement.
 
“Second Lien PIK Notes” means the “Notes” as such term is defined in the Second Lien Note Purchase Agreement.
 
“Secured Hedging Obligations” means all Hedging Obligations (other than any Excluded Swap Obligations) under each Hedge Agreement that (a) is in effect on the Closing Date between any Loan Party and a counterparty that is (or is an Affiliate of) the Administrative Agent, a Lender or an Arranger as of the Closing Date, (b) is entered into after the Closing Date between any Loan Party and any counterparty that is (or is an Affiliate of) the Administrative Agent, a Lender or an Arranger at the time such Hedge Agreement is entered into and/or (c) any other Person designated by the Borrower to the Administrative Agent, in each case for which such Loan Party agrees to provide security and in each case that has been designated to the Administrative Agent in writing by the Borrower as being a Secured Hedging Obligation for purposes of the Loan Documents, it being understood that each counterparty thereto shall be deemed (A) to appoint the Administrative Agent as its agent under the applicable Loan Documents and (B) to agree to be bound by the provisions of Article 8, Section 9.03 and Section 9.10 and any Intercreditor Agreement as if it were a Lender.
 
“Secured Net Leverage Ratio” means the ratio, as of any date of determination, of (a) Consolidated Secured Debt as of the last day of the most recently ended Test Period to (b) Consolidated Adjusted EBITDA for the Test Period then most recently ended, in each case of the Borrower, its Restricted Subsidiaries and Consolidated APCs on a consolidated basis.
 
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“Secured Obligations” means all Obligations, together with all Banking Services Obligations and all Secured Hedging Obligations.
 
“Secured Parties” means (i) the Lenders, the Issuing Banks and the Swingline Lender, (ii) the Administrative Agent, (iii) each counterparty to a Hedge Agreement with a Loan Party the obligations under which constitute Secured Hedging Obligations, (iv) each provider of Banking Services to any Loan Party the obligations under which constitute Banking Services Obligations, (v) the Arranger and (vi) the beneficiaries of each indemnification obligation undertaken by any Parent Loan Guarantor or any Loan Party under any Loan 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 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, substantially in the form of Exhibit Mdated as of February 24, 2022, among the Loan Parties, the Parent Loan Guarantors and the Administrative Agent 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 Parent filed in the office of the Secretary of State of Delaware on or prior to February 24, 2022.
 
“Series A Preferred Shares” means the series A non-convertible senior preferred shares issued by Parent on or prior to the Closing Date pursuant to the Series A Certificate of Designation, with an aggregate initial liquidation preference of not more than $165,000,000.
 
“Series B Certificate of Designation” means the Certificate of Designation of Series B Preferred Stock of Parent.
 
“Series B Preferred Shares” means the series B preferred shares issued by Parent from time to time pursuant to the Series B Certificate of Designation.
 
“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).
 
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“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.
 
“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website at approximately 8:00 a.m. (New York City time) on the immediately succeeding Business Day.
 
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).
 
“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.
 
“SOFR Benchmark” when used in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans comprising such Borrowing, bear interest at a rate determined by reference to the Adjusted Term SOFR Rate.
 
“SOFR Determination Date” has the meaning assigned to such term in the definition of “Daily Simple SOFR”.
 
“SOFR Rate Day” has the meaning assigned to such term in the definition of “Daily Simple SOFR”.
 
“SPAC Transaction” means the SPAC transaction consummated with Fortress and its applicable affiliates on June 16, 2021.
 
“SPC” has the meaning assigned to such term in Section 9.05(e).
 
“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), and (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).
 
“Specified Guarantor Release Provision” has the meaning assigned to such term in Section 8.09(b).
 
“Specified Investment Cap” means the greater of $3,250,000 and 5% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period.
 
“Specified Junior Debt” means (A) Indebtedness under the Second Lien PIK Notes and the Second Lien Note Documents and (B) other Indebtedness incurred under Section 6.01(w).
 
“Sponsors” means, collectively, Advent and Fortress.
 
“Standby Letter of Credit” means any Letter of Credit other than any Commercial Letter of Credit.
 
“Stated Amount” means, with respect to any Letter of Credit, at any time, the maximum amount available to be drawn thereunder, in each case determined (x) as if any future automatic increases in the maximum available amount provided for in any such Letter of Credit had in fact occurred at such time and (y) without regard to whether any conditions to drawing could then be met but after giving effect to all previous drawings made thereunder.
 
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“Subject Fiscal Quarter” has the meaning assigned to such term in the definition of “Consolidated Adjusted EBITDA”.
 
“Subject Loans” has the meaning assigned to such term in Section 2.11(b)(ii).
 
“Subject Person” has the meaning assigned to such term in the definition of “Consolidated Net Income”.
 
“Subject Proceeds” has the meaning assigned to such term in Section 2.11(b)(ii).
 
“Subject Transaction” means, with respect to any Test Period, (a) the Transactions, (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 Borrower’s or any Restricted Subsidiary’s respective equity ownership in such Restricted Subsidiary or (y) any joint venture for the purpose of increasing the Borrower’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 Borrower, any subsidiary and/or any Consolidated APC) not prohibited by this Agreement, (d) the designation of a Restricted Subsidiary as an Unrestricted Subsidiary or an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with Section 5.10 hereof[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 Borrower, any discontinued operation and/or (l)any other event that by the terms of the Loan 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 Loan Document.  Unless otherwise specified, “subsidiary” shall mean any subsidiary of the Borrower.
 
“Subsidiary Guarantor” means (a) on the Closing Date, each subsidiary of the Borrower that is not a Borrower (other than any such subsidiary that is an Excluded Subsidiary on the Closing Date) and (b) thereafter, each subsidiary of the Borrower 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 Loan Guaranty in accordance with the terms and provisions hereof.
 
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“Successor Borrower” has the meaning assigned to such term in Section 6.07(a).
 
“Swap Obligations” means, with respect to any Loan Guarantor, any obligation to pay or perform under any agreement, contract or transaction that constitutes a “swap” within the meaning of Section 1a(47) of the Commodity Exchange Act.
 
“Swingline Exposure” means, at any time, the aggregate principal amount of all Swingline Loans outstanding at such time.  The Swingline Exposure of any Revolving Lender at any time shall equal to its Applicable Revolving Credit Percentage of the aggregate Swingline Exposure at such time.
 
“Swingline Lender” means Barclays, in its capacity as lender of Swingline Loans hereunder, or any successor lender of Swingline Loans hereunder.
 
“Swingline Loan” means any Loan made pursuant to Section 2.04.
 
“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.
 
“Term Commitment” means any Initial Term Loan Commitment and any Additional Term Loan Commitment.
 
“Term Facility” means the Term Loans provided to or for the benefit of the Borrower pursuant to the terms of this Agreement.
 
“Term Lender” means any Initial Term Lender and any Additional Term Lender.
 
“Term Loan” means the Initial Term Loans and, if applicable, any Additional Term Loans.
 
“Term SOFR Adjustment” means (a) 0.10% with respect to Interest Periods of one month, (b) 0.15% with respect to Interest Periods of three months and (c) 0.25% with respect to Interest Periods of six months or longer.
 
“Term SOFR Determination Day” has the meaning assigned to such term in the definition of “Term SOFR Reference Rate”.
 
“Term SOFR Rate” means with respect to any SOFR Benchmark Borrowing and for any tenor comparable to the applicable Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m. (Chicago time) two Business Days prior to the commencement of such tenor comparable to the applicable Interest Period, as such rate is published by the CME Term SOFR Administrator.
 
“Term SOFR Reference Rate” means, for any day and time (such day, the “Term SOFR Determination Day”), with respect to any SOFR Benchmark Borrowing and for any tenor comparable to the applicable Interest Period, the rate per annum determined by the Administrative Agent as the forward-looking term rate based on SOFR.  If by 5:00 p.m. on the second U.S. Government Securities Business Day immediately following any Term SOFR Determination Day, the “Term SOFR Reference Rate” for the applicable tenor has not been published by the CME Term SOFR Administrator, then the Term SOFR Reference Rate for such Term SOFR Determination Day will be the Term SOFR Reference Rate as published in respect of the first preceding U.S. Government Securities Business Day for which such Term SOFR Reference Rate was published by the CME Term SOFR Administrator, so long as such first preceding Business Day is not more than five Business Days prior to such Term SOFR Determination Day.
 
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“Test Period” means, as of any date, (a) for purposes of determining actual compliance with Sections 6.15(b) the period of four consecutive Fiscal Quarters then most recently ended for which financial statements under Section 5.01(a) or Section 5.01(b), as applicable, have been delivered (or are required to have been delivered) and (b) for any other purpose, 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 Borrower are available.
 
“Therapy Director Agreement” has the meaning assigned to such term in the definition of “Acceptable Practice Management Arrangements”.
 
“Threshold Amount” means $25,000,000.
 
“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 Test Period then most recently ended, in each case of the Borrower, its Restricted Subsidiaries and Consolidated APCs on a consolidated basis.
 
“Total Revolving Credit Commitment” means, at any time, the aggregate amount of the Revolving Credit Commitments, as in effect at such time.
 
“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.
 
“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” has the meaning assigned to such term in the Second Amendment.
 
“Transactions” means, collectively, (a) the execution, delivery and performance by the Loan Parties of the Loan Documents to which they are a party and the Borrowing of Loans hereunder on the Closing Date, (b) the Refinancing, (c) the issuance of the Series A Preferred Shares and (d) the payment of the Transaction Costs.
 
“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.
 
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“Type”, when used in reference to any Loan or Borrowing, refers to whether the rate of interest on such Loan, or on the Loans comprising such Borrowing, is determined by reference to the Term SOFR Rate or the Alternate Base Rate.
 
“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 unrestricted Cash and Cash Equivalents of such PersonsPerson (including, in the case of the Borrower, its Restricted Subsidiaries and Consolidated APCs) maintained in (A) Deposit Accounts and/or securities accounts in the name of a Loan 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 the Borrower 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 Loan Party has (i) granted a security interest therein in favor of the Administrative Agent 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 Administrative Agent and, on a subordinated basis to the Secured Obligations, the Second Lien Agent and the representative of any Specified Junior Debt subject to the Second Lien Intercreditor and Subordination Agreement), 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 and/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 the Borrower or any Subsidiary Guarantor.
 
“Unrestricted Subsidiary” means any subsidiary of the Borrower that is listed on Schedule 5.10 hereto or designated by the Borrower as an Unrestricted Subsidiary after the Closing Date pursuant to Section 5.10. Notwithstanding anything to the contrary contained herein, no APC Manager shall constitute an Unrestricted Subsidiary
 
“Upfront Fee Letter” means that certain Fee Letter, dated as of February 24, 2022, by and among, inter alios, the Borrower, the Arranger, Barclays, HSBC Bank USA, N.A. and Jefferies Finance LLC.
 
“U.S.” means the United States of America.
 
“U.S. Government Securities Business Day” means any day except for (a) a Saturday, (b) a Sunday or (c) a day on which the Securities Industry and Financial Markets Association recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in United States government securities.
 
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“U.S. Lender” means any Lender or Issuing Bank that is a “United States person” within the meaning of Section 7701(a)(30) of the Code.
 
“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)).
 
“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.17(f).
 
“Waterfall/Voting Triggering Event” means any of the following events:
 
(a)         the occurrence and the continuance of an Event of Default under Section 7.01(a) to the extent resulting from (x) a failure to pay the principal of (including, without limitation, reimbursement obligations with respect to Letters of Credit) or interest in respect of any of the Revolving Loan Obligations when due and owing (after giving effect to any applicable grace period), or (y) a failure to pay any other Revolving Loan Obligations in an amount in excess of $100,000 when due and owing (after giving effect to any applicable grace period);
 
(b)          the occurrence and the continuance of an Event of Default under Section 7.01(f) or 7.01(g);
 
(c)          the commencement of any Exercise of Remedies (as defined in the AAL);
 
(d)          the acceleration of the Obligations pursuant to Section 7.01;
 
(e)        (i) the occurrence of an Event of Default under Section 7.01(c) arising from the failure of the Borrower to comply with Section 6.15(a)(i), subject to the cure rights set forth in Section 6.15(a)(ii), provided that a Waterfall/Voting Triggering Event shall not occur under this clause (e)(i) until the date that is thirty (30) days after the end of the Liquidity Covenant Cure Period for the applicable Liquidity Covenant Test Date; or (ii) the occurrence of an Event of Default under Section 7.01(c) arising from the failure of the Borrower to comply with the financial covenant set forth in Section 6.15(b)(i), subject to the cure rights set forth in Section 6.15(b)(ii), provided that a Waterfall/Voting Triggering Event shall not occur under this clause (e)(ii) until (A) in the case of a breach of Section 6.15(b)(i) with respect to a Test Period as a result of the Secured Net Leverage Ratio exceeding the level set forth in Section 6.15(b)(i) for such Test Period, but not exceeding the level for such Test Period set forth in Schedule 7.01 hereto, the date that is sixty (60) days after the end of the Leverage Covenant Cure Period for the applicable Test Period, and (B) in the case of a breach of Section 6.15(b)(i) with respect to a Test Period as a result of the Secured Net Leverage Ratio exceeding the level for such Test Period set forth in Schedule 7.01 hereto, the date that is thirty (30) days after the end of the Leverage Covenant Cure Period for the applicable Test Period; or

(f)          the occurrence and continuance of an Event of Default resulting from the failure to deliver to the Administrative Agent the financial statements required to have been furnished pursuant to Sections 5.01(a) and 5.01(b) or the certificate of a Responsible Officer of the Borrower required to have been furnished pursuant to Section 5.01(c) and such Event of Default shall continue unremedied and unwaived for a period of twenty (20) days; provided, however, that the number of times that any portion of the foregoing extended grace period may be used shall not exceed (i) two (2) times per calendar year or (ii) four (4) times during the period commencing on the Closing Date and ending on the Maturity Date of the Revolving Facility.

“Waterfall Triggering Notice” means a written notice given by Administrative Agent to the Lender Representative or the Required Revolving Lenders to the Administrative Agent and the Lender Representative, in each case, following the occurrence and during the continuance of any Waterfall/Voting Triggering Event.
 
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“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 Borrower 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 Loans and Borrowings.  For purposes of this Agreement, Loans may be classified and referred to by Class (e.g., a “Term Loan”) or by Type (e.g., a “Term SOFR”) or by Class and Type (e.g., a “Term SOFR Term Loan”).  Borrowings also may be classified and referred to by Class (e.g., a “Term Loan Borrowing”) or by Type (e.g., a “Term SOFR Borrowing”) or by Class and Type (e.g., a “Term SOFR, Term Loan Borrowing”).
 
Section 1.03.       Terms Generally.  With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:
 
(a)          The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined.
 
(b)          Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms.
 
(c)          The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.”
 
(d)         The word “will” shall be construed to have the same meaning and effect as the word “shall.”
 
(e)         The words “herein,” “hereof” and “hereunder,” and words of similar import, when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision hereof.
 
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(f)          Any definition of or reference to any agreement, instrument or other document herein or in any Loan Document (including any Loan 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).
 
(g)         Any reference to any Requirement of Law in any Loan Document shall include all statutory and regulatory provisions consolidating, amending, replacing, supplementing or interpreting such Requirement of Law.
 
(h)          Any reference herein or in any Loan Document to any Person shall be construed to include such Person’s successors and permitted assigns.
 
(i)          All references herein or in any Loan 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 Loan Document.
 
(j)           In the computation of periods of time in any Loan 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”.
 
(k)          The words “asset” and “property”, when used in any Loan 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.
 
(l)          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 Section 6.01 (other than Section 6.01(a); provided that it is understood that the provisions of this Section 1.03(l) shall apply to any amount incurred in reliance on any provision of the definition of “Incremental Cap”), 6.02 (other than Section 6.02(a)), 6.04, 6.05, 6.06, 6.07 and 6.09, the Borrower, 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) upon delivery of any financial statements of the type described in Section 5.01(a) or (b) following the initial incurrence of any portion of any Indebtedness incurred under Section 6.01 (other than Section 6.01(a); provided that it is understood that the provisions of this clause (i) shall apply to any amount incurred in reliance on any provision of the definition of “Incremental Cap”) (such portion of such Indebtedness, the “Subject Indebtedness”), if any such Subject Indebtedness could, based on such financial statements, have been incurred in reliance on Section 6.01(w) or the Incremental Incurrence-Based Component, as applicable, such Subject Indebtedness shall automatically be reclassified (with retroactive effect) as having been incurred under the applicable provisions of Section 6.01(w)(i) or the Incremental Incurrence-Based Component, as applicable (subject to any other applicable provision of Section 6.01(w)) or the Incremental Incurrence-Based Component, as applicable, and any associated Lien will be deemed to have been permitted (with retroactive effect) under Section 6.02(s) upon any such reclassification;
 
(i)           [reserved];
 
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(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).
 
(m)       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 Borrower 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.
 
(n)         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 the Borrower, its Restricted Subsidiaries and Consolidated APCs.
 
Section 1.04.       Accounting Terms; GAAP.
 
(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 First Lien Net Leverage Ratio and 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 Borrower notifies the Administrative Agent that the Borrower 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) in GAAP or in the application thereof (including the conversion to IFRS as described below) on the operation of such provision (or if the Administrative Agent notifies the Borrower that the Required Lenders 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 Borrower or the Required Lenders, then the Borrower and the Administrative Agent 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 Lenders) 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 825-10-25 (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 Borrower 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 Borrower notifies the Administrative Agent that the Borrower (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, the Borrower cannot elect to report under GAAP).
 
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(b)       Notwithstanding anything to the contrary herein, but subject to Section 1.11 hereof, all financial ratios and tests (including the Secured Net Leverage Ratio, the First Lien 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)) contained in this Agreement (excluding the Minimum Liquidity Covenant) 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 (i) any Subject Transaction has occurred or (ii) any Person that subsequently became a Restricted Subsidiary or Consolidated APC was merged, amalgamated or consolidated with or into the Borrower 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 (it being understood, for the avoidance of doubt, that solely for purposes of (A) calculating actual compliance with Section 6.15 and (B) calculating the Secured Net Leverage Ratio for purposes of the definitions of “Applicable Rate” and “Commitment Fee Rate”, in each case, the date of the required calculation shall be the last day of the Test Period, and no Subject Transaction occurring thereafter shall be taken into account).  All references herein to consolidated financial statements of the Borrower and its Restricted Subsidiaries or to the determination of or any other amount for the Borrower and its Restricted Subsidiaries on a consolidated basis or any similar reference (including any Secured Net Leverage Ratio test, any First Lien Net Leverage Ratio test, 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 or 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 Loan Document, and all calculations and deliverables under this Agreement or any other Loan 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 Borrower, be prepared in accordance with GAAP without giving effect to the foregoing treatment of Capital Leases.

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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 (other than as described in the definition of “Interest Period”) 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).
 
Section 1.08.       Currency Equivalents Generally.
 
(a)         For purposes of any determination under Article 1, Article 5, Article 6 (other than Section 6.15(a) or (b) and 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 Administrative Agent and the Borrower) 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 Section 6.15(a) or (b) and 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 Sections 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; provided that the amount of any Indebtedness that is subject to a Debt FX Hedge shall be determined in accordance with the definition of “Consolidated Total Debt”.  Notwithstanding the foregoing or anything to the contrary herein, to the extent that the Borrower would not be in compliance with Section 6.15(a) or (b) if any Indebtedness denominated in a currency other than Dollars were to be translated into Dollars on the basis of the applicable currency exchange rate used in preparing the financial statements delivered pursuant to Section 5.01(a) or (b), as applicable, for the relevant Test Period, but would be in compliance with Section 6.15(a) or (b) if such Indebtedness that is denominated in a currency other than in Dollars were instead translated into Dollars on the basis of the average relevant currency exchange rates over such Test Period (taking into account 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), then, solely for purposes of compliance with Section 6.15(b), the SecuredFirst Lien Net Leverage Ratio as of the last day of such Test Period shall be calculated on the basis of such average relevant currency exchange rates; provided that the amount of any Indebtedness that is subject to a Debt FX Hedge shall be determined in accordance with the definition of “Consolidated Total Debt”.
 
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(b)         Each provision of this Agreement shall be subject to such reasonable changes of construction as the Administrative Agent may from time to time specify with the Borrower’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 Loan Document, to the extent that any Lender extends the maturity date of, or replaces, renews or refinances, any of its then-existing Loans with Incremental Loans, Loans in connection with any Extended Term Loans, Extended Revolving Loans or loans incurred under a new credit facility, in each case, to the extent such extension, replacement, renewal or refinancing is effected by means of a “cashless roll” by such Lender, such extension, replacement, renewal or refinancing shall be deemed to comply with any requirement hereunder or any other Loan Document that such payment be made “in Dollars”, “in immediately available funds”, “in Cash” or any other similar requirement.
 
Section 1.10.        [Reserved].
 
Section 1.11.        Certain Calculations and Tests.
 
(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, Section 6.15(a) or (b) hereof, 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 Borrower, 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.
 
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(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, Section 6.15(a) or (b) hereof, 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, Section 6.15(b) hereof, 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, Section 6.15(b), 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 Borrower 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 Borrower elects otherwise and except as set forth in the definition of “Incremental Cap”, 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 Borrower 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 Borrower are available, the Borrower 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 Borrower may elect.
 
(g)         Any determination of the Weighted Average Life to Maturity of any Indebtedness shall be made by the Borrower in good faith at the time of the incurrence of such Indebtedness.
 
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Section 1.12.        Benchmark Replacement Setting.
 
(a)         Benchmark Replacement.  Notwithstanding anything to the contrary herein or in any other Loan Document, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (i) if a Benchmark Replacement is determined in accordance with clause (a) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document and (ii) if a Benchmark Replacement is determined in accordance with clause (b) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Benchmark Replacement is provided to the Lenders without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders.
 
(b)         Benchmark Replacement Conforming Changes.  Notwithstanding anything to the contrary herein or in any other Loan Document, the Administrative Agent will have the right (in consultation with the Borrower) to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document.
 
(c)         Notices; Standards for Decisions and Determinations.  The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to clause (e) below and (v) the commencement or conclusion of any Benchmark Unavailability Period.  Any determination, decision or election that may be made by the Administrative Agent and/or the Borrower or, if applicable, any Lender (or group of Lenders) pursuant to this Section 1.12, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 1.12.
 
(d)         Unavailability of Tenor of Benchmark.  Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including the Term SOFR Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.
 
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(e)          Benchmark Unavailability Period.  Upon the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrower may revoke any request for a SOFR Benchmark Borrowing of, conversion to or continuation of SOFR Benchmark Loans to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrower will be deemed to have converted any request for a SOFR Benchmark Borrowing into a request for a Borrowing of or conversion to an ABR Borrowing if the Adjusted Daily Simple SOFR is the subject of a Benchmark Transition Event.  During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of ABR based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of ABR.  Furthermore, if any SOFR Benchmark Loan is outstanding on the date of the Borrower’s receipt of notice of the commencement of a Benchmark Unavailability Period with respect to a relevant rate applicable to such SOFR Benchmark Loan, then until such time as a Benchmark Replacement is implemented pursuant to this Section 1.12, any SOFR Benchmark Loan shall on the last day of the Interest Period applicable to such Loan (or the next succeeding Business Day if such day is not a Business Day), be converted by the Administrative Agent to, and shall constitute, an ABR Loan.
 
Section 1.13.        [Reserved].
 
Section 1.14.        Certain Determinations.
 
(a)        Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, if, after delivery of any Compliance Certificate pursuant to Section 5.01(c), it is subsequently determined that the Secured Net Leverage Ratio set forth in such Compliance Certificate is inaccurate for any reason and the result of such inaccuracy is that the Lenders received any amount of interest or any fee for any relevant period based on an Applicable Rate or Commitment Fee Rate or payment of principal based on the Required Excess Cash Flow Percentage that is greater than or less than the amount that would have applied if the Secured Net Leverage Ratio set forth in such Compliance Certificate had been accurately reported, then, for all purposes under this Agreement, (i) in the case of the Applicable Rate and the Commitment Fee Rate, the Applicable Rate and the Commitment Fee Rate for each day during the relevant period shall be revised to be based upon the accurately determined Secured Net Leverage Ratio and, in such event, any shortfall in the amount of any applicable interest payment shall be due and payable within five Business Days following the date on which the Borrower becomes aware of the relevant inaccuracy and (ii) in the case of the Required Excess Cash Flow Percentage, any shortfall in the amount of any applicable principal payment shall be due and payable within five Business Days following the date on which the Borrower becomes aware of the relevant inaccuracy.  In the event that (A) any inaccuracy in the calculation of the Secured Net Leverage Ratio resulted in a shortfall in the amount of any required interest or principal payment and (B) such inaccuracy resulted from a good faith mistake on the part of the Borrower in the preparation of such calculation, no Default or Event of Default shall arise under this Agreement with respect thereto unless the relevant amount has not been paid within the period described in the preceding sentence.
 
(b)         (i) With respect to determination of the permissibility of any transaction by Holdings, the Borrower and/or any subsidiary under this Agreement, the delivery by the Borrower 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 Administrative Agent and the Lender Representative, 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 Borrower in good faith.
 
(c)          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 1.15.       Conflicts.  Notwithstanding anything to the contrary contained herein or in any other Loan 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 Borrower 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.

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Section 1.16.      Confidentiality; Privilege.  Notwithstanding any obligation to provide information under any Loan Document or allow the Administrative Agent, the Lenders or any third party to access or inspect the books and records of Holdings or its subsidiaries or otherwise as set forth in this Agreement, neither Holdings 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 Administrative Agent or any Lender (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 Administrative Agent.
 
ARTICLE 2
 
THE CREDITS
 
Section 2.01.        Commitments.
 
(a)         Subject to the terms and conditions set forth herein, (i) each Initial Term Lender severally, and not jointly, agrees to make Initial Term Loans to the Borrower on the Closing Date in Dollars in a principal amount not to exceed its Initial Term Loan Commitment and (ii) each Revolving Lender severally, and not jointly, agrees to make Initial Revolving Loans to the Borrower in Dollars at any time and from time to time after the Closing Date, and until the earlier of the Initial Revolving Credit Maturity Date and the termination of the Initial Revolving Credit Commitment of such Initial Revolving Lender in accordance with the terms hereof; provided that, after giving effect to any Borrowing of Initial Revolving Loans, the Outstanding Amount of such Initial Revolving Lender’s Initial Revolving Credit Exposure shall not exceed such Initial Revolving Lender’s Initial Revolving Credit Commitment.  Within the foregoing limits and subject to the terms, conditions and limitations set forth herein, the Borrower may borrow, pay or prepay and reborrow Revolving Loans.  Amounts paid or prepaid in respect of the Initial Term Loans may not be reborrowed.
 
On the Second Amendment Effective Date, an aggregate principal amount of $100,000,000 of Term Loans (the “Specified Existing Term Loans”) held by Crossholder Lenders shall be purchased by Parent, which Specified Term Loans shall be (A) immediately contributed by Parent to Intermediate Parent, (B) immediately thereafter contributed by Intermediate Parent to Holdings, and (C) immediately thereafter contributed by Holdings to the Borrower, and immediately thereafter the Specified Term Loans shall be automatically and immediately cancelled (without the need for any action by any Person) pursuant to the Crossholder Lender Term Loan Exchange and Cancellation.
 
(b)         Subject to the terms and conditions of this Agreement and any Incremental Facility Amendment, each Lender with an Incremental Commitment of a given Class, severally and not jointly, agrees to make Incremental Loans of such Class to the Borrower, which Loans shall not exceed for any such Lender at the time of any incurrence thereof the Incremental Commitment of such Class of such Lender as set forth in the applicable Incremental Facility Amendment.
 
Section 2.02.        Loans and Borrowings.
 
(a)         Each Loan (other than a Swingline Loan) shall be made as part of a Borrowing consisting of Loans of the same Class and Type made by the Lenders ratably in accordance with their respective Commitments of the applicable Class.  Each Swingline Loan shall be made in accordance with the terms and procedures set forth in Section 2.04.
 
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(b)         Subject to Section 2.14, each Borrowing shall be comprised entirely of ABR Loans or SOFR Benchmark Loans as the Borrower may request in accordance herewith; provided that each Swingline Loan shall be an ABR Loan. Each Lender at its option may make any SOFR Benchmark Loan by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that (i) any exercise of such option shall not affect the obligation of the Borrower to repay such Loan in accordance with the terms of this Agreement, (ii) such SOFR Benchmark Loan shall be deemed to have been made and held by such Lender, and the obligation of the Borrower to repay such SOFR Benchmark Loan shall nevertheless be to such Lender for the account of such domestic or foreign branch or Affiliate of such Lender and (iii) in exercising such option, such Lender shall use reasonable efforts to minimize increased costs to the Borrower resulting therefrom (which obligation of such Lender shall not require it to take, or refrain from taking, actions that it determines would result in increased costs for which it will not be compensated hereunder or that it otherwise determines would be disadvantageous to it and in the event of such request for costs for which compensation is provided under this Agreement, the provisions of Section 2.15 shall apply); provided, further, that no such domestic or foreign branch or Affiliate of such Lender shall be entitled to any greater indemnification under Section 2.17 in respect of any U.S. federal withholding tax with respect to such SOFR Benchmark Loan than that to which the applicable Lender was entitled on the date on which such Loan was made (except in connection with any indemnification entitlement arising as a result of any Change in Law after the date on which such Loan was made).
 
(c)        At the commencement of each Interest Period for any SOFR Benchmark Borrowing, such SOFR Benchmark Borrowing shall comprise an aggregate principal amount that is an integral multiple of $50,000 and not less than $250,000.  Each ABR Borrowing when made shall be in a minimum principal amount of $50,000 and in an integral multiple of $50,000; provided that an ABR Revolving Loan Borrowing may be made in a lesser aggregate amount that is (x) equal to the entire aggregate unused Revolving Credit Commitments or (y) required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e).  Borrowings of more than one Type and Class may be outstanding at the same time; provided, that there shall not at any time be more than a total of 15 different Interest Periods in effect for SOFR Benchmark Borrowings at any time outstanding (or such greater number of different Interest Periods as the Administrative Agent may agree from time to time).
 
(d)         Notwithstanding any other provision of this Agreement, the Borrower shall not, nor shall it be entitled to, request, or to elect to convert or continue, any Borrowing if the Interest Period requested with respect thereto would end after the Maturity Date applicable to the relevant Loans.
 
Section 2.03.       Requests for Borrowings.  Each Term Loan Borrowing, each Revolving Loan Borrowing, each conversion of Term Loans or Revolving Loans from one Type to the other, and each continuation of SOFR Benchmark Loans shall be made upon irrevocable notice by the Borrower to the Administrative Agent (provided that notices in respect of Term Loan Borrowings and/or the Revolving Loan Borrowing to be made in connection with any acquisition, investment or irrevocable repayment or redemption of Indebtedness may be conditioned on the closing of such Permitted Acquisition, permitted Investment or permitted irrevocable repayment or redemption of Indebtedness).  Each such notice must be in the form of a written Borrowing Request, appropriately completed and signed by a Responsible Officer of the Borrower and must be received by the Administrative Agent (by hand delivery, fax or other electronic transmission (including “.pdf” or “.tif”)) not later than (a) in the case of any Term Loan Borrowing, 1:00 p.m. three Business Days prior to the requested day of any Borrowing of, conversion to or continuation of SOFR Benchmark Loans or any Borrowing of or conversion to ABR Loans (or one Business Day in the case of any Borrowing of SOFR Benchmark Loans to be made on the Closing Date) (or such later time as is reasonably acceptable to the Administrative Agent) and (b) in the case of any Revolving Loan, (i) 1:00 p.m. three Business Days prior to the requested day of any Borrowing of, conversion to or continuation of SOFR Benchmark Loans (or one Business Day in the case of any Borrowing of SOFR Benchmark Loans to be made on the Closing Date) and (ii) 9:00 a.m. three Business Days prior to the requested day of any Borrowing of or conversion to ABR Loans (other than Swingline Loans) (or, in each case, such later time as is reasonably acceptable to the Administrative Agent); provided, however, that if the Borrower wishes to request SOFR Benchmark Loans having an Interest Period of other than one, three or six months in duration as provided in the definition of “Interest Period,” (A) the applicable notice from the Borrower must be received by the Administrative Agent not later than 1:00 p.m. five Business Days prior to the requested date of the relevant Borrowing (or such later time as is reasonably acceptable to the Administrative Agent), conversion or continuation, whereupon the Administrative Agent shall give prompt notice to the appropriate Lenders of such request and determine whether the requested Interest Period is available to them and (B) not later than 12:00 p.m. three Business Days before the requested date of the relevant Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower whether or not the requested Interest Period is available to the appropriate Lenders.
 
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If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be an ABR Borrowing.  If no Interest Period is specified with respect to any requested SOFR Benchmark Borrowing, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.  The Administrative Agent shall advise each Lender of the details and amount of any Loan to be made as part of the relevant requested Borrowing (x) in the case of any ABR Borrowing, on the same Business Day of receipt of a Borrowing Request in accordance with this Section or (y) in the case of any SOFR Benchmark Borrowing, no later than one Business Day following receipt of a Borrowing Request in accordance with this Section.
 
Section 2.04.        Swingline Loans.
 
(a)         Subject to the terms and conditions set forth herein, the Swingline Lender agrees to make Swingline Loans to the Borrower from time to time after the Closing Date and until the Latest Revolving Credit Maturity Date, in an aggregate principal amount at any time outstanding not to exceed $10,000,000; provided that (x) the Swingline Lender shall not be required to make any Swingline Loan to refinance any outstanding Swingline Loan and (y) after giving effect to any Swingline Loan, the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans and LC Exposure shall not exceed the Total Revolving Credit Commitment.  Each Swingline Loan shall be in a minimum principal amount of not less than $100,000 or such lesser amount as may be agreed by the Swingline Lender; provided that, notwithstanding the foregoing, any Swingline Loan may be in an aggregate amount that is (x) equal to the entire unused balance of the aggregate unused Revolving Credit Commitments or (y) required to finance the reimbursement of an LC Disbursement as contemplated by Section 2.05(e).  Within the foregoing limits and subject to the terms and conditions set forth herein, Swingline Loans may be borrowed, prepaid and reborrowed.  To request a Swingline Loan, the Borrower shall notify the Swingline Lender (with a copy to the Administrative Agent) of such request by delivery of a written Borrowing Request, appropriately completed and signed by a Responsible Officer of the Borrower, not later than 1:00 p.m. on the day of a proposed Swingline Loan.  The Swingline Lender shall make each Swingline Loan available to the Borrower on the same Business Day by means of a credit to the account designated in the related Borrowing Request or otherwise in accordance with the instructions of the Borrower (including, in the case of a Swingline Loan made to finance the reimbursement of any LC Disbursement as provided in Section 2.05(e), by remittance to the applicable Issuing Bank).
 
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(b)       The Swingline Lender may by written notice given to the Administrative Agent not later than 12:00 p.m. on any Business Day require the Revolving Lenders to purchase participations on the second Business Day following receipt of such notice in all or a portion of the Swingline Loans outstanding.  Such notice shall specify the aggregate amount of Swingline Loans in which Revolving Lenders will participate.  Promptly upon receipt of such notice, the Administrative Agent will give notice thereof to each Revolving Lender, specifying in such notice such Revolving Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans.  Each Revolving Lender hereby absolutely and unconditionally agrees, upon receipt of notice as provided above, to pay to the Administrative Agent, for the account of the Swingline Lender, such Lender’s Applicable Percentage of such Swingline Loan or Swingline Loans.  Each Revolving Lender acknowledges and agrees that its obligation to acquire participations in Swingline Loans pursuant to this paragraph is absolute and unconditional and shall not be affected by any circumstance whatsoever, including the occurrence and continuance of a Default or any reduction or termination of the Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.  Each Revolving Lender shall comply with its obligation under this paragraph by effecting a wire transfer of immediately available funds, in the same manner as provided in Section 2.07 with respect to Revolving Loans made by such Revolving Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders pursuant to this Section 2.04(b)), and the Administrative Agent shall promptly remit to the Swingline Lender the amounts so received by it from the Revolving Lenders.  The Administrative Agent shall notify the Borrower of any participation in any Swingline Loan acquired pursuant to this Section 2.04(b), and thereafter payments in respect of such Swingline Loan shall be made to the Administrative Agent and not to the Swingline Lender.  Any amounts received by the Swingline Lender from the Borrower in respect of any Swingline Loan after receipt by the Swingline Lender of the proceeds of any sale of participations therein shall be promptly remitted by the Swingline Lender to the Administrative Agent, and any such amounts received by the Administrative Agent shall be promptly remitted by the Administrative Agent to the Revolving Lenders that have made their payments pursuant to this Section 2.04(b) and to the Swingline Lender, as their interests may appear; provided that any such payment so remitted shall be repaid to the Swingline Lender or the Administrative Agent, as the case may be, and thereafter to the Borrower, if and to the extent such payment is required to be refunded to the Borrower for any reason.  The purchase of participations in a Swingline Loan pursuant to this Section 2.04(b) shall not relieve the Borrower of any default in the payment thereof.
 
(c)         If any Revolving Lender fails to make available to the Administrative Agent for the account of the Swingline Lender any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.04 by the time specified in Section 2.04(b), the Swingline Lender shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to the Swingline Lender at a rate per annum equal to the greater of the Federal Funds Effective Rate from time to time in effect and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.  A certificate of the Swingline Lender submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (c) shall be conclusive absent manifest error.
 
(d)         Notwithstanding anything to the contrary contained herein, Barclays may, upon ten days’ prior written notice to the Borrower and the Lenders, resign as Swingline Lender, which resignation shall be effective as of the date referenced in such notice (but in no event less than ten days after the delivery of such written notice).  In the event of any such resignation, the Borrower shall be entitled to appoint any Revolving Lender that is willing to accept such appointment as successor Swingline Lender hereunder.  Upon the acceptance of any such appointment, the successor Swingline Lender shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Swingline Lender, and the retiring Swingline Lender, as applicable, shall be discharged from its duties and obligations in such capacity hereunder.  In the event that the successor Swingline Lender resigns, the Borrower shall promptly repay all outstanding Swingline Loans on the effective date of such resignation (which repayment may be effectuated with the proceeds of a Borrowing).
 
Section 2.05.        Letters of Credit.
 
(a)          General.
 
(i)         Subject to the terms and conditions set forth herein, (i) each Issuing Bank agrees, in each case in reliance upon the agreements of the other Revolving Lenders set forth in this Section 2.05, (A) from time to time on any Business Day during the period from the Closing Date to the fifth Business Day prior to the Latest Revolving Credit Maturity Date, upon the request of the Borrower, to issue Letters of Credit issued on sight basis only for the account of the Borrower and/or any of its Subsidiaries (provided that the Borrower will be the applicant) and to amend or renew Letters of Credit previously issued by it, in accordance with Section 2.05(b), and (B) to honor drafts under the Letters of Credit, and (ii) the Revolving Lenders severally agree to participate in the Letters of Credit issued pursuant to Section 2.05(d).
 
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(ii)          No Issuing Bank shall be under any obligation to issue any Letter of Credit if:
 
(A)         any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such Issuing Bank from issuing such Letter of Credit, or any Requirement of Law applicable to such Issuing Bank or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such Issuing Bank shall prohibit, or request that such Issuing Bank refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such Issuing Bank with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such Issuing Bank is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such Issuing Bank any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such Issuing Bank in good faith deems material to it;
 
(B)        the issuance of such Letter of Credit would not violate one or more policies of such Issuing Bank applicable generally to all letters of credit issued by it;
 
(C)        except as otherwise agreed by the Administrative Agent and such Issuing Bank, such Letter of Credit is in an initial stated amount less than $10,000;
 
(D)        such Letter of Credit is to be denominated in a currency other than Dollars; and
 
(E)        such Letter of Credit contains any provision for automatic reinstatement of the stated amount after any drawing thereunder.
 
(iii)       No Issuing Bank shall be under any obligation to amend or extend any Letter of Credit if (A) such Issuing Bank would have no obligation at such time to issue the Letter of Credit in its amended form in accordance with the terms hereof or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment thereto.
 
(b)         Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.  To request the issuance of any Letter of Credit, the Borrower shall deliver to the applicable Issuing Bank and the Administrative Agent, at least three Business Days in advance of the requested date of issuance (or such shorter period as is acceptable to the applicable Issuing Bank or, in the case of any issuance to be made on the Closing Date, one Business Day prior to the Closing Date), a Letter of Credit Request.  To request an amendment, extension or renewal of an outstanding Letter of Credit, (other than any automatic extension of a Letter of Credit permitted under Section 2.05(c)) the Borrower shall submit a Letter of Credit Request to the applicable Issuing Bank selected by the Borrower (with a copy to the Administrative Agent) at least three Business Days in advance of the requested date of amendment, extension or renewal (or such shorter period as is acceptable to the applicable Issuing Bank), identifying the Letter of Credit to be amended, extended or renewed, and specifying the proposed date (which shall be a Business Day) and other details of the amendment, extension or renewal.  If requested by the applicable Issuing Bank in connection with any request for any Letter of Credit, the Borrower also shall submit a letter of credit application on such Issuing Bank’s standard form.  In the event of any inconsistency between the terms and conditions of this Agreement and the terms and conditions of any form of letter of credit application or other agreement submitted by the Borrower to, or entered into by the Borrower with, the applicable Issuing Bank relating to any Letter of Credit, the terms and conditions of this Agreement shall control.  No Letter of Credit, letter of credit application or other document entered into by the Borrower with any Issuing Bank relating to any Letter of Credit shall contain any representation or warranty, covenant or event of default not set forth in this Agreement (and to the extent inconsistent herewith shall be rendered null and void (or reformed automatically without further action by any Person to conform to the terms of this Agreement), and all representations and warranties, covenants and events of default set forth therein shall contain standards, qualifications, thresholds and exceptions for materiality or otherwise consistent with those set forth in this Agreement (and, to the extent inconsistent herewith, shall be deemed to automatically incorporate the applicable standards, qualifications, thresholds and exceptions set forth herein without action by any Person).  No Letter of Credit may be issued, amended, extended or renewed unless (and on the issuance, amendment, extension or renewal of each Letter of Credit the Borrower shall be deemed to represent and warrant that), after giving effect to such issuance, amendment, extension, or renewal (i) the LC Exposure does not exceed the Letter of Credit Sublimit and (ii) (A) the aggregate amount of the Initial Revolving Credit Exposure shall not exceed the aggregate amount of the Initial Revolving Credit Commitments then in effect, (B) the aggregate amount of the Incremental Revolving Credit Exposure attributable to any Class of Incremental Revolving Credit Commitments does not exceed the aggregate amount of the Incremental Revolving Credit Commitments of such Class then in effect and (C) if such Letter of Credit has a term that extends beyond the Maturity Date applicable to the Revolving Credit Commitments of any Class, the aggregate amount of the LC Exposure attributable to Letters of Credit expiring after such Maturity Date does not exceed the aggregate amount of the Revolving Credit Commitments then in effect that are scheduled to remain in effect after such Maturity Date and (iii) with respect to any Letter of Credit to be issued by Barclays, any such Letter of Credit is a Standby Letter of Credit.
 
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(c)          Expiration Date.
 
(i)         No Standby Letter of Credit shall expire later than the earlier of (A) the date that is one year after the date of the issuance of such Standby Letter of Credit and (B) the date that is five Business Days prior to the Latest Revolving Credit Maturity Date; provided that, any Standby Letter of Credit may provide for the automatic extension thereof for any number of additional periods of up to one year in duration (which additional periods shall not extend beyond the date referred to in the preceding clause (B) unless 100% of the then-available face amount thereof is Cash collateralized or backstopped on or before the date that such Letter of Credit is extended beyond the date referred to in clause (B) above pursuant to arrangements reasonably satisfactory to the relevant Issuing Bank).
 
(ii)         No Commercial Letter of Credit shall expire later than the earlier to occur of (A) 180 days after the issuance thereof and (B) the date that is five Business Days prior to the Latest Revolving Credit Maturity Date.
 
(d)         Participations.  By the issuance of any Letter of Credit (or an amendment to any Letter of Credit increasing the amount thereof) and without any further action on the part of the applicable Issuing Bank or the Revolving Lenders, the applicable Issuing Bank hereby grants to each Revolving Lender, and each Revolving Lender hereby acquires from such Issuing Bank, a participation in such Letter of Credit equal to such Revolving Lender’s Applicable Revolving Credit Percentage of the aggregate amount available to be drawn under such Letter of Credit.  In consideration and in furtherance of the foregoing, each Revolving Lender hereby absolutely and unconditionally agrees to pay to the Administrative Agent, for the account of the applicable Issuing Bank, such Lender’s Applicable Percentage of each LC Disbursement made by such Issuing Bank and not reimbursed by the Borrower on the date due as provided in paragraph (e) of this Section, or of any reimbursement payment required to be refunded to the Borrower for any reason.  Each Revolving Lender acknowledges and agrees that its obligation to acquire participations pursuant to this paragraph in respect of Letters of Credit is absolute and unconditional and shall not be affected by any circumstance whatsoever, including any amendment, renewal or extension of any Letter of Credit or the occurrence and continuance of a Default or Event of Default or reduction or termination of the Revolving Credit Commitments, and that each such payment shall be made without any offset, abatement, withholding or reduction whatsoever.
 
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(e)          Reimbursement.
 
(i)         If the applicable Issuing Bank makes any LC Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such LC Disbursement by paying to the Administrative Agent (or, in the case of Commercial Letters of Credit, the applicable Issuing Bank) an amount equal to such LC Disbursement not later than (A) if the Borrower receives notice of such LC Disbursement under paragraph (g) of this Section before 1:00 p.m. on any Business Day, 2:00 p.m. on the Business Day immediately following the date on which the Borrower receives notice of such LC Disbursement or (B) if the Borrower receives notice of such LC Disbursement under paragraph (g) of this Section after 1:00 p.m. on any Business Day, not later than 2:00 p.m. two Business Days after the date on which the Borrower receives notice of such LC Disbursement; provided that the Borrower may, without satisfying the conditions to borrowing set forth herein, request in accordance with Section 2.03 that such payment be financed with an ABR Revolving Loan Borrowing (any such Revolving Loan Borrowing, a “Letter of Credit Reimbursement Loan”) in an equivalent amount and, to the extent so financed, the obligation of the Borrower to make such payment shall be discharged and replaced by the resulting ABR Revolving Loan Borrowing (it being understood and agreed that the Borrower may also request a Swingline Loan to reimburse such LC Disbursement in accordance with Section 2.04, subject, in the case of any such Swingline Loan, to the satisfaction of the applicable conditions set forth in Section 4.02).  If the Borrower fails to make such payment when due, the Administrative Agent shall notify each Revolving Lender of the applicable LC Disbursement, the payment then due from the Borrower in respect thereof and such Revolving Lender’s Applicable Revolving Credit Percentage thereof.  Promptly following receipt of such notice, each Revolving Lender shall pay to the Administrative Agent its Applicable Revolving Credit Percentage of the payment then due from the Borrower, in the same manner as provided in Section 2.07 with respect to Loans made by such Revolving Lender (and Section 2.07 shall apply, mutatis mutandis, to the payment obligations of the Revolving Lenders), and the Administrative Agent shall promptly pay to the applicable Issuing Bank the amounts so received by it from the Revolving Lenders.  Promptly following receipt by the Administrative Agent of any payment from the Borrower pursuant to this paragraph, the Administrative Agent shall distribute such payment to the applicable Issuing Bank or, to the extent that Revolving Lenders have made payments pursuant to this paragraph to reimburse such Issuing Bank, then to such Revolving Lenders and such Issuing Bank as their interests may appear.
 
(ii)         If any Revolving Lender fails to make available to the Administrative Agent for the account of the applicable Issuing Bank any amount required to be paid by such Revolving Lender pursuant to the foregoing provisions of this Section 2.05(d) by the time specified therein, such Issuing Bank shall be entitled to recover from such Revolving Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from the date such payment is required to the date on which such payment is immediately available to such Issuing Bank at a rate per annum equal to the greater of the Federal Funds Effective Rate from time to time in effect and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.  A certificate of the applicable Issuing Bank submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this clause (ii) shall be conclusive absent manifest error.
 
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(f)          Obligations Absolute.  The obligation of the Borrower to reimburse LC Disbursements as provided in paragraph (e) of this Section shall be absolute and unconditional and irrespective of (i) any lack of validity or enforceability of any Letter of Credit or this Agreement, or any term or provision therein, (ii) any draft or other document presented under any Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by the applicable Issuing Bank under any Letter of Credit against presentation of a draft or other document that does not comply with the terms of such Letter of Credit or (iv) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section, constitute a legal or equitable discharge of, or provide a right of setoff against, the obligations of the Borrower hereunder.  Neither the Administrative Agent, the Revolving Lenders nor any Issuing Bank, nor any of their respective Related Parties shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any Letter of Credit or any payment or failure to make any payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of such Issuing Bank; provided that the foregoing shall not be construed to excuse such Issuing Bank from liability to the Borrower to the extent of any direct damages suffered by the Borrower that are caused by such Issuing Bank’s failure to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof.  The parties hereto expressly agree that, in the absence of gross negligence, bad faith or willful misconduct on the part of applicable Issuing Bank (as finally determined by a court of competent jurisdiction), such Issuing Bank shall be deemed to have exercised care in each such determination.  In furtherance of the foregoing and without limiting the generality thereof, the parties agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of any Letter of Credit, the applicable Issuing Bank may, in its sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.
 
(g)          Disbursement Procedures.  The applicable Issuing Bank shall, promptly following its receipt thereof, examine all documents purporting to represent a demand for payment under a Letter of Credit.  Such Issuing Bank shall promptly notify the Administrative Agent and the Borrower by electronic means upon any LC Disbursement thereunder; provided that no failure to give or delay in giving such notice shall relieve the Borrower of its obligation to reimburse such Issuing Bank and the Revolving Lenders with respect to any such LC Disbursement.
 
(h)         Interim Interest.  If any Issuing Bank makes any LC Disbursement, unless the Borrower reimburses such LC Disbursement in full on the date such LC Disbursement is made, the unpaid amount thereof shall bear interest, for each day from and including the date such LC Disbursement is made to but excluding the date that the Borrower reimburses such LC Disbursement (or the date on which such LC Disbursement is reimbursed with the proceeds of Loans, as applicable), at the rate per annum then applicable to Initial Revolving Loans that are ABR Loans (or, to the extent of the participation in such LC Disbursement by any Revolving Lender of another Class, the rate per annum then applicable to the Revolving Loans of such other Class); provided that if the Borrower fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of this Section, then Section 2.13(d) shall apply.  Interest accrued pursuant to this paragraph shall be for the account of the applicable Issuing Bank, except that interest accrued on and after the date of payment by any Revolving Lender pursuant to paragraph (e) of this Section to reimburse such Issuing Bank shall be for the account of such Revolving Lender to the extent of such payment and shall be payable on the date on which the Borrower is required to reimburse the applicable LC Disbursement in full (and, thereafter, on demand).
 
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(i)          Replacement or Resignation of an Issuing Bank or Designation of New Issuing Banks.
 
(i)         Any Issuing Bank may be replaced with the consent of the Administrative Agent (not to be unreasonably withheld or delayed) at any time by written agreement among the Borrower, the Administrative Agent and the successor Issuing Bank.  The Administrative Agent shall notify the Revolving Lenders of any such replacement of an Issuing Bank.  At the time any such replacement becomes effective, the Borrower shall pay all unpaid fees accrued for the account of the replaced Issuing Bank pursuant to Section 2.12(b)(ii).  From and after the effective date of any such replacement, (i) the successor Issuing Bank shall have all the rights and obligations of the replaced Issuing Bank under this Agreement with respect to Letters of Credit to be issued thereafter and (ii) references herein to the term “Issuing Bank” shall be deemed to refer to such successor or to any previous Issuing Bank, or to such successor and all previous Issuing Banks, as the context shall require.  After the replacement of any Issuing Bank hereunder, the replaced Issuing Bank shall remain a party hereto and shall continue to have all the rights and obligations of an Issuing Bank under this Agreement with respect to Letters of Credit issued by it prior to such replacement, but shall not be required to issue additional Letters of Credit.  The Borrower may, at any time and from time to time with the consent of the Administrative Agent (which consent shall not be unreasonably withheld or delayed) and the relevant Revolving Lender, designate one or more additional Revolving Lenders to act as an issuing bank under the terms of this Agreement.  Any Revolving Lender designated as an issuing bank pursuant to this paragraph (i) who agrees in writing to such designation shall be deemed to be an “Issuing Bank” (in addition to being a Revolving Lender) in respect of Letters of Credit issued or to be issued by such Revolving Lender, and, with respect to such Letters of Credit, such term shall thereafter apply to the other Issuing Bank and such Revolving Lender.
 
(ii)         Notwithstanding anything to the contrary contained herein, any Issuing Bank may, upon ten days’ prior written notice to the Borrower, each other Issuing Bank and the Lenders, resign as Issuing Bank, which resignation shall be effective as of the date referenced in such notice (but in no event less than ten days after the delivery of such written notice); it being understood that in the event of any such resignation, any Letter of Credit then outstanding shall remain outstanding (irrespective of whether any amounts have been drawn at such time).  In the event of any such resignation as an Issuing Bank, the Borrower shall be entitled to appoint any Revolving Lender that accepts such appointment in writing as successor Issuing Bank. Upon the acceptance of any appointment as Issuing Bank hereunder, the successor Issuing Bank shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Issuing Bank, and the retiring Issuing Bank shall be discharged from its duties and obligations in such capacity hereunder.
 
(j)           Cash Collateralization.
 
(i)         If any Event of Default exists and the Loans have been declared due and payable in accordance with Article 7 hereof, then on the Business Day on which the Borrower receives notice from the Administrative Agent at the direction of the Required Revolving Lenders demanding the deposit of Cash collateral pursuant to this paragraph (i), the Borrower shall deposit, in an interest-bearing account with the Administrative Agent, in the name of the Administrative Agent and for the benefit of the Revolving Lenders (the “LC Collateral Account”), an amount in Cash equal to 100% of the LC Exposure as of such date (minus the amount then on deposit in the LC Collateral Account); provided that the obligation to deposit such Cash collateral shall become effective immediately, and such deposit shall become immediately due and payable, without demand or other notice of any kind, upon the occurrence of any Event of Default with respect to the Borrower described in Section 7.01(f) or (g).
 
(ii)         Any such deposit under clause (i) above shall be held by the Administrative Agent as collateral for the payment and performance of the Secured Obligations in accordance with the provisions of this paragraph (j).  The Administrative Agent shall have exclusive dominion and control, including the exclusive right of withdrawal, over such account, and the Borrower hereby grants the Administrative Agent, for the benefit of the Secured Parties, a first priority security interest in the LC Collateral Account.  Interest or profits, if any, on such investments shall accumulate in such account.  Moneys in such account shall be applied by the Administrative Agent to reimburse the applicable Issuing Bank for LC Disbursements for which it has not been reimbursed and, to the extent not so applied, shall be held for the satisfaction of the reimbursement obligations of the Borrower for the LC Exposure at such time or, if the maturity of the Loans has been accelerated (but subject to the consent of the Required Revolving Lenders) be applied to satisfy other Secured Obligations.  If the Borrower is required to provide an amount of Cash collateral hereunder as a result of the occurrence of an Event of Default, such amount (together with all interest and other earnings with respect thereto, to the extent not applied as aforesaid) shall be returned to the Borrower promptly but in no event later than three Business Days after such Event of Default has been cured or waived.
 
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Section 2.06.        [Reserved].
 
Section 2.07.        Funding of Borrowings.
 
(a)          Each Lender shall make each Loan to be made by it hereunder not later than  (i) 1:00 p.m., in the case of SOFR Rate Loans, and (ii) 2:00 p.m., in the case of ABR Loans, in each case on the Business Day specified in the applicable Borrowing Request by wire transfer of immediately available funds to the account of the Administrative Agent most recently designated by it for such purpose by notice to the Lenders in an amount equal to such Lender’s respective Applicable Percentage; provided that Swingline Loans shall be made as provided in Section 2.04.  The Administrative Agent will make such Loans available to the Borrower by wire transfer of the amounts so received on the same Business Day, in like funds, to the account designated in the relevant Borrowing Request or as otherwise directed by the Borrower; provided that ABR Revolving Loans made to finance the reimbursement of any LC Disbursement as provided in Section 2.05(e) shall be remitted by the Administrative Agent to the applicable Issuing Bank.
 
(b)        Unless the Administrative Agent has received written notice from any Lender that such Lender will not make available to the Administrative Agent such Lender’s share of any Borrowing prior to the proposed date of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the Borrower a corresponding amount.  In such event, if any Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand (without duplication) such corresponding amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of the Borrower, the interest rate applicable to Loans comprising such Borrowing at such time.  If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing, and the obligation of the Borrower to repay the Administrative Agent such corresponding amount pursuant to this Section 2.07(b) shall cease.  If the Borrower pays such amount to the Administrative Agent, the amount so paid shall constitute a repayment of such Borrowing by such amount.  Nothing herein shall be deemed to relieve any Lender from its obligation to fulfill its Commitment or to prejudice any rights which the Administrative Agent or the Borrower or any other Loan Party may have against any Lender as a result of any default by such Lender hereunder.
 
Section 2.08.        Type; Interest Elections.
 
(a)         Each Borrowing shall initially be of the Type specified in the applicable Borrowing Request and, in the case of any Benchmark Borrowing, shall have an initial Interest Period as specified in such Borrowing Request.  Thereafter, the Borrower may elect to convert any Borrowing to a Borrowing of a different Type or to continue such Borrowing and, in the case of a Benchmark Borrowing, may elect Interest Periods therefor, all as provided in this Section.  The Borrower may elect different options with respect to different portions of the affected Borrowing, in which case each such portion shall be allocated ratably among the Lenders based upon their Applicable Percentages and the Loans comprising each such portion shall be considered a separate Borrowing.  This Section shall not apply to Swingline Loans, which may not be converted or continued.
 
(b)         To make an election pursuant to this Section, the Borrower shall deliver an Interest Election Request, appropriately completed and signed by a Responsible Officer of the Borrower of the applicable election to the Administrative Agent.

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(c)         If any such Interest Election Request requests a Benchmark Borrowing but does not specify an Interest Period, then the Borrower shall be deemed to have selected an Interest Period of one month’s duration.
 
(d)         Promptly following receipt of an Interest Election Request, the Administrative Agent shall advise each applicable Lender of the details thereof and of such Lender’s portion of each resulting Borrowing.
 
(e)         If the Borrower fails to deliver a timely Interest Election Request with respect to a Benchmark Borrowing prior to the end of the Interest Period applicable thereto, then, unless such Borrowing is repaid as provided herein, such Borrowing shall be converted at the end of such Interest Period to Benchmark Borrowing with an Interest Period of one month’s duration.  Notwithstanding anything to the contrary herein, if an Event of Default exists and the Administrative Agent, at the request of the Required Lenders, so notifies the Borrower, then, so long as such Event of Default exists (i) no outstanding Borrowing may be converted to or continued as a Benchmark Borrowing and (ii) unless repaid, each Benchmark Borrowing shall be converted to an ABR Borrowing at the end of the then-current Interest Period applicable thereto.
 
Section 2.09.        Termination and Reduction of Commitments.
 
(a)         Unless previously terminated, (i) the Initial Term Loan Commitments on the Closing Date shall automatically terminate upon the making of the Initial Term Loans on the Closing Date, (ii) the Initial Revolving Credit Commitments shall automatically terminate on the Initial Revolving Credit Maturity Date, (iii) the Additional Term Loan Commitments shall automatically terminate upon the making of the Additional Term Loans of such Class and, if any such Additional Term Loan Commitment is not drawn on the date that such Additional Term Loan Commitment is required to be drawn pursuant to the applicable Incremental Facility Amendment, the undrawn amount thereof shall automatically terminate and (iv) the Additional Revolving Credit Commitments of any Class shall automatically terminate on the Maturity Date specified therefor in the applicable Incremental Facility Amendment.
 
(b)        Upon delivery of the notice required by Section 2.09(c), the Borrower may at any time terminate or from time to time reduce, the Revolving Credit Commitments of any Class; provided that (i) each reduction of the Revolving Credit 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 and (ii) the Borrower shall not terminate or reduce the Revolving Credit Commitments of any Class if, after giving effect to any concurrent prepayment of Revolving Loans and Swingline Loans, the aggregate amount of the Revolving Credit Exposure attributable to the Revolving Credit Commitments of such Class would exceed the aggregate amount of the Revolving Credit Commitments of such Class; provided that, after the establishment of any Additional Revolving Credit Commitment, any such termination or reduction of the Revolving Credit Commitments of any Class shall be subject to the provisions set forth in Section 2.22, 2.23 and/or 9.02, as applicable.

(c)         The Borrower shall notify the Administrative Agent of any election to terminate or reduce any Revolving Credit 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 Administrative Agent may agree), specifying such election and the effective date thereof.  Promptly following receipt of any such notice, the Administrative Agent shall advise the Revolving Lenders of each applicable Class of the contents thereof.  Each notice delivered by the Borrower 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 Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.  Any termination or reduction of any Revolving Credit Commitment pursuant to this Section 2.09 shall be permanent.  Upon any reduction of any Revolving Credit Commitment, the Revolving Credit Commitment of each Revolving Lender of the relevant Class shall be reduced by such Revolving Lender’s Applicable Percentage of such reduction amount.
 
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Section 2.10.        Repayment of Loans; Evidence of Debt.
 
(a)           (i)        The Borrower hereby unconditionally promises to repay the outstanding principal amount of the Initial Term Loans to the Administrative Agent for the account of each Term Lender on the Initial Term Loan Maturity Date, in an amount equal to the remainder of the principal amount of such Initial Term Loans 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 Borrower shall repay the Additional Term Loans of any Class in such scheduled amortization installments and on such date or dates as shall be specified therefor in the applicable Incremental Facility Agreement or Extension Amendment (as such payments may be reduced from time to time as a result of the application of prepayments in accordance with Section 2.11 or repurchases in accordance with Section 9.05(g) or increased as a result of any increase in the amount of such Additional Term Loans of such Class pursuant to Section 2.22(a)).
 
(b)          (i)          The Borrower hereby unconditionally promises to pay (i) to the Administrative Agent for the account of each Initial Revolving Lender, the then-unpaid principal amount of the Initial Revolving Loans of such Lender on the Initial Revolving Credit Maturity Date, (ii) to the Administrative Agent for the account of each Additional Revolving Lender, the then-unpaid principal amount of each Additional Revolving Loan of such Additional Revolving Lender on the Maturity Date applicable thereto and (iii) to the Swingline Lender, the then unpaid principal amount of each Swingline Loan on the Latest Revolving Credit Maturity Date.
 
(ii)       On the Maturity Date applicable to the Revolving Credit Commitments of any Class, the Borrower shall (A) cancel and return outstanding Letters of Credit (or alternatively, with respect to each outstanding Letter of Credit, furnish to the Administrative Agent a Cash deposit (or if reasonably satisfactory to the relevant Issuing Bank, a “backstop” letter of credit) equal to 100% of the amount of the LC Exposure (minus any amount then on deposit in any Cash collateral account established for the benefit of the relevant Issuing Bank) as of such date, in each case to the extent necessary so that, after giving effect thereto, the aggregate amount of the Revolving Credit Exposure attributable to the Revolving Credit Commitments of any other Class shall not exceed the Revolving Credit Commitments of such other Class then in effect, (B) prepay Swingline Loans to the extent necessary so that, after giving effect thereto, the aggregate amount of the Revolving Credit Exposure attributable to the Revolving Credit Commitments of any other Class shall not exceed the Revolving Credit Commitments of such other Class then in effect and (C) make payment in full in Cash of all accrued and unpaid fees and all reimbursable expenses and other Obligations with respect to the Revolving Facility of the applicable Class then due, together with accrued and unpaid interest (if any) thereon.
 
(c) If (i) the Initial Term Loans remain outstanding after the fifth anniversary of the Closing Date and (ii) the aggregate amount of the accrued but unpaid interest on the Initial Term Loans (including any amounts treated as interest for federal income tax purposes, such as “original issue discount”) as of any Testing Date (as defined below) occurring after such fifth anniversary exceeds an amount equal to the Maximum Accrual (as defined below), then all such accrued but unpaid interest on the Initial Term Loans (including any amounts treated as interest for federal income tax purposes, such as “original issue discount”) as of such time in excess of an amount equal to the Maximum Accrual shall be paid in cash by the Borrower to the holders of such Initial Term Loans on such Testing Date, it being the intent of the parties hereto that the deductibility of interest under the Initial Term Loans shall not be limited or deferred by reason of Section 163(i) of the Internal Revenue Code of 1986, as amended (the “Code”).  For these purposes, the “Maximum Accrual” is an amount equal to the product of such Initial Term Loans’ issue price (as defined in Sections 1273(b) and 1274(a) of the Code) and their yield to maturity, and a “Testing Date” is any interest payment date and the date on which any “accrual period” (within the meaning of Section 1272(a)(5) of the Code) closes.  Any accrued interest on an Initial Term Loan which for any reason has not theretofore been paid shall be paid when otherwise due or in full on the date on which the final principal payment on such Initial Term Loan is made.
 
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(c)          [Reserved].
 
(d)         Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder.
 
(e)        The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, the Class and Type thereof and the Interest Period (if any) applicable thereto, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders or the Issuing Banks and each Lender’s or Issuing Bank’s share thereof.
 
(f)         The entries made in the accounts maintained pursuant to paragraphs (d) or (e) 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 Lender or the Administrative Agent to maintain such accounts or any manifest error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement; provided, further, that in the event of any inconsistency between the accounts maintained by the Administrative Agent pursuant to paragraph (e) of this Section and any Lender’s records, the accounts of the Administrative Agent shall govern; provided, further, in the event of any inconsistency between the Register and any other accounts maintained by the Administrative Agent pursuant to paragraph (e) of this Section, the Register shall govern.
 
(g)        Any Lender may request that any Loan made by it be evidenced by a Promissory Note.  In such event, the Borrower shall prepare, execute and deliver a Promissory Note to such Lender payable to such Lender and its registered permitted assigns; it being understood and agreed that such Lender (and/or its applicable permitted assign) shall be required to return such Promissory Note to the Borrower in accordance with Section 9.05(b)(iii) and upon the occurrence of the Termination Date (or as promptly thereafter as practicable).  If any Lender loses the original copy of its Promissory Note, it shall execute an affidavit of loss containing an indemnification provision reasonably satisfactory to the Borrower.
 
Section 2.11.        Prepayment of Loans.
 
(a)          Optional Prepayments.
 
(i)          Upon prior notice in accordance with paragraph (a)(iii) of this Section, the Borrower shall have the right at any time and from time to time to prepay any Borrowing of Term Loans of one or more Classes (such Class or Classes to be selected by the Borrower in its sole discretion) in whole or in part without premium or penalty (but subject in the case of Borrowings of Initial Term Loans only, to Section 2.12(f)).  Each such prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages of the relevant Class.
 
(ii)         Upon prior notice in accordance with paragraph (a)(iii) of this Section, the Borrower shall have the right at any time and from time to time to prepay any Borrowing of Revolving Loans of any Class or any Borrowing of Swingline Loans, in whole or in part without premium or penalty; provided that (A) after the establishment of any Class of Additional Revolving Loans, any such prepayment of any Borrowing of Revolving Loans of any Class shall be subject to the provisions set forth in Sections 2.22, 2.23 and/or 9.02, as applicable and (B) no Borrowing of Revolving Loans may be prepaid unless all Swingline Loans then outstanding, if any, are prepaid concurrently therewith.  Each such prepayment shall be paid to the Revolving Lenders in accordance with their respective Applicable Percentages of the relevant Class.
 
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(iii)        The Borrower shall notify the Administrative Agent (and the Swingline Lender as applicable) in writing of any prepayment under this Section 2.11(a) (i) in the case of any prepayment of any Benchmark Borrowing, not later than 1:00 p.m. three Business Days before the date of prepayment (or such shorter notice as the Administrative Agent may reasonably agree), (ii) in the case of any prepayment of an ABR Borrowing, not later than 11:00 a.m. on the day of prepayment or (iii) in the case of any prepayment of a Swingline Loan, not later than 1:00 p.m. on the date of prepayment (or, in each case, such later time as to which the Administrative Agent may reasonably agree).  Each such notice shall be irrevocable (except as set forth in the proviso to this sentence) and shall specify the prepayment date and the principal amount of each Borrowing or portion or each relevant Class to be prepaid; provided that any notice of prepayment delivered by the Borrower may be conditioned upon the effectiveness of other transactions, in which case such notice may be revoked by the Borrower (by notice to the Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.  Promptly following receipt of any such notice relating to any Borrowing, the Administrative Agent shall advise the applicable Lenders of the contents thereof.  Each partial prepayment of any Borrowing shall be in an amount at least equal to the amount that would be permitted in the case of a Borrowing of the same Type and Class as provided in Section 2.02(c), or such lesser amount that is then outstanding with respect to such Borrowing being repaid (and in increments of $100,000 in excess thereof or such lesser incremental amount that is then outstanding with respect to such Borrowing being repaid).  Each prepayment of Term Loans shall be applied to the Class or Classes of Term Loans specified in the applicable prepayment notice, and each prepayment of Term Loans of such Class or Classes made pursuant to this Section 2.11(a) shall be applied against the remaining scheduled installments of principal due in respect of the Term Loans of such Class or Classes in the manner specified by the Borrower or, in the absence of any such specification on or prior to the date of the relevant optional prepayment, in direct order of maturity.
 
(b)          Mandatory Prepayments.
 
(i)          No later than the fifth Business Day after the date on which the financial statements with respect to each Fiscal Year of the Borrower are required to be delivered pursuant to Section 5.01(b), commencing with the Fiscal Year ending December 31, 2023, the Borrower shall prepay the outstanding principal amount of Initial Term Loans and any Additional Term Loans then subject to ratable prepayment requirements in accordance with clause (vi) of this Section 2.11(b) below in an aggregate principal amount (the “ECF Prepayment Amount”) equal to (A) the Required Excess Cash Flow Percentage of Excess Cash Flow of the Borrower, its Restricted Subsidiaries and the Consolidated APCs for the Excess Cash Flow Period then ended, minus (B) at the option of the Borrower, (x) the aggregate principal amount of any Term Loans and/or Revolving Loans prepaid pursuant to Section 2.11(a) prior to such date and (y) the amount of any reduction in the outstanding amount of any Term Loans resulting from any assignment made in accordance with Section 9.05(g) of this Agreement (including in connection with any Dutch Auction) prior to the date such payment is due and, in each case under this clause (y), based upon the actual amount of cash paid in connection with the relevant assignment, in each case, excluding any such optional prepayments made during such Fiscal Year that reduced the amount required to be prepaid pursuant to this Section 2.11(b)(i) in the prior Fiscal Year (in the case of any prepayment of Revolving Loans, to the extent accompanied by a permanent reduction in the relevant commitment, and in the case of all such prepayments, to the extent that such prepayments were not financed with the proceeds of other Indebtedness (other than revolving Indebtedness) of the Borrower or its Restricted Subsidiaries); provided that no prepayment under this Section 2.11(b) shall be required unless and to the extent that the amount thereof exceeds $3,000,000.
 
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(ii)        (A) No later than the fifth Business Day following the receipt of Net Proceeds in respect of any Prepayment Asset Sale, the Borrower shall apply an amount equal to 100% of the Net Proceeds to prepay the outstanding principal amount of Initial Term Loans and any Incremental Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that if prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intention to reinvest the Net Proceeds in Capital Expenditures or long term capital assets useful to the business of the Borrower and/or any subsidiary and/or Affiliated Practice (as determined by the Borrower in good faith), then so long as no Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the Net Proceeds to the extent the Net Proceeds are so reinvested within 365 days following receipt thereof (or such longer period as the Lender Representative may approve in its sole discretion); it being understood that if the Net Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of Net Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso); provided further that the aggregate amount that may be so reinvested from and after the Second Amendment Effective Date shall not exceed $10,000,000 in any Fiscal Year.
 
(ii)        (B)No later than the fifth Business Day following the receipt of Net Insurance/Condemnation Proceeds in respect of (any Prepayment Asset Sale orsuch Net Insurance/Condemnation Proceeds in excess of $15,000,000 in the aggregate during the term of this Agreement, together with any Net Proceeds referenced in clause (ii)(A) above, “Subject Proceeds”), the Borrower shall apply an amount equal to 100% of the Net Proceeds or Net Insurance/Condemnation Proceeds received with respect thereto in excess of such threshold (collectively, the “Subject Proceeds”) to prepay the outstanding principal amount of Initial Term Loans and any Incremental Term Loans then subject to ratable prepayment requirements (the “Subject Loans”) in accordance with clause (vi) below; provided that if prior to the date any such prepayment is required to be made, the Borrower notifies the Administrative Agent of its intention to reinvest the SubjectNet Insurance/Condemnation Proceeds in the business of the Borrower and/or any subsidiary and/or Affiliated Practice (to the extent such Investment is permitted or not restricted under Section 6.06) (other than in Cash or Cash Equivalents), then so long as no Event of Default then exists, the Borrower shall not be required to make a mandatory prepayment under this clause (ii) in respect of the SubjectNet Insurance/Condemnation Proceeds to the extent (x) the SubjectNet Insurance/Condemnation Proceeds are so reinvested within 365 days following receipt thereof, or (y) the Borrower or any of its subsidiaries has committed to so reinvest the SubjectNet Insurance/Condemnation Proceeds during such 365-day period and the SubjectNet Insurance/Condemnation Proceeds are so reinvested within 180 days after the expiration of such 365-day period; it being understood that if the SubjectNet Insurance/Condemnation Proceeds have not been so reinvested prior to the expiration of the applicable period, the Borrower shall promptly prepay the Subject Loans with the amount of SubjectNet Insurance/Condemnation Proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso).
 
(iii)       In the event that the Borrower or any of its Restricted Subsidiaries receives Net Proceeds from the issuance or incurrence of Indebtedness by the Borrower or any of its Restricted Subsidiaries (other than Indebtedness that is permitted to be incurred under Section 6.01, the Borrower shall, promptly upon (and in any event not later than two Business Days thereafter) the receipt thereof of such Net Proceeds by the Borrower or its applicable Restricted Subsidiary, apply an amount equal to 100% of such Net Proceeds to prepay the outstanding principal amount of the relevant Class or Classes of Term Loans in accordance with clause (vi) below.
 
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(iv)        Notwithstanding anything in this Section 2.11(b) to the contrary:
 
(A)        the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Sections 2.11(b)(i) or (ii) above to the extent that the relevant Excess Cash Flow is generated by any Foreign Subsidiary, the relevant Prepayment Asset Sale is consummated by any Foreign Subsidiary or the relevant Net Insurance/Condemnation Proceeds are received by any Foreign Subsidiary, as the case may be, for so long as the repatriation to the Borrower of any such amount would be, in the good faith determination of the Borrower, prohibited, restricted or delayed under any Requirement of Law (including for avoidance of doubt, any Requirement of Law relating to financial assistance, corporate benefit, thin capitalization, capital maintenance and similar legal principles, restrictions on “upstreaming” and/or “cross-streaming” of Cash intra-group and Requirements of Law relating to the fiduciary and/or statutory duties of the directors (or equivalent Persons) of the Borrower and/or any of its Restricted Subsidiaries) or would conflict with the fiduciary and/or statutory duties of such Foreign Subsidiary’s directors, or result in, or could reasonably be expected to result in, a material risk of personal or criminal liability for any officer, director, employee, manager, member of management or consultant of such Foreign Subsidiary (it being understood and agreed that (i) solely within 365 days following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the Borrower shall take all commercially reasonable actions required by applicable Requirements of Law to permit such repatriation and (ii) if the repatriation of the relevant affected Excess Cash Flow or Subject Proceeds, as the case may be, is permitted under the applicable Requirement of Law and, to the extent applicable, would no longer conflict with the fiduciary duties of such director, or result in, or be reasonably expected to result in, a material risk of personal or criminal liability for the Persons described above, in either case, within 365 days following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the relevant Foreign Subsidiary will promptly repatriate the relevant Excess Cash Flow or Subject Proceeds, as the case may be, and the repatriated Excess Cash Flow or Subject Proceeds, as the case may be, will be promptly (and in any event not later than two Business Days after such repatriation) applied (net of additional Taxes payable or reserved against such Excess Cash Flow or such Subject Proceeds as a result thereof) to the repayment of the Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv))),
 
(B)        the Borrower shall not be required to prepay any amount that would otherwise be required to be paid pursuant to Sections 2.11(b)(i) or (ii) to the extent that the relevant Excess Cash Flow is generated by any joint venture or the relevant Subject Proceeds are received by any joint venture, in each case, for so long as the distribution to the Borrower of such Excess Cash Flow or Subject Proceeds would be prohibited under the Organizational Documents governing such joint venture; it being understood that if the relevant prohibition ceases to exist within the 365-day period following the end of the applicable Excess Cash Flow Period or the event giving rise to the relevant Subject Proceeds, the relevant joint venture will promptly distribute the relevant Excess Cash Flow or the relevant Subject Proceeds, as the case may be, and the distributed Excess Cash Flow or Subject Proceeds, as the case may be, will be promptly (and in any event not later than two Business Days after such distribution) applied to the repayment of the Term Loans pursuant to this Section 2.11(b) to the extent required herein (without regard to this clause (iv)), and
 
(C)       if the Borrower determines in good faith that the repatriation (or other intercompany distribution) to the Borrower, directly or indirectly, from a Foreign Subsidiary as a distribution or dividend of any amounts required to mandatorily prepay the Term Loans pursuant to Sections 2.11(b)(i) or (ii) above would reasonably be expected to result in a material and adverse Tax liability (including any withholding Tax) (such amount, a “Restricted Amount”), the amount that the Borrower shall be required to mandatorily prepay pursuant to Sections 2.11(b)(i) or (ii) above, as applicable, shall be reduced by the Restricted Amount; provided that to the extent that the repatriation (or other intercompany distribution) of the relevant Subject Proceeds or Excess Cash Flow, directly or indirectly, from the relevant Foreign Subsidiary would no longer be reasonably expected to have a material adverse tax consequence within the 365-day period following the event giving rise to the relevant Subject Proceeds or the end of the applicable Excess Cash Flow Period, as the case may be, an amount equal to the Subject Proceeds or Excess Cash Flow, as applicable and to the extent available, not previously applied pursuant to this clause (C), shall be promptly applied to the repayment of the Term Loans pursuant to Section 2.11(b) as otherwise required above;
 
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(v)         Any Term Lender may elect, by notice to the Administrative Agent at or prior to the time and in the manner specified by the Administrative Agent, prior to any prepayment of Term Loans required to be made by the Borrower pursuant to this Section 2.11(b), to decline all (but not a portion) of its Applicable Percentage of such prepayment (such declined amounts, the “Declined Proceeds”); provided that for the avoidance of doubt, no Lender may reject any prepayment made under Section 2.11(b)(iii) above to the extent that such prepayment is made with the Net Proceeds of Incremental Loans incurred to refinance all or a portion of the Term Loans pursuant to Section 2.22.  If any Lender fails to deliver a notice to the Administrative Agent of its election to decline receipt of its Applicable Percentage of any mandatory prepayment within the time frame specified by the Administrative Agent, such failure will be deemed to constitute an acceptance of such Lender’s Applicable Percentage of the total amount of such mandatory prepayment of Term Loans.
 
(vi)        Except as otherwise contemplated by this Agreement or provided in, or intended with respect to, any Incremental Facility Amendment or any Extension Amendment (provided, that such Incremental Facility Amendment or Extension Amendment may not provide that the applicable Class of Term Loans receive a greater than pro rata portion of mandatory prepayments of Term Loans pursuant to Section 2.11(b) than would otherwise be permitted by this Agreement), in each case effectuated or issued in a manner consistent with this Agreement, each prepayment of Term Loans pursuant to Section 2.11(b) shall be applied ratably to each Class of Term Loans then outstanding which is pari passu with the Initial Term Loans in right of payment and with respect to security (provided that any prepayment of Term Loans with the Net Proceeds of any Incremental Term Facility shall be applied to the applicable Class of Term Loans being refinanced or replaced).  With respect to each relevant Class of Term Loans, all accepted prepayments under this Section 2.11(b) shall be applied as directed by the Borrower, and each such prepayment shall be paid to the Term Lenders in accordance with their respective Applicable Percentage of the applicable Class.  If no Lender exercises the right to waive a prepayment of the Term Loans pursuant to Section 2.11(b)(v), the amount of such mandatory prepayment shall be applied first to the then outstanding Term Loans that are ABR Loans to the full extent thereof and then to the then outstanding Term Loans that are SOFR Benchmark Loans.
 
(vii)       (A) In the event that the Revolving Credit Exposure of any Class exceeds the amount of the Revolving Credit Commitment of such Class then in effect, the Borrower shall, within five Business Days of receipt of notice from the Administrative Agent, prepay the Revolving Loans or Swingline Loans and/or reduce LC Exposure in an aggregate amount sufficient to reduce such Revolving Credit Exposure as of the date of such payment to an amount not to exceed the Revolving Credit Commitment of such Class then in effect by taking any of the following actions as it shall determine at its sole discretion: (x) prepaying Revolving Loans or Swingline Loans or (y) with respect to any excess LC Exposure, depositing Cash in a Cash collateral account established for the benefit of the relevant Issuing Bank or “backstopping” or replacing the relevant Letters of Credit, in each case, in an amount equal to 100% of such excess LC Exposure (minus any amount then on deposit in any Cash collateral account established for the benefit of the relevant Issuing Bank).
 
(B)        Each prepayment of any Revolving Loan Borrowing under this Section 2.11(b)(vii) shall be paid to the Revolving Lenders in accordance with their respective Applicable Percentages of the applicable Class.
 
(viii)      Prepayments made under this Section 2.11(b) shall be (A) accompanied by accrued interest as required by Section 2.13 (which shall be netted in the calculation of the applicable prepayment amount) and (B) in the case of prepayments of Initial Term Loans under clause (iii), subject to Section 2.12(f), but shall otherwise be without premium or penalty.
 
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Section 2.12.        Fees.
 
(a)        The Borrower agrees to pay to the Administrative Agent for the account of each Revolving Lender of any Class (other than any Defaulting Lender) a commitment fee, which shall accrue at a rate equal to the Commitment Fee Rate per annum applicable to the Revolving Credit Commitments of such Class on the average daily amount of the unused Revolving Credit Commitment of such Class of such Revolving Lender during the period from and including the Closing Date to the date on which such Lender’s Revolving Credit Commitment of such Class terminates.  Accrued commitment fees shall be payable in arrears on the last Business Day of each Fiscal Quarter (commencing with the first full Fiscal Quarter after the Closing Date) for the quarterly period then ended (or, in the case of the payment made on June 30, 2022, for the period from the Closing Date to such date), and on the date on which the Revolving Credit Commitments of the applicable Class terminate.  For purposes of calculating the commitment fee only, the Revolving Credit Commitment of any Class of any Revolving Lender shall be deemed to be used to the extent of Revolving Loans of such Class of such Revolving Lender and the LC Exposure of such Revolving Lender attributable to its Revolving Credit Commitment of such Class, and no portion of the Revolving Credit Commitment of any Class shall be deemed used as a result of outstanding Swingline Loans.
 
(b)         The Borrower agrees to pay (i) to the Administrative Agent for the account of each Revolving Lender of any Class a participation fee with respect to its participations in Letters of Credit, which shall accrue at the Applicable Rate used to determine the interest rate applicable to Revolving Loans of such Class that are SOFR Benchmark Loans on the daily face amount of such Lender’s LC Exposure attributable to its Revolving Credit Commitment of such Class (excluding any portion thereof that is attributable to unreimbursed LC Disbursements), during the period from and including the Closing Date to the earlier of (A) the later of the date on which such Revolving Lender’s Revolving Credit Commitment of such Class terminates and the date on which such Revolving Lender ceases to have any LC Exposure attributable to its Revolving Credit Commitment of such Class and (B) the Termination Date, and (ii) to each Issuing Bank, for its own account, a fronting fee, in respect of each Letter of Credit issued by such Issuing Bank for the period from the date of issuance of such Letter of Credit to the earlier of (A) the expiration date of such Letter of Credit, (B) the date on which such Letter of Credit terminates or (C) the Termination Date, computed at a rate equal to the rate agreed by such Issuing Bank and the Borrower (but in any event not to exceed 0.125% per annum) of the daily face amount of such Letter of Credit, as well as such Issuing Bank’s standard fees with respect to the issuance, amendment, renewal or extension of any Letter of Credit or processing of drawings thereunder.  Participation fees and fronting fees shall accrue to but excluding the last Business Day of each Fiscal Quarter and be payable in arrears for the quarterly period then ended on the last Business Day of each Fiscal Quarter (commencing, if applicable, with the last Business Day of the first full Fiscal Quarter after the Closing Date); provided that all such fees shall be payable on the date on which the Revolving Credit Commitments of the applicable Class terminate, and any such fees accruing after the date on which the Revolving Credit Commitments of the applicable Class terminate shall be payable on demand.  Any other fees payable to any Issuing Bank pursuant to this paragraph shall be payable within 30 days after receipt of a written demand (accompanied by reasonable back-up documentation) therefor.
 
(c)          [Reserved].

(d)         The Borrower agrees to pay to the Administrative Agent, for its own account, the annual administration fee described in the Fee Letter.
 
(e)         All fees payable hereunder shall be paid on the dates due, in Dollars and in immediately available funds, to the Administrative Agent (or to the applicable Issuing Bank, in the case of fees payable to any Issuing Bank).  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.
 
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(f)          (1) In the event that, prior to the third anniversary of the ClosingSecond Amendment Effective Date, (i) the Borrower prepays any Initial Term Loans pursuant to Section 2.11(a)(i), (ii) the Borrower prepays or refinances any Initial Term Loans pursuant to Section 2.11(b)(iii)  (it being understood and agreed for the avoidance of doubt that payments as a result of assignments made to Affiliated Lenders pursuant to Section 9.05(g) shall not be subject to this Section 2.12(f)), (ii) the Borrower prepays or refinances any Initial Term Loans pursuant to Section 2.11(b)(iii) or (iii) the Initial Term Loans are accelerated in accordance with Article 7, the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Initial Term Lenders (including any Non-Consenting Lender whose Initial Term Loans are repaid, replaced or assigned pursuant to Section 2.19(b)(iv)) a prepayment premium equal to the amount set forth opposite the relevant period from the Closing Date as indicated below:
 
Period
  
Prepayment Premium
Prior to the second anniversary of the ClosingSecond Amendment Effective Date
  
the Make-Whole Amount
On or after the second anniversary of the ClosingSecond Amendment Effective Date but prior to the third anniversary of the ClosingSecond Amendment Effective Date
  
3.00% of the outstanding principal amount of the Initial Term Loans being prepaid
On and after the third anniversary of the ClosingSecond Amendment Effective Date:
  
0.00% of the outstanding principal amount of the Initial Term Loans being prepaid
 

(2)          In the event that, prior to the second anniversary of the ClosingSecond Amendment Effective Date, the Borrower prepays in any Fiscal Year any Initial Term Loans pursuant to Section 2.11(b)(ii) in an aggregate amount exceeding $40,000,000 in such Fiscal Year, the Borrower shall pay to the Administrative Agent, for the ratable account of each of the applicable Initial Term Lenders a prepayment premium equal to the amount set forth opposite the relevant period from the Closing Date as indicated below:
 
Period
  
Prepayment Premium
Prior to the first anniversary of the ClosingSecond Amendment Effective Date
  
2.00% of the outstanding principal amount of the Initial Term Loans being prepaid
On or after the first anniversary of the Closing Date but prior to the second anniversary of the ClosingSecond Amendment Effective Date
  
1.00% of the outstanding principal amount of the Initial Term Loans being prepaid
On and after the second anniversary of the ClosingSecond Amendment Effective Date:
  
0.00% of the outstanding principal amount of the Initial Term Loans being prepaid

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The foregoing premiums in sub-clausesclauses (1) (including the Make-Whole Amount) and (2) of this clause (f) are referred to as the “Prepayment Premium”.  All such amounts shall be due and payable on the date of the relevant prepayment or acceleration pursuant to Sections 2.11(a)(i), 2.11(b)(ii), 2.11(b)(iii) or Article 7, as applicable.  For the avoidance of doubt, no Prepayment Premium shall be payable hereunder in connection with any prepayment or repayment of Initial Term Loans (or any acceleration thereof) on or after the third anniversary of the ClosingSecond Amendment Effective Date (in the case of sub-clause (1) above) or the second anniversary of the ClosingSecond Amendment Effective Date (in the case of sub-clause (2) above).  Without limiting the generality of the foregoing, it is understood and agreed that if the Initial Term Loans are accelerated and become due prior to their maturity date in respect of any Event of Default (including upon the occurrence of a bankruptcy or insolvency event (including the acceleration of claims by operation of law)), the amount of principal of and premium on the Initial Term Loans that becomes due and payable shall equal 100% of the principal amount of the Initial Term Loans plus the Prepayment Premium in effect on the date of such acceleration and shall constitute part of the Obligations, in view of the impracticability and extreme difficulty of ascertaining actual damages and by mutual agreement of the parties as to a reasonable calculation of each Lender’s loss as a result thereof.  Any premium payable above shall be presumed to be the liquidated damages sustained by each Lender and the Borrower agrees that it is reasonable under the circumstances currently existing.  THE BORROWER EXPRESSLY WAIVES (TO THE FULLEST EXTENT IT MAY LAWFULLY DO SO) THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE OR LAW THAT PROHIBITS OR MAY PROHIBIT THE COLLECTION OF THE PREPAYMENT PREMIUM IN CONNECTION WITH ANY SUCH ACCELERATION. The Borrower expressly agrees (to the fullest extent it may lawfully do so) that: (A) the Prepayment Premium is reasonable and is the product of an arm’s length transaction between sophisticated business people, ably represented by counsel; (B) the Prepayment Premium shall be payable notwithstanding the then prevailing market rates at the time payment is made; (C) there has been a course of conduct between the Lenders and the Borrower giving specific consideration in this transaction for such agreement to pay the Prepayment Premium; and (D) the Borrower shall be estopped hereafter from claiming differently than as agreed to in this paragraph.
 
(g)         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).  Each determination by the Administrative Agent of a fee hereunder shall be conclusive and binding for all purposes, absent manifest error.
 
Section 2.13.        Interest.
 
(a)         (i)       The Term Loans, Revolving Loans and Swingline Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable Rate plus, solely during the period beginning on the Second Amendment Signing Date and ending on the Second Amendment Rate Enhancement Sunset Date, the Second Amendment PIK Rate.
 
(ii)        The Revolving Loans and Swingline Loans comprising each ABR Borrowing shall bear interest at the Alternate Base Rate plus the Applicable Rate plus, solely during the period beginning on the Second Amendment Signing Date and ending on the Second Amendment Rate Enhancement Sunset Date, the Second Amendment Additional Revolving Rate.
 
(b)          (i)        The Term Loans and Revolving Loans comprising each SOFR Benchmark Borrowing shall bear interest at the Adjusted Term SOFR Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate plus, solely during the period beginning on the Second Amendment Signing Date and ending on the Second Amendment Rate Enhancement Sunset Date, the Second Amendment PIK Rate.
 
(ii)        The Revolving Loans comprising each SOFR Benchmark Borrowing shall bear interest at the Adjusted Term SOFR Rate for the Interest Period in effect for such Borrowing plus the Applicable Rate plus, solely during the period beginning on the Second Amendment Signing Date and ending on the Second Amendment Rate Enhancement Sunset Date, the Second Amendment Additional Revolving Rate.

(c) [Reserved].

(c)         Interest on each Initial Term Loan that is attributable to the Second Amendment PIK Rate shall be payable on each Interest Payment Date by capitalizing the amount thereof and adding such amount to the outstanding principal amount of such Initial Term Loan as additional principal obligations hereunder on and as of such Interest Payment Date and, on and after such Interest Payment Date, shall automatically constitute a part of the outstanding principal amount of such Initial Term Loan for all purposes hereof (including with respect to the accrual of interest thereon at the rates applicable to such Initial Term Loan under this Agreement).
 
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(d)          Notwithstanding the foregoing but in all cases subject to Section 9.05(f), if any principal of or interest on any Term Loan or Revolving Loan, any LC Disbursement or any fee payable by the Borrower 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 annumupon the occurrence and during the continuation of any Event of Default under Section 7.01(a) or Section 7.01(f) or (g), the outstanding Obligations shall automatically accrue interest at a fluctuating interest rate per annum at all times during the continuation of such Event of Default equal to (i) in the case of overdue principal or interest of any Term Loan, Revolving Loan or unreimbursed LC Disbursement, 2.00% plus the rate otherwise applicable to such Term Loan, Revolving Loan or LC Disbursement 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 Revolving Loans that are ABR Loans as provided in paragraph (a) of this Section; provided that no amount shall accrue pursuant to this Section 2.13(d) on any overdue amount, reimbursement obligation in respect of any LC Disbursement or other amount payable to a Defaulting Lender so long as such Lender is a Defaulting Lender.
 
(e)        Accrued interest on each Term Loan, Revolving Loan and Swingline Loan shall be payable in arrears on each Interest Payment Date for such Term Loan, Revolving Loan or Swingline Loan and (i) on the Maturity Date applicable to such Loan, (ii) in the case of a Revolving Loan of any Class, upon termination of the Revolving Credit Commitments of such Class and (iii) in the case of any Swingline Loan, upon termination of all of the Revolving Credit Commitments, as applicable; provided that (A) interest accrued pursuant to paragraph (d) of this Section shall be payable on demand, (B) in the event of any repayment or prepayment of any Term Loan, Revolving Loan, (other than an ABR Revolving Loan of any Class prior to the termination of the Revolving Credit Commitments of such Class) or Swingline Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment and (C) in the event of any conversion of any SOFR Benchmark Loan prior to the end of the current Interest Period therefor, accrued interest on such Term Loan or Revolving Loan shall be payable on the effective date of such conversion; provided, further, that with respect to any interest payable on any Initial Term Loan from the Closing Date until the end of the fourth full Fiscal Quarter ending after the Closing Date (or, if later, until the Interest Payment Date following the end of such fourth full Fiscal Quarter), the Borrower may, in its sole discretion by delivering a written notice thereof to the Administrative Agent prior to the applicable Interest Payment Date with respect to such Initial Term Loan, elect (such election, a “PIK Election”) to pay up to 2.00% of the Applicable Rate (the “Maximum PIK Amount”) applicable at such time to such Initial Term Loan in kind by adding such amounts so elected to be paid in kind to the aggregate outstanding principal balance of the Initial Term Loans then outstanding, in which case, the “Applicable Rate” applicable to the amounts subject to such PIK Election shall increase as provided in the definition of “Applicable Rate”; provided, further, absent a written notification to the Administrative Agent that the Borrower has declined to make a PIK Election (which notice shall be delivered to the Administrative Agent not later than 11:00 a.m., two Business Days before the commencement of the relevant Interest Period (or, in each case, such later time as to which the Administrative Agent may reasonably agree)) with respect to any Interest Period, the Borrower shall be deemed to have delivered a written notification of a PIK Election requesting with respect to the relevant Initial Term Loans to pay the Maximum PIK Amount in kind with respect to such Interest Period concurrently with the delivery of the Borrowing Request or Interest Election Request applicable thereto.

(f)          All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and in each case shall be payable for the actual number of days elapsed (including the first day but excluding the last day).  The applicable Alternate Base Rate or Adjusted Term SOFR Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error.  Interest shall accrue on each Loan for the day on which the Loan is made and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided that any Loan that is repaid on the same day on which it is made shall bear interest for one day.
 
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Section 2.14.       Alternate Rate of Interest.  If at least two Business Days prior to the commencement of any Interest Period for a Benchmark Borrowing:
 
(a)         the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted Term SOFR Rate for such Interest Period; or
 
(b)          the Administrative Agent is advised by the Required Lenders in writing that the Adjusted Term SOFR Rate for such Interest Period does not adequately and fairly reflect the cost to such Lenders of making or maintaining their Loans included in such Borrowing for such Interest Period;
 
then the Administrative Agent shall promptly give notice thereof to the Borrower and the Lenders as promptly as practicable thereafter and, until the Administrative Agent notifies the Borrower and the Lenders that the circumstances giving rise to such notice no longer exist, which the Administrative Agent agrees promptly to do, (i) any Interest Election Request that requests the conversion of any Borrowing to, or continuation of any Borrowing as, a Benchmark Borrowing shall be ineffective and such Borrowing shall be converted to an ABR Borrowing on the last day of the Interest Period applicable thereto, and (ii) if any Borrowing Request requests a Benchmark Borrowing, such Borrowing shall be made as an ABR Borrowing.
 
Section 2.15.       Increased Costs.
 
(a)          If any Change in Law:
 
(i)          imposes, modifies or deems applicable any reserve, special deposit or similar requirement against assets of, deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted Term SOFR Rate) or Issuing Bank;
 
(ii)         subject any Lender or Issuing Bank to any Taxes (other than (A) Indemnified Taxes and Other Taxes indemnifiable under Section 2.17 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 Lender or Issuing Bank or the London interbank market any other condition (other than Taxes) affecting this Agreement or SOFR Benchmark Loans made by any Lender or any Letter of Credit or participation therein;
 
and the result of any of the foregoing is to increase the cost to the relevant Lender of making or maintaining any SOFR Benchmark Loan (or of maintaining its obligation to make any such Loan) or to increase the cost to such Lender or Issuing Bank of participating in, issuing or maintaining any Letter of Credit or to reduce the amount of any sum received or receivable by such Lender or Issuing Bank hereunder (whether of principal, interest or otherwise) in respect of any SOFR Benchmark Loan or Letter of Credit in an amount deemed by such Lender or Issuing Bank to be material, then, within 30 days after the Borrower’s receipt of the certificate contemplated by paragraph (c) of this Section, the Borrower will pay to such Lender or Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or Issuing Bank, as applicable, for such additional costs incurred or reduction suffered; provided that the Borrower shall not be liable for such compensation if (x) the relevant Change in Law occurs on a date prior to the date such Lender becomes a party hereto, (y) such Lender invokes Section 2.20 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 Lenders constituting Required Lenders.
 
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(b)         If any Lender or Issuing Bank 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 Lender’s or Issuing Bank’s capital or on the capital of such Lender’s or Issuing Bank’s holding company, if any, as a consequence of this Agreement or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a level below that which such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company could have achieved but for such Change in Law other than due to Taxes (taking into consideration such Lender’s or Issuing Bank’s policies and the policies of such Lender’s or such Issuing Bank’s holding company with respect to capital adequacy or liquidity), then within 30 days of receipt by the Borrower of the certificate contemplated by paragraph (c) of this Section the Borrower will pay to such Lender or such Issuing Bank, as applicable, such additional amount or amounts as will compensate such Lender or such Issuing Bank or such Lender’s or such Issuing Bank’s holding company for any such reduction suffered; provided that, subject to the last sentence of the definition of “Change of Law”, the Borrower shall not be liable for such compensation if the relevant Change in Law occurs on a date prior to the date such Lender becomes a party hereto.
 
(c)         Any Lender or Issuing Bank requesting compensation under this Section 2.15 shall be required to deliver a certificate to the Borrower that (i) sets forth the amount or amounts necessary to compensate such Lender or Issuing Bank 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 Lender or Issuing Bank 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 Lender or Issuing Bank to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s or Issuing Bank’s right to demand such compensation; provided, however that the Borrower shall not be required to compensate a Lender or an Issuing Bank pursuant to this Section for any increased costs or reductions incurred more than 180 days prior to the date that such Lender or Issuing Bank notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or Issuing Bank’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.
 
Section 2.16.        [Reserved].
 
Section 2.17.        Taxes.
 
(a)        Any and all payments by or on account of any obligation of any Loan Party under any Loan 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 Loan 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 2.17) each Lender (or, in the case of any payment made to the Administrative Agent for its own account, the Administrative Agent) 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 Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Requirements of Law.
 
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(c)         The Borrower shall indemnify the Administrative Agent and each Lender 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 Administrative Agent or such Lender, 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 Administrative Agent or such Lender, 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 Borrower reasonably believes that such Taxes were not correctly or legally asserted, the Administrative Agent or such Lender, as applicable, will use reasonable efforts to cooperate with the Borrower to obtain a refund of such Taxes (which shall be repaid to the Borrower in accordance with Section 2.17(g)) so long as such efforts would not, in the sole determination of the Administrative Agent or such Lender, result in any additional out-of-pocket costs or expenses not reimbursed by such Loan Party or be otherwise materially disadvantageous to the Administrative Agent or such Lender, as applicable.  In connection with any request for reimbursement under this Section 2.17(c), the relevant Lender or the Administrative Agent, as applicable, shall deliver a certificate to the Borrower 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 2.17, the Borrower shall not be required to indemnify the Administrative Agent or any Lender pursuant to this Section 2.17 for any amount to the extent the Administrative Agent or such Lender fails to notify the Borrower of such possible indemnification claim within 180 days after the Administrative Agent or such Lender receives written notice from the applicable taxing authority of the specific tax assessment giving rise to such indemnification claim.
 
(d)          [Reserved].
 
(e)        As soon as practicable after any payment of any Taxes pursuant to this Section 2.17 by any Loan Party to a Governmental Authority, the Borrower shall deliver to the Administrative Agent 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 Administrative Agent.
 
(f)           Status of Lenders.
 
(i)          Any Lender that is entitled to an exemption from or reduction of any withholding Tax with respect to any payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation as the Borrower or the Administrative Agent may reasonably request to permit such payments to be made without withholding or at a reduced rate of withholding.  In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Requirements of Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements.  Each Lender hereby authorizes the Administrative Agent to deliver to the Borrower and to any successor Administrative Agent any documentation provided to the Administrative Agent pursuant to this Section 2.17(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 2.17) shall not be required if in the Lender's reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.
 
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(ii)         Without limiting the generality of the foregoing,
 
(A)       each U.S. Lender shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such U.S. Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), two copies of executed IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding;
 
(B)        each Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:
 
(1)        in the case of any Foreign Lender 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 Lender 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 Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the Borrower 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 Lender 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 Lender is not the beneficial owner (e.g., where the Foreign Lender is a partnership or participating Lender), 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 Lender is a partnership (and not a participating Lender) and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender 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 Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), 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 Borrower or the Administrative Agent to determine the withholding or deduction required to be made; and
 
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(D)        if a payment made to any Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender 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 Lender shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by applicable Requirements of Law and at such time or times reasonably requested by the Borrower or the Administrative Agent 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 Borrower and the Administrative Agent to comply with their obligations under FATCA, to determine whether such Lender has complied with such Lender’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 Lender 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 Lender’s owner and, as applicable, such Lender. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.
 
Each Lender agrees that if any documentation (including any specific documentation required above in this Section 2.17(f)) it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall deliver to the Borrower and the Administrative Agent updated or other appropriate documentation (including any new documentation reasonably requested by the Borrower or the Administrative Agent) or promptly notify the Borrower and the Administrative Agent in writing of its legal ineligibility to do so.
 
(g)         If the Administrative Agent or any Lender 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 Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section 2.17, it shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section 2.17 with respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Administrative Agent or such Lender (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 Borrower, upon the request of the Administrative Agent or such Lender, agrees to repay the amount paid over to such Loan Party (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Administrative Agent or such Lender in the event the Administrative Agent or such Lender is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (g), in no event will the Administrative Agent or any Lender be required to pay any amount to the Borrower pursuant to this paragraph (g) to the extent that the payment thereof would place the Administrative Agent or such Lender in a less favorable net after-Tax position than the position that the Administrative Agent or such Lender 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 2.17 shall not be construed to require the Administrative Agent or any Lender to make available its Tax returns (or any other information relating to its Taxes which it deems confidential) to the relevant Loan Party or any other Person.
 
(h)        Survival.  Each party’s obligations under this Section 2.17 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
 
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(i)          Definition of “Lender”.    For the avoidance of doubt, the term “Lender” shall, for all purposes of this Section 2.17, include any Issuing Bank and any Swingline Lender and the term “Applicable Law” includes FATCA.
 
(j)          Certain Documentation.  On or before the date the Administrative Agent becomes a party to this Agreement, the Administrative Agent shall deliver to Borrower whichever of the following is applicable: (i) if the Administrative Agent 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 Administrative Agent is exempt from U.S. federal backup withholding or (ii) if the Administrative Agent 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 Lender, two executed original copies of IRS Form W-8IMY (together with all required accompanying documentation) certifying that the Administrative Agent 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 Administrative Agent 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 Borrower.  Notwithstanding anything to the contrary in this Section 2.17(j), the Administrative Agent shall not be required to provide any documentation that the Administrative Agent is not legally eligible to deliver as a result of a Change in Law after the Closing Date.
 
Section 2.18.        Payments Generally; Allocation of Proceeds; Sharing of Payments.
 
(a)          Unless otherwise specified, including as set forth in Sections 2.13(a), (b) and (e) hereof, the Borrower shall make each payment required to be made by it hereunder (whether of principal, interest or fees, reimbursements of LC Disbursements, or of amounts payable under Sections 2.15 or 2.17, or otherwise) prior to 3:00 p.m. on the date when due, in immediately available funds, without set-off or counterclaim.  Any amount received after such time on any date may, in the discretion of the Administrative Agent, 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 Administrative Agent to the applicable account designated by the Administrative Agent to the Borrower, except that any payment made pursuant to Sections 2.15, 2.17 or 9.03 shall be made directly to the Person or Persons entitled thereto.  The Administrative Agent 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 2.19(b) and 2.20, each Borrowing, each payment or prepayment of principal of any Borrowing, each payment of interest in respect of the Loans of a given Class and each conversion of any Borrowing to, or continuation of any Borrowing as, a Borrowing of any Type (and of the same Class) shall be allocated pro rata among the Lenders in accordance with their respective Applicable Percentages of the applicable Class.  Each Lender agrees that in computing such Lender’s portion of any Borrowing to be made hereunder, the Administrative Agent may, in its discretion, round each Lender’s percentage of such Borrowing to the next higher or lower whole Dollar amount.  All payments hereunder (including payments in kind) shall be made in Dollars.  Any payment required to be made by the Administrative Agent hereunder shall be deemed to have been made by the time required if the Administrative Agent 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 Administrative Agent to make such payment.
 
(b)          (I)        During the continuance of any Waterfall/Voting Triggering Event, upon an Event of Default pursuant to Section 7.01 (f) or (g) or delivery of a Waterfall Triggering Notice, so long as such Waterfall Triggering Notice has not been withdrawn, and (II) 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 Administrative Agent shall satisfy the Borrower’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 Loan Document that gives rise to the payment of such amount) shall be applied by the Administrative Agent in the following order:
 
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(i)          first, to the payment of all costs and expenses then due incurred by the Administrative Agent in connection with any collection, sale or realization on Collateral or otherwise in connection with this Agreement, any other Loan Document or any of the Secured Obligations, including all court costs and the fees and expenses of agents and legal counsel, the repayment of all advances made by the Administrative Agent hereunder or under any other Loan Document on behalf of any Loan Party or any Parent Loan Guarantor and any other costs or expenses incurred in connection with the exercise of any right or remedy hereunder or under any other Loan Document,
 
(ii)         second, on a pro rata basis, to pay any fees, indemnities or expense reimbursements then due to the Administrative Agent (other than those covered in clause first above) or to the Swingline Lender or any Issuing Bank from the Borrower constituting Secured Obligations,
 
(iii)       third, on a pro rata basis in accordance with the amounts of the Secured Obligations (other than contingent indemnification obligations for which no claim has yet been made) owed to the Revolving Lenders on the date of any such distribution, to (A) the payment in full of such Secured Obligations (including, with respect to LC Exposure, an amount to be paid to the Administrative Agent equal to 100% of the LC Exposure (minus the amount then on deposit in the LC Collateral Account) on such date, to be held in the LC Collateral Account as Cash collateral for such Obligations) and in the case of payment of the outstanding principal amount of the Revolving Loans, together with a concurrent permanent reduction of the Revolving Credit Commitments in an amount equal to the amount of such payment, and (B) all Banking Services Obligations and all Secured Hedging Obligations in an amount under this clause (B) not to exceed the Maximum Revolving Lender Cash Management/Secured Hedge Amount; provided that if any Letter of Credit expires undrawn, then any Cash collateral held to secure the related LC Exposure shall be applied in accordance with this Section 2.18(b), beginning with clause first above,
 
(iv)        fourth, on a pro rata basis in accordance with the amounts of the Secured Obligations (other than contingent indemnification obligations for which no claim has yet been made) owed to the Secured Parties (other than the Revolving Lenders) on the date of any such distribution, to the payment in full of such Secured Obligations,
 
(v)          fifth, as provided in any applicable Intercreditor Agreement, and
 
(vi)         sixth, to, or at the direction of, the Borrower or as a court of competent jurisdiction may otherwise direct.
 
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(c)         If any Lender 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 Loans of any Class or participations in LC Disbursements or Swingline Loans held by it resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans of such Class and participations in LC Disbursements or Swingline Loans and accrued interest thereon than the proportion received by any other Lender with Loans of such Class and participations in LC Disbursements or Swingline Loans, then the Lender receiving such greater proportion shall purchase (for Cash at face value) participations in the Loans of such Class and sub-participations in LC Disbursements or Swingline Loans of other Lenders of such Class at such time outstanding to the extent necessary so that the benefit of all such payments shall be shared by the Lenders of such Class ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans of such Class and participations in LC Disbursements or Swingline Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations 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 Borrower pursuant to and in accordance with the express terms of this Agreement or (y) any payment obtained by any Lender as consideration for the assignment of or sale of a participation in any of its Loans to any permitted assignee or participant, including any payment made or deemed made in connection with Sections 2.22 or 2.23, and/or Section 9.05.  The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable Requirements of Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.  The Administrative Agent will keep records (which shall be conclusive and binding in the absence of manifest error) of participations purchased under this Section 2.18(c) and will, in each case, notify the Lenders following any such purchases or repayments.  Each Lender that purchases a participation pursuant to this Section 2.18(c) shall from and after the date of such purchase have the right to give all notices, requests, demands, directions and other communications under this Agreement with respect to the portion of the Obligations purchased to the same extent as though the purchasing Lender were the original owner of the Obligations purchased.  For purposes of subclause (c) of the definition of “Excluded Taxes”, any Lender that acquires a participation pursuant to this Section 2.18(c) shall be treated as having acquired such participation on the earlier date(s) on which such Lender acquired the applicable interest(s) in the Commitment(s) and/or Loan(s) to which such participation relates.
 
(d)         Unless the Administrative Agent has received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of any Lender or any Issuing Bank hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the applicable Lender or Issuing Bank the amount due.  In such event, if the Borrower has not in fact made such payment, then each Lender or the applicable Issuing Bank severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or Issuing Bank with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.
 
(e)          If any Lender fails to make any payment required to be made by it pursuant to Section 2.07(b) or Section 2.18(d), then the Administrative Agent may, in its discretion (notwithstanding any contrary provision hereof), apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid.
 
Section 2.19.        Mitigation Obligations; Replacement of Lenders.
 
(a)         If any Lender requests compensation under Section 2.15 or determines it can no longer make or maintain SOFR Benchmark Loans pursuant to Section 2.20, or any Loan Party is required to pay any additional amount to or indemnify any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, then such Lender shall use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or its participation in any Letter of Credit affected by such event, or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the reasonable judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.15 or 2.17, as applicable, in the future or mitigate the impact of Section 2.20, as the case may be, and (ii) would not subject such Lender to any unreimbursed out-of-pocket cost or expense and would not otherwise be disadvantageous to such Lender in any material respect.  The Borrower hereby agrees to pay all reasonable out-of-pocket costs and expenses incurred by any Lender in connection with any such designation or assignment.
 
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(b)         If (i) any Lender requests compensation under Section 2.15 or determines it can no longer make or maintain SOFR Benchmark Loans pursuant to Section 2.20, (ii) any Loan Party is required to pay any additional amount to or indemnify any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.17, (iii) any Lender is a Defaulting Lender or (iv) in connection with any proposed amendment, waiver or consent requiring the consent of “each Lender”, “each Revolving Lender” or “each Lender directly affected thereby” (or any other Class or group of Lenders other than the Required Lenders) with respect to which Required Lender or Required Revolving Lender consent (or the consent of Lenders 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 Lender is a non-consenting Lender, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, (x) terminate the applicable Commitments of such Lender, and repay all Obligations of the Borrower owing to such Lender relating to the applicable Loans and participations held by such Lender as of such termination date (provided that, if, after giving effect such termination and repayment, the aggregate amount of the Revolving Credit Exposure of any Class exceeds the aggregate amount of the Revolving Credit Commitments of such Class then in effect, then the Borrower shall, not later than the next Business Day, prepay one or more Revolving Loan Borrowings of the applicable Class or Swingline Loans (and, if no Revolving Loan Borrowings of such Class are outstanding, deposit Cash collateral in the LC Collateral Account) in an amount necessary to eliminate such excess) or (y) replace such Lender by requiring such Lender to assign and delegate (and such Lender 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 Assignee that assumes such obligations (which Eligible Assignee may be another Lender, if any Lender accepts such assignment); provided that (A) such Lender has received payment of an amount equal to the outstanding principal amount of its Loans and, if applicable, participations in LC Disbursements or Swingline Loans, in each case of such Class of Loans and/or Commitments, accrued interest thereon, accrued fees and all other amounts payable to it under any Loan Document with respect to such Class of Loans and/or Commitments, (B) in the case of any assignment resulting from a claim for compensation under Section 2.15 or payments required to be made pursuant to Section 2.17, such assignment would result in a reduction in such compensation or payments and (C) such assignment does not conflict with applicable Requirements of Law.  No Lender (other than a Defaulting Lender) shall be required to make any such assignment and delegation, and the Borrower may not repay the Obligations of such Lender or terminate its Commitments, in each case, if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply.  Each Lender agrees that if it is replaced pursuant to this Section 2.19, it shall execute and deliver to the Administrative Agent an Assignment Agreement to evidence such sale and purchase and deliver to the Administrative Agent any Promissory Note (if the assigning Lender’s Loans are evidenced by one or more Promissory Notes) subject to such Assignment Agreement (provided that the failure of any Lender replaced pursuant to this Section 2.19 to execute an Assignment Agreement or deliver any such Promissory Note shall not render such sale and purchase (and the corresponding assignment) invalid), such assignment shall be recorded in the Register and any such Promissory Note shall be deemed cancelled.  Each Lender hereby irrevocably appoints the Administrative Agent (such appointment being coupled with an interest) as such Lender’s attorney-in-fact, with full authority in the place and stead of such Lender and in the name of such Lender, from time to time in the Administrative Agent’s discretion, with prior written notice to such Lender, to take any action and to execute any such Assignment Agreement or other instrument that the Administrative Agent may deem reasonably necessary to carry out the provisions of this clause (b).
 
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Section 2.20.       Illegality.  If any Lender reasonably determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted after the Closing Date that it is unlawful, for such Lender or its applicable lending office to make, maintain or fund Loans whose interest is determined by reference to the Adjusted Term SOFR Rate, or to determine or charge interest rates based upon the Adjusted Term SOFR Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of Dollars in the applicable interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue SOFR Benchmark Loans or to convert ABR Loans to SOFR Benchmark Loans shall be suspended and (ii) if such notice asserts the illegality of such Lender making or maintaining ABR Loans the interest rate on which is determined by reference to the Adjusted Term SOFR Rate component of the Alternate Base Rate, the interest rate on which ABR Loans of such Lender, shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Adjusted Term SOFR Rate component of the Alternate Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist (which notice such Lender agrees to give promptly).  Upon receipt of such notice, (x) the Borrower shall, upon demand from the relevant Lender (with a copy to the Administrative Agent), prepay or convert all of such Lender’s SOFR Benchmark Loans to ABR Loans (the interest rate on which ABR Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Adjusted Term SOFR Rate component of the Alternate Base Rate) either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such SOFR Benchmark Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such SOFR Benchmark Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Adjusted Term SOFR Rate, the Administrative Agent shall during the period of such suspension compute the Alternate Base Rate applicable to such Lender without reference to the Adjusted Term SOFR Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Adjusted Term SOFR Rate.  Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.  Each Lender agrees to designate a different lending office if such designation will avoid the need for such notice and will not, in the determination of such Lender, otherwise be materially disadvantageous to such Lender.
 
Section 2.21.       Defaulting Lenders.  Notwithstanding any provision of this Agreement to the contrary, if any Person becomes a Defaulting Lender, then the following provisions shall apply for so long as such Person is a Defaulting Lender:
 
(a)         Fees shall cease to accrue on the unfunded portion of any Commitment of such Defaulting Lender pursuant to Section 2.12(a) and pursuant to any other provisions of this Agreement or other Loan Document.
 
(b)         The Commitments and the Revolving Credit Exposure of such Defaulting Lender shall not be included in determining whether all Lenders, each affected Lender, the Required Lenders, the Required Revolving Lenders or such other number of Lenders as may be required hereby or under any other Loan 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 Lenders or each affected Lender which affects such Defaulting Lender disproportionately and adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.
 
(c)        Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of any Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 2.11, Section 2.15, Section 2.17, Section 2.18, Article 7, Section 9.05 or otherwise, and including any amounts made available to the Administrative Agent by such Defaulting Lender pursuant to Section 9.09), shall be applied at such time or times as may be determined by the Administrative Agent and, where relevant, the Borrower as follows:  first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to any applicable Issuing Bank and/or Swingline Lender hereunder; third, if so reasonably determined by the Administrative Agent or reasonably requested by the applicable Issuing Bank, to be held as Cash collateral for future funding obligations of such Defaulting Lender in respect of any participation in any Letter of Credit; fourth, so long as no Default or Event of Default exists, as the Borrower may request, to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement; fifth, as the Administrative Agent or the Borrower may elect, to be held in a deposit account and released in order to satisfy obligations of such Defaulting Lender to fund Loans under this Agreement; sixth, to the payment of any amounts owing to the non-Defaulting Lenders, Issuing Banks or Swingline Lenders as a result of any judgment of a court of competent jurisdiction obtained by any non-Defaulting Lender, any Issuing Bank or any Swingline Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender 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 Loan or LC Exposure in respect of which such Defaulting Lender has not fully funded its appropriate share and (y) such Loan or LC Exposure was made or created, as applicable, at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and LC Exposure owed to, all non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or LC Exposure owed to, such Defaulting Lender.  Any payments, prepayments or other amounts paid or payable to any Defaulting Lender that are applied (or held) to pay amounts owed by any Defaulting Lender or to post Cash collateral pursuant to this Section 2.21(c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.
 
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(d)          If any Swingline Exposure or LC Exposure exists at the time any Lender becomes a Defaulting Lender then:
 
(i)          the Swingline Exposure and LC Exposure of such Defaulting Lender shall be reallocated among the non-Defaulting Lenders under the Revolving Facility (the “Non-Defaulting Revolving Lenders”) in accordance with their respective Applicable Revolving Credit Percentages but only to the extent that (A) the sum of the Revolving Credit Exposures of all non-Defaulting Lenders attributable to the Revolving Credit Commitments of any Class does not exceed the total of the Revolving Credit Commitments of all Non-Defaulting Revolving Lenders of such Class and (B) the Revolving Credit Exposure of any non-Defaulting Lender that is attributable to its Revolving Credit Commitment of such Class does not exceed such non-Defaulting Lender’s Revolving Credit Commitment of such Class;
 
(ii)         if the reallocation described in clause (i) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any other right or remedy available to it hereunder or under applicable Requirements of Law, within two Business Days following notice by the Administrative Agent, Cash collateralize 100% of such Defaulting Lender’s LC Exposure and any obligations of such Defaulting Lender to fund participations in any Swingline Loans (after giving effect to any partial reallocation pursuant to paragraph (i) above and any Cash collateral provided by such Defaulting Lender or pursuant to Section 2.21(c) above) or make other arrangements reasonably satisfactory to the Administrative Agent and to the applicable Issuing Bank and/or the Swingline Lender with respect to such LC Exposure and/or Swingline Loans and obligations to fund participations.  Cash collateral (or the appropriate portion thereof) provided to reduce LC Exposure or other obligations shall be released promptly following (A) the elimination of the applicable LC Exposure or other obligations giving rise thereto (including by the termination of the Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 2.19)) or (B) the Administrative Agent’s good faith determination that there exists excess Cash collateral (including as a result of any subsequent reallocation of Swingline Loans and LC Exposure among non-Defaulting Lender described in clause (i) above);
 
(iii)        if the LC Exposure of the non-Defaulting Lenders is reallocated pursuant to this Section 2.21(d), then the fees payable to the Revolving Lenders pursuant to Sections 2.12(a) and (b), as the case may be, shall be adjusted to give effect to such reallocation; and
 
(iv)        if any Defaulting Lender’s LC Exposure is not Cash collateralized, prepaid or reallocated pursuant to this Section 2.21(d), then, without prejudice to any rights or remedies of the applicable Issuing Bank or any Revolving Lender hereunder, all letter of credit fees payable under Section 2.12(b) with respect to such Defaulting Lender’s LC Exposure shall be payable to the applicable Issuing Bank until such Defaulting Lender’s LC Exposure is Cash collateralized or reallocated.
 
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(e)         So long as any Revolving Lender is a Defaulting Lender, the Swingline Lender shall now be required to fund any Swingline Loan, and no Issuing Bank shall be required to issue, extend, create, incur, amend or increase any Letter of Credit unless it is reasonably satisfied that the related exposure will be 100% covered by the Revolving Credit Commitments of the non-Defaulting Lenders, Cash collateral provided pursuant to Section 2.21(c) and/or Cash collateral provided in accordance with Section 2.21(d), and participating interests in any such or newly issued, extended or created Letter of Credit or newly made Swingline Loan shall be allocated among Non-Defaulting Revolving Lenders in a manner consistent with Section 2.21(d)(i) (it being understood that Defaulting Lenders shall not participate therein).
 
(f)         In the event that the Administrative Agent and the Borrower agree that any Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, then the Applicable Revolving Credit Percentage of Swingline Exposure and LC Exposure of the Revolving Lenders shall be readjusted to reflect the inclusion of such Lender’s Revolving Credit Commitment, and on such date such Revolving Lender shall purchase at par such of the Revolving Loans of the applicable Class of the other Revolving Lenders or participations in Revolving Loans of the applicable Class as the Administrative Agent determine as necessary in order for such Revolving Lender to hold such Revolving Loans or participations in accordance with its Applicable Percentage of the applicable Class or its Applicable Revolving Credit Percentage, as applicable.  Notwithstanding the fact that any Defaulting Lender has adequately remedied all matters that caused such Lender to be a Defaulting Lender, (x) no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while such Lender was a Defaulting Lender and (y) except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from such Lender’s having been a Defaulting Lender.
 
Section 2.22.        Incremental Credit Extensions.
 
(a)         The Borrower may, at any time, on one or more occasions pursuant to an Incremental Facility Amendment (i) add one or more new Classes of term facilities and/or increase the principal amount of the Term Loans of any existing Class by requesting new commitments to provide such Term Loans (any such new Class or increase, an “Incremental Term Facility” and any loans made pursuant to an Incremental Term Facility, “Incremental Term Loans”) and/or (ii) increase the aggregate amount of the Revolving Credit Commitments (any such increase, an “Incremental Revolving Facility” and, together with any Incremental Term Facility, “Incremental Facilities”; and the loans thereunder, “Incremental Revolving Loans” and any Incremental Revolving Loans, together with any Incremental Term Loans, “Incremental Loans”) in an aggregate outstanding principal amount not to exceed the Incremental Cap; provided that:
 
(i)         no Incremental Commitment in respect of any Incremental Term Facility may be in an amount that is less than $5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree),
 
(ii)         except as the Borrower and any Lender may separately agree, no Lender shall be obligated to provide any Incremental Commitment, and the determination to provide any Incremental Commitment shall be within the sole and absolute discretion of such Lender (it being agreed that the Borrower shall not be obligated to offer the opportunity to any Lender to participate in any Incremental Facility except to the extent required pursuant to Section 2.22(b)),
 
(iii)       no Incremental Facility or Incremental Loan (nor the creation, provision or implementation thereof) shall require the approval of any existing Lender other than in its capacity, if any, as a lender providing all or part of any Incremental Commitment or Incremental Loan,
 
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(iv)        except as otherwise permitted herein (including with respect to margin, pricing, maturity and fees), (A) the terms of any Incremental Term Facility, if not substantially consistent with those applicable to any then-existing Term Loans, must be reasonably acceptable to the Administrative Agent and the Lender Representative (it being agreed that any terms contained in such Incremental Term Facility (x) which are applicable only after the then-existing Latest Term Loan Maturity Date and/or (y) that are more favorable to the lenders or the agent of such Incremental Term Facility than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders, Revolving Lenders or the Administrative Agent, as applicable, pursuant to the applicable Incremental Facility Amendment shall be deemed satisfactory to the Administrative Agent and the Lender Representative) and (B) the terms of any Incremental Revolving Facility shall be identical to any then-existing Revolving Facility,
 
(v)         the Effective Yield (and the components thereof) applicable to any Incremental Facility shall be determined by the Borrower and the lender or lenders providing such Incremental Facility; provided that the Effective Yield applicable to any Incremental Term Facility which is pari passu with the Initial Term Loans in right of payment and with respect to security may not be more than 0.50% higher than the Effective Yield applicable to the Initial Term Loans unless the Applicable Rate (and/or, as provided in the proviso below, the Alternate Base Rate floor or Term SOFR floor) with respect to the Initial Term Loans is adjusted such that the Effective Yield on the Initial Term Loans is not more than 0.50% per annum less than the Effective Yield with respect to such Incremental Facility; provided, further, that any increase in Effective Yield applicable to any Initial Term Loan due to the application or imposition of an Alternate Base Rate floor or Term SOFR floor on any Incremental Term Loan may, at the election of the Borrower, be effected through an increase in the Alternate Base Rate floor or Term SOFR floor applicable to such Initial Term Loan,
 
(vi)       the final maturity date with respect to any Incremental Term Loans shall be no earlier than the Latest Term Loan Maturity Date; provided that if such Incremental Term Loans are secured by a lien on the Collateral that is junior to the lien securing the Secured Obligations or if such Incremental Term Loans are unsecured, the final maturity date with respect to such Incremental Term Loans shall be no earlier than the date that is ninety-one (91) days after the Latest Term Loan Maturity Date,
 
(vii)       the Weighted Average Life to Maturity of any Incremental Term Facility shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing tranche of Term Loans (without giving effect to any prepayment thereof); it being understood and agreed that no Incremental Term Facility shall have scheduled amortization due prior to the Initial Term Loan Maturity Date,
 
(viii)      subject to clauses (vi) and (vii) above, any Incremental Term Facility may otherwise have an amortization schedule as determined by the Borrower and the lenders providing such Incremental Term Facility,
 
(ix)        subject to clause (v) above, to the extent applicable, any fees payable in connection with any Incremental Facility shall be determined by the Borrower and the arrangers and/or lenders providing such Incremental Facility,
 
(x)         (A) any Incremental Term Facility may rank pari passu with or junior to any then-existing tranche of Term Loans, in right of payment and/or security (for the avoidance of doubt, no such Incremental Term Facility may be pari passu with or senior to the Revolving Facility in right of payment and/or security) or may be unsecured (and to the extent the relevant Incremental Facility is secured or subordinated in right of payment to any then-existing tranche of Term Loans, it shall be subject to an Intercreditor Agreement), (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or a Parent Loan Guarantor or (y) secured by any assets other than the Collateral and (C) each Term Lender under any Incremental Term Facility shall become a party to the AAL to the extent not then already a party thereto,
 
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(xi)        any Incremental Term Facility may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vi), in each case, to the extent provided in such Sections,
 
(xii)       no Event of Default shall exist immediately prior to or after giving effect to such Incremental Facility; provided, that notwithstanding the foregoing, in the case of any Incremental Facility incurred in connection with any acquisition, Investment or irrevocable repayment or redemption of Indebtedness, no Event of Default under Sections 7.01(a), (f) or (g) shall exist immediately prior to or after giving effect to such Incremental Facility,
 
(xiii)      the proceeds of any Incremental Facility 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 Incremental Term Facility may not be used to make Restricted Payments and/or Restricted Debt Payments,
 
(xiv)      on the date of the Borrowing of any Incremental Term Loans that will be of the same Class as any then-existing Class of Term Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13 above, such Incremental Term Loans shall be added to (and constitute a part of, be of the same Type as and, at the election of the Borrower, have the same Interest Period as) each Borrowing of outstanding Term Loans of such Class on a pro rata basis (based on the relative sizes of such Borrowings), so that each Term Lender providing such Incremental Term Loans will participate proportionately in each then-outstanding Borrowing of Term Loans of such Class; it being acknowledged that the application of this clause (a)(xiv) may result in new Incremental Term Loans having Interest Periods (the duration of which may be less than one month) that begin during an Interest Period then applicable to outstanding SOFR Benchmark Loans of the relevant Class and which end on the last day of such Interest Period,
 
(xv)        the aggregate amount of Incremental Revolving Facilities that may be established hereunder shall not exceed $10,000,000,
 
(xvi)      in no event may any Incremental Term Facility be provided (including by way of arrangement with any fronting bank) by any Person that is (A) a holder of Preferred Shares (or any Affiliate of such holder) or (B) a holder of any Second Lien PIK Notes or any other Specified Junior Debt (or an Affiliate of such holder) at the time of consummation of such Incremental Term Facility; provided, that the foregoing shall not prohibit any such Person from acquiring, in any secondary market, the relevant Incremental Term Loans by assignment, participation or otherwise after the initial closing thereof (subject to the limitations set forth in Section 9.05(g)), and
 
(xvii)     Incremental Revolving Facilities shall be provided solely by commercial banks or investment banks.
 
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(b)          (i) Prior to the Borrower issuing one or more Incremental Term Facilities, in an aggregate outstanding principal amount in excess of $10,000,000 for all such Incremental Term Facilities, the Borrower shall first seek commitments in respect of such Incremental Term Facility (the “Offered Debt”) from the existing Initial Term Lenders (other than any existing Initial Term Lender that holds any Preferred Shares (or has an Affiliate that holds Preferred Shares) -at such time), each of which shall be entitled to agree or decline to provide the applicable Incremental Commitments in its sole discretion, provided, that if any of the existing Initial Term Lenders 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 (5) Business Days of receipt of the offer to provide the Offered Debt from the Borrower (such 5th Business Day,  the “Offer Deadline”), the Borrower may then seek Incremental Term Commitments on substantially the same terms from other Persons; and  provided, further that if any such other Person is not then an existing Lender, such Person must constitute an “Eligible Assignee” and the Administrative Agent shall have a right to consent (such consent not to be unreasonably withheld or delayed) to the relevant Person’s provision of Incremental Term Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such New Lender and (ii) Incremental Revolving Commitments may be provided by any existing Lender, or by any other commercial bank or investment bank (other than any person that holds any Preferred Shares (or has an Affiliate that holds Preferred Shares) (any such lender an “Incremental Revolving Facility Lender”); ), provided, that the foregoing shall not prohibit any such Person from acquiring the relevant Incremental Term Loans by assignment, participation or otherwise after the initial closing thereof (subject to the limitations set forth in Section 9.05(g)); provided further that, the Administrative Agent (in the case of any Incremental Revolving Facility, the Swingline Lender and any Issuing Bank) shall have the right to consent (such consent not to be unreasonably withheld or delayed) to the new relevant Incremental Revolving Facility Lender’s provision of Incremental Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Loans to such Incremental Revolving Facility Lender.
 
(c)         Each Lender or Incremental Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and the Borrower all such documentation (including the relevant Incremental Facility Amendment) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment.  To the extent any Incremental Lender is not a Lender, such Incremental Lender shall execute and deliver to the Administrative Agent and the Lender Representative an executed acknowledgment to the AAL, substantially in the form of Exhibit A thereto. On the effective date of such Incremental Commitment, each Incremental Lender shall become a Lender for all purposes in connection with this Agreement.
 
(d)       As conditions precedent to the effectiveness of any Incremental Facility or the making of any Incremental Loans, (i) upon its request, the Administrative Agent shall be entitled to receive customary written opinions of counsel, as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall be entitled to receive, from each Incremental Lender, an Administrative Questionnaire and such other documents as it shall reasonably require from such Incremental Lender, (iii) the Administrative Agent shall have received, on behalf of the Incremental Lenders, the amount of any fees payable to the Incremental Lenders in respect of such Incremental Facility or Incremental Loans, (iv) subject to Section 2.22(h), the Administrative Agent shall have received a Borrowing Request as if the relevant Incremental Loans were subject to Section 2.03 or another written request the form of which is reasonably acceptable to the Administrative Agent (it being understood and agreed that the requirement to deliver a Borrowing Request shall not result in the imposition of any additional condition precedent to the availability of the relevant Incremental Loans) and (v) the Administrative Agent shall be entitled to receive a certificate of the Borrower signed by a Responsible Officer thereof:
 
(A)         certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, and
 
(B)          to the extent applicable, certifying that the condition set forth in clause (a)(xii) above has been satisfied.
 
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(e)         Upon the implementation of any Incremental Revolving Facility pursuant to this Section 2.22, any Incremental Revolving Facility shall be established as Revolving Credit Commitments of the same Class as any then-existing Class of Revolving Credit Commitments, (i) each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each relevant Incremental Revolving Facility Lender, and each relevant Incremental Revolving Facility Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each deemed assignment and assumption of participations, all of the Revolving Lenders’ (including each Incremental Revolving Facility Lender) (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans shall be held on a pro rata basis on the basis of their respective Revolving Credit Commitments (after giving effect to any increase in the Revolving Credit Commitment pursuant to Section 2.22) and (ii) the existing Revolving Lenders of the applicable Class shall assign Revolving Loans to certain other Revolving Lenders of such Class (including the Revolving Lenders providing the relevant Incremental Revolving Facility), and such other Revolving Lenders (including the Revolving Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in each case to the extent necessary so that all of the Revolving Lenders of such Class participate in each outstanding Borrowing of Revolving Loans pro rata on the basis of their respective Revolving Credit Commitments of such Class (after giving effect to any increase in the Revolving Credit Commitment pursuant to this Section 2.22); it being understood and agreed that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this clause (i).
 
(f)         On the date of effectiveness of any Incremental Revolving Facility, the Letter of Credit Sublimit and/or the maximum amount of LC Exposure and/or Swingline Loans, as applicable, permitted hereunder shall increase by an amount, if any, agreed upon by the Borrower, the Administrative Agent and the relevant Issuing Bank and/or the Swingline Lender, as applicable; it being understood and agreed that the Borrower and any Lender providing any Incremental Revolving Facility may agree that such Lender will provide a portion of the Letter of Credit Sublimit in excess of its Applicable Percentage thereof.
 
(g)         The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Incremental Facility Amendment and/or any amendment to any other Loan Document as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments pursuant to this Section 2.22 and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Classes or sub-Classes, in each case on terms consistent with this Section 2.22.
 
(h)         Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds of any Incremental Facility are intended to be applied to finance an acquisition or other Investment and the lenders providing such Incremental Facility so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality.
 
(i)          This Section 2.22 shall supersede any provision in Sections 2.18 or 9.02 to the contrary.
 
(j)         Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, from and after the Second Amendment Effective Date, (i) in no event shall any Incremental Facility that is secured by a Lien on the Collateral that is pari passu with the Lien on the Collateral securing the Secured Obligations be established, or Incremental Loans be incurred, without the prior written consent of the Required Lenders and (ii) in addition to the consent required in clause (i), in no event shall any Incremental Revolving Facility be established without the prior written consent of the Required Revolving Lenders.
 
Section 2.23.        Extensions of Loans and Revolving Credit Commitments.
 
(a)         Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower to all Lenders holding Loans of any Class or Commitments of any Class, in each case on a pro rata basis (based on the aggregate outstanding principal amount of the respective Loans or Commitments of such Class) and on the same terms to each such Lender, the Borrower is hereby permitted to consummate transactions with any individual Lender who accepts the terms contained in the relevant Extension Offer to extend the Maturity Date of all or a portion of such Lender’s Loans and/or Commitments of such Class and otherwise modify the terms of all or a portion of such Loans and/or Commitments pursuant to the terms of the relevant Extension Offer (including by increasing the interest rate or fees payable in respect of such Loans and/or Commitments (and related outstandings) and/or modifying the amortization schedule, if any, in respect of such Loans) (each, an “Extension”); it being understood that any Extended Term Loans shall constitute a separate Class of Loans from the Class of Loans from which they were converted and any Extended Revolving Credit Commitments shall constitute a separate Class of Revolving Credit Commitments from the Class of Revolving Credit Commitments from which they were converted, so long as the following terms are satisfied:
 
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(i)        except as to (A) interest rates, fees and final maturity (which shall, subject to immediately succeeding clause (iii) and to the extent applicable, be determined by the Borrower and any Lender who agrees to an Extension of its Revolving Credit Commitments and set forth in the relevant Extension Offer), (B) terms (excluding, prior to the Initial Revolving Credit Maturity Date, terms related to priority of liens or collateral or priority of payment) applicable to such Extended Revolving Credit Commitments or Extended Revolving Loans (each as defined below) that are more favorable to the lenders or the agent of such Extended Revolving Credit Commitments or Extended Revolving Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Revolving Lenders or, as applicable, the Administrative Agent pursuant to the applicable Extension Amendment, and (C) any covenants or other provisions applicable only to periods after the Latest Revolving Credit Maturity Date, the Revolving Credit Commitment of any Lender who agrees to an extension with respect to such Commitment (an “Extended Revolving Credit Commitment”; and the Loans thereunder, “Extended Revolving Loans”), and the related outstandings, shall constitute a revolving commitment (or related outstandings, as the case may be) with substantially consistent terms (or terms not less favorable to existing Lenders) as the Class of Revolving Credit Commitments subject to the relevant Extension Offer (and related outstandings) provided hereunder; provided that to the extent more than one Revolving Facility exists after giving effect to any such Extension, (x) the borrowing and repayment (except for (1) payments of interest and fees at different rates on the Revolving Facilities (and related outstandings), (2) repayments required upon the Maturity Date of any Revolving Facility and (3) repayments made in connection with a permanent repayment and termination of Revolving Credit Commitments under any Revolving Facility (subject to clause (z) below)) of Revolving Loans with respect to any Revolving Facility after the effective date of such Extended Revolving Credit Commitments shall be made on a pro rata basis with all other Revolving Facilities, (y) all Swingline Loans and Letters of Credit shall be participated on a pro rata basis by all Revolving Lenders and (z)any permanent repayment of Revolving Loans with respect to, and reduction or termination of Revolving Credit Commitments under, any Revolving Facility after the effective date of such Extended Revolving Credit Commitments shall be made with respect to such Extended Revolving Loans on a pro rata basis or less than pro rata basis with all other Revolving Facilities, except that the Borrower shall be permitted to permanently repay Revolving Loans and terminate Revolving Credit Commitments of any Revolving Facility on a greater than pro rata basis as compared to any other Revolving Facilities with a later Maturity Date than such Revolving Facility;
 
(ii)       except as to (A) interest rates, fees, amortization, final maturity date, premiums, required prepayment dates and participation in prepayments (which shall, subject to immediately succeeding clauses (iii), (iv) and (v), be determined by the Borrower and any Lender who agrees to an Extension of its Term Loans and set forth in the relevant Extension Offer), (B) terms applicable to such Extended Term Loans (as defined below) that are more favorable to the lenders or the agent of such Extended Term Loans than those contained in the Loan Documents and are then conformed (or added) to the Loan Documents for the benefit of the Term Lenders or, as applicable, the Administrative Agent pursuant to the applicable Extension Amendment and (C) any covenants or other provisions applicable only to periods after the Latest Term Loan Maturity Date (in each case, as of the date of such Extension), the Term Loans of any Lender extended pursuant to any Extension (any such extended Term Loans, the “Extended Term Loans”) shall have substantially consistent terms (or terms not less favorable to existing Lenders) as the tranche of Term Loans subject to the relevant Extension Offer; provided, that no Extended Term Loans shall be pari passu with or senior to the Revolving Facility in right of payment and/or security;
 
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(iii)        (x) the final maturity date of any Extended Term Loans may be no earlier than the then applicable Latest Term Loan Maturity Date at the time of Extension and (y) no Extended Revolving Credit Commitments or Extended Revolving Loans may have a final maturity date earlier than (or require commitment reductions prior to) the Latest Revolving Credit Maturity Date;
 
(iv)        the Weighted Average Life to Maturity of any Extended Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing Term Loans;
 
(v)         subject to clauses (iii) and (iv) above, any Extended Term Loans may otherwise have an amortization schedule as determined by the Borrower and the Lenders providing such Extended Term Loans,
 
(vi)        any Extended Term Loans may participate (A) in any voluntary prepayment of Term Loans as set forth in Section 2.11(a)(i) and (B) in any mandatory prepayment of Term Loans as set forth in Section 2.11(b)(vi), in each case, to the extent provided in such Sections;
 
(vii)        if the aggregate principal amount of Loans or Commitments, as the case may be, in respect of which Lenders have accepted the relevant Extension Offer exceed the maximum aggregate principal amount of Loans or Commitments, as the case may be, offered to be extended by the Borrower pursuant to such Extension Offer, then the Loans or Commitments, as the case may be, of such Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed the applicable Lender’s actual holdings of record) with respect to which such Lenders have accepted such Extension Offer;
 
(viii)       unless the Administrative Agent otherwise agrees, any Extension must be in a minimum amount of $5,000,000;
 
(ix)         any applicable Minimum Extension Condition must be satisfied or waived by the Borrower;
 
(x)          any documentation in respect of any Extension shall be consistent with the foregoing; and
 
(xi)         no Extension of any Revolving Facility shall be effective as to the obligations of the Swingline Lender to make any Swingline Loans or any Issuing Bank with respect to Letters of Credit without the consent of the Swingline Lender or such Issuing Bank (such consents not to be unreasonably withheld or delayed) (and, in the absence of such consent, all references herein to Latest Revolving Credit Maturity Date shall be determined, when used in reference to the Swingline Lender or such Issuing Bank, as applicable, without giving effect to such Extension).
 
(b)        (i) No Extension consummated in reliance on this Section 2.23 shall constitute a voluntary or mandatory prepayment for purposes of Section 2.11, (ii) the scheduled amortization payments (insofar as such schedule affects payments due to Lenders participating in the relevant Class) set forth in Section 2.10 shall be adjusted to give effect to any Extension of any Class of Loans and/or Commitments and (iii) except as set forth in clause (a)(viii) above, no Extension Offer is required to be in any minimum amount or any minimum increment; provided that the Borrower may at its election specify as a condition (a “Minimum Extension Condition”) to the consummation of any Extension that a minimum amount (to be specified in the relevant Extension Offer in the Borrower’s sole discretion) of Loans or Commitments (as applicable) of any or all applicable tranches be tendered; it being understood that the Borrower may, in its sole discretion, waive any such Minimum Extension Condition.  The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section 2.23 (including, for the avoidance of doubt, the payment of any interest, fees or premium in respect of any Extended Term Loans and/or Extended Revolving Credit Commitments on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including Sections 2.10, 2.11 and/or 2.18) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section.
 
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(c)         Subject to any consent required under Section 2.23(a)(xi), no consent of any Lender or the Administrative Agent shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Loans and/or Commitments of any Class (or a portion thereof).  All Extended Term Loans and Extended Revolving Credit Commitments and all obligations in respect thereof shall constitute Secured Obligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Secured Obligations under this Agreement and the other Loan Documents.  The Lenders hereby irrevocably authorize the Administrative Agent to enter into any Extension Amendment and any amendments to any of the other Loan Documents with the Loan Parties and the Parent Loan Guarantors as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or Commitments so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Classes or sub-Classes, in each case on terms consistent with this Section 2.23.
 
(d)         In connection with any Extension, the Borrower shall provide the Administrative Agent at least five Business Days’ (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to accomplish the purposes of this Section 2.23.
 
ARTICLE 3
 
REPRESENTATIONS AND WARRANTIES
 
On the Closing Date and on the date of each Credit Extension and the Second Amendment Effective Date, Holdings (solely with respect to Sections 3.01, 3.02, 3.03, 3.07, 3.08, 3.09, 3.13, 3.14, 3.16 and 3.17) and the Borrower hereby represent and warrant to the Lenders that:
 
Section 3.01.      Organization; Powers.  Holdings, the Borrower 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 Borrower) 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 Loan Party of each Loan Document to which such Loan Party is a party are within each applicable Loan Party’s corporate or other organizational power and have been duly authorized by all necessary corporate or other organizational action of such Loan Party.  Each Loan Document to which any Loan Party is a party has been duly executed and delivered by such Loan Party and is a legal, valid and binding obligation of such Loan Party, enforceable in accordance with its terms, subject to the Legal Reservations.
 
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Section 3.03.      Governmental Approvals; No Conflicts.  The execution and delivery of each Loan Document by each Loan Party thereto and the performance by such Loan Party thereof (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 Loan Party’s Organizational Documents or (ii) Requirement of Law applicable to such Loan 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 Loan Party is a party which violation, in the case of this clause (c), could reasonably be expected to result in a Material Adverse Effect.
 
Section 3.04.        Financial Condition; No 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 Borrower 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.
 
Section 3.05.        Properties.
 
(a)         As of the Closing Date, 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 Loan Party.
 
(b)         The Borrower 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 Borrower 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 Borrower, 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.
 
Section 3.06.        Litigation and Environmental Matters.
 
(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 Borrower, threatened in writing against or affecting the Borrower or any of its Restricted Subsidiaries which would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.
 
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(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 Borrower 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 Borrower or any of its Restricted Subsidiaries and (ii) neither the Borrower 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 Borrower 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.
 
Section 3.07.        Compliance with Laws; Healthcare Laws.
 
(a)        Each of Holdings, the Borrower 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)          Each of Holdings, the Borrower 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. Each of Holdings, the Borrower 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, each of Holdings, the Borrower and each of its Restricted Subsidiary has in effect agreements that satisfy all of the requirements of HIPAA in all material respects and noneither the Borrower ornor Restricted Subsidiary is in material breach of any such agreements. Each Borrower 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). NoNeither the Borrower 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 its Restricted Subsidiaries taken as a whole. With regard to individually identifiable health information, each of the Borrower 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 Borrower or any Restricted Subsidiary or by any employee, or contractor thereof except, in each case where the failure to do sosame, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
 
Section 3.08.     Investment Company Status.  No Loan Party is an “investment company” as defined in, or is required to be registered under, the Investment Company Act of 1940.
 
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Section 3.09.       Taxes.  Each of Holdings, the Borrower 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 Borrower 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.
 
Section 3.10.        ERISA.
 
(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 Closing Date, with respect to information relating to the Borrower 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 any Arranger or the Administrative Agent or otherwise concerning Holdings, the Borrower and its subsidiaries prepared by or on behalf of Holdings, the Borrower or its subsidiaries or their respective representatives and made available to any Lender, any Arranger or the Administrative Agent in connection with the Transactions on or before the Closing Date (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 3.12.       Solvency.  As of the Closing Date, after giving effect to the Transactions and the incurrence of the Indebtedness and obligations being incurred in connection with this Agreement on the Closing Date, (i) the sum of the debt (including contingent liabilities) of the Borrower and its Restricted Subsidiaries, taken as a whole, does not exceed the fair value of the assets of the Borrower and its Restricted Subsidiaries, taken as a whole, (ii) the capital of the Borrower and its Restricted Subsidiaries, taken as a whole, is not unreasonably small in relation to the business of the Borrower and its Restricted Subsidiaries, taken as a whole, contemplated as of the Closing Date; and (iii) the Borrower and its Restricted Subsidiaries, taken as a whole, do not intend to incur, or believe that they will incur, debts (including current obligations and contingent liabilities) beyond their ability to pay such debts as they mature in accordance with their terms.  For purposes of this Section 3.12, (A) it is assumed that the Indebtedness and other obligations under this Agreement will come due at its respective maturities and (B) the amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability.
 
Section 3.13.       Capitalization and Subsidiaries.  Schedule 3.13 sets forth, in each case as of the Closing Date, (a) a correct and complete list of the name of each subsidiary of Holdings and the ownership interest therein held by Holdings or its applicable subsidiary, and (b) the type of entity of Holdings and each of its subsidiaries. As of the Closing Date, there are no Consolidated APCs, Non-Consolidated APCs or other Affiliated Practices.  As of the Second Amendment Effective Date, there are no “Unrestricted Subsidiaries” (as defined in this Agreement prior to giving effect to the Second Amendment).
 
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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 Loan Document, the Collateral Documents create legal, valid and enforceable Liens on all of the Collateral in favor of the Administrative Agent, 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 required to be perfected under the terms of the Loan 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 Loan Document to the contrary, neither the Borrower nor any other Loan 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 Administrative Agent or any Lender 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 Borrower or any of its Restricted Subsidiaries pending or, to the knowledge of the Borrower or any of its Restricted Subsidiaries, threatened and (b) the hours worked by and payments made to employees of the Borrower 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 Loan or any Letter of Credit have been 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.
 
Section 3.17.        Sanctions; PATRIOT ACT and FCPA.
 
(a)         (i) None of Holdings or the Borrower or any of its Subsidiaries or any of the respective directors or officers or, to the knowledge of Holdings or the Borrower, agents (solely to the extent acting in its capacity as an agent for Holdings, the Borrower or any of its subsidiaries) or employees of Holdings, the Borrower 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 Borrower has not used and will not use, directly or, to its knowledge, indirectly, any part of the proceeds of the Loans or Letters of Credit 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 Loan Party is in compliance, in all material respects, with the USA PATRIOT Act.
 
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(c)         (i) None of Holdings or the Borrower or any of its Subsidiaries or any of the respective directors or officers or, to the knowledge of Holdings or the Borrower, agents (solely to the extent acting in its capacity as an agent for Holdings, the Borrower or any of its Subsidiaries) or employees of Holdings, the Borrower 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 and any other applicable Requirement of Law of any Governmental Authority relating to the corruption or bribery; and (ii) the Borrower has not used and will not use, directly or, to its knowledge, indirectly, any part of the proceeds of the Loans or Letters of Credit 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.
 
ARTICLE 4
 
CONDITIONS
 
Section 4.01.       Closing Date.  The obligations of (i) each Lender to make Loans and (ii) any Issuing Bank to issue Letters of Credit 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)         Credit Agreement and Loan Documents.  The Administrative Agent (or its counsel) shall have received from each Loan Party, to the extent party thereto, (i) a counterpart signed by such Loan Party (or written evidence reasonably satisfactory to the Administrative Agent and the Lender Representative (which may include a copy transmitted by facsimile or other electronic method) that such party has signed a counterpart) of (A) this Agreement, (B) the Security Agreement, (C) any Intellectual Property Security Agreement, (D) the Loan Guaranty and (E) each Promissory Note requested by a Lender at least three Business Days prior to the Closing Date and (ii) a Borrowing Request as required by Section 2.03.
 
(b)         Legal Opinions.  The Administrative Agent and the Lender Representative (or their counsel) shall have received, on behalf of itself, the Lenders and each Issuing Bank on the Closing Date, (i) a customary written opinion of Weil, Gotshal & Manges LLP, in its capacity as special counsel for the Loan Parties and (ii) customary written opinions of local counsel to the Loan Parties organized in the jurisdictions set forth on Schedule 4.01(b), each dated the Closing Date and addressed to the Administrative Agent, the Lenders and each Issuing Bank.
 
(c)          Financial Statements and Pro Forma Financial Statements.  The Administrative Agent shall have received:
 
(i)          the audited consolidated balance sheet of the Parent for the Fiscal Year ended on December 31, 2020 and the audited consolidated statements of income and cash flows of the Parent for the Fiscal Year then ended; and
 
(ii)         the unaudited consolidated balance sheet and the unaudited consolidated statements of operations and cash flows of Parent for the Fiscal Quarters ended on March 31, 2021, June 30, 2021 and September 30, 2021.
 
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(d)         Secretary’s Certificate and Good Standing Certificates.  The Administrative Agent (or its counsel) shall have received (i) a certificate of each Loan 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 Loan Party, certified by the relevant authority of its jurisdiction of organization, (x) the certificate or articles of incorporation, formation or organization of such Loan 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 Loan 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 Loan 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 Loan Party who are authorized to sign the Loan Documents to which such Loan Party is a party on the Closing Date and (ii) a good standing (or equivalent) certificate for such Loan Party from the relevant authority of its jurisdiction of organization, dated as of a recent date.
 
(e)          Representations and Warranties.  The representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of any such Credit Extension with the same effect as though such representations and warranties had been made on and as of the date of such Credit Extension; 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.
 
(f)         Fees.  Prior to or substantially concurrently with the funding of the Initial Term Loans hereunder, the Administrative Agent shall have received (i) all fees required to be paid by the Borrower on the Closing Date pursuant to the Fee Letters and (ii) all expenses required to be paid by the Borrower for which invoices have been presented at least three Business Days prior to the Closing Date or such later date to which the Borrower may agree (including the reasonable fees and expenses of legal counsel required to be paid), in each case on or before the Closing Date, which amounts may be offset against the proceeds of the Loans.
 
(g)         Refinancing.  Substantially concurrently with the initial funding of the Loans hereunder, including by use of the proceeds thereof, the Refinancing shall be consummated and the Administrative Agent shall have received a customary payoff letter providing for the release of liens securing the obligations under the Existing Credit Agreement.
 
(h)          Solvency.  The Administrative Agent (or its counsel) shall have received a certificate in substantially the form of Exhibit P from the chief financial officer (or other officer with reasonably equivalent responsibilities) of the Borrower dated as of the Closing Date and certifying as to the matters set forth therein.
 
(i)           Perfection Certificate.  The Administrative Agent (or its counsel) shall have received a completed Perfection Certificate dated the Closing Date and signed by a Responsible Officer of each Loan Party, together with all attachments contemplated thereby.
 
(j)          Pledged Stock and Pledged Notes.  Subject to the final paragraph of this Section 4.01, the Administrative Agent (or its counsel) shall have received (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.
 
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(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 or under applicable Requirements of Law to be filed, registered or recorded in order to create in favor of the Administrative Agent, for the benefit of the Secured Parties, a perfected Lien on the Collateral required to be delivered pursuant to such Collateral Document, shall be in proper form for filing, registration or recordation.
 
(l)          Series A Preferred Shares.  Prior to or substantially concurrently with the initial funding of the Loans hereunder, the Parent shall have issued the Series A Preferred Shares, on terms reasonably acceptable to the Lender Representative, the gross proceeds of which shall not be less than $165,000,000.
 
(m)         Minimum Unrestricted Cash.  After giving effect to the Transactions, the Unrestricted Cash Amount shall not be less than $90,000,000.
 
(n)         USA PATRIOT Act.  No later than three Business Days in advance of the Closing Date, the Administrative Agent shall have received all documentation and other information reasonably requested with respect to any Loan Party in writing by the Administrative Agent at least ten Business Days in advance of the Closing 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.
 
(o)          Officer’s Certificate.  The Administrative Agent shall have received a certificate from a Responsible Officer of the Borrower certifying satisfaction of the conditions precedent set forth in Section 4.01(e), (l) and (m).
 
For purposes of determining whether the conditions specified in this Section 4.01 have been satisfied on the Closing Date, by funding the Loans hereunder or issuing a Letter of Credit on the Closing Date, the Administrative Agent, each Lender and each Issuing Bank, as applicable, 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 Administrative Agent, such Lender or such Issuing Bank, as applicable.
 
Notwithstanding the foregoing, to the extent that the Lien on any Collateral is not or cannot be created or perfected on the Closing Date (other than, to the extent required herein or in the other Loan Documents, (a) the creation and perfection of a Lien on Collateral that is of the type that may be perfected by the filing of a Form UCC-1 financing statement under the UCC and (b) a pledge of the Capital Stock of the Borrower and any Subsidiary Guarantor with respect to which a Lien may be perfected on the Closing Date by the delivery of a stock or equivalent certificate (together with a stock power or similar instrument endorsed in blank for the relevant certificate) (other than any such certificate that has not been delivered to the Borrower at least three Business Days prior to the Closing Date, to the extent the Borrower has used commercially reasonable efforts to procure delivery thereof, which may instead be delivered within five Business Days after the Closing Date (or such later date as the Administrative Agent may reasonably agree)), in each case, after the Borrower’s use of commercially reasonable efforts to do so without undue burden or expense, then the creation and/or perfection of such Lien shall not constitute a condition precedent to the availability or initial funding of the Term Facility and the effectiveness of the Revolving Facility on the Closing Date, but may instead be delivered or perfected within the time period set forth in Section 5.15 (or such later date as the Administrative Agent may reasonably agree).
 
Section 4.02.        Each Credit Extension.  After the Closing Date, the obligation of each Revolving Lender to make any Credit Extension is subject to the satisfaction of the following conditions:
 
(a)         (i) In the case of any Borrowing, the Administrative Agent shall have received a Borrowing Request as required by Section 2.03, (ii) in the case of the issuance of any Letter of Credit, the applicable Issuing Bank and the Administrative Agent shall have received a notice requesting the issuance of such Letter of Credit as required by Section 2.05(b) or (iii) in the case of any Borrowing of Swingline Loans, the Swingline Lender and the Administrative Agent shall have received a request as required by Section 2.04(a).
 
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(b)          The representations and warranties of the Loan Parties set forth in this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of any such Credit Extension with the same effect as though such representations and warranties had been made on and as of the date of such Credit Extension; 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.
 
(c)          At the time of and immediately after giving effect to the applicable Credit Extension, no Event of Default or Default has occurred and is continuing.
 
Each Credit Extension after the Closing Date shall be deemed to constitute a representation and warranty by the Borrower on the date thereof as to the matters specified in paragraphs (b) and (c) of this Section; provided, however, that the conditions set forth in this Section 4.02 shall not apply to (A) any Incremental Loan made in connection with any acquisition, other Investment or irrevocable repayment or redemption of Indebtedness and/or (B) any Credit Extension under any Incremental Facility Amendment and/or Extension Amendment unless in each case the lenders in respect thereof have required satisfaction of the same in the applicable Incremental Facility Amendment or Extension Amendment, as applicable.
 
ARTICLE 5
 
AFFIRMATIVE COVENANTS
 
From the Closing Date until the date on which all Revolving Credit Commitments have expired or terminated and the principal of and interest on each Loan and all fees, expenses and other amounts payable under any Loan Document (other than contingent indemnification obligations for which no claim or demand has been made) have been paid in full in Cash and all Letters of Credit have expired or have been terminated (or have been (x) collateralized or back stopped by a letter of credit or otherwise in a manner reasonably satisfactory to the relevant Issuing Bank or (y) deemed reissued under another agreement in a manner reasonably acceptable to the applicable Issuing Bank and the Administrative Agent) and all LC Disbursements have been reimbursed (such date, the “Termination Date”), Holdings (solely with respect to Sections 5.02, 5.03 and 5.12) and the Borrower hereby covenant and agree with the Lenders that:
 
Section 5.01.      Financial Statements and Other Reports.  The Borrower will deliver to the Administrative Agent for delivery by the Administrative Agent, subject to Section 9.05(f), to each Lender:
 
(a)         Quarterly Financial Statements.  Within 50 days (or (x) in the case of the Fiscal Quarter ending March 31, 2022 and (y) 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 Borrower), 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, 2022, the consolidated balance sheet of the Borrower as at the end of such Fiscal Quarter and the related consolidated statements of operations and cash flows of the Borrower 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 Borrower’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;
 
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(b)        Annual Financial Statements.  Within 120 days after the end of each Fiscal Year ending on or after December 31, 2021, (i) the consolidated balance sheet of the Borrower as at the end of such Fiscal Year and the related consolidated statements of operations, stockholders’ equity and cash flows of the Borrower 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 Borrower as at the dates indicated and its income and cash flows for the periods indicated in conformity with GAAP;
 
(c)         Compliance Certificate; KPIs.  Together with each delivery of financial statements of the Borrower pursuant to Sections 5.01(a) and (b), (i) a duly executed and completed Compliance Certificate, (ii) (A) a summary of the pro forma adjustments necessary to eliminate the accounts of Unrestricted Subsidiaries (if any) from such financial statements[reserved] and (B) a list identifying each subsidiary of the Borrower as a Restricted Subsidiary or an Unrestricted Subsidiary as of the date of delivery of such Compliance Certificate or confirmation that there is no change in such information since the later of the Closing Date and the date of the last such list and (iii) a report of Key Performance Indicators for thesolely 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 or Fiscal Year, as applicable;in form and detail substantially consistent with 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 (iii) shall not be required to be provided with any Compliance Certificate delivered with financial statements under Section 5.01(b));
 
(d)        Liquidity Reporting.  Within 30 days after each Liquidity Covenant Test Date, a calculation of the average Liquidity of the Borrower and its Restricted Subsidiaries, taken as a whole, (determined in good faith by the Borrower) for the 45 consecutive days preceding the applicable Liquidity Covenant Test Date (a “Liquidity Report”).
 
(e)         Notice of Default.  Promptly upon any Responsible Officer of the Borrower 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 Borrower has taken, is taking and proposes to take with respect thereto;
 
(f)        Notice of Litigation.  Promptly upon any Responsible Officer of the Borrower obtaining knowledge of (i) the institution of, or threat of, any Adverse Proceeding not previously disclosed in writing by the Borrower to the Administrative Agent, 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 Borrower together with such other non-privileged information as may be reasonably available to the Loan Parties to enable the Lenders to evaluate such matters;
 
(g)         ERISA.  Promptly upon any Responsible Officer of the Borrower 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;
 
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(h) [Reserved];
 
(h)         Second Lien Note Documents; Specified Junior Debt. (i) Promptly upon the delivery or receipt thereof (and in any event not later than five Business Days after such delivery or receipt, or such later date as the Administrative Agent and the Lender Representative may agree), copies of any notice of any event of default under the Second Lien Note Documents and the documentation governing any other Specified Junior Debt and (ii) promptly (and in any event not later than five Business Days after such delivery or receipt, or such later date as the Administrative Agent and the Lender Representative may agree) following the execution thereof, a copy of any amendment, restatement or amendment and restatement of, or waiver under, any Second Lien Note Document or any documentation governing any other Specified Junior Debt;
 
(i)          Information Regarding Collateral.  Prompt (and, in any event, within 90 days of the relevant change) written notice (i) with respect to any Parent Loan Guarantor, Holdings, the Borrower or any other Loan Party that is a Domestic Subsidiary, of any change in (A) such Parent Loan Guarantor’s or such Loan Party’s legal name, (B) such Parent Loan Guarantor’s or such Loan Party’s type of organization, (C) such Parent Loan Guarantor’s or such Loan Party’s jurisdiction of organization or (D) such Parent Loan Guarantor’s or such Loan Party’s organizational identification number, in each case, to the extent such information is necessary to enable the Administrative Agent to perfect or maintain the perfection and priority of its security interest in the Collateral of the relevant Parent Loan Guarantor or Loan Party, together with a certified copy of the applicable Organizational Document reflecting the relevant change, and (ii) with respect to any Loan Party that is a Discretionary Guarantor, such types of changes affecting the perfection or priority of the Administrative Agent’s security interest in the applicable Collateral of such Discretionary Guarantor as the Borrower and the Administrative Agent have agreed in connection with such Loan Party becoming a Discretionary Guarantor;
 
(j) [Reserved];
 
(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 the Borrower and its subsidiaries on a consolidated basis, each substantially in a form consistent with the Cash Flow Forecast delivered under Section 7 of the Second Amendment or otherwise in form and detail reasonably satisfactory to the Administrative Agent and the Lender Representative, 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 (1) 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 and (2) for the avoidance of doubt, the determination of whether a Default or Event of Default has occurred under Section 6.15 shall not be based solely on the information contained in any Cash Flow Forecast delivered pursuant to this Section 5.01(j);
 
(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 Loan 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
 
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(l)          Monthly Reports. Within 30 days after the end of each month ending after the Second Amendment Effective 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 Borrower as at the end of such month and the related consolidated statements of income and cash flows of the Borrower 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 Borrower, the Administrative Agent and the Lender Representative prior to the Second Amendment Effective Date (the “Monthly Reporting Package”).  It is understood and agreed that the determination of whether a Default or Event of Default has occurred under Section 6.15 shall not be based solely on the information delivered pursuant to this Section 5.01(l); and
 
(m)     (l) Other Information.  Such other certificates, reports and information (financial or otherwise) as the Administrative Agent or Lender Representative may reasonably request from time to time regarding the financial condition or business of the Borrower 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 Borrower (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 Borrower to the Administrative Agent for posting on behalf of the Borrower on IntraLinks, SyndTrak or another relevant website (the “Platform”), if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); (iii) on which such documents are electronically mailed to the Administrative Agent (or transmitted to the Administrative Agent in a manner to which the Administrative Agent 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 Holdings 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 “EDGAR”).
 
Notwithstanding the foregoing, the obligations in paragraphs (a), (b) and (h) of this Section 5.01 may be satisfied with respect to any financial statements of the Borrower by furnishing (A) the applicable financial statements of Holdings (or any other Parent Company) or (B) Holdings’ (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 relate 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 Borrower 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 Borrower 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 Borrower” 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, Holdings and the Borrower will, and the Borrower 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 except, other than with respect to the preservation of the existence of the Borrower, to the extent that the failure to do so could not reasonably be expected to result in a Material Adverse Effect; provided that none of the Borrower’s Restricted Subsidiaries shall be required to preserve any such existence (other than with respect to the preservation of existence of the Borrower), 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 Lenders (taken as a whole).
 
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Section 5.03.       Payment of Taxes.  Holdings and the Borrower will, and the Borrower 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 Borrower 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 Borrower 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 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 Borrower 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 Borrower 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 Administrative Agent 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 Administrative Agent, 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 Loan Party to obtain the same, provide for at least 30 days’ prior written notice to the Administrative Agent 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.       Inspections.  The Borrower will, and will cause each of its Restricted Subsidiaries to, permit any authorized representative designated by the Administrative Agent to visit and inspect any of the properties of the Borrower 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 Borrower (or any of its subsidiaries) may, if it so chooses, be present at or participate in any such discussion) at the expense of the Borrower, all upon reasonable notice and at reasonable times during normal business hours; provided that (a) only the Administrative Agent on behalf of the Lenders may exercise the rights of the Administrative Agent and the Lenders 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 Administrative Agent shall not exercise such rights more often than one time during any calendar year; provided, further, that when an Event of Default exists, the Administrative Agent (or any of its representatives or independent contractors) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and upon reasonable advance notice; provided, further, that notwithstanding anything to the contrary herein, neither the Borrower 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 Borrower and its subsidiaries and/or any of its customers and/or suppliers, (B) in respect of which disclosure to the Administrative Agent or any Lender (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 Holdings, the Borrower or any Restricted Subsidiary owes confidentiality obligations to any third party (provided such confidentiality obligations were not entered into in contemplation of the requirements of this Section 5.06).
 
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Section 5.07.       Maintenance of Book and Records.  The Borrower 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 Borrower 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.
 
Section 5.08.        Compliance with Laws.
 
(a)         The Borrower 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 Borrower or the relevant Restricted Subsidiary to comply could not reasonably be expected to have a Material Adverse Effect.
 
(b)         Each Loan 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.
 
Section 5.09.        Environmental.
 
(a)          Environmental Disclosure.  The Borrower will deliver to the Administrative Agent as soon as practicable following the sending or receipt thereof by the Borrower 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 Borrower 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 Borrower or any of its Restricted Subsidiaries for information from any governmental agency that suggests such agency is investigating whether the Borrower 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 Administrative Agent in relation to any matters disclosed pursuant to this Section 5.09(a);
 
(b)         Hazardous Materials Activities, Etc.  The Borrower 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 Borrower 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 Borrower 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.
 
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Section 5.10. Designation of Subsidiaries.  The Borrower may at any time after the Closing Date designate (or redesignate) any subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary; provided that (i) after giving effect to such designation, no Event of Default exists (including after giving effect to the reclassification of Investments in, Indebtedness of and Liens on the assets of, the applicable Restricted Subsidiary or Unrestricted Subsidiary), (ii) as of the date of the designation thereof, no Unrestricted Subsidiary shall own any Capital Stock in any Restricted Subsidiary of the Borrower (unless such Restricted Subsidiary is also designated as an Unrestricted Subsidiary) or hold any Indebtedness of or any Lien on any property of the Borrower or its Restricted Subsidiaries (unless the Borrower or such Restricted Subsidiary is permitted to incur such Indebtedness or grant such Liens in favor of such Unrestricted Subsidiary pursuant to Sections 6.01 and 6.02), (iii) at the time of any designation of a Restricted Subsidiary as an Unrestricted Subsidiary, the aggregate amount of the fair market value (as determined by the Borrower in good faith) of the assets of such subsidiary, together with the aggregate amount of the fair market value (as determined by the Borrower in good faith) of all assets transferred from Restricted Subsidiaries to Unrestricted Subsidiaries prior to such time, shall not exceed $10,000,000, (iv) no agreements evidencing Acceptable Practice Management Arrangements and/or Management Services Agreement or Material Intellectual Property may be transferred to an Unrestricted Subsidiary and (v) at the time any Restricted Subsidiary is designated as an Unrestricted Subsidiary, such Restricted Subsidiary shall not own Material Intellectual Property or be party to an Acceptable Practice Management Arrangement.  The designation of any subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Borrower (or its applicable Restricted Subsidiary) therein at the date of designation in an amount equal to the portion of the fair market value of the net assets of such subsidiary attributable to the Borrower’s (or its applicable Restricted Subsidiary’s) equity interest therein as reasonably estimated by the Borrower (and such designation shall only be permitted to the extent such Investment is permitted under Section 6.06).  The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the making, incurrence or granting, as applicable, at the time of designation of any then-existing Investment, Indebtedness or Lien of such subsidiary, as applicable; provided that upon any re-designation of any Unrestricted Subsidiary as a Restricted Subsidiary, the Borrower shall be deemed to continue to have an Investment in the resulting Restricted Subsidiary in an amount (if positive) equal to (a) the Borrower’s “Investment” in such Restricted Subsidiary at the time of such re-designation, less (b) the portion of the fair market value of the net assets of such Restricted Subsidiary attributable to the Borrower’s equity therein at the time of such re-designation.
 
Section 5.10.        [Reserved].
 
Section 5.11.       Use of Proceeds.  The Borrower shall use the proceeds of the Revolving Loans (a) on the Closing Date to cash collateralize the Existing Letters of Credit and (b) after the Closing Date, to finance working capital needs and other general corporate purposes of the Borrower and its subsidiaries and any other purpose not prohibited by the terms of the Loan Documents.  The Borrower shall use the proceeds of the Initial Term Loans solely to finance a portion of the Transactions (including the payment of Transaction Costs funding cash to the balance sheet of the Borrower).  The Borrower shall use the proceeds of the Swingline Loans made after the Closing Date to finance the working capital needs and other general corporate purposes of the Borrower and its subsidiaries and any other purpose not prohibited by the terms of the Loan Documents.  Letters of Credit may be issued (i) on the Closing Date to replace or provide credit support for any letter of credit, bank guarantee and/or surety, customs, performance or similar bond of the Borrower and its subsidiaries or any of their respective Affiliates and/or to replace cash collateral posted by any of the foregoing Persons and (ii) after the Closing Date, for general corporate purposes of the Borrower and its subsidiaries and any other purpose not prohibited by the terms of the Loan Documents.
 
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Section 5.12.        Covenant to Guarantee Obligations and Give Security.
 
(a)          Upon (i) the formation or acquisition after the Closing Date of any Restricted Subsidiary that is a Domestic Subsidiary, (ii) the designation of any Unrestricted Subsidiary that is a Domestic Subsidiary as a Restricted Subsidiary,[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 Administrative Agent and the Lender Representative may reasonably agree), the Borrower 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 Administrative Agent and the Lender Representative, cause the relevant Restricted Subsidiary (other than any Excluded Subsidiary) to deliver to the Administrative Agent a signed copy of a customary opinion of counsel for such Restricted Subsidiary, addressed to the Administrative Agent and the other relevant Secured Parties.
 
(b)        Within 90 days after the acquisition by any Loan Party and/or any Parent Loan Guarantor of any Material Real Estate Asset other than any Excluded Asset (or such longer period as the Administrative Agent and the Lender Representative may reasonably agree), the Borrower shall cause such Loan Party or Parent Loan Guarantor 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 SubsidiaryPerson at the time such Restricted SubsidiaryPerson is required to become a Loan Party or a Parent Loan Guarantor under Section 5.12(a) abovethis Agreement, 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 SubsidiaryPerson is required to become a Loan Party or a Parent Loan Guarantor under Section 5.12(a)this Agreement.
 
(c)        Notwithstanding anything to the contrary herein or in any other Loan Document, the Borrower 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 Loan Guaranty by causing such Person to execute a Joinder Agreement, and any such Person shall constitute a Loan 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 Loan 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 Borrower, the Administrative Agent and the Lender Representative 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 Administrative Agent and the Lender Representative and (ii) the Administrative Agent 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)         The Borrower shall, or shall cause each applicable Loan Party and Parent Loan Guarantor to, use commercially reasonable efforts to enter into a Control Agreement with respect to each Deposit Account (other than Excluded Accounts) of the Borrower and the other Loan Parties and the Parent Loan Guarantors within 120 days (as may be extended by the Administrative Agent, the Lender Representative and the Borrower) (i) after the Closing Date, in the case of each such Deposit Account held by any Loan Party on the Closing Date or (ii) after the later of (A) the date the holder of such Deposit Account becomes a Loan Party or Parent Loan Guarantor and (B) the date of opening or acquisition of such Deposit Account; provided that, if the applicable Loan Party or Parent Loan Guarantor 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.
 
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(e)          Notwithstanding anything to the contrary herein or in any other Loan Document, it is understood and agreed that:
 
(i)         the Administrative Agent and the Lender Representative 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 Loan Guaranty by any Restricted Subsidiary (in connection with assets acquired, or Restricted Subsidiaries formed or acquired, after the Closing Date), and each Lender 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 Loan Parties and the Parent Loan Guarantors, to the extent constituting Collateral 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 Loan Party or Parent Loan Guarantor 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 Loan Party or Parent Loan Guarantor (other than any Discretionary Guarantor that is organized under the laws of the jurisdiction outside of the US) 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 US, 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
 
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(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 Loan Party under any Management Services Agreement, any other agreement constituting an Acceptable Practice Management Arrangement or any other agreement among any Loan 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 Loan Documents.
 
(ix)        no Loan Party or Parent Loan Guarantor 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 Loan Guaranty, any Collateral Document and/or any other Loan Document executed by any Restricted Subsidiary that is required to become a Loan Party pursuant to Section 5.12(a) above and/or any Person that is required to become a Parent Loan Guarantor hereunder (including any Joinder Agreement) may, with the consent of the Administrative Agent and the Lender Representative (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 Loan 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 Loan Document,
 
(xi)        (A) no Loan Party or Parent Loan Guarantor 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 (other than Holdings) that is not a subsidiary be required to provide a Guaranty of any Secured Obligation orand (B) in no event shall any Affiliated Practice and/or any other person (other than Holdings and the Borrower) that is not a subsidiary be required to comply with any other requirement of this Section 5.12,
 
(xiii)      the Administrative Agent shall not require the taking of a Lien on, or require the perfection of any Lien granted in, those assets as to which the cost of obtaining or perfecting such Lien (including any mortgage, stamp, intangibles or other tax or expenses relating to such Lien) is excessive in relation to the benefit to the Lenders of the security afforded thereby as reasonably determined in writing by the Borrower and the Administrative Agent, and
 
(xiv)      each Management Services Agreement, each other agreement constituting an Acceptable Practice Management Arrangement, and the proceeds thereof, shall be included in the Collateral.
 
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Section 5.13.        [Reserved]
 
Section 5.14.        Further Assurances.  Promptly upon request of the Administrative Agent and subject to the limitations described in Section 5.12:
 
(a)         Holdings and the Borrower will, and will cause each other Loan Party and each Parent Loan Guarantor to, execute any and all further documents, financing statements, agreements, instruments, certificates, notices and acknowledgments and take all such further actions (including the filing and recordation of financing statements, fixture filings, Mortgages and/or amendments thereto and other documents), that may be required under any applicable Requirements of Law and which the Administrative Agent or the Lender Representative may reasonably request to ensure the creation, perfection and priority of the Liens created or intended to be created under the Collateral Documents, all at the expense of the relevant Loan Parties or Parent Guarantors, as applicable.
 
(b)         Holdings and the Borrower will, and will cause each other Loan Party and each Parent Loan Guarantor to, (i) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts (including notices to third parties), deeds, certificates, assurances and other instruments as the Administrative Agent may reasonably request from time to time in order to ensure the creation, perfection and priority of the Liens created or intended to be created under the Collateral Documents.
 
Section 5.15.       Post-Closing Covenant.  The Borrower shall, and shall cause each Loan Party to, take the actions required by Schedule 5.15 in each case within the time periods specified therein (or, in each case, such longer period to which the Administrative Agent may reasonably agree).
 
Section 5.16.        Affiliated Practices.
 
(a)         The Borrower shall, and shall cause each Loan Party to, enforce its material rights under each Management Services Agreement, each Securities Transfer Restriction Agreement, each Therapy Director Agreement and each Practice Loan Agreement, in each case, where failure to do so could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
 
(b)        If any Person acquired by a Loan Party or a Consolidated APC in a Permitted Acquisition becomes a Consolidated APC or is amalgamated, merged or consolidated with or into, or transfers or conveys substantially all of its assets to or is liquidated into any Consolidated APC or if any assets are purchased by or transferred to any Consolidated APC (other than as part of any Permitted Practice Subsidiary Restructuring), in each case, on or before the date on which financial statements are required to be delivered pursuant to Sections 5.01(a) or (b), as applicable, for the Fiscal Quarter in which such transaction occurs, such Loan Party or the relevant APC Manager, as applicable, shall use commercially reasonable efforts to cause the relevant Consolidated APC (the “Relevant APC”) or the Person into which the relevant Consolidated APC is amalgamated, merged or consolidated or to which the Relevant APC transfers substantially all of its assets, to transfer to a Loan Party substantially all of the assets of the Relevant APC (other than Accounts (as defined in the UCC), employment agreements, payor contracts, other assets which the Relevant APC must retain, in the reasonable judgment of the Borrower, to comply with any Requirement of Law and any other asset with respect to which the Borrower has determined in its reasonable business judgment that the cost, burden, difficulty or consequence (including any adverse tax consequence, any third party consent and any effect on the ability of the Borrower and/or any subsidiary and/or any Affiliated Practice to conduct their respective operations and business in the ordinary course) of transferring such assets outweighs or is excessive in light of, the practical benefit to the Secured Parties afforded thereby).
 
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Section 5.17.       Credit Enhancements.  If (a) the Second Lien Agent or any Second Lien Noteholder or (b) any other holder of Specified Junior Debt, in their capacity as such, receives any additional guaranty, Lien, letter of credit or similar credit support after the Second Amendment Effective Date with respect to the Second Lien Note Obligations or other obligations with respect to the Specified Junior Debt owed to them under the Second Lien Note Documents or the documentation governing the Specified Junior Debt, the Loan Parties shall cause, and shall cause the Parent Loan Guarantors to cause, the same to be granted to the Administrative Agent for the benefit of the Secured Parties (on a senior priority basis to the same extent provided in the Second Lien Intercreditor and Subordination Agreement).   In furtherance of the foregoing, any parent company of Holdings that, in addition to Parent and Intermediate Parent, guarantees the Second Lien PIK Notes or any other Specified Junior Debt shall become a Parent Loan Guarantor, and substantially concurrently with providing such guaranty of the Second Lien PIK Notes and/or such Specified Junior Debt shall become a party to the Parent Loan Guaranty as a “Parent Loan Guarantor”, execute a Joinder Agreement and comply with the requirements set forth in clause (b) of the definition of “Collateral and Guarantee Requirement”.
 
Section 5.18.      Board Observation Rights. Until such time that the HPS Lenders, collectively, have assigned more than 50% of the aggregate outstanding principal amount of the Term Loans held by the HPS Lenders, collectively, as of the Second Amendment Effective Date to Lenders that are not HPS Lenders, the Loan Parties and the Parent Loan Guarantors shall allow one representative designated, from time to time, by HPS to attend and participate solely as a non-voting observer in all meetings of the board of directors (or other similar body) (the “Board of Directors”) of each of Parent, Holdings and the Borrower (each such meeting, a “Board Meeting”; and such representative, a “Board Observer”); provided that any Board Observer shall (i) unless such representative is a director, manager, officer or employee of HPS, be subject to the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed) and (ii) not be entitled to vote on, consent to or otherwise approve any activity or policy taken or adopted by the board of directors or any committee thereof.  The Borrower shall, and shall cause Parent and Holdings, to (A) give the Board Observer notice of all Board Meetings at the same time and in the same manner as such notice is furnished to the members of the Board of Directors, (B) provide to the Board Observer all notices, documents and information (including proposed written consents) furnished to the members of the Board of Directors of at the same time and in the same manner furnished to such members, (C) permit the Board Observer to participate by telephone in each Board Meeting, (D) provide the Board Observer copies of the minutes of all Board Meetings at the time such minutes are furnished to the members of the Board of Directors, (E) cause regularly-scheduled Board Meetings to be held at least once per calendar quarter and (F) provide the Board Observer with copies of all written consents duly passed by the board of directors (or other similar body) or, to the extent the same are shared with other directors not on such committee (or other similar body), any committee of the board of directors (or other similar body) of Parent, Holdings or the Borrower.  Borrower shall reimburse the Board Observer for all reasonable and documented out-of-pocket expenses incurred in connection with the Board Observer’s attendance at the Board Meetings.  The Borrower shall indemnify the Board Observer to the same extent provided by Parent, Holdings or the Borrower to its directors. Notwithstanding the foregoing, it is understood and agreed that the Board Observer may be excluded from any portion of a Board Meeting or from receiving any portion of the materials distributed to the members of the board of directors to the extent (1) reasonably necessary to preserve legal privilege, (2) any conflict of interest may arise (or be perceived to arise), including as to any discussion and/or materials (I) concerning the sale of Parent or any of its Subsidiaries or a material portion of the assets thereof, (II) relating to an actual or potential transaction with a Lender or any Affiliate thereof or other matter in which any Lender or any Affiliate thereof may be involved (including as to discussions or materials regarding this Agreement and the other Loan Documents or the Second Lien Note Purchase Agreement and the Note Documents (as defined therein)), (III) including the Board Observer in the same would adversely affect Parent and/or its applicable subsidiary under applicable Requirements of Law or (IV) relating to the strategy, negotiating positions or similar matters relating to the relationship of Parent or any of its subsidiaries or Affiliates, on the one hand, with the Lenders or any of their Affiliates and/or the Purchasers under the Second Lien Note Purchase Agreement and/or any of their Affiliates, on the other hand, or (3) required by confidentiality obligations of Parent or any of its Subsidiaries to third parties including Governmental Authorities (so long as such restriction exists or has been negotiated in good faith by Parent and not for the purpose of excluding or limiting the Board Observer).  The Board Observer, and the minutes and written consents delivered to the Board Observer pursuant to this Section 5.18, shall be subject to the confidentiality provisions of Section 9.13; provided that (1) the Board Observer may disclose such information and materials to HPS, the HPS Lenders and their respective directors, officers, managers, employees, legal counsel and financial advisors on a “need to know” basis solely in connection with the transactions contemplated hereby, (2) without limiting clause (1) above, the carve-outs set forth in clauses (a) and (e) of Section 9.13 shall not apply, and (3) the Board Observer shall execute a written acknowledgment (which may be by email) of such confidentiality obligations in favor of the Borrower.
 
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Section 5.19.     Cash Flow Consultant.  During the Cash Flow Reporting Period, the Borrower shall, if either (a) requested by the Lender Representative or (b) required at such time under the Second Lien Note Purchase Agreement, appoint and retain a Cash Flow Consultant.  The scope of services provided by, and cost of, such Cash Flow Consultant must be reasonably acceptable to the Administrative Agent, the Lender Representative and the Borrower.
 
ARTICLE 6
 
NEGATIVE COVENANTS
 
From the Closing Date and until the Termination Date, Holdings (solely with respect to SectionSections 6.04(c), 6.12(b) and 6.14) and the Borrower covenant and agree with the Lenders that:
 
Section 6.01.      Indebtedness.  The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
 
(a)          the Secured Obligations (including any Additional Term Loans and any Additional Revolving Loans);
 
(b)         Indebtedness of the Borrower to Holdings and/or any Restricted Subsidiary and/or of any Restricted Subsidiary to Holdings, the Borrower and/or any other Restricted Subsidiary; provided that in the case of any Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to any Restricted Subsidiary that is a Loan Party, such Indebtedness shall be permitted as an Investment under Section 6.06; provided, further, that any Indebtedness of any Loan Party to any Restricted Subsidiary that is not a Loan Party must be unsecured and expressly subordinated to the Obligations of such Loan Party on terms that are reasonably acceptable to the Administrative Agent and the Lender Representative (it being understood that the subordination terms set forth in the Intercompany Note are acceptable to the Administrative Agent and the Lender Representative);
 
(c)        Indebtedness owing in respect of any loan made by any Affiliated Practice to the Borrower and/or any Loan Party so long as, except as the Administrative Agent may otherwise agree, (i) the obligations of any Loan Party in respect of any such Indebtedness are subordinated to the Obligations, (ii) the relevant Affiliated Practice agrees to waive any right to set off management fees owing in respect of any Management Services Agreement and (iii) the cash used to fund any such loan to the Borrower and/or any Loan Party is from internally generated cash of an Affiliated Practice;
 
(d)        Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments securing the performance of the Borrower or any such Restricted Subsidiary pursuant to any such agreement so long as, in the case of contingent earn-out obligations, after giving effect thereto, on a Pro Forma Basis, the Borrower is in compliance with the then applicable Financial Covenant;
 
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(e)         Indebtedness of the Borrower and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
 
(f)        Indebtedness of the Borrower and/or any Restricted Subsidiary in respect of 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, including Banking Services Obligations and incentive, supplier finance or similar programs, in each case, entered into in the ordinary course of business;
 
(g)          (i) guaranties by the Borrower and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Borrower and/or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities, in each case, entered into in the ordinary course of business;
 
(h)        Guarantees by the Borrower and/or any Restricted Subsidiary of Indebtedness or other obligations of the Borrower, any Restricted Subsidiary and/or any joint venture with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that (i) in the case of any Guarantee by any Loan Party of the obligations of any non-Loan Party, the related Investment is permitted under Section 6.06 and (ii) any Guarantee by any Restricted Subsidiary that is not a Loan Party of any Indebtedness (other than the Obligations) of any Loan Party is subject to the Non-Loan Party Debt Cap;
 
(i)          Indebtedness of the Borrower and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and described on Schedule 6.01;
 
(j)          Indebtedness of Restricted Subsidiaries that are not Loan Parties in an aggregate outstanding principal amount not to exceed $10,000,000; provided that the aggregate outstanding principal amount of any such Indebtedness incurred or guaranteed in reliance on this Section 6.01(j) shall not, at any time, together with the aggregate amount of Indebtedness incurred or guaranteed by Restricted Subsidiaries that are not Loan Parties in reliance of Sectionson Section 6.01(u) and 6.01(w), exceed the Non-Loan Party Debt Cap;
 
(k)         Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
 
(l)          Indebtedness of the Borrower and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
 
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(m)        Indebtedness of the Borrower and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $6,500,000 and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
 
(n)          Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition permitted hereunder after the Closing Date; provided that (i) such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof, (ii) no Event of Default under Sections 7.01(a), (f) or (g) exists and (iii) either (A) the Borrower is in compliance with the then applicable Financial Covenant, calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period or (B) such Indebtedness is in an aggregate principal amount outstanding not to exceed the greater of $6,500,000 and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
 
(o)         Indebtedness consisting of promissory notes issued by the Borrower or any Restricted Subsidiary to any stockholder of any Parent Company or any current or former director, officer, employee, member of management, manager or consultant of any Parent Company, the Borrower or any subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
 
(p)         Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (i), (m), (n), (r), (u), (w)  and (y) of this Section 6.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that:
 
(i)         the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (1) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (2) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
 
(ii)         other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (u) and/or (y), such Indebtedness has (A) a final maturity equal to or later than (and, in the case of revolving Indebtedness, does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Latest Term Loan Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the outstanding Term Loans at such time,
 
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(iii)       the terms of any Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount (other than Indebtedness of the type described in Section 6.01(m)) (excluding, to the extent applicable, pricing, fees, premiums, rate floors, optional prepayment, redemption terms or subordination terms and, with respect to Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) above, security), are not, taken as a whole (as reasonably determined by the Borrower), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than (A) any covenants or other provisions applicable only to periods after the applicable maturity date of the debt then-being refinanced as of such date, (B) any covenants or provisions which are then-current market terms for the applicable type of Indebtedness or (C) any covenants or other provisions which are conformed (or added) to the Loan Documents for the benefit of the Lenders or, as applicable, the Administrative Agent pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)),
 
(iv)        in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (n), (r), (u), (w) (solely as it relates to the Non-Loan Party Debt Cap) and (y) (solely as it relates to the Fixed Incremental Amount) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause such that the amount available under the relevant clause shall be reduced by the amount of the applicable Refinancing Indebtedness, and
 
(v)         (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and if the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Initial Term Loans and the Initial Revolving Loans, the Liens securing such Indebtedness are subordinated to the Liens on the Collateral securing the Initial Term Loans and the Initial Revolving Loans on terms not materially less favorable (as reasonably determined by the Borrower), taken as a whole, to the Lenders than those applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01 (it being understood that (x) Holdings may not be the primary obligor in respect of the applicable Refinancing Indebtedness if Holdings was not the primary obligor in respect of the relevant refinanced Indebtedness and (y) any entity that was a guarantor in respect of the relevant refinanced Indebtedness may be the primary obligor in respect of the refinancing Indebtedness, and any entity that was the primary obligor in respect of the relevant refinanced Indebtedness may be a guarantor in respect of the refinancing Indebtedness), (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i)), and (D) as of the date of the incurrence of such Indebtedness and after giving effect thereto, no Event of Default exists;
 
(q)          [Reservedreserved];
 
(r)         Indebtedness of the Borrower and/or any Restricted Subsidiary that is a Loan Party in an aggregate outstanding principal amount not to exceed 100% of the amount of Net Proceeds received in cash by the Borrower from (i) the issuance or sale of Qualified Capital Stock or (ii) any cash contribution to its common equity with the Net Proceeds from the issuance and sale by any Parent Company of its Qualified Capital Stock or a contribution to the common equity of any Parent Company, in each case, (A) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower or any of its Restricted Subsidiaries or any Affiliated Practice, (B) to the extent the relevant Net Proceeds have not otherwise been applied to make Investments, Restricted Payments or Restricted Debt Payments hereunder and (C) other than any Cure Amount and/or any Available Excluded Contribution Amount; provided, that (x) immediately before and after giving effect to the incurrence of such Indebtedness, no Event of Default under Section 7.01(a), (f) or (g) exists, (y) such Indebtedness shall be unsecured and (z) such Indebtedness must be incurred within 30 days of receipt of the relevant issuance or contribution (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
 
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(s)          Indebtedness of the Borrower and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
 
(t)         Indebtedness of the Borrower and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
 
(u)         Indebtedness of the Borrower and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the greater of $10,000,000 and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period3,500,000; provided that the aggregate outstanding principal amount of any such Indebtedness incurred or guaranteed in reliance on this Section 6.01(u) by Restricted Subsidiaries that are not Loan Parties shall not, at any time, together with the aggregate amount of Indebtedness incurred or guaranteed by Restricted Subsidiaries that are not Loan Parties in reliance of Sectionson Section 6.01(j) and 6.01(w), exceed the Non-Loan Party Debt Cap;
 
(v)         [reserved];
 
(w)         (A) Indebtedness of the Borrower and/or any Restricted SubsidiaryLoan Parties under the Second Lien PIK Notes and the Second Lien Note Documents and (B) subordinated Indebtedness of the Loan Parties that is either (x) secured by a Lien on the Collateral that is junior to the Lien on the Collateral securing the Secured Obligations or (y) unsecured; provided that (i) after giving effect thereto, including the application of the proceeds thereof, (A) if such Indebtedness is secured by a Lien on the Collateral that is junior to the Lien on the Collateral securing the Secured Obligations that are secured on a first lien basis, the Secured Net Leverage Ratio does not exceed 5.00:1.00 and (B) if such Indebtedness is unsecured, the Total Net Leverage Ratio does not exceed 5.50:1.00, (ii) any such Indebtedness that is subordinated in lien priority to the Obligations shall be subject to an Intercreditor Agreement, and (iii) the aggregate outstanding principal amount of any suchall Indebtedness incurred or guaranteed in reliance on thispermitted under this Section 6.01(w) by Restricted Subsidiaries that are not Loan Parties shall not, at any time, together with exceed the sum of (1) the aggregate amount of Indebtedness incurred or guaranteed by Restricted Subsidiaries that are not Loan Parties in reliance of Sections 6.01(j) and 6.01(u), exceed the Non-Loan Party Debt Cap; provided that in the case of Indebtedness for borrowed money incurred by any Loan Party under this clause (w), (i) the final maturity date with respect to principal amount of the Second Lien PIK Notes issued on the Second Amendment Effective Date, which amount under this clause (1) shall not exceed $100,000,000, plus (2) the aggregate principal amount of the Second Lien PIK Notes issued under Section 2.03 of the Second Lien Note Purchase Agreement after the Second Amendment Effective Date, which amount under this clause (2) shall not exceed $25,000,000, plus (3) $150,000,000 of additional Indebtedness issued after the Second Amendment Effective Date (which, for the avoidance of doubt, may be in the form of additional Second Lien PIK Notes) plus (4) the amount of interest on the Indebtedness described in the foregoing clauses (1) through (3) that is paid in kind; (ii) the issuer of the Second Lien PIK Notes and other Indebtedness permitted under this Section 6.01(w) shall be the Parent; (iii) such Indebtedness shall be no earlier thannot contain any amortization or require any payments in cash prior to the date that is ninety-one (91)at least 181 days after the LatestInitial Term Loan Maturity Date and (ii) that the Weighted Average Life to Maturity of such Indebtedness shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing tranche of Term Loans (without giving effect to any prepayment (other the payments contemplated by clauses (i) and (ii) of Section 6.04(c)); (iv) such Indebtedness shall not have a final maturity date prior to the date that is at least 181 days after the Initial Term Loan Maturity Date; (v) the obligors on such Indebtedness shall be Loan Parties or Parent Loan Guarantors; (vi) the proceeds of Indebtedness under this Section 6.01(w) shall be used solely for the general corporate purposes of the Borrower and its Restricted Subsidiaries (other than for making any Restricted Payment, any Restricted Debt Payment, or any payment to any Affiliate of the Borrower (other than payments solely among the Borrower and its Restricted Subsidiaries and, if applicable, Affiliated Practices) which are not permitted use of proceeds of such Indebtedness); (vii) in the case of additional Second Lien PIK Notes issued after the Second Amendment Effective Date or Indebtedness incurred under clause (B), the terms of such Indebtedness must be substantially consistent with the Second Lien Note Purchase Agreement or otherwise reasonably acceptable to the Lender Representative and the Administrative Agent, other than with respect to (A) conversion mechanics of such Indebtedness into Capital Stock of Parent or any direct or indirect parent company thereof, (B) interest and/or fees to the extent payable solely in kind by increasing the aggregate principal amount of such Indebtedness and not in cash and (C) conditions precedent to borrowing thereunder; and (viii) the Second Lien PIK Notes and all other Indebtedness permitted under this Section 6.01(w) shall be subordinated in right of payment to the Obligations and, if secured, shall be secured solely on Collateral and subordinated in right of Lien priority to the Liens securing the Obligations, in each case, under and subject to the Second Lien Intercreditor and Subordination Agreement (or, in the case of such other Indebtedness incurred under clause (B), another Intercreditor Agreement under clause (i) of the definition thereof);
 
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(x)         [Reserved];
 
(y)         Indebtedness of the Borrower and/or any Restricted Subsidiary incurred in connection with Sale and Lease-Back Transactions permitted pursuant to Section 6.07(bb);
 
(z)         [Reserved];
 
(aa)       Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Borrower and/or any Restricted Subsidiary in respect of workers compensation claims, unemployment insurance (including premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits;
 
(bb)       unfunded pension fund and other employee benefit plan obligations and liabilities incurred by the Borrower and/or any Restricted Subsidiary in the ordinary course of business to the extent that the unfunded amounts would not otherwise cause an Event of Default under Section 7.01(i);
 
(cc)        customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business; and
 
(dd)        without duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness of the Borrower and/or any Restricted Subsidiary hereunder.
 
Notwithstanding the foregoing, (i) the Borrower shall not permit any Consolidated APC, Non-Consolidated APC or any other Affiliated Practice to guarantee any Indebtedness of Holdings, the Borrower and its Subsidiariessubsidiaries (other than the Secured Obligations and (ii) the Loan Parties shall not be permitted to incur any Indebtedness for borrowed money that is (x) pari passu with (except as permitted by Section 2.22(a)(xv)) or senior to the Revolving Facility in right of payment or (y) secured by liens on the Collateral that are senior in right of priority to the Liens securing the Revolving Facility.
 
Notwithstanding the foregoing, Indebtedness under the Second Lien PIK Notes and the Second Lien Note Documents shall only be permitted to be incurred under Section 6.01(w).
 
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Section 6.02.      Liens.  The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, create, incur or assume any Lien on or with respect to any property of any kind owned by it, whether now owned or hereafter acquired, or any income or profits therefrom, except:
 
(a)          Liens securing the Secured Obligations created pursuant to the Loan Documents;
 
(b)          Liens for Taxes which (i) are not then due, (ii) if due, are not at such time required to be paid pursuant to Section 5.03 or (iii) are being contested in accordance with Section 5.03;
 
(c)         statutory Liens (and rights of set-off) of landlords, banks, carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by applicable Requirements of Law, in each case incurred in the ordinary course of business (i) for amounts not yet overdue by more than 30 days, (ii) for amounts that are overdue by more than 30 days and that are being contested in good faith by appropriate proceedings, so long as any reserves or other appropriate provisions required by GAAP have been made for any such contested amounts or (iii) with respect to which the failure to make payment could not reasonably be expected to have a Material Adverse Effect;
 
(d)         Liens incurred (i) in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security laws and regulations, (ii) in the ordinary course of business to secure the performance of tenders, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money), (iii) pursuant to pledges and deposits of Cash or Cash Equivalents in the ordinary course of business securing (x) any liability for reimbursement or indemnification obligations of insurance carriers providing property, casualty, liability or other insurance to Holdings, the Borrower and its subsidiaries or (y) leases or licenses of property otherwise permitted by this Agreement and (iv) to secure obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments posted with respect to the items described in clauses (i) through (iii) above;
 
(e)         Liens consisting of easements, rights-of-way, restrictions, encroachments, and other minor defects or irregularities in title, in each case which do not, in the aggregate, materially interfere with the ordinary conduct of the business of the Borrower and/or its Restricted Subsidiaries, taken as a whole, or the use of the affected property for its intended purpose;
 
(f)          Liens consisting of any (i) interest or title of a lessor or sub-lessor under any lease of real estate permitted hereunder, (ii) landlord lien permitted by the terms of any lease, (iii) restriction or encumbrance to which the interest or title of such lessor or sub-lessor may be subject or (iv) subordination of the interest of the lessee or sub-lessee under such lease to any restriction or encumbrance referred to in the preceding clause (iii);
 
(g)         Liens (i) solely on any Cash earnest money deposits (including as part of any escrow arrangement) made by the Borrower and/or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment permitted hereunder and (ii) consisting of (A) an agreement to Dispose of any property in a Disposition permitted under Section 6.07 and/or (B) the pledge of Cash as part of an escrow arrangement required in any Disposition permitted under Section 6.07;
 
(h)         (i) purported Liens evidenced by the filing of UCC financing statements relating solely to operating leases or consignment or bailee arrangements entered into in the ordinary course of business, and (ii) Liens arising from precautionary UCC financing statements or similar filings;
 
(i)          Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
 
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(j)          Liens in connection with any zoning, building or similar Requirement of Law or right reserved to or vested in any Governmental Authority to control or regulate the use of any or dimensions of real property or the structure thereon, including Liens in connection with any condemnation or eminent domain proceeding or compulsory purchase order;
 
(k)         Liens securing Indebtedness permitted pursuant to Section 6.01(p) (solely with respect to the permitted refinancing of (x) Indebtedness permitted pursuant to Sections 6.01(a), (i), (m), (n), (u), (w), and (y) and (y) Indebtedness that is secured in reliance on Section 6.02(u) (provided that the granting of the relevant Lien shall be without duplication of any Lien outstanding under Section 6.02(u) such that the amount available under Section 6.02(u) shall be reduced by the amount of the applicable Lien granted in reliance on this clause (y)); provided that (i) no such Lien extends to any asset not covered by the Lien securing the Indebtedness that is being refinanced and (ii) if the Lien securing the Indebtedness being refinanced was subject to intercreditor arrangements, then (A) the Lien securing any refinancing Indebtedness in respect thereof shall be subject to intercreditor arrangements that are not materially less favorable to the Secured Parties, taken as a whole, than the intercreditor arrangements governing the Lien securing the Indebtedness that is refinanced or (B) the intercreditor arrangements governing the Lien securing the relevant refinancing Indebtedness shall be set forth in an Intercreditor Agreement and (iii) no such Lien shall be senior in priority as compared to the Lien securing the Indebtedness being refinanced;
 
(l)          Liens described on Schedule 6.02 and any modification, replacement, refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 6.01 and (B) proceeds and products thereof, replacements, accessions or additions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) and (ii) any such modification, replacement, refinancing, renewal or extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by Section 6.01;
 
(m)        Liens arising out of Sale and Lease-Back Transactions permitted under Section 6.07(bb);
 
(n)         Liens securing Indebtedness permitted pursuant to Section 6.01(m); provided that any such Lien shall encumber only the asset acquired with the proceeds of such Indebtedness and proceeds and products thereof, replacements, accessions or additions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates);
 
(o)        Liens securing Indebtedness permitted pursuant to Section 6.01(n) on the relevant acquired assets or on the Capital Stock and assets of the relevant newly acquired Restricted Subsidiary; provided that no such Lien (x) extends to or covers any other assets (other than the proceeds or products thereof, replacements, accessions or additions thereto and improvements thereon) or (y) was created in contemplation of the applicable acquisition of assets or Capital Stock;
 
(p)       (i) Liens that are contractual rights of setoff or netting relating to (A) the establishment of depositary relations with banks not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of the Borrower or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Borrower or any Restricted Subsidiary, (C) purchase orders and other agreements entered into with customers of the Borrower or any Restricted Subsidiary in the ordinary course of business and (D) commodity trading or other brokerage accounts incurred in the ordinary course of business, (ii) Liens encumbering reasonable customary initial deposits and margin deposits, (iii) bankers Liens and rights and remedies as to Deposit Accounts, (iv) Liens of a collection bank arising under Section 4-208 of the UCC on items in the ordinary course of business, (v) Liens in favor of banking or other financial institutions arising as a matter of law or under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution and that are within the general parameters customary in the banking industry or arising pursuant to such banking institution’s general terms and conditions and (vi) Liens on the proceeds of any Indebtedness incurred in connection with any transaction permitted hereunder, which proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application of such proceeds to finance such transaction;
 
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(q)          Liens on assets owned by Restricted Subsidiaries that are not Loan Parties securing Indebtedness of Restricted Subsidiaries that are not Loan Parties permitted pursuant to Section 6.01;
 
(r)           Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar agreements entered into in the ordinary course of business of the Borrower and/or its Restricted Subsidiaries;
 
(s)          Liens securing Indebtedness incurred in reliance on, and subject to the provisions set forth in, Section 6.01(w); provided, that any such Lien on the Collateral shall be junior to the Lien on the Collateral securing the Secured Obligations and shall be subject to an Intercreditor Agreement;
 
(t)           [reserved];
 
(u)         Liens on assets securing Indebtedness or other obligations in an aggregate principal amount at any time outstanding not to exceed the greater of $10,000,000 and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period3,500,000; provided, that any Lien on any Collateral granted in reliance on this clause (u) shall be junior to the Lien on the Collateral securing the Secured Obligations and be subject to an Intercreditor Agreement;
 
(v)         (i) Liens on assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating to litigation being contested in good faith not constituting an Event of Default under Section 7.01(h) and (ii) any pledge and/or deposit securing any settlement of litigation;
 
(w)         leases, licenses, subleases or sublicenses granted to others in the ordinary course of business which do not secure any Indebtedness;
 
(x)         Liens on Securities that are the subject of repurchase agreements constituting Investments permitted under Section 6.06 arising out of such repurchase transaction;
 
(y)         Liens securing obligations in respect letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments permitted under Sections 6.01(d), (e), (g) and (aa);
 
(z)          Liens arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any asset in the ordinary course of business and permitted by this Agreement or (ii) by operation of law under Article 2 of the UCC (or similar Requirement of Law under any jurisdiction);
 
(aa)        Liens (i) in favor of any Loan Party and/or (ii) granted by any non-Loan Party in favor of any Restricted Subsidiary that is not a Loan Party, in the case of clauses (i) and (ii), securing intercompany Indebtedness permitted (or not restricted) under Section 6.01 or Section 6.09;
 
(bb)        Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
 
(cc)        Liens on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods;
 
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(dd)        Liens securing (i) obligations of the type described in Section 6.01(f) and/or (ii) obligations of the type described in Section 6.01(s);
 
(ee)        (i) Liens on Capital Stock of joint ventures or Unrestricted Subsidiaries securing capital contributions to, or obligations of, such Persons and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to non-Wholly-Owned Subsidiaries;
 
(ff)         Liens on cash or Cash Equivalents arising in connection with the defeasance, discharge or redemption of Indebtedness;
 
(gg)        Liens consisting of the prior rights of consignees and their lenders under consignment arrangements entered into in the ordinary course of business; and
 
(hh)       Liens disclosed in any Mortgage Policy delivered pursuant to Section 5.12 with respect to any Material Real Estate Asset and any replacement, extension or renewal thereof; provided that no such replacement, extension or renewal Lien shall cover any property other than the property that was subject to such Lien prior to such replacement, extension or renewal (and additions thereto, improvements thereon and the proceeds thereof).
 
Notwithstanding the foregoing, (i) the Loan Parties shall not be permitted to incur any Indebtedness for borrowed money that is secured by liens on the Collateral that are senior in right of priority to the Liens securing the Revolving Facility and (ii) in no event shall any Lien on patient records securing Indebtedness for borrowed money (other than the Obligations) be permitted.
 
Section 6.03.        [Reserved].
 
Section 6.04.        Restricted Payments; Restricted Debt Payments.
 
(a)        The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, pay or make, directly or indirectly, any Restricted Payment, except that:
 
(i)           the Borrower may make Restricted Payments to the extent necessary to permit any Parent Company:
 
(A)         to pay (I) reasonable and customary general administrative costs and expenses (including corporate overhead, legal or similar expenses and customary salary, bonus and other benefits payable to directors, officers, employees, members of management, managers and/or consultants of any Parent Company) and franchise Taxes, and similar fees and expenses, required to maintain the organizational existence of such Parent Company, in each case, which are incurred in the ordinary course of business  to the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent Company other than Holdings, the Borrower and/or its subsidiaries) and/or its subsidiaries; provided, that the aggregate amount of Restricted Payments made pursuant to this clause (I) shall not exceed $500,000 in any Fiscal Year, and (II) any reasonable and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent Company (but excluding for the avoidance of doubt, the portion of any such indemnification claims, if any, that are attributable to the ownership or operations of any subsidiary of such Parent Company other than Holdings, the Borrower and/or its subsidiaries) and/or its subsidiaries;
 
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(B)         (x) for any taxable period for which the Borrower is a member of a consolidated, combined, unitary or similar tax group for U.S. federal and/or applicable state or local tax purposes of which such Parent Company is the common parent, to discharge the consolidated, combined, unitary or similar Tax liabilities of such Parent Company and its subsidiaries when and as due, to the extent such liabilities are attributable to the income of the Borrower and/or any subsidiary; provided that the amount of such payments in respect of any taxable year do not exceed the amount of such Tax liabilities that the Borrower and/or its applicable subsidiaries would have paid had such Tax liabilities been paid as standalone companies or as a standalone group and (y) for any taxable period for which the Borrower is a partnership or disregarded entity for U.S. federal income tax purposes that is wholly-owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local tax purposes, distributions to any direct or indirect parent of the Borrower in an amount not to exceed the amount of any Tax that the Borrower and/or its applicable subsidiaries would have paid had such Tax been paid as stand alone companies or as a standalone group (and assuming for purposes of such calculation that the Borrower is classified as a domestic corporation for U.S. federal income tax purposes);
 
(C)        to pay audit and other accounting and reporting expenses of such Parent Company to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than Holdings, the Borrower and/or its subsidiaries), the Borrower and its subsidiaries;
 
(D)         (x) for the payment of insurance premiums to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such premiums, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than Holdings, the Borrower and/or its subsidiaries), the Borrower and its subsidiaries, (y) for the payment of legal and other professional fees of any Parent Company (but excluding, for the avoidance of doubt, the portion of any legal and other professional fees, if any, that are attributable to the ownership or operations of any subsidiary of such Parent Company other than Holdings, the Borrower and/or its subsidiaries) and (z) Public Company Costs;
 
(E)         to pay customary fees and expenses of third parties related to debt or equity offerings, investments or acquisitions (whether or not consummated) and expenses and indemnities of any trustee, agent, arranger, underwriter or similar role;
 
(F)         to finance any Investment permitted under Section 6.06 (provided that (x) any Restricted Payment under this clause (a)(i)(F) shall be made substantially concurrently with the closing of such Investment and (y) the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to the Borrower or one or more of its Restricted Subsidiaries, or (II) the merger, consolidation or amalgamation of the Person formed or acquired into the Borrower or one or more of its Restricted Subsidiaries, in order to consummate such Investment in compliance with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the Borrower or the relevant Restricted Subsidiary); and
 
(G)       to pay customary salary, bonus, severance and other benefits payable to current or former directors, officers, members of management, managers, employees or consultants of any Parent Company (or any Immediate Family Member of any of the foregoing) to the extent such salary, bonuses and other benefits are attributable and reasonably allocated to the operations of the Borrower and/or its subsidiaries, in each case, so long as such Parent Company applies the amount of any such Restricted Payment for such purpose;
 
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(ii)         the Borrower may pay (or make Restricted Payments to allow any Parent Company) to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of any Parent Company or any subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Borrower or any subsidiary:
 
(A)       with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of any Parent Company or any subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Borrower or any subsidiary) in an amount not to exceed $5,000,000 in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
 
(B)       with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the Borrower or any Parent Company (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Borrower or any Restricted Subsidiary) in each case, (1) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Borrower, any of its Restricted Subsidiaries or any Affiliated Practice, (2) to the extent the relevant Net Proceeds have not otherwise been applied to make Investments, Restricted Payments or Restricted Debt Payments hereunder and (3) other than any Cure Amount, any Available Excluded Contribution Amount and/or any Contribution Indebtedness Amount; or
 
(C)        with the net proceeds of any key-man life insurance policies;
 
(iii)        the Borrower may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (iii)(B);
 
(iv)       the Borrower may make Restricted Payments (i) to any Parent Company to enable such Parent Company to make Cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of such Parent Company and (ii) consisting of (A) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former officers, directors, employees, members of management, managers or consultants of the Borrower, any Restricted Subsidiary or any Parent Company or any of their respective Immediate Family Members and/or (B) repurchases of Capital Stock in consideration of the payments described in subclause (A) above, including demand repurchases in connection with the exercise of stock options;
 
(v)         the Borrower may repurchase (or make Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for Capital Stock;
 
(vi)        the Borrower may make Restricted Payments, the proceeds of which are applied on the Closing Date solely to effect the consummation of the Transactions or pay Transaction Costs;
 
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(vii)       each Restricted Subsidiary may make Restricted Payments with respect to any shares of any class of its Capital Stock; provided, that in the case of any Restricted Subsidiary that is not a Wholly-Owned Subsidiary, the share of the foregoing made or paid to the Borrower or any of the Restricted Subsidiaries is at least pro rata to the percentage of such class of Capital Stock in such Restricted Subsidiary that is not a Wholly-Owned Subsidiary owned by the Borrower and its other Restricted Subsidiaries;
 
(viii)     the Borrower may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any (A) Capital Stock (“Treasury Capital Stock”) of the Borrower and/or any Restricted Subsidiary or (B) Capital Stock of any Parent Company, in the case of each of subclauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Borrower and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Borrower or any Parent Company to the extent any such proceeds are contributed to the capital of the Borrower and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Borrower or a Restricted Subsidiary) of any Refunding Capital Stock;
 
(ix)        to the extent constituting a Restricted Payment, the Borrower may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(a), (d), (j) and (o));
 
(x)        the Borrower may make Restricted Payments in an aggregate amount, together with the aggregate amount of payments made pursuant to Section 6.04(b)(iv), not to exceed the RP/RDP Shared Cap; provided that Restricted Payments permitted under this clause (x) may solely be made (directly or indirectly) to, and received by, Parent and shall not be further distributed to any equityholder of Parent,
 
(xi)        the Borrower may make Restricted Payments so long as (i) no Event of Default exists at the time of the declaration of such Restricted Payment and (ii) the Total Net Leverage Ratio, calculated on a Pro Forma Basis, would not exceed 4.00:1.00;
 
(xii)       the Borrower may make Restricted Payments the proceeds of which are applied, directly or indirectly, to repay or redeem the Series A Preferred Shares, so long as (i) the Total Net Leverage Ratio, calculated on a Pro Forma Basis as of the most recently completed Test Period does not exceed 4.00:1.00 and (ii) no Event of Default has occurred and is continuing; and
 
(i)          (xiii) from and after the third anniversary of the Closing Date, the Borrower may make Restricted Payments the proceeds of which are applied, directly or indirectly, to pay cash dividends on the Series A Preferred Shares to the extent that the Parent has elected (or is required) to pay such dividends in cash in accordance with the Series A Preferred Shares Certificate of Designation, so long as (A) the Total Net Leverage Ratio, calculated on a Pro Forma Basis as of the most recently completed Test Period does not exceed 4.75:1.00 and (B) no Event of Default has occurred and is continuing.; and
 
(ii)         the Borrower may make Restricted Payments to Parent to the extent necessary to permit Parent to make the payments permitted under clauses (i) and (ii) of Section 6.04(c) (and solely to the extent such Restricted Payments are applied for such purpose).
 
(b)          The Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any prepayment in Cash in respect of principal of or interest on (x) any Junior Lien Indebtedness, (y) any Junior Indebtedness or (z) any unsecured Indebtedness of the types described in clauses (a) and (c) of the definition of “Indebtedness” (other than Indebtedness among Holdings, the Borrower and/or its subsidiaries) (the Indebtedness described in clauses (x) through (z), the “Restricted Debt”), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Restricted Debt (collectively, “Restricted Debt Payments”), except:
 
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(i)         with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement thereof made by exchange for, or out of the proceeds of, Refinancing Indebtedness permitted by Section 6.01;
 
(ii)         as part of an applicable high yield discount obligation catch-up payment;
 
(iii)        payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Indebtedness that are prohibited by the subordination provisions thereof);
 
(iv)        Restricted Debt Payments in an aggregate amount, together with the aggregate amount of Restricted Payments made pursuant to Section 6.04(a)(x), not to exceed the RP/RDP Shared Cap;
 
(v)         (A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Borrower and/or any capital contribution in respect of Qualified Capital Stock of the Borrower, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Restricted Debt into Qualified Capital Stock of the Borrower and/or Capital Stock of any Parent Company and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Restricted Debt that is permitted under Section 6.01;
 
(vi)        Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (vi)(A) and/or (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (vi)(B);
 
(vii)       Restricted Debt Payments in an unlimited amount; provided that (A) no Event of Default exists at the time of delivery of irrevocable notice of such Restricted Debt Payment and (B) the Total Net Leverage Ratio, calculated on a Pro Forma Basis, would not exceed 4.00:1.00; and
 
(viii)      mandatory prepayments of Restricted Debt (and related payments of interest) made with Declined Proceeds (it being understood that any Declined Proceeds applied to make Restricted Debt Payments in reliance on this Section 6.04(b)(viii) shall not increase the amount available under clause (a)(viii) of the definition of “Available Amount” to the extent so applied).;
 
; provided that, notwithstanding the foregoing, this Section 6.04(b) shall not apply to any Specified Junior Debt, which shall be governed by Section 6.04(c).
 
(c)         Holdings and the Borrower shall not, nor shall it permit any Restricted Subsidiary to, make any payment or distribution in respect of any Specified Junior Debt (including any refinancing, exchange or similar transaction, sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Specified Junior Debt) except for (i) customary agency and administration fees (including, for the avoidance of doubt, the costs of maintaining IntraLinks, SyndTrak or another relevant website for purposes of posting documents delivered to the Second Lien Agent and/or the applicable administrative agent under any other Specified Junior Debt) to the Second Lien Agent under the Second Lien Note Purchase Agreement and/or to the applicable administrative agent under the documents governing any other Specified Junior Debt; (ii) (A) reasonable out-of-pocket fees and expenses of legal counsel relating to the Second Amendment Effective Date Transactions and (B) so long as no Event of Default shall have occurred and be continuing, other reasonable out-of-pocket fees and expenses of legal counsel, (iii) payments of interest in kind by increasing the aggregate principal amount of such Specified Junior Debt and (iv) conversions of such Specified Junior Debt into Capital Stock of Parent and/or any direct or indirect parent company thereof (including pursuant to Article 10 of the Second Lien Note Purchase Agreement).
 
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Section 6.05.      Burdensome Agreements.  Except as provided herein or in any other Loan Document, the Preferred SharesSecond Lien Note Documents and/or the documentation governing any other Specified Junior Debt, the Series A Certificate of Designation (solely with respect to clause (x) below) and/or any agreement with respect to any refinancing, renewal or replacement of such Indebtedness that is permitted by Section 6.01 or the Series A Preferred Shares, as applicable, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into or cause to exist any agreement restricting the ability of (x) any Restricted Subsidiary of the Borrower that is not a Loan Party to pay dividends or other distributions to the Borrower or any Loan Party or (y) any Loan Party to create, permit or grant a Lien on any of its properties or assets to secure the Secured Obligations, except restrictions:
 
(a)         set forth in any agreement evidencing (i) Indebtedness of a Restricted Subsidiary that is not a Loan Party permitted by Section 6.01, (ii) Indebtedness permitted by Section 6.01 that is secured by a Permitted Lien if the relevant restriction applies only to the Person obligated under such Indebtedness and its Restricted Subsidiaries or the assets intended to secure such Indebtedness and (iii) Indebtedness permitted pursuant to clauses (j), (m), (p) (as it relates to Indebtedness in respect of clauses (a), (m), (r), (u), (w) and/or (y) of Section 6.01), (r), (u), (w) and/or (y) of Section 6.01;
 
(b)         arising under customary provisions restricting assignments, subletting or other transfers (including the granting of any Lien) contained in leases, subleases, licenses, sublicenses, joint venture agreements and other agreements entered into in the ordinary course of business;
 
(c)         that are or were created by virtue of any Lien granted upon, transfer of, agreement to transfer or grant of, any option or right with respect to any assets or Capital Stock not otherwise prohibited under this Agreement;
 
(d)        that are assumed in connection with any acquisition of property or the Capital Stock of any Person, so long as the relevant encumbrance or restriction relates solely to the Person and its subsidiaries (including the Capital Stock of the relevant Person or Persons) and/or property so acquired and was not created in connection with or in anticipation of such acquisition;
 
(e)          set forth in any agreement for any Disposition of any Restricted Subsidiary (or all or substantially all of the assets thereof) that restricts the payment of dividends or other distributions or the making of cash loans or advances by such Restricted Subsidiary pending such Disposition;
 
(f)          set forth in provisions in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any class of Capital Stock of a Person other than on a pro rata basis;
 
(g)         imposed by customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements;
 
(h)          on Cash, other deposits or net worth or similar restrictions imposed by any Person under any contract entered into in the ordinary course of business or for whose benefit such Cash, other deposits or net worth or similar restrictions exist;
 
(i)           set forth in documents which exist on the Closing Date and were not created in contemplation thereof;
 
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(j)          arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred after the Closing Date if the relevant restrictions, taken as a whole, are not materially less favorable to the Lenders than the restrictions contained in this Agreement, taken as a whole (as determined in good faith by the Borrower);
 
(k)         arising under or as a result of applicable Requirements of Law or the terms of any license, authorization, concession or permit;
 
(l)          arising in any Hedge Agreement and/or any agreement relating to any Banking Services Obligation (and/or any other obligation of the type described in Section 6.01(f));
 
(m)        relating to any asset (or all of the assets) of and/or the Capital Stock of the Borrower and/or any Restricted Subsidiary which is imposed pursuant to an agreement entered into in connection with any Disposition of such asset (or assets) and/or all or a portion of the Capital Stock of the relevant Person that is permitted or not restricted by this Agreement;
 
(n)         set forth in any agreement relating to any Permitted Lien that limit the right of the Borrower or any Restricted Subsidiary to Dispose of or encumber the assets subject thereto; and/or
 
(o)         imposed by any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of any contract, instrument or obligation referred to in clauses (a) through (n) above; provided that no such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good faith judgment of the Borrower, more restrictive with respect to such restrictions, taken as a whole, than those in existence prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
 
Section 6.06.        Investments.  The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, make or own any Investment in any other Person except:
 
(a)          Cash or Investments that were Cash Equivalents at the time made;
 
(b)         Investments:
 
(i)           existing on the Closing Date in the Borrower or in any subsidiary,
 
(ii)          made after the Closing Date among the Borrower and/or one or more Restricted Subsidiaries that are Loan Parties,
 
(iii)        made after the Closing Date by any Loan Party in any Restricted Subsidiary that is not a Loan Party in an aggregate outstanding amount, together with the aggregate amount of (A) consideration paid in reliance ofon clause (a) of the proviso to the definition of “Permitted Acquisition” and (B) Investments made in Persons that are not Loan Parties pursuant to Section 6.06(b)(aa), not to exceed the Specified Investment Cap,
 
(iv)        made by any Restricted Subsidiary that is not a Loan Party in any Loan Party and/or any other Restricted Subsidiary that is not a Loan Party, and/or
 
(v)         in the form of loans or advances made in the ordinary course of business in any Affiliated Practice in connection with the provision of services to such Affiliated Practice under Acceptable Practice Management Arrangements, including any Investment contemplated by any Practice Loan Agreement and/or any Management Services Agreement (other than an Investment contemplated by clause (e) below) and/or the proceeds of which are used to pay management fees to the relevant APC Manager, working capital purposes or payroll or other ordinary course business expenses of such Affiliated Practice; provided, that any loans or advances made pursuant to this clause (b)(v) to any Non-Consolidated APC shall not exceed $5,000,000 at any time outstanding,
 
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(c)         Investments (i) constituting deposits, prepayments and/or other credits to suppliers, (ii) made in connection with obtaining, maintaining or renewing client and customer contracts and/or (iii) in the form of advances made to distributors, suppliers, licensors and licensees, in each case, in the ordinary course of business or, in the case of clause (iii), to the extent necessary to maintain the ordinary course of supplies to the Borrower or any Restricted Subsidiary;
 
(d)         Investments in (i) any Unrestricted Subsidiary and/or any Similar Businessjoint ventures in an aggregate outstanding amount not to exceed $10,000,000 and (ii) any joint ventures and/or Similar Business in an aggregate outstanding amount not to exceed the greater of $6,500,000 and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;3,500,000;
 
(e)        (i) Permitted Acquisitions, so long as after giving effect thereto on a Pro Forma Basis, the Borrower is in compliance with the then applicable Financial Covenant, (ii) any Investment in any Restricted Subsidiary that is not a Loan Party in an amount required to permit such Restricted Subsidiary to consummate a Permitted Acquisition, which amount is actually applied by such Restricted Subsidiary to consummate, directly or indirectly, through one or more other Restricted Subsidiaries, such Permitted Acquisition and (iii) any Investment in any Consolidated APC in an amount required to permit such Consolidated APC to consummate, directly or indirectly, a Permitted Acquisition;
 
(f)          Investments (i) existing on, or contractually committed to or contemplated as of, the Closing Date and described on Schedule 6.06 and (ii) any modification, replacement, renewal or extension of any Investment described in clause (i) above so long as no such modification, renewal or extension increases the amount of such Investment except by the terms thereof or as otherwise permitted by this Section 6.06;
 
(g)          Investments received in lieu of Cash in connection with any Disposition permitted by Section 6.07 or any other disposition of assets not constituting a Disposition;
 
(h)        loans or advances to present or former employees, directors, members of management, officers, managers or consultants or independent contractors (or their respective Immediate Family Members) of any Parent Company, the Borrower, its subsidiaries and/or any joint venture to the extent permitted by Requirements of Law, in connection with such Person’s purchase of Capital Stock of any Parent Company, either (i) in an aggregate principal amount not to exceed $1,000,000 at any one time outstanding or (ii) so long as the proceeds of such loan or advance are substantially contemporaneously contributed to the Borrower for the purchase of such Capital Stock;
 
(i)          Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business;
 
(j)         Investments consisting of (or resulting from) Indebtedness permitted under Section 6.01 (other than Indebtedness permitted under Sections 6.01(b) and (h)), Permitted Liens, Restricted Payments permitted under Section 6.04 (other than Section 6.04(a)(ix)), Restricted Debt Payments permitted by Section 6.04 and mergers, consolidations, amalgamations, liquidations, windings up, dissolutions or Dispositions permitted by Section 6.07 (other than Section 6.07(a), Section 6.07(b) (if made in reliance on clause (ii) therein), Section 6.07(c)(ii) (if made in reliance on clause (B) therein), Section 6.07(g), Section 6.07(o), and Section 6.07(t));
 
(k)         Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers;
 
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(l)          Investments (including debt obligations and Capital Stock) received (i) in connection with the bankruptcy or reorganization of any Person, (ii) in settlement of delinquent obligations of, or other disputes with, customers, suppliers and other account debtors arising in the ordinary course of business, (iii) upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment and/or (iv) as a result of the settlement, compromise, resolution of litigation, arbitration or other disputes;
 
(m)         loans and advances of payroll payments or other compensation to present or former employees, directors, members of management, officers, managers or consultants of any Parent Company (to the extent such payments or other compensation relate to services provided to such Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than the Borrower and/or its subsidiaries)), the Borrower and/or any subsidiary in the ordinary course of business;
 
(n)          Investments to the extent that payment therefor is made solely with Capital Stock of any Parent Company or Qualified Capital Stock of the Borrower or any Restricted Subsidiary, in each case, to the extent not resulting in a Change of Control;
 
(o)        (i) Investments of any Restricted Subsidiary acquired after the Closing Date, or of any Person acquired by, or merged into or consolidated or amalgamated with, the Borrower or any Restricted Subsidiary after the Closing Date, in each case as part of an Investment otherwise permitted by this Section 6.06 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of the relevant acquisition, merger, amalgamation or consolidation and (ii) any modification, replacement, renewal or extension of any Investment permitted under clause (i) of this Section 6.06(o) so long as no such modification, replacement, renewal or extension thereof increases the original amount of such Investment except as otherwise permitted by this Section 6.06;
 
(p)          (i) Investments on the Closing Date made in connection with the Transactions and (ii) to the extent applicable, Investments on the Second Amendment Effective Date necessary to consummate the Second Amendment Effective Date Transactions;
 
(q)         Investments made after the Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate amount at any time outstanding not to exceed:
 
(i)          (A) the greater of $6,500,000 and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, plus (B) at the election of the Borrower, the amount of Restricted Payments then permitted to be made by the Borrower or any Restricted Subsidiary in reliance on Section 6.04(a)(x) or, without duplication, Restricted Debt Payments then permitted to be made in reliance on Section 6.04(b)(iv) (it being understood that any amount utilized under this clause (B) to make an Investment shall result in a reduction in availability under Section 6.04(a)(x) and Section 6.04(b)(iv)), plus
 
(ii)         in the event that (A) the Borrower or any of its Restricted Subsidiaries makes any Investment after the Closing Date in any Person that is neither a Restricted Subsidiary nor a Consolidated APC and (B) such Person subsequently becomes a Loan Party, an amount equal to 100% of the fair market value of such Investment as of the date on which such Person becomes a Loan Party;
 
(r)         Investments made after the Closing Date by the Borrower and/or any of its Restricted Subsidiaries in an aggregate outstanding amount not to exceed (i) the portion, if any, of the Available Amount on such date that the Borrower elects to apply to this clause (r)(i) and/or (ii) the portion, if any, of the Available Excluded Contribution Amount on such date that the Borrower elects to apply to this clause (r)(ii);
 
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(s)          (i) Guarantees of leases (other than Capital Leases) or of other obligations not constituting Indebtedness and (ii) Guarantees of the lease obligations of suppliers, customers, franchisees and licensees of the Borrower and/or its Restricted Subsidiaries, in each case, in the ordinary course of business;
 
(t)         Investments in any Parent Company in amounts and for purposes for which Restricted Payments to such Parent Company are permitted under Section 6.04(a); provided that any Investment made as provided above in lieu of any such Restricted Payment shall reduce availability under the applicable Restricted Payment basket under Section 6.04(a);
 
(u)         [reserved];
 
(v)         Investments in subsidiaries in connection with internal reorganizations and/or restructurings and activities related to tax planning; provided that, after giving effect to any such reorganization, restructuring or activity, neither the Loan Guaranty, taken as a whole, nor the security interest of the Administrative Agent in the Collateral, taken as a whole, is materially impaired;
 
(w)         Investments under any Derivative Transaction of the type permitted under Section 6.01(s);
 
(x)         Investments made in connection with any Permitted Practice Subsidiary Restructuring; provided that the aggregate amount of Investments made in Non-Consolidated APCs pursuant to this clause (x), shall not exceed $5,000,000;
 
(y)          Investments made in joint ventures as required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture agreements and similar binding arrangements entered into in the ordinary course of business;
 
(z)         Investments made in connection with any nonqualified deferred compensation plan or arrangement for any present or former employee, director, member of management, officer, manager or consultant or independent contractor (or any Immediate Family Member thereof) of any Parent Company, the Borrower, its subsidiaries and/or any joint venture;
 
(aa)       Investments in the Borrower, any Restricted Subsidiary and/or joint venture in connection with intercompany cash management arrangements and related activities in the ordinary course of business; provided that the aggregate amount of Investments made in Persons that are not Loan Parties under this Section 6.06(b)(aa), together with the aggregate amount of (A) consideration paid in reliance on clause (a) of the proviso to the definition of “Permitted Acquisition” and (B) Investments made in Persons that are not Loan Parties under Section 6.06(b)(iii), shall not exceed the Specified Investment Cap;
 
(bb)       Investments so long as, after giving effect thereto on a Pro Forma Basis, the Total Net Leverage Ratio does not exceed 4.50:1.00;
 
(cc)        any Investment made by any Unrestricted Subsidiary prior to the date on which such Unrestricted Subsidiary is designated as a Restricted Subsidiary so long as the relevant Investment was not made in contemplation of the designation of such Unrestricted Subsidiary as a Restricted Subsidiary; and[reserved]; and
 
(dd)       Investments consisting of the non-exclusive licensing in the ordinary course of business or contribution of IP Rights pursuant to joint marketing arrangements with other Persons.
 
Notwithstanding anything to the contrary in this Section 6.06, (A) this Section 6.06 shall not permit any IP Separation Transaction and (B) the aggregate amount of assets held by all Subsidiaries that are designated as Unrestricted Subsidiaries together with the aggregate amount of Investments in Unrestricted Subsidiaries shall not exceed the $10,000,000 in the aggregate..
 
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Section 6.07.      Fundamental Changes; Disposition of Assets.  Other than as part of any Permitted Practice Subsidiary Restructuring, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or make any Disposition of any assets having a fair market value in excess of $2,000,000 in a single transaction or a series of related transactions (or, in the case of any single transaction or a series of related transactions from and after the Second Amendment Effective Date, $1,000,000) and in excess of $5,000,000 in the aggregate for all such transactions (or, in the case of all such transactions from and after the Second Amendment Effective Date, $2,000,000), except:
 
(a)         any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Borrower or any other Restricted Subsidiary; provided that (i) in the case of any such merger, consolidation or amalgamation with or into the Borrower or any Delaware LLC Division relating to the Borrower, (A) the Borrower shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger, consolidation or amalgamation or Delaware LLC Division is not the Borrower (any such Person, the “Successor Borrower”), (x) the Successor Borrower shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Borrower shall expressly assume the Obligations of the Borrower in a manner reasonably satisfactory to the Administrative Agent and the Lender Representative and (z) except as the Administrative Agent may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Loan Guaranty and the other Loan Documents, it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Borrower will succeed to, and be substituted for, the Borrower under this Agreement and the other Loan Documents, and (ii) in the case of any such merger, consolidation or amalgamation with or into any Subsidiary Guarantor or any Delaware LLC Division relating to any Subsidiary Guarantor, either (A) the Borrower or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of such Subsidiary Guarantor in a manner reasonably satisfactory to the Administrative Agent and the Lender Representative or (B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
 
(b)         Dispositions (including of Capital Stock) among the Borrower and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Loan Party to any Person that is not a Loan Party shall be (i) for fair market value (as reasonably determined by such Person) with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
 
(c)         (i) the liquidation, dissolution or Delaware LLC Division of any Restricted Subsidiary if the Borrower determines in good faith that such liquidation, dissolution or Delaware LLC Division is in the best interests of the Borrower, is not materially disadvantageous to the Lenders and the Borrower or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation, dissolution or Delaware LLC Division of any Loan Party that results in a distribution of assets to any Restricted Subsidiary that is not a Loan Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof), (ii) any merger, amalgamation, dissolution, liquidation, consolidation or Delaware LLC Division, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06 and (iii) the conversion of the Borrower or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Loan Guaranty or Collateral, if any;
 
(d)          (i) Dispositions of inventory or equipment or immaterial assets in the ordinary course of business (including on an intercompany basis) and (ii) the leasing or subleasing of real property in the ordinary course of business;
 
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(e)          Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Borrower, is (A) no longer useful in its business (or in the business of any Restricted Subsidiary of the Borrower) or (B) otherwise economically impracticable to maintain;
 
(f)           Dispositions in the ordinary course of business of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
 
(g)          Dispositions, mergers, amalgamations, consolidations or conveyances that constitute (w) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (x) Permitted Liens and (y) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
 
(h)          Dispositions for fair market value; provided that with respect to any such Disposition with a purchase price in excess of $10,000,000, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided that for purposes of the 75% Cash consideration requirement, (i) the amount of any Indebtedness or other liabilities (other than Indebtedness or other liabilities that are subordinated (in right of payment or with respect to security) to the Obligations or that are owed to the Borrower or any Restricted Subsidiary) of the Borrower or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto)) that are assumed by the transferee of any such assets and for which the Borrower and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing, (ii) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (iii) any Security received by the Borrower or any Restricted Subsidiary from such transferee that is converted by such Person into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (iv) any Designated Non-Cash Consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other Designated Non-Cash Consideration received pursuant to this clause (iv) that is at that time outstanding, not in excess of $20,000,000 during the term of this Agreement, in each case, shall be deemed to be Cash);; provided, further, that (A) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default exists, (B) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii) and (C) this Section 6.07(h) shall not permit a Disposition of all or substantially all of the assets of the Borrower and its Restricted Subsidiaries;
 
(i)          to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
 
(j)          Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venture or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
 
(k)          Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof; provided that factoring or similar arrangements shall not be permitted pursuant to this clause (k);
 
(l)          Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Borrower and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
 
(m)         (i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
 
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(n)          Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
 
(o)          Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
 
(p)         [reserved]to the extent applicable, the consummation of the Second Amendment Effective Date Transactions on the Second Amendment Effective Date;
 
(q)         Dispositions of non-core assets acquired in connection with any acquisition permitted hereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, within 90 days of the date of such acquisition, are designated in writing to the Administrative Agent as being held for sale and not for the continued operation of the Borrower or any of its Restricted Subsidiaries or any of their respective businesses; provided that (A) no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed, (B) such Dispositions are for fair market value and (C) the Net Proceeds of such Disposition shall be applied and/or reinvested as (and to the extent) required by Section 2.11(b)(ii);
 
(r)          exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Borrower) for like assets; provided that upon the consummation of any such exchange or swap by any Loan Party, to the extent the assets received do not constitute an Excluded Asset, the Administrative Agent has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
 
(s)          [reserved];
 
(t)         (i) non-exclusive licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Borrower or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable good faith determination of the Borrower, are not material to the conduct of the business of the Borrower or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
 
(u)          terminations or unwinds of Derivative Transactions;
 
(v)         [reserved];
 
(w)        Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Borrower and/or any Restricted Subsidiary; provided that such Dispositions do not exceed $5,000,000 in the aggregate;
 
(x)          Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
 
(y)          any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
 
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(z)          any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
 
(aa)        [reserved]; and
 
(bb)       Dispositions in connection with Sale and Lease-Back Transactions; provided that, in the case of this clause (bb), the fair market value of all property so Disposed of after the Closing Date shall not exceed the greater of $5,000,000 and 7.5% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period.
 
Dispositions in connection with Sale and Lease-Back Transactions may be made solely under clause (bb) of this Section 6.07 and not under any other clause.
 
To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07, such Collateral shall be sold free and clear of the Liens created by the Loan Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Administrative Agent shall be authorized to take, and shall take, any actions deemed appropriate in order to effect the foregoing in accordance with Article 8 hereof; provided, that in the case of a Disposition made to any Loan Party, the relevant transferred assets shall become part of the Collateral of the transferee Loan Party (except to the extent such assets constitute Excluded Assets of such transferee Loan Party).
 
Notwithstanding the foregoing, this Section 6.07 shall not permit any IP Separation Transaction.
 
Section 6.08.        [Reserved].
 
Section 6.09.       Transactions with Affiliates.  The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) involving payment in excess of $1,000,000 in any individual transaction (it being understood that the threshold set forth above shall not apply to exempt more than $5,000,000 of payments (excluding, for the avoidance of doubt, any payment permitted in reliance on the proviso below) from the application of this Section 6.09) with any of their respective Affiliates on terms that are less favorable to the Borrower or such Restricted Subsidiary, as the case may be (as reasonably determined by the Borrower), than those that might be obtained at the time in a comparable arm’s-length transaction from a Person who is not an Affiliate; provided that the foregoing restriction shall not apply to:
 
(a)          any transaction between or among the Borrower and/or one or more Restricted Subsidiaries and/or Affiliated Practices (or any entity that becomes a Restricted Subsidiary or Affiliated Practice as a result of such transaction) to the extent permitted or not restricted by this Agreement;
 
(b)         any issuance, sale or grant of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of employment arrangements, stock options and stock ownership plans approved by the board of directors (or equivalent governing body) of any Parent Company or of the Borrower or any Restricted Subsidiary;
 
(c)         (i) any collective bargaining, employment or severance agreement or compensatory (including profit sharing) arrangement entered into by the Borrower or any of its Restricted Subsidiaries with their respective current or former officers, directors, members of management, managers, employees, consultants or independent contractors or those of any Parent Company, (ii) any subscription agreement or similar agreement pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights with current or former officers, directors, members of management, managers, employees, consultants or independent contractors and (iii) transactions pursuant to any employee compensation, benefit plan, stock option plan or arrangement, any health, disability or similar insurance plan which covers current or former officers, directors, members of management, managers, employees, consultants or independent contractors or any employment contract or arrangement;
 
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(d)          (i) transactions permitted by Sections 6.01(d), (o) and (ee), 6.04 and 6.06(h), (m), (o), (t), (v), (y), (z) and (aa) and (ii) issuances of Capital Stock and issuances and incurrences of Indebtedness not restricted by this Agreement;
 
(e)          transactions in existence on the Closing Date and any amendment, modification or extension thereof to the extent such amendment, modification or extension, taken as a whole, is not (i) materially adverse to the Lenders or (ii) more disadvantageous to the Lenders than the relevant transaction in existence on the Closing Date;
 
(f)          (i) so long as no Event of Default under Sections 7.01(a), 7.01(f) or 7.01(g) then exists or would result therefrom, the payment of management, monitoring, consulting, advisory and similar fees to any Investor in an amount not to exceed the greater of $1,300,000 and 2% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period per Fiscal Yearthe payment of all indemnification obligations owed to any Investor and any of their respective directors, officers, members of management, managers, employees and consultants, and (ii) the payment or reimbursement of all indemnification obligations and expenses owed to any Investor and any of their respective directors, officers, members of management, managers, employees and consultants, in each case of clauses (i) and (ii) whether currently due or paid in respect of accruals from prior periods, provided that the aggregate amount of expenses that may be paid in any Fiscal Year in reliance on this clause (f)(ii) shall not exceed $500,000;
 
(g)          the Transactions, including the payment of Transaction Costs;
 
(h)         ordinary course compensation to Affiliates in connection with financial advisory, financing, underwriting or placement services or in respect of other investment banking activities and other transaction fees, which payments are approved by the majority of the members of the board of directors (or similar governing body) or a majority of the disinterested members of the board of directors (or similar governing body) of the Borrower in good faith and do not to exceed 1.00% of the value of the gross cash consideration with respect to transactions with respect to which the applicable Affiliate provided any transaction, advisory or other services;[reserved];
 
(i)           Guarantees permitted by Section 6.01 or Section 6.06;
 
(j)           transactions among Holdings, the Borrower and its Restricted Subsidiaries and/or any Affiliated Practice that are otherwise permitted (or not restricted) under this Article 6;
 
(k)         the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, members of the board of directors (or similar governing body), officers, employees, members of management, managers, consultants and independent contractors of the Borrower and/or any of its Restricted Subsidiaries in the ordinary course of business and, in the case of payments to such Person in such capacity on behalf of any Parent Company, to the extent attributable to the operations of the Borrower or its subsidiaries;
 
(l)          transactions with customers, clients, suppliers, joint ventures, purchasers or sellers of goods or services or providers of employees or other labor entered into in the ordinary course of business, which are (i) fair to the Borrower and/or its applicable Restricted Subsidiary in the good faith determination of the board of directors (or similar governing body) of the Borrower or the senior management thereof or (ii) on terms at least as favorable as might reasonably be obtained from a Person other than an Affiliate;
 
(m)         the payment of reasonable out-of-pocket costs and expenses related to registration rights and customary indemnities provided to shareholders under any shareholder agreement;
 
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(n)         (i) any purchase by Holdings of the Capital Stock of (or contribution to the equity capital of) the Borrower and (ii) any intercompany loan made by Holdings to the Borrower or any Restricted Subsidiary and/or any Affiliated Practice;
 
(o) any transaction in respect of which the Borrower delivers to the Administrative Agent and the Lender Representative a letter addressed to the board of directors (or equivalent governing body) of the Borrower from an accounting, appraisal or investment banking firm of nationally recognized standing stating that such transaction is on terms that are either (i) no less favorable to the Borrower or the applicable Restricted Subsidiary than might be obtained at the time in a comparable arm’s length transaction from a Person who is not an Affiliate or (ii) fair to the Borrower or the relevant Restricted Subsidiary from a financial point of view;
 
(o)          [reserved];
 
(p)          any transaction consummated in connection with any Permitted Practice Subsidiary Restructuring;
 
(q)         any transaction (or series of related transactions) approved by a majority of the disinterested directors (or members of any similar governing body) of the Borrower or the Parent;
 
(r)          any investment by any Investor or Parent Company in securities or Indebtedness of the Borrower and/or any Guarantor;
 
(s)          any payment to or from, and/or any transaction with, any joint venture in the ordinary course of business or consistent with past practice, industry practice or industry norms (including, any cash management activity related thereto);
 
(t)          [reserved]; andthe Second Amendment Effective Date Transactions and the incurrence of, and performance of obligations under, any Specified Junior Debt (subject to the parameters set forth in Section 6.01(w), Section 6.04(c) and Section 6.12(b)); and
 
(u)         (i) any Investment by any Affiliate in the Loans, loans, securities or other Indebtedness of the Borrower and/or any Restricted Subsidiary (and payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the investment is being offered by the Borrower or such Restricted Subsidiary generally to other investors on the same or more favorable terms and (ii) payments and/or distributions to Affiliates in respect of the Loans, loans, securities or Indebtedness of the Borrower or any Restricted Subsidiary in connection with the securities and other Indebtedness contemplated in the foregoing subclause (i) or that were acquired from Persons other than the Borrower and the Restricted Subsidiaries, in each case, in accordance with the terms of such securities or Indebtedness.
 
Section 6.10.       Conduct of Business.  From and after the Closing Date, the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, engage in any material line of business other than (a) the businesses engaged in by the Borrower or any Restricted Subsidiary on the Closing Date and similar, incidental, complementary, ancillary or related businesses and (b) such other lines of business to which the Administrative Agent may consent.
 
Section 6.11.        Amendments or Waivers of Certain Documents.
 
(a)         The Borrower shall not, nor shall it permit any Subsidiary Guarantor to, amend or modify their respective Organizational Documents, in each case in a manner that is materially adverse to the Lenders (in their capacities as such), taken as a whole, without obtaining the prior written consent of the Administrative Agent and the Lender Representative; provided that, for purposes of clarity, it is understood and agreed that the Borrower and/or any Subsidiary Guarantor may effect a change to its organizational form and/or consummate any other transaction that is permitted under Section 6.07.
 
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(b)         Except as may be required in accordance with any applicable Requirement of Law, the Borrower shall not, nor shall it permit any Subsidiary Guarantor to, amend or modify any Management Services Agreement, Therapy Director Agreement, any Securities Transfer Restriction Agreement and/or any Practice Loan Agreement, in any case, in a manner that (i) is materially adverse to the business of the Borrower and its subsidiaries, taken as a whole, or (ii) is materially adverse to the interests of the Lenders in their respective capacities as such; provided that it is understood and agreed for the avoidance of doubt that (A) any amendment, modification or other change to the management or other similar fee owing under any Management Services Agreement made in the reasonable business judgment of the relevant Loan Party, (B) any amendment, modification or change to any interest rate or repayment and/or prepayment provision in any Practice Loan Agreement and/or (C) any amendment, modification or change to any Management Services Agreement, Therapy Director Agreement, any Securities Transfer Restriction Agreement and/or any Practice Loan Agreement made in the ordinary course of business shall not, in each case, be restricted by this Section 6.11(b)(ii).
 
(c)          The Borrower shall not permit any amendment or modification to any of the Preferred Shares CertificateCertificates of Designation in a manner that is materially adverse to the Lenders (in their capacities as such), taken as a whole, without obtaining the prior written consent of the Administrative Agent and the Lender Representative.  It is understood and agreed that the amendment to the Series A Certificate of Designation on the Second Amendment Effective Date, in the form delivered pursuant to Section 6(e) of the Second Amendment, does not violate this Section 6.11(c).
 
Section 6.12.        Amendments of or Waivers with Respect to Restricted Debt.   and Specified Junior Debt.
 
(a)         The Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, amend or otherwise modify the terms of any Restricted Debt (or the documentation governing any Restricted Debt) (a) if the effect of such amendment or modification, together with all other amendments or modifications made, is materially adverse to the interests of the Lenders (in their capacities as such) or (b) in violation of any Intercreditor Agreement or the subordination terms set forth in the definitive documentation governing any Restricted Debt; provided that, for purposes of clarity, it is understood and agreed that (i) the foregoing limitation shall not otherwise prohibit any Refinancing Indebtedness or any other replacement, refinancing, amendment, supplement, modification, extension, renewal, restatement or refunding of any Restricted Debt, in each case, that is permitted under this Agreement in respect thereof and (ii) this clause (a) shall not apply to any Specified Junior Debt, which shall be governed by Section 6.12(b) below.
 
(b)         Holdings and the Borrower shall not, nor shall it permit any of its Restricted Subsidiaries to, amend, restate, waive, supplement or otherwise modify the terms of the Second Lien PIK Notes, the Second Lien Note Documents or any agreement, document or instrument evidencing or relating to any other Specified Junior Debt if such amendment, restatement, waiver, supplement or other modification is adverse to the interests of the Lenders or violates the Second Lien Intercreditor and Subordination Agreement, in each case, without the prior written consent of the Administrative Agent and the Lender Representative; it being understood and agreed that (i) the amendment, restatement, waiver, supplement or other modification of the Second Lien PIK Notes, the Second Lien Note Documents or any other agreement evidencing or relating to any other Specified Junior Debt solely to the extent that such amendment, restatement, waiver, supplement or other modification is made to permit or implement the incurrence of any Indebtedness thereunder that is permitted by Section 6.01(w) is not restricted by this Section 6.12(b) and (ii) the amendment, restatement, waiver, supplement or other modification of Article 10 of the Second Lien Note Purchase Agreement with respect to, or any other provision thereof governing, the conversion or exchange of Second Lien PIK Notes into capital stock of Parent and/or any direct or indirect parent company thereof is not restricted by this Section 6.12(b) solely to the extent that such amendment, restatement, waiver, supplement or other modification is made to permit or implement or otherwise relates specifically to the conversion or exchange of Second Lien PIK Notes into capital stock of Parent and/or any direct or indirect parent company thereof.
 
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Section 6.13.       Fiscal Year.  The Borrower shall not change its Fiscal Year-end to a date other than December 31; provided that the Borrower may, upon written notice to the Administrative Agent, change the Fiscal Year-end of the Borrower to another date, in which case the Borrower and the Administrative Agent will, and are hereby authorized to, make any adjustments to this Agreement that are necessary to reflect such change in Fiscal Year.
 
Section 6.14.       Permitted Activities of Holdings.  Holdings shall not:
 
(a)         incur any Indebtedness for borrowed money other than (i) the Indebtedness permitted to be incurred by Holdings under the Loan Documents, the Second Lien Note Documents or otherwise in connection with the Transactions and/or the documentation governing any other Specified Junior Debt and (ii) Guarantees of Indebtedness or other obligations of the Borrower and/or any Restricted Subsidiary that are otherwise permitted hereunder;
 
(b)         create or suffer to exist any Lien on any asset now owned or hereafter acquired by it other than (i) the Liens created under the Collateral Documents, the Note Documents (as defined in the Second Lien Note Purchase Agreement) and/or the documentation governing any other Specified Junior Debt, (ii) any other Lien created in connection with the Transactions, (iii) Permitted Liens on the Collateral that are secured on a pari passu or junior basis with the Secured Obligations, so long as such Permitted Liens secure Guarantees permitted under clause (a)(ii) above and the underlying Indebtedness subject to such Guarantee is permitted to be secured on the same basis pursuant to Section 6.02 and (iv) Liens of the type permitted under Section 6.02 (other than in respect of debt for borrowed money);
 
(c)         consolidate or amalgamate with, or merge with or into, or convey, sell or otherwise transfer all or substantially all of its assets to, any Person; provided that, so long as no Default or Event of Default exists or would result therefrom, Holdings may consolidate or amalgamate with, or merge with or into, any other Person (other than the Borrower or any of its subsidiaries) so long as Holdings is the continuing or surviving Person; or
 
(d)         Holdings shall not create or acquire any directly owned Subsidiary other than the Borrower.
 
Notwithstanding the foregoing, Holdings shall not be permitted to incur any Indebtedness for borrowed money that is (i) pari passu with (except as permitted by Section 2.22(a)(xv)) or senior to the Revolving Facility in right of payment or (ii) secured by liens on the Collateral that are senior in right of priority to the Liens securing the Revolving Facility.
 
Section 6.15.        Financial Covenant.
 
(a)          Minimum Liquidity Covenant.
 
(i)          On the last day of each Fiscal Quarter (commencing with the Fiscal Quarter ending after the Closing Date until and including the Fiscal Quarter ending MarchDecember 31, 2024, each such date, a “Liquidity Covenant Test Date”), the average Liquidity of the Borrower and its Restricted Subsidiaries, taken as a whole, for the 45 consecutive days preceding the last day of the applicable Fiscal Quarter shall not be less than $30,000,000the corresponding amount set forth below for such Test Period (this clause (a)(i), the “Minimum Liquidity Covenant”).  :
 
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Test Period Ending:
  
Minimum Liquidity
 
March 31, 2022
  
$30,000,000
 
June 30, 2022
  
$30,000,000
 
September 30, 2022
  
$30,000,000
 
December 31, 2022
  
$30,000,000
 
March 31, 2023
  
$30,000,000
 
June 30, 2023
  
$25,000,000
 
September 30, 2023
  
$15,000,000
 
December 31, 2023
  
$15,000,000
 
March 31, 2024
  
$10,000,000
 
June 30, 2024
  
$10,000,000
 
September 30, 2024
  
$10,000,000
 
December 31, 2024
  
$10,000,000

(ii)        Notwithstanding anything to the contrary in this Agreement (including Article 7), upon any failure by the Borrower to comply with Section 6.15(a)(i) above as of any Liquidity Covenant Test Date, the Borrower shall have the right (the “Liquidity Covenant Cure Right”) (at any time during such Fiscal Quarter or thereafter until the date that is 15 Business Days after the last day of the applicable Fiscal Quarter (such period a “Liquidity Covenant Cure Period”)) to issue Qualified Capital Stock or other equity (such other equity to be on terms reasonably acceptable to the Administrative Agent and the Lender Representative) for Cash or otherwise receive Cash contributions in respect of its Qualified Capital Stock (the “Liquidity Covenant Cure Amount”), and thereupon the Borrower’s compliance this Section 6.15(a)(i) shall be recalculated giving effect to a pro forma increase in Liquidity by an amount equal to the Liquidity Covenant Cure Amount.  If, after giving effect to the foregoing recalculation, the requirements of Section 6.15(a)(i) would be satisfied, then the requirements of Section 6.15(a)(i) shall be deemed satisfied as of the Liquidity Covenant Test Date with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section 6.15(a)(i) that had occurred (or would have occurred) shall be deemed cured for the purposes of this Agreement.  Notwithstanding anything herein to the contrary,
 
(A)        in each four consecutive Fiscal Quarter period, the Liquidity Covenant Cure Right shall not be exercised more than two times (it being understood that, subject to clause (B), the Liquidity Covenant Cure Amount may be exercised in consecutive Fiscal Quarters),
 
(B)       during the term of this Agreement, the Liquidity Covenant Cure Right shall not be exercised more than five times in total (it being understood that exercise of the Liquidity Covenant Cure Right shall reduce the number of times the Leverage Covenant Cure Right may be exercised under Section 6.15(b)(ii)),
 
(C)        the Liquidity Covenant Cure Amount shall be no greater than the amount required for the purpose of complying with Section 6.15(a)(i),
 
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(D) upon the Administrative Agent’s and Lender Representative’s receipt of a written notice from the Borrower that the Borrower intends to exercise the Liquidity Covenant Cure Right (a “Notice of Intent to Cure Liquidity Covenant”) until the 15th Business Day following the date on which financial statements for the Fiscal Quarter to which such Notice of Intent to Cure Liquidity Covenant relates are required to be delivered pursuant to Sections 5.01(a) or (b), as applicable, neither the Administrative Agent (nor any sub-agent therefor) nor any Lender shall exercise any right to accelerate the Loans or terminate the Revolving Credit Commitments, and none of the Administrative Agent (nor any sub-agent therefor) nor any Lender or Secured Party shall exercise any right to foreclose on or take possession of the Collateral or any other right or remedy under the Loan Documents solely on the basis of the relevant Event of Default under Section 6.15(a)(i),
 
(D)        [reserved],
 
(E)        there shall be no pro forma or other reduction of the amount of Indebtedness by the amount of any Liquidity Covenant Cure Amount for purposes of determining compliance with Section 6.15(a) for the Fiscal Quarter in respect of which the Liquidity Covenant Cure Right was exercised (other than, with respect to any future period, to the extent of any portion of such Liquidity Covenant Cure Amount that is actually applied to repay Loans and such Liquidity Covenant Cure Amount shall only constitute part of the Unrestricted Cash Amount for any such future period to the extent it meets the requirements of the Unrestricted Cash Amount in such future period),
 
(F)        during any Test Period in which any Liquidity Covenant Cure Amount is included in the calculation of Consolidated Adjusted EBITDA as a result of any exercise of the Liquidity Covenant Cure Right, such Cure Amount shall be disregarded for purposes of determining (A) whether any financial ratio-based condition to the availability of any carve-out set forth in Article 6 of this Agreement has been satisfied or (B) the Applicable Rate,
 
(G)        the amount of any Liquidity Covenant Cure Amount shall be included in the calculation of Liquidity for the applicable Liquidity Covenant Test Date for all purposes of determining compliance with Section 6.15(a) so long as such Liquidity Covenant Cure Amount constitutes Cash permitted to be included in the Unrestricted Cash Amount, and
 
(H)       no Revolving Lender or Issuing Bank shall be required to make any Revolving Loan, Swingline Loan or issue any Letter of Credit from and after such time as the Administrative Agent has received the Notice of Intent to Cure Liquidity Covenanta Liquidity Report is delivered pursuant to Section 5.01(d) hereof demonstrating a failure to comply with Section 6.15(a)(i) or a Liquidity Report is required to be delivered pursuant to Section 5.01(d) and is not so delivered unless and until the Liquidity Covenant Cure Amount is actually received.
 
(b)          SecuredFirst Lien Net Leverage Ratio.
 
(i)          On the last day of each Test Period (commencing with the Fiscal Quarter ending June 30March 31, 20242025), the Borrower shall not permit the SecuredFirst Lien Net Leverage Ratio to exceed the corresponding ratio set forth below for such Test Period (this clause (b)(i), the “Maximum SecuredFirst Lien Net Leverage Covenant”).:
 
Test Period Ending
SecuredFirst Lien
Net Leverage Ratio
June 30March 31, 20242025
7.0011.00:1.00
SeptemberJune 30, 20242025
6.7510.00:1.00

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Test Period Ending:
SecuredFirst Lien
Net Leverage Ratio
December 31, 2024September 30, 2025
6.759.00:1.00
ThereafterDecember 31, 2025
6.258.00:1.00
March 31, 2026
7.50:1.00
June 30, 2026 and thereafter
7.00:1.00

(ii)        Notwithstanding anything to the contrary in this Agreement (including Article 7), upon any failure by the Borrower to comply with Section 6.15(b)(i) above as of any applicable Test Period, the Borrower shall have the right (the “Leverage Covenant Cure Right”) (at any time during such Fiscal Quarter or thereafter until the date that is 15 Business Days after the date on which financial statements for such Fiscal Quarter are required to be delivered pursuant to Sections 5.01(a) or (b), as applicable (such period, a “Leverage Covenant Cure Period”)) to issue Qualified Capital Stock or other equity (such other equity to be on terms reasonably acceptable to the Administrative Agent and the Lender Representative) for Cash or otherwise receive Cash contributions in respect of its Qualified Capital Stock (the “Leverage Covenant Cure Amount”), and thereupon the Borrower’s compliance this Section 6.15(b)(i) shall be recalculated giving effect to a pro forma increase in the amount of Consolidated Adjusted EBITDA by an amount equal to the Leverage Covenant Cure Amount (notwithstanding the absence of a related addback in the definition of “Consolidated Adjusted EBITDA”) solely for the purpose of determining compliance with Section 6.15(b)(i) as of the end of such Fiscal Quarter and for applicable subsequent periods that include such Fiscal Quarter.  If, after giving effect to the foregoing recalculation (but not, for the avoidance of doubt, taking into account any immediate repayment of Indebtedness in connection therewith), the requirements of Section 6.15(b)(i) would be satisfied, then the requirements of Section 6.15(b)(i) shall be deemed satisfied as of the applicable test date with the same effect as though there had been no failure to comply therewith at such date, and the applicable breach or default of Section 6.15(b)(i) that had occurred (or would have occurred) shall be deemed cured for the purposes of this Agreement.  Notwithstanding anything herein to the contrary,
 
(A)       in each four consecutive Fiscal Quarter period, the Leverage Covenant Cure Right shall not be exercised more than two times (it being understood that, subject to clause (B), the Leverage Covenant Cure Amount may be exercised in consecutive Fiscal Quarters); provided that, if the Liquidity Covenant Cure Right was exercised two times in a four consecutive Fiscal Quarter period, (1) the Leverage Covenant Cure Right shall not be exercised more than once in any four consecutive Fiscal Quarter period and (2) the Leverage Covenant Cure Right shall not be exercised in any four consecutive Fiscal Quarter period in which the Liquidity Covenant Cure Right was exercised,
 
(B)        during the term of this Agreement, the Leverage Covenant Cure Right and the Liquidity Covenant Cure Right shall not be exercised more than five times in total,
 
(C)        the Leverage Covenant Cure Amount shall be no greater than the amount required for the purpose of complying with Section 6.15(b)(i),
 
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(D) upon the Administrative Agent’s receipt of a written notice from the Borrower that the Borrower intends to exercise the Leverage Covenant Cure Right (a “Notice of Intent to Cure Leverage Covenant”) until the 15th Business Day following the date on which financial statements for the Fiscal Quarter to which such Notice of Intent to Cure Leverage Covenant relates are required to be delivered pursuant to Sections 5.01(a) or (b), as applicable, neither the Administrative Agent (nor any sub-agent therefor) nor any Lender shall exercise any right to accelerate the Loans or terminate the Revolving Credit Commitments, and none of the Administrative Agent (nor any sub-agent therefor) nor any Lender or Secured Party shall exercise any right to foreclose on or take possession of the Collateral or any other right or remedy under the Loan Documents solely on the basis of the relevant Event of Default under Section 6.15(b)(i),
 
(D)        [reserved],
 
(E)        there shall be no pro forma or other reduction of the amount of Indebtedness by the amount of any Leverage Covenant Cure Amount for purposes of determining compliance with Section 6.15(a) or (b) for the Fiscal Quarter in respect of which the Leverage Covenant Cure Right was exercised (other than, with respect to any future period, to the extent of any portion of such Cure Amount that is actually applied to repay Indebtedness),
 
(F)        during any Test Period in which any Leverage Covenant Cure Amount is included in the calculation of Consolidated Adjusted EBITDA as a result of any exercise of the Leverage Covenant Cure Right, such Leverage Covenant Cure Amount shall be disregarded for purposes of determining (A) whether any financial ratio-based condition to the availability of any carve-out set forth in Article 6 of this Agreement has been satisfied or (B) the Applicable Rate or the Commitment Fee Rate, and
 
(G)        no Revolving Lender or Issuing Bank shall be required to make any Revolving Loan, Swingline Loan or issue any Letter of Credit from and after such time as the Administrative Agent has received the Notice of Intent to Cure Leverage Covenant financial statements are delivered pursuant to Section 5.01(a) or (b) demonstrating, in either case, a failure to comply with Section 6.15(a)(ii) or such financial statements are required to be delivered pursuant to either Section 5.01(a) or (b) and are not so delivered, unless and until the Leverage Covenant Cure Amount is actually received.
 
ARTICLE 7
 
EVENTS OF DEFAULT
 
Section 7.01.        Events of Default.  If any of the following events (each, an “Event of Default”) shall occur:
 
(a)         Failure To Make Payments When Due.  Failure by the Borrower to pay (i) any installment of principal of any Loan when due, whether at stated maturity, by acceleration, by notice of voluntary prepayment, by mandatory prepayment or otherwise; or (ii) any interest on any Loan or any fee or any other amount due hereunder within five Business Days after the date due; or
 
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(b)         Default in Other Agreements.  (i) Failure by the Borrower or any of its Restricted Subsidiaries to pay when due any principal of or interest on or any other amount payable in respect of one or more items of third party Indebtedness for borrowed money of such Person (other than Indebtedness referred to in clause (a) above) with an aggregate outstanding principal amount exceeding the Threshold Amount, in each case beyond the grace period, if any, provided therefor; or (ii) breach or default by the Borrower or any of its Restricted Subsidiaries with respect to any other term of (A) one or more items of third-party Indebtedness for borrowed money of such Person with an aggregate outstanding principal amount exceeding the Threshold Amount or (B) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness (other than, for the avoidance of doubt, with respect to Indebtedness consisting of Hedging Obligations, termination events or equivalent events pursuant to the terms of the relevant Hedge Agreement which are not the result of any default thereunder by any Loan Party or any Restricted Subsidiary), in each case beyond the grace period, if any, provided therefor, if the effect of such breach or default is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause (with the giving of notice, if required) such Indebtedness to become or be declared due and payable (or redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be; provided that clause (ii) of this paragraph (b) shall not apply to any secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property securing such Indebtedness if such sale or transfer is permitted hereunder; provided, further, that any failure described under clauses (i) or (ii) above is unremedied and is not waived by the holders of such Indebtedness prior to any termination of the Commitments or acceleration of the Loans pursuant to Article 7; or
 
(c)          Breach of Certain Covenants.  Failure of any Loan Party, as required by the relevant provision, to perform or comply with any term or condition contained in (A) Section 5.01(e)(i), Section 5.02 (as it applies to the preservation of the existence of the Borrower), or Article 6; it being understood and agreed that any breach of Sections 6.15(a)(i) or (b)(i) is subject to cure as provided in Sections 6.15(a)(ii), or (b)(ii), as applicable, and no Event of Default may arise under (i) Section 6.15(a), until the 15th Business Day after the last day of the relevant Fiscal Quarter (unless the Liquidity Covenant Cure Right has been exercised five times over the life of this Agreement and/or the Liquidity Covenant Cure Right has been exercised twice in the applicable four consecutive Fiscal Quarter period), and then only to the extent the applicable Cure Amount has not been received on or prior to such date, and (ii) Section 6.15(b), until the 15th Business Day after the day on which financial statements are required to be delivered for the relevant Fiscal Quarter under Sections 5.01(a) or (b), as applicable (unless the Liquidity Covenant Cure Right and the Leverage Covenant Cure Right have been exercised five times over the life of this Agreement and/or the Liquidity Covenant Cure Right and/or the Leverage Covenant Cure Right have been exercised twice in the applicable four consecutive Fiscal Quarter period, respectively), and then only to the extent the applicable Cure Amount has not been received on or prior to such date; or (B) Sections 5.01(h), (j) or (l) which default has not been remedied or waived within 15 days after receipt by the Borrower of written notice thereof from the Administrative Agent or the Lender Representative; or
 
(d)          Breach of Representations, Etc.  Any representation, warranty or certification made or deemed made by any Loan Party in any Loan Document or in any certificate required to be delivered in connection herewith or therewith (including, for the avoidance of doubt, any Perfection Certificate) being untrue in any material respect as of the date made or deemed made; it being understood and agreed that any breach of any representation, warranty or certification resulting from the failure of the Administrative Agent to file any Uniform Commercial Code continuation statement shall not result in an Event of Default under this Section 7.01(d) or any other provision of any Loan Document; or
 
(e)          Other Defaults Under Loan Documents.  Default by any Loan Party in the performance of or compliance with any term contained herein or any of the other Loan Documents, other than any such term referred to in any other Section of this Article 7, which default has not been remedied or waived within 30 days after receipt by the Borrower of written notice thereof from the Administrative Agent; or
 
(f)         Involuntary Bankruptcy; Appointment of Receiver, Etc.  (i) The entry by a court of competent jurisdiction of a decree or order for relief in respect of any Parent Loan Guarantor, Holdings, the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) in an involuntary case under any Debtor Relief Law now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal, state or local Requirements of Law, which relief is not stayed; or (ii) the commencement of an involuntary case against any Parent Loan Guarantor, Holdings, the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) under any Debtor Relief Law; the entry by a court having jurisdiction in the premises of a decree or order for the appointment of a receiver, receiver and manager, (preliminary) insolvency receiver, liquidator, sequestrator, trustee, administrator, custodian or other officer having similar powers over any Parent Loan Guarantor, Holdings, the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary), or over all or a material part of its property; or the involuntary appointment of an interim receiver, trustee or other custodian of any Parent Loan Guarantor, Holdings, the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) for all or a material part of its property, which remains, in any case under this clause (f), undismissed, unvacated, unbounded or unstayed pending appeal for 60 consecutive days; or
 
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(g)         Voluntary Bankruptcy; Appointment of Receiver, Etc.  (i) The entry against any Parent Loan Guarantor, Holdings, the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) of an order for relief, the commencement by any Parent Loan Guarantor, Holdings, the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) of a voluntary case under any Debtor Relief Law, or the consent by any Parent Loan Guarantor, Holdings, the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) to the entry of an order for relief in an involuntary case or to the conversion of an involuntary case to a voluntary case, under any Debtor Relief Law, or the consent by any Parent Loan Guarantor, Holdings, the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) to the appointment of or taking possession by a receiver, receiver and manager, insolvency receiver, liquidator, sequestrator, trustee, administrator, custodian or other like official for or in respect of itself or for all or a material part of its property; (ii) the making by any Parent Loan Guarantor, Holdings, the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) of a general assignment for the benefit of creditors; or (iii) the admission by any Parent Loan Guarantor, Holdings, the Borrower or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) in writing of their inability to pay their respective debts as such debts become due; or
 
(h)         Judgments and Attachments. The entry or filing of one or more final money judgments, orders, writs or warrants of attachment or similar process (or any settlement of any litigation or other proceeding that, if breached, could result in a judgment, order, writ or warrant of attachment or similar process) against any Parent Loan Guarantor, Holdings, the Borrower or any of its Restricted Subsidiaries or any of their respective assets involving in the aggregate at any time an amount in excess of the Threshold Amount (in either case to the extent not adequately covered by indemnity from a third party or by insurance as to which, in each case, the relevant third party indemnifier or insurance company has been notified and not denied coverage), which judgment, writ, warrant or similar process or settlement remains unpaid, undischarged, unvacated, unbonded or unstayed pending appeal for a period of 60 consecutive days; or
 
(i)          Employee Benefit Plans.  The occurrence of one or more ERISA Events, which individually or in the aggregate result in liability of Holdings, the Borrower or any of its Restricted Subsidiaries in an aggregate amount which would reasonably be expected to result in a Material Adverse Effect; or
 
(j)           Change of Control.  The occurrence of a Change of Control; or
 
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(k)         Guaranties, Collateral Documents and Other Loan Documents.  At any time after the execution and delivery thereof, (i) any material Loan Guaranty for any reason, other than the occurrence of the Termination Date, shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared, by a court of competent jurisdiction, to be null and void or any Loan Guarantor shall repudiate in writing its obligations thereunder (in each case, other than as a result of the discharge of such Loan Guarantor in accordance with the terms thereof and other than as a result of any act or omission by the Administrative Agent or any Lender), (ii) this Agreement or any material Collateral Document ceases to be in full force and effect or shall be declared, by a court of competent jurisdiction, to be null and void or any Lien on a material portion of the Collateral created under any Collateral Document ceases to be perfected with respect to a material portion of the Collateral (other than (A) Collateral consisting of Material Real Estate Assets to the extent that the relevant losses are covered by a lender’s title insurance policy and such insurer has not denied coverage or (B) solely by reason of (w) such perfection not being required pursuant to the Collateral and Guarantee Requirement, the Collateral Documents, this Agreement or otherwise, (x) the failure of the Administrative Agent to maintain possession of any Collateral actually delivered to it or the failure of the Administrative Agent to file Uniform Commercial Code financing statement, amendment or continuation statements (so long as, in the case of any financing statement or amendment, the Administrative Agent shall have received written notice from the Borrower of the event giving rise to the requirement to file such financing statement or amendment, as applicable, within the time periods therefor set forth in Section 5.12 (in the case of events giving rise to the requirement to file a new financing statement) or Section 5.01(i) (in the case of events giving rise to the requirement to file such an amendment) (it being understood and agreed that any notice delivered pursuant to Section 5.01(i) and receipt by the Administrative Agent of the applicable Joinder Agreement in connection with the requirements of Section 5.12 shall satisfy such notice obligations), (y) a release of Collateral in accordance with the terms hereof or thereof or (z) the occurrence of the Termination Date or any other termination of such Collateral Document in accordance with the terms thereof) or, (iii) other than in any bona fide, good faith dispute as to the scope of Collateral or whether any Lien has been, or is required to be released, any Loan Party or any Parent Loan Guarantor shall contest in writing, the validity or enforceability of any material provision of any Loan Document (or any Lien purported to be created by the Collateral Documents on any material portion of the Collateral or any Loan Guaranty) or deny in writing that it has any further liability (other than by reason of the occurrence of the Termination Date or any other termination of any other Loan Document in accordance with the terms thereof), including with respect to future advances by the Lenders, under any Loan Document to which it is a party; it being understood and agreed that the failure of the Administrative Agent to file any Uniform Commercial Code financing statement, amendment or continuation statement (so long as, in the case of any financing statement or amendment, the Administrative Agent shall have received written notice from the Borrower of the event giving rise to the requirement to file such financing statement or amendment, as applicable, within the time periods therefor set forth in Section 5.12 (in the case of events giving rise to the requirement to file a new financing statement) or Section 5.01(i) (in the case of events giving rise to the requirement to file such an amendment) (it being understood and agreed that any notice delivered pursuant to Section 5.01(i) and receipt by the Administrative Agent of the applicable Joinder Agreement in connection with the requirements of Section 5.12 shall satisfy such notice obligations) and/or maintain possession of any physical Collateral shall not result in an Event of Default under this Section 7.01(k) or any other provision of any Loan Document; or or (iv) other than in connection with the termination of the Second Lien Intercreditor and Subordination Agreement in accordance with the terms thereof, the Secured Obligations shall cease to constitute “Senior Obligations” under the Second Lien Intercreditor and Subordination Agreement or, in any case, the Second Lien Intercreditor and Subordination Agreement shall be invalidated or otherwise cease to be a legal, valid and binding obligation of the parties thereto, enforceable in accordance with their terms, or any Parent Loan Guarantor or any Loan Party contests the validity or enforceability of the Second Lien Intercreditor and Subordination Agreement in writing; or
 
(l)          Subordination.  The Secured Obligations ceasing or the assertion in writing by any Parent Loan Guarantor or any Loan Party that the Obligations cease to constitute senior indebtedness under the subordination provisions of any document or instrument evidencing any Junior Lien Indebtedness in excess of the Threshold Amount or any such subordination provision being invalidated by a court of competent jurisdiction in a final non-appealable order, or otherwise ceasing, for any reason, to be valid, binding and enforceable obligations of the parties thereto; it being understood and agreed that this clause (l) shall not apply to the Second Lien Intercreditor and Subordination Agreement, which is governed by clause (k)(iv) above; or
 
(m)        Parent Loan Guarantors.
 
(i)          At any time after the execution and delivery thereof, the Parent Loan Guaranty for any reason (other than in accordance with its terms), shall cease to be in full force and effect or shall be declared, by a court of competent jurisdiction, to be null and void or any Parent Loan Guarantor shall repudiate in writing its obligations thereunder; or
 
174
(ii)         Any representation, warranty or certification made or deemed made by any Parent Loan Guarantor in any Loan Document or in any certificate required to be delivered in connection herewith or therewith (including, for the avoidance of doubt, any Perfection Certificate) being untrue in any material respect as of the date made or deemed made; it being understood and agreed that any breach of any representation, warranty or certification resulting from the failure of the Administrative Agent to file any Uniform Commercial Code continuation statement shall not result in an Event of Default under this Section 7.01(m) or any other provision of any Loan Document; or
 
(iii)       Failure of any Parent Loan Guarantor to perform or comply with any term or condition contained in Section 2.11(b) of the Parent Loan Guaranty; or
 
(iv)        Default by any Parent Loan Guarantor in the performance of or compliance with any term contained in the Parent Loan Guaranty or any other Loan Document, other than any such term referred to in any other Section of this Article 7 or other clause of this Section 7.01(m), which default has not been remedied or waived within 30 days after receipt by the Parent or Borrower of written notice thereof from the Administrative Agent; or
 
(v)         An “Event of Default” (or similar event) occurs under the Second Lien Note Documents or the documents governing any Specified Junior Debt (to the extent the principal amount of such Specified Junior Debt exceeds the Threshold Amount); provided that the relevant event is unremedied and is not waived by the holders of such Indebtedness prior to any termination of the Commitments or acceleration of the Loans pursuant to Article 7,
 
then, and in every such event (other than an event with respect to the Borrower described in clause (f) or (g) of this Article), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take any of the following actions, at the same or different times:  (i) terminate the Revolving Credit Commitments, and thereupon such Commitments shall terminate immediately, (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon, premium (including the Prepayment Premium) and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower and (iii) require that the Borrower deposit in the LC Collateral Account an additional amount in Cash as reasonably requested by the Issuing Banks (not to exceed 100% of the relevant face amount) of the then outstanding LC Exposure (minus the amount then on deposit in the LC Collateral Account); provided that upon the occurrence of an event with respect to the Borrower described in clauses (f) or (g) of this Article, any such Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon, premium (including the Prepayment Premium) and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower, and the obligation of the Borrower to Cash collateralize the outstanding Letters of Credit as aforesaid shall automatically become effective, in each case without further action of the Administrative Agent or any Lender; provided, further, that notwithstanding anything to the contrary in the foregoing, unless otherwise effectuated as provided above and without duplication thereof, during the continuance of any Event of Default arising under Section 7.01(c) (solely as it relates to an Event of Default under Section 6.15(a)(i) or (b)(i)) or 7.01(a) (solely as it relates to the failure to pay amounts in respect of the Revolving Facility), the Required Revolving Lenders may request (such request, a “Revolving Remedies Request”) that the Administrative Agent, and upon such request the Administrative Agent shall, by notice to the Borrower, (1) terminate the Revolving Credit Commitments, and thereupon such Revolving Commitments shall terminate immediately, (2) declare the Revolving Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable) and thereupon the principal of the Revolving Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder solely with respect thereto, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower and (3) require that the Borrower deposit in the LC Collateral Account an additional amount in Cash as reasonably requested by the Issuing Banks (not to exceed 100% of the relevant face amount) of the then outstanding LC Exposure (minus the amount then on deposit in the LC Collateral Account); provided, further, that (i) in the case of the occurrence of an Event of Default under Section 7.01(c) arising from the failure of the Borrower to comply with the Minimum Liquidity Covenant, no Revolving Remedies Request shall be permitted to be made until the date that is thirty (30) days after the end of the Liquidity Covenant Cure Period for the applicable Liquidity Covenant Test Date and then only to the extent the related Liquidity Covenant Cure Right has not been exercised within the Liquidity Covenant Cure Period or (ii) in the case of the occurrence of an Event of Default under Section 7.01(c) arising from the failure of the Borrower to comply with the Maximum SecuredFirst Lien Net Leverage Covenant, no Revolving Remedies Request shall be made until (A) in the case of a breach of the  Maximum Secured Net Leverage Covenant with respect to a Test Period as a result of the Secured Net Leverage Ratio exceeding the applicable level set forth for such Test Period in Section 6.15(b)(i) but not exceeding the level for such Test Period set forth in Schedule 7.01 hereto, the date that is sixty (60) days after the end of the Leverage Covenant Cure Period for the applicable Test Period and then only to the extent the related Leverage Covenant Cure Right has not been exercised within the Leverage Covenant Cure Period, and (B) in the case of a breach of Section 6.15(b)(i) with respect to a Test Period as a result of the Secured Net Leverage Ratio exceeding the applicable level set forth for such Test Period in Schedule 7.01 hereto, the date that is thirty (30) days after the end of the Leverage Covenant Cure Period for the applicable Test Period and then only to the extent the related Leverage Covenant Cure Right has not been exercised within the Leverage Covenant Cure Period.
 
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ARTICLE 8
 
THE ADMINISTRATIVE AGENT
 
Section 8.01.       Appointment and Authorization of Administrative Agent.  Each of the Lenders and the Issuing Banks, each, on behalf of itself and its applicable Affiliates and in their respective capacities as such and as counterparties to Hedge Agreements the obligations in respect of which constituted Secured Hedging Obligations and/or providers of Banking Services the obligations in respect of which constitute Banking Services Obligations, as applicable, hereby irrevocably appoints Barclays (or any successor appointed pursuant hereto) as Administrative Agent and authorizes the Administrative Agent to take such actions on its behalf, including execution of the other Loan Documents, and to exercise such powers as are delegated to the Administrative Agent by the terms of the Loan Documents, together with such actions and powers as are reasonably incidental thereto.
 
Section 8.02.       Rights as a Lender.  Any Person serving as Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Lender, include each Person serving as Administrative Agent hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Loan Party or any subsidiary of any Loan Party or other Affiliate thereof as if it were not the Administrative Agent hereunder.  The Lenders acknowledge that, pursuant to such activities, the Administrative Agent or its Affiliates may receive information regarding any Loan Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Loan Party or such Affiliate) and acknowledge that the Administrative Agent shall not be under any obligation to provide such information to them.
 
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Section 8.03.      Exculpatory Provisions.  The Administrative Agent shall not have any duties or obligations except those expressly set forth in the Loan Documents.  Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” herein and in the other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary power, except discretionary rights and powers that are expressly contemplated by the Loan Documents and which the Administrative Agent is required to exercise as directed in writing by the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as shall be necessary under the relevant circumstances as provided in Section 9.02) or in the case of the Administrative Agent as directed by the Lender Representative to the extent expressly contemplated herein; provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Requirements of Law, and (c) except as expressly set forth in the Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Administrative Agent or any of its Affiliates in any capacity.  The Administrative Agent shall not be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Revolving Lenders (or such other number or percentage of the Lenders as is necessary, or as the Administrative Agent believes in good faith shall be necessary, under the relevant circumstances as provided in Section 9.02) or in the case of the Administrative Agent as directed by the Lender Representative or in the absence of its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein.  The Administrative Agent shall not be deemed to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or any Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Loan Document, (iii) the performance or observance of any covenant, agreement or other term or condition set forth in any Loan Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Loan Document or any other agreement, instrument or document, (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Administrative Agent pursuant to any Loan Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority, (vi) the satisfaction of any condition set forth in Article 4 or elsewhere in any Loan Document, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent or (vii) any property, book or record of any Loan Party or any Affiliate thereof.  The Lender Representative shall not (i) be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, (ii) be liable to the Lenders or any other Secured Party for the failure to disclose any information relating to the Borrower or any of its Restricted Subsidiaries or (iii) be liable to the Lenders or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Lenders or Required Term Lenders (or such other number or percentage of the Lenders as is necessary, or as the Lender Representative believes in good faith shall be necessary, under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein.
 
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Section 8.04.       Exclusive Right to Enforce Rights and Remedies.  Notwithstanding anything to the contrary contained herein or in any of the other Loan Documents, the Borrower, the Administrative Agent and each Secured Party agree that (a) (i) no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the provisions of any Loan Document, including this Agreement, the Security Agreement and/or the Loan Guaranty; it being understood that any right to enforce any such provision (including to realize upon the Collateral or enforce any Loan Guaranty) against any Loan Party or any Parent Loan Guarantor pursuant hereto or pursuant to any other Loan Document may be exercised solely by the Administrative Agent on behalf of all of a portion of the Secured Parties in accordance with the terms hereof or thereof and (ii) in the event of a foreclosure by the Administrative Agent on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Administrative Agent, as agent for and representative of the Secured Parties, shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Administrative Agent at such Disposition and (B) the Administrative Agent or any Lender may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition.
 
(a)          No holder of any Secured Hedging Obligation or Banking Services Obligation in its respective capacity as such shall have any rights in connection with the management or release of any Collateral or of the obligations of any Loan Party or any Parent Loan Guarantor under this Agreement.
 
(b)          Each Secured Party agrees that the Administrative Agent may in its sole discretion, but is under no obligation to credit bid any part of the Secured Obligations or to purchase or retain or acquire any portion of the Collateral.
 
Section 8.05.       Reliance by Administrative Agent.  The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) that it believes to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the making of a Loan, or the issuance of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the applicable Issuing Bank, the Administrative Agent may presume that such condition is satisfactory to such Lender or Issuing Bank unless the Administrative Agent has received notice to the contrary from such Lender or Issuing Bank prior to the making of such Loan or the issuance of such Letter of Credit.  The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.
 
Section 8.06.      Delegation of Duties.  The Administrative Agent may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it.  The Administrative Agent and any such sub-agent may perform any and all of their respective duties and exercise their respective rights and powers through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Administrative Agent.
 
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Section 8.07.       Successor Administrative Agent.
 
(a)          The Administrative Agent shall have the right to resign at any time by giving thirty days’ prior written notice thereof to the Lenders, the Issuing Banks and the Borrower. If the Administrative Agent is no longer a Revolving Lender or an Issuing Bank, the Administrative Agent may be removed at any time with or without cause by an instrument or concurrent instruments in writing delivered to the Borrower and Administrative Agent and signed by the Required Lenders. If the Administrative Agent or the Required Lenders, as applicable, deliver any such notice of resignation or removal, the Required Lenders shall have the right to appoint a financial institution which shall be a commercial bank, trust company or other Person reasonably acceptable to the Borrower with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000 or the Lender Representative to act as the Administrative Agent hereunder, subject to the consent of the Borrower (such consent not to be unreasonably withheld or delayed); provided, that during the existing and during the continuation of an Event of Default under Section 7.01(a), or with respect to the Borrower, Sections 7.01(f) or (g), no consent of the Borrower shall be required. The Administrative Agent’s resignation shall become effective on the earliest of (i) thirty (30) days after delivery of the notice of resignation (regardless of whether a successor has been appointed or not), and (ii) the acceptance of such successor Administrative Agent by the Borrower and the Required Lenders. Upon any such notice of resignation (or such later date as the Administrative Agent may reasonably agree), if a successor Administrative Agent has not already been appointed by the retiring Administrative Agent, Required Lenders shall have the right, upon five Business Days’ notice to the Borrower, to appoint a successor Administrative Agent with the consent of the Borrower (such consent not be unreasonably withheld or delayed) which successor shall be a commercial bank, trust company or other Person reasonably acceptable to the Borrower with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000 or the Lender Representative; provided, that during the existing and during the continuation of an Event of Default under Section 7.01(a), or with respect to the Borrower, Sections 7.01(f) or (g), no consent of the Borrower shall be required.
 
(b)         If, upon notice of resignation, neither Required Lenders nor the Administrative Agent have appointed a successor Administrative Agent, the Required Lenders shall be deemed to have succeeded to and become vested with all the rights, powers, privileges and duties of the retiring Administrative Agent; provided that, until a successor Administrative Agent reasonably satisfactory to the Borrower is so appointed by the Required Lenders or the Administrative Agent, any collateral security held by the Administrative Agent shall continue to be held by it until such time as a successor agent is appointed. Upon the acceptance of any appointment as the Administrative Agent hereunder by a successor Administrative Agent, that successor Administrative Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Administrative Agent and the retiring or removed Administrative Agent shall promptly (i) transfer to such successor Administrative Agent all sums, Securities and other items of Collateral held under the Loan Documents, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Administrative Agent under the Loan Documents, and (ii) at the expense of the Borrower, execute and deliver to such successor Administrative Agent such amendments to financing statements, and take such other actions, as may be necessary or appropriate in connection with the assignment to such successor Administrative Agent of the security interests created under the Loan Documents, whereupon such retiring Administrative Agent shall be discharged from its duties and obligations hereunder (other than its obligations under Section 9.13 hereof).
 
(c)         The fees payable by the Borrower to any successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor Administrative Agent.
 
(d)         After the Administrative Agent’s resignation or removal hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any action taken or omitted to be taken by any of them while the relevant Person was acting as Administrative Agent (including for this purpose holding any collateral security following the retirement or removal of the Administrative Agent).
 
(e)          Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Administrative Agent.
 
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Section 8.08.      Non-Reliance on Administrative Agent.  Each of each Lender and each Issuing Bank acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each of each Lender and each Issuing Bank also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of their respective Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or related agreement or any document furnished hereunder or thereunder.  Except for notices, reports and other documents expressly required to be furnished to the Lenders and the Issuing Banks by the Administrative Agent herein, the Administrative Agent shall not have any duty or responsibility to provide any Lender or any Issuing Bank with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Loan Parties, the Parent Loan Guarantors or any of their respective Affiliates which may come into the possession of the Administrative Agent or any of its Related Parties.
 
Notwithstanding anything to the contrary herein, the Arranger shall not have any right, power, obligation, liability, responsibility or duty under this Agreement, except in its respective capacity as a Lender hereunder.
 
Section 8.09.       Collateral and Guaranty Matters.  Each Secured Party irrevocably authorizes and instructs the Administrative Agent to, and the Administrative Agent shall:
 
(a)         release (or evidence the release of) any Lien on any property granted to or held by Administrative Agent under any Loan Document (i) upon the occurrence of the Termination Date, (ii) that is sold or otherwise Disposed of (other than pursuant to a lease, sublease, license or sublicense) as part of or in connection with any Disposition permitted under (or not restricted by) the Loan Documents (subject to the last paragraph of Section 6.07), (iii) that does not constitute (or ceases to constitute) Collateral (and/or otherwise becomes an Excluded Asset), (iv) if the property subject to such Lien is owned by a Subsidiary Guarantor, upon the release of such Subsidiary Guarantor from its Loan Guaranty otherwise in accordance with the Loan Documents, (v) as required under clause (d) below, (vi) pursuant to the provisions of any applicable Loan Document or (vii) if approved, authorized or ratified in writing by the Required Lenders in accordance with Section 9.02;
 
(b)         subject to Section 9.22, release (or evidence the release of) any Subsidiary Guarantor from its obligations under the Loan Guaranty (i) if such Person ceases to be a Restricted Subsidiary or is an Excluded Subsidiary (or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions not prohibited hereunder, including for the avoidance of doubt, any Permitted Practice Subsidiary Restructuring) and/or (ii) in the case of any Discretionary Guarantor, at the election of the Borrower, upon notice from the Borrower to the Administrative Agent at any time so long as, in the case of this clause (ii), after giving pro forma effect to such release and, if applicable, the relevant transaction, the Borrower is deemed to have made a new Investment in such Person (as if such Person was then newly acquired) on the date of such release and such Investment is not otherwise prohibited by the Loan Documents; provided that if any Subsidiary Guarantor ceases to constitute a Wholly-Owned Subsidiary, such Subsidiary Guarantor shall not be released from its Loan Guaranty unless (A) such Subsidiary Guarantor is no longer a direct or indirect subsidiary of the Borrower or (B) after giving pro forma effect to such release and the consummation of the relevant transaction, the Borrower is deemed to have made a new Investment in such Person (as if such Person was then newly acquired) and such Investment is not otherwise prohibited by the Loan Documents; it being understood that this proviso shall not limit the release of any Subsidiary Guarantor that otherwise constitutes an Excluded Subsidiary for any reason other than not constituting a Wholly-Owned Subsidiary of the Borrower (this proviso, the “Specified Guarantor Release Provision”);
 
(c)         subordinate any Lien on any property granted to or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Sections 6.02(d), 6.02(e), 6.02(g)(i), 6.02(l), 6.02(m), 6.02(n), 6.02(o)(i) (other than any Lien on the Capital Stock of any Subsidiary Guarantor), 6.02(q), 6.02(r) that are expressly included in this clause (c)), 6.02(x), 6.02(y), 6.02(z)(i), 6.02(bb), 6.02(cc), 6.02(dd) (in the case of clause (ii), to the extent the relevant Lien covers cash collateral posted to secure the relevant obligation), 6.02(ee), 6.02(ff), 6.02(gg) and/or 6.02(hh) (and any Refinancing Indebtedness in respect of any thereof to the extent such Refinancing Indebtedness is permitted to be secured under Section 6.02(k));
 
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(d)         enter into subordination, intercreditor, collateral trust and/or similar agreements with respect to Indebtedness (including any Intercreditor Agreement and/or any amendment to any Intercreditor Agreement) that is (i) required or permitted to be subordinated hereunder and/or (ii) secured by Liens, and with respect to which Indebtedness, this Agreement contemplates an intercreditor, subordination, collateral trust or similar agreement, with each of the Lenders and the other Secured Parties irrevocably agreeing to the treatment of the Lien on the Collateral securing the Secured Obligations as set forth in any such agreement and it will be bound by and will take no action contrary to the provisions of any such agreement; and
 
(e)          execute and/or deliver, as applicable, any amendment to any UCC financing statement and/or any other document evidencing the security interest granted pursuant to the Collateral Documents to indicate that Excluded Assets and/or other assets that do not constitute and are not required to constitute Collateral are not subject to the security interest granted pursuant to the Collateral Documents.
 
Upon the request of the Administrative Agent at any time, the Required Lenders will confirm in writing the Administrative Agent’s authority to release or subordinate its interest in particular types or items of property, or to release any Loan Party from its obligations under the Loan Guaranty or its Lien on any Collateral pursuant to this Article 8 or any Parent Loan Guarantor from its obligations under the Parent Loan Guaranty or its Lien on any Collateral pursuant to Section 3.15 of the Parent Loan Guaranty.  In each case as specified in this Article 8, the Administrative Agent will (and each Lender, and each Issuing Bank hereby authorizes the Administrative Agent to), at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party or the Parent Loan Guarantors may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents, to subordinate its interest therein, or to release such Loan Party or the Parent Loan Guarantors from its obligations under the Loan Guaranty, in each case in accordance with the terms of the Loan Documents and this Article 8; provided, that upon the request of the Administrative Agent, the Borrower shall deliver a certificate of a Responsible Officer certifying that the relevant transaction has been consummated in compliance with the terms of this Agreement.
 
Notwithstanding anything to the contrary in this Section 8.09 or in any other provision of any Loan Document, each Lender and each other Secured Party hereby authorizes the Administrative Agent to, and the Administrative Agent shall, execute and deliver any instruments, documents, consents, acknowledgments, and agreements necessary or desirable to evidence, effectuate or confirm the release of any Subsidiary Guarantor or Collateral or the subordination of any Lien pursuant to the provisions of this Section 8.09 or the release of any Parent Loan Guarantor or Collateral pursuant to the provisions of Section 3.15 of the Parent Loan Guaranty.
 
It is understood and agreed that, notwithstanding anything to the contrary herein, in any other Loan Document and/or in the documentation governing any Hedge Agreement and/or any agreement governing Banking Services, (a) unless otherwise agreed to by the Borrower and any applicable counterparty to any agreement governing any Secured Hedging Obligation and/or any Banking Service, the obligations of Holdings, the Borrower or any subsidiary under any such agreement shall be secured and guaranteed pursuant to the Collateral Documents and the Loan Guaranty only to the extent that, and for so long as, the Obligations are so secured and guaranteed and (b) any release of any Lien on any Collateral and/or any Loan Guarantor effected in a manner permitted by this Agreement and/or any other Loan Document shall not require the consent of any such counterparty.
 
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Section 8.10.      Intercreditor Agreements.  The Administrative Agent is authorized by the Lenders and each other Secured Party to, and shall  enter into anythe Second Lien Intercreditor and Subordination Agreement, any other Intercreditor Agreement and any other intercreditor, subordination, collateral trust or similar agreement contemplated hereby with respect to any (a) Indebtedness (i) that is (A) required or permitted to be subordinated hereunder and/or (B) secured by any Lien permitted hereunder and (ii) which contemplates an intercreditor, subordination, collateral trust or similar agreement and/or (b) Secured Hedging Obligations and/or Banking Services Obligations, whether or not constituting Indebtedness (any such other intercreditor, subordination, collateral trust and/or similar agreement, which intercreditor, subordination, collateral trust and/or similar agreement shall be reasonably acceptable to the Lender Representative and the Administrative Agent, an “Additional Agreement”), and the Secured Parties party hereto acknowledge that any Intercreditor Agreement and any other Additional Agreement is binding upon them.  Each Lender and each other Secured Party party hereto hereby (a) agrees that they will be bound by, and will not take any action contrary to, the provisions of any Intercreditor Agreement or any other Additional Agreement and (b) authorizes and instructs the Administrative Agent to enter into any Intercreditor Agreement and/or any other Additional Agreement and to subject the Liens on the Collateral securing the Secured Obligations to the provisions thereof.  The foregoing provisions are intended as an inducement to the Lenders and the other Secured Parties to extend credit to the Borrower, and the Lenders and the other Secured Parties are intended third-party beneficiaries of such provisions and the provisions of any Intercreditor Agreement and/or any other Additional Agreement.
 
Section 8.11.       Indemnification of Administrative Agent.  To the extent that the Administrative Agent (or any Affiliate thereof) is not reimbursed and indemnified by the Borrower in accordance with and to the extent required by Section 9.03(b) hereof, the Lenders will reimburse and indemnify the Administrative Agent (and any Affiliate thereof) in proportion to their respective Applicable Percentages (determined as if there were no Defaulting Lenders) for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Administrative Agent (or any Affiliate thereof) in performing its duties hereunder or under any other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s (or such affiliate’s) gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).
 
Section 8.12.       Withholding Taxes.  To the extent required by any applicable Requirement of Law (as determined in good faith by the Administrative Agent), the Administrative Agent may withhold from any payment to any Lender under any Loan Document an amount equivalent to any applicable withholding Tax.  Without limiting or expanding the provisions of Section 2.17, each Lender shall indemnify and hold harmless the Administrative Agent against, and shall make payable in respect thereof within ten days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the IRS or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold Tax from amounts paid to or for the account of such Lender for any reason (including because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective).  A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error.  Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Loan Document against any amount due the Administrative Agent under this paragraph.  The agreements in this paragraph shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, any Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.  For the avoidance of doubt, the term “Lender” shall, for all purposes of this paragraph, include any Issuing Bank and the Swingline Lender.
 
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Section 8.13.      Administrative Agent May File Proofs of Claim.  In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Loan Party or any Parent Loan Guarantor, the Administrative Agent (irrespective of whether the principal of any Loans shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Loan Parties and Parent Loan Guarantors) shall be entitled and empowered, by intervention in such proceeding or otherwise:
 
(a)         to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Secured Parties and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Secured Parties and the Administrative Agent and their respective agents and counsel and all other amounts due the Secured Parties and the Administrative Agent under Sections 2.12 and 9.03) allowed in such judicial proceeding; and
 
(b)          to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
 
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Secured Party to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Secured Parties, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections 2.12 and 9.03.
 
Section 8.14.        Erroneous Payments.
 
(a)          If the Administrative Agent notifies a Lender, Issuing Bank or Secured Party, or any Person who has received funds on behalf of a Lender, Issuing Bank or Secured Party (any such Lender, Issuing Bank, Secured Party or other recipient, a “Payment Recipient”) that the Administrative Agent has determined in its sole discretion that any funds received by such Payment Recipient from the Administrative Agent or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Lender, Issuing Bank, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”), the Administrative Agent shall, within thirty (30) calendar days of the date of the payment of such Erroneous Payment to the Payment Recipient, notify the Payment Recipient and demand the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Administrative Agent and shall be segregated by the Payment Recipient and held in trust for the benefit of the Administrative Agent, and such Lender or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter, return to the Administrative Agent the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Administrative Agent in same day funds at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect.  A notice of the Administrative Agent to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.  If a Payment Recipient receives any payment, prepayment or repayment of principal, interest, fees, distribution or otherwise and does not receive a corresponding payment notice or payment advice from the Administrative Agent, such payment, prepayment or repayment shall be presumed to be in error absent written confirmation from the Administrative Agent to the contrary.
 
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(b)         Each Lender or Secured Party hereby authorizes the Administrative Agent to set off, net and apply any and all amounts at any time owing to such Lender or Secured Party under any Loan Document, or otherwise payable or distributable by the Administrative Agent to such Lender or Secured Party from any source, against any amount due to the Administrative Agent under immediately preceding clause (a) or under the indemnification provisions of this Article 8.
 
(c)         For so long as an Erroneous Payment (or portion thereof) has not been returned by any Payment Recipient who received such Erroneous Payment (or portion thereof) (such unrecovered amount, an “Erroneous Payment Return Deficiency”) to the Administrative Agent after demand therefor in accordance with clause (a) above, (i) the Administrative Agent may elect, in its sole discretion upon written notice to the relevant Lender or Secured Party, that all rights and claims of such Lender or Secured Party with respect to the Loans or other Obligations owed to such Person up to the amount of the corresponding Erroneous Payment Return Deficiency in respect of such Erroneous Payment (the “Corresponding Amount”) shall immediately vest in the Administrative Agent upon such election; after such election, with respect to Loans, the Administrative Agent (x) may reflect its ownership interest in the relevant Loans in a principal amount equal to the Corresponding Amount in the Register, and (y) upon five business days’ written notice to such Lender may sell such Loan (or portion thereof) to an Eligible Assignee in accordance with Section 9.05 in respect of the Corresponding Amount, and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by such Lender shall be reduced by the net proceeds of the sale of such Loan (or portion thereof), and the Administrative Agent shall retain all other rights, remedies and claims against such Lender (and/or against any Payment Recipient that receives funds on its behalf), and (ii) each party hereto agrees that, except to the extent that the Administrative Agent has sold such Loans, and irrespective of whether the Administrative Agent may be equitably subrogated, the Administrative Agent shall be contractually subrogated to all the rights and interests of such Lender or Secured Party with respect to the relevant Erroneous Payment Return Deficiency (determined after any reduction as a result of the vesting described in clause (i)) (it being understood and agreed that aggregate Obligations of the Loan Parties or the Parent Loan Guarantors shall not be increased as a result of the application of this clause (ii)).  For the avoidance of doubt, no vesting or sale pursuant to this clause (c) will reduce the Commitments of any Lender and such Commitments shall remain available in accordance with the terms of this Agreement.
 
(d)        The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower or any other Loan Party or Parent Loan Guarantor, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower or any other Loan Party (or Parent Loan Guarantor) for the purpose of making such Erroneous Payment.
 
(e)         No Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
 
(f)           Each party’s obligations, agreements and waivers under this Section 8.14 shall survive the resignation or replacement of the Administrative Agent, any transfer of rights or obligations by, or the replacement of, a Lender, and the occurrence of the Termination Date.
 
(g)         This Section 8.14 shall not apply to the disbursement of any proceeds of a Loan to or at the express direction of the Borrower unless otherwise expressly agreed to in writing by the Borrower.
 
(h)          Notwithstanding anything to the contrary herein or in any other Loan Document, the Borrower and, the Loan Parties and the Parent Loan Guarantors shall have no obligations or liabilities for any actions, consequences or remediation (including the repayment of any amounts) contemplated by this Section 8.14; provided that under no circumstances shall this Section 8.14(h) affect the Borrower’s or, any Loan Parties’Party’s or any Parent Loan Guarantor’s obligations or liabilities with respect to any Obligations that remain outstanding.
 
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ARTICLE 9
 
MISCELLANEOUS
 
Section 9.01.        Notices.
 
(a)         Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by email, as follows:
 
(i)           if to any Loan Party, to such Loan Party in the care of the Borrower at:
 
ATI Holdings, Inc.
790 Remington Boulevard
Bolingbrook, Illinois 60440
Attention:  Joanne Fong and Joseph Jordan
Email:  joanne.fong@atipt.com and joseph.jordan@atipt.com

with copies to (which shall not constitute notice to any Loan Party):
 
Advent International Corporation
12 E. 49th Street, 45th Floor
New York, New York 10017
Attention:  Ken Prince
Email:  KPrince@AdventInternational.com
 
and
 
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention:  Allison R. LiffBenton Lewis
Email:  allison.liffbenton.lewis@weil.com
Facsimile:  (212) 310-8007
 
(ii)          if to the Administrative Agent, at:
 
Barclays Bank PLC
Bank Debt Management
745 7th Avenue
New York, NY 10019
Attention: Nicholas Sibayan
Telephone: +1 (212) 526-9531
Email: Nicholas.sibayan@barclays.com and ltmny@barclays.com

With respect to Borrowing/Continuation requests:
 
Barclays Bank PLC
400 Jefferson Park
Whippany, NJ 07891
Attention: Michael Xu

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Email: michael.xu@barclays.com
with a copy to:
Email: 12145455230@tls.ldsprod.com
Escalation Contact: Sarah Wright
Email: sarah.e.wright@barclays.com
Phone: (302)-286-2217

(iii)         if to Administrative Agent as Issuing Bank, at:
 
Barclays Bank PLC
745 7th Avenue
New York, NY 10019
Attention: Nnamni Otudoh and Letter of Credit Department
Telephone: +1 (212) 526-8527
Fax: (212) 412-5011
Email: nnamdi.otudoh@barclays.com and
xraletterofcredit@barclays.com and
xrabdmlcsupport@barclays.com

(iv)         if to the Lender Representative, at:
 
HPS Investment Partners, LLC
40 West 57th Street;
New York, NY 10019
Attn: Aman Malik

(v)          if to any Lender, to it at its physical address or email address set forth in its Administrative Questionnaire.;
 
(vi)         if to any Parent Loan Guarantor, to such Parent Loan Guarantor in the care of the Parent at:
 
ATI Physical Therapy, Inc.
790 Remington Boulevard
Bolingbrook, Illinois 60440
Attention:  Joanne Fong and Joseph Jordan
Email:  joanne.fong@atipt.com and joseph.jordan@atipt.com

with copies to (which shall not constitute notice to any Parent Loan Guarantor):
 
Advent International Corporation
12 E. 49th Street, 45th Floor
New York, New York 10017
Attention:  Ken Prince
Email:  KPrince@AdventInternational.com
 
and

Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New York 10153
Attention:  Benton Lewis
Email:  benton.lewis@weil.com
Facsimile:  (212) 310-8007
 
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All such notices and other communications (A) sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof or three Business Days after dispatch if sent by certified or registered mail, in each case, delivered, sent or mailed (properly addressed) to the relevant party as provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 9.01 or (B) sent by facsimile shall be deemed to have been given when sent and when receipt has been confirmed by telephone; provided that notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, such notices or other communications shall be deemed to have been given at the opening of business on the next Business Day for the recipient).  Notices and other communications delivered through electronic communications to the extent provided in clause (b) below shall be effective as provided in such clause (b).
 
(b)         Notices and other communications to the Lenders hereunder may be delivered or furnished by electronic communications (including e-mail and Internet or intranet websites) pursuant to procedures set forth herein or otherwise approved by the Administrative Agent.  The Administrative Agent or the Borrower (on behalf of any Loan Party or the Parent Loan Guarantors) may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures set forth herein or otherwise approved by it; provided that approval of such procedures may be limited to particular notices or communications.  All such notices and other communications (i) sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that any such notice or communication not given during the normal business hours of the recipient shall be deemed to have been given at the opening of business on the next Business Day for the recipient or (ii) posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (b)(i) of notification that such notice or communication is available and identifying the website address therefor.
 
(c)         Any party hereto may change its address or facsimile number or other notice information hereunder by notice to the other parties hereto; it being understood and agreed that the Borrower may provide any such notice to the Administrative Agent as recipient on behalf of itself, the Swingline Lender, each Issuing Bank and each Lender.
 
(d)        Each of Holdings and the Borrower hereby acknowledges that (a) the Administrative Agent will make available to the Lenders and the Issuing Banks materials and/or information provided by, or on behalf of, Holdings or the Borrower hereunder (collectively, the “Borrower Materials”) by posting the Borrower Materials on the Platform and (b) certain of the Lenders may be “public-side” Lenders (i.e., Lenders that do not wish to receive material nonpublic information within the meaning of the United States federal securities laws with respect to Holdings, the Borrower or their respective securities) (each, a “Public Lender”).  At the request of the Administrative Agent, each of Holdings and the Borrower hereby agrees that (i) all Borrower Materials that are to be made available to Public Lenders shall be clearly and conspicuously marked “PUBLIC”, (ii) by marking Borrower Materials “PUBLIC,” Holdings and the Borrower shall be deemed to have authorized the Administrative Agent and the Lenders to treat such Borrower Materials as information of a type that would (A) customarily be made publicly available, as determined in good faith by the Borrower, if Holdings or the Borrower were to become public reporting companies or (B) would not be material with respect to Holdings, the Borrower, their respective subsidiaries, any of their respective securities or the Transactions as determined in good faith by the Borrower for purposes of the United States federal securities laws and (iii) the Administrative Agent shall be required to treat Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.”  Notwithstanding the foregoing, the following Borrower Materials shall be deemed to be marked “PUBLIC,” unless the Borrower notifies the Administrative Agent promptly that any such document contains material nonpublic information (it being understood that the Borrower shall have a reasonable opportunity to review the same prior to distribution and comply with SEC or other applicable disclosure obligations): (1) the Loan Documents, (2) any amendment to any Loan Document and (3) any information delivered pursuant to Sections 5.01(a) or (b).
 
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Each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable law, including United States Federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities laws.
 
THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS ON, OR THE ADEQUACY OF, THE PLATFORM, AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY SUCH COMMUNICATION.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM.  IN NO EVENT SHALL ANY PARTY HERETO OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY OTHER PARTY HERETO OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY LOAN PARTY’S OR THE ADMINISTRATIVE AGENT’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR MATERIAL BREACH OF THIS AGREEMENT.
 
Section 9.02.        Waivers; Amendments.
 
(a)         No failure or delay by the Administrative Agent, any Issuing Bank or any Lender in exercising any right or power hereunder or under any other Loan Document shall operate as a waiver thereof except as provided herein or in any Loan Document, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the Administrative Agent, the Issuing Banks and the Lenders hereunder and under any other Loan Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of any Loan Document or consent to any departure by any party hereto therefrom shall in any event be effective unless the same is permitted by this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which it is given.  Without limiting the generality of the foregoing, to the extent permitted by applicable Requirements of Law, neither the making of any Loan nor the issuance of any Letter of Credit shall be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent, any Lender or any Issuing Bank may have had notice or knowledge of such Default or Event of Default at the time.
 
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(b)         Subject to this Section 9.02(b) and Sections 9.02(d) below and to Section 9.05(f), neither this Agreement nor any other Loan Document nor any provision hereof or thereof may be waived, amended or modified, except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders (or the Administrative Agent with the consent of the Required Lenders) or (ii) in the case of any other Loan Document (other than any waiver, amendment or modification to effectuate any modification thereto expressly contemplated by the terms of such other Loan Document), pursuant to an agreement or agreements in writing entered into by the Administrative Agent and each Loan Party that is party thereto, with the consent of the Required Lenders; provided that:
 
(A)       the consent of each Lender directly and adversely affected thereby (but not the consent of the Required Lenders) shall be required for any waiver, amendment or modification that:
 
(1)        increases the Commitment of such Lender (other than with respect to any Incremental Facility pursuant to Section 2.22 in respect of which such Lender has agreed to be an Incremental Lender); it being understood that no amendment, modification or waiver of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory prepayment or mandatory reduction of the Commitments shall constitute an increase of any Commitment of such Lender;
 
(2)        reduces the principal amount of any Loan owed to such Lender;
 
(3)      (x) extends the scheduled final maturity of any Loan or (y) postpones any Interest Payment Date with respect to any Loan held by such Lender or the date of any scheduled payment of any fee or premium payable to such Lender hereunder (in each case, other than any extension for administrative reasons agreed by the Administrative Agent);
 
(4)       reduces the rate of interest (other than to waive any Default or Event of Default or obligation of the Borrower to pay interest to such Lender at the default rate of interest under Section 2.13(d), which shall only require the consent of the Required Lenders) or the amount of any fee or premium owed to such Lender; it being understood that no change in the definition of “Secured Net Leverage Ratio” or “Consolidated Adjusted EBITDA” or any other financial test or any ratio used in the calculation of the Applicable Rate, or in the calculation of any other interest, fee or premium due hereunder (including any component definition thereof) shall constitute a reduction in any rate of interest or fee hereunder;
 
(5)        extends the expiry date of such Lender’s Commitment; it being understood that no amendment, modification or waiver of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default, mandatory prepayment or mandatory reduction of any Commitment shall constitute an extension of any Commitment of any Lender; and
 
(6)       waives, amends or modifies the provisions of (I) Sections 2.18(a) or 2.18(c) of this Agreement in a manner that would by its terms alter the pro rata sharing of payments required thereby (except in connection with any transaction permitted under Sections 2.22, 2.23, and/or 9.05(g) or as otherwise provided in this Section 9.02) or (II) Section 2.18(b);
 
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(B)        no such agreement shall:
 
(1)        change any of the provisions of Section 9.02(a) or Section 9.02(b) or the definition of “Required Lenders”, in each case to reduce any voting percentage required to waive, amend or modify any right thereunder or make any determination or grant any consent thereunder, without the prior written consent of each Lender, or
 
(2)       (A) change the definition of “Required Revolving Lenders”, (B) change the percentage of Lenders which shall be required for Required Revolving Lenders or (C) following the occurrence of a Waterfall/Voting Triggering Event, and so long as any Waterfall/Voting Triggering Event is continuing, waive or defer any payments due to any Revolving Lender hereunder, in each case without the prior written consent of each Revolving Lender (it being understood that neither the consent of the Required Lenders nor the consent of any other Lender shall be required in connection with any such changes);
 
(3)        without the prior written consent of the Required Revolving Lenders, in addition to any other Person required under this Section 9.02, (A) amend, waive compliance with or otherwise modify Section 6.15, any component definitions thereof or the manner in which such covenant is tested, in each case, solely to the extent such amendment, waiver or other modification  relates to the Revolving Facility and solely for purposes of determining actual compliance with Section 6.15 (and not, for the avoidance of doubt, for purpose of determining compliance with Section 6.15 as a condition to taking any action under this Agreement), (B) amend, waive compliance with (including waiver of a related Default or Event of Default) or otherwise modify Section 2.22, 6.01, 6.02 or 6.14, solely to the extent such amendment, waiver or other modification  relates to the ability of the Loan Parties to incur additional Indebtedness ranking pari passu or senior in right of payment with the Revolving Facility or senior in right of security on the Collateral, (C) amend the definitions of “Waterfall/Voting Triggering Event” or “Waterfall Triggering Notice”, (D) amend,  waive or otherwise modify any Event of Default arising under Section 7.01(c) solely with respect to the Revolving Facility solely as such Event of Default arises as a breach of Section 6.15, (E) alter the rights (including enforcement rights) or remedies of the Required Revolving Lenders expressly arising pursuant to the final two provisos to last paragraph of Section 7.01, (F) amend, waive or otherwise modify any Event of Default under Section 7.01(f) or (g) solely with respect to the Revolving Facility, (G) amend, waive or otherwise modify any other provision of this Agreement or any other Loan Document in a manner which affects the Revolving Lenders disproportionately and adversely relative to other affected Lenders or (H) amend, waive or otherwise modify any Event of Default under Section 7.01(a) solely with respect to failure to make payments with respect Obligations arising under the Revolving Facility;
 
(4)       upon the occurrence and during the continuance of a Waterfall/Voting Triggering Event, and so long as any Waterfall/Voting Triggering Event is continuing, any amendment, supplement or waiver of the Credit Agreement or other Loan Document must be consented to by the Required Revolving Lenders (in addition to any other Person otherwise required under this Section, including, for the avoidance of doubt, the Required Lenders);
 
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(5)        (A) release all or substantially all of the Collateral from the Lien granted pursuant to the Loan Documents (except as otherwise permitted herein or in the other Loan Documents, including pursuant to Article 8 or Section 9.22 hereof), without the prior written consent of each Lender or (B) subordinate the Lien on any of the Collateral securing the Secured Obligations or subordinate the payment priority of any of the Obligations to any other Indebtedness for borrowed money (including, for the avoidance of doubt, subordinating the lien or payment priority of the Revolving Facility to the Term Facility) (other than in connection with (I) any Acceptable Debtor-In-Possession Financing and/or (II) in the case of the Term Facility only, any other financing with respect to which each relevant Term Lender has been offered the opportunity to provide such financing) without the prior written consent of each Lender, except in the case of this clause (II) in the case of the Term Facility only, to the extent such Term Lender is offered a reasonable, bona fide opportunity to participate on a pro rata basis in any such Indebtedness on substantially the same terms as all other Lenders, which offer shall remain open to such Term Lender for a period of not less than five Business Days; provided, that if any such Term Lender does not accept such offer to provide its pro rata share of such Indebtedness in writing within five Business Days of receipt of such offer, such Lender shall be deemed to have declined such offer;
 
(6)        release all or substantially all of the value of the Guarantees under the Loan Guaranty (except as otherwise permitted herein or in the other Loan Documents, including pursuant to Section 9.22 hereof), without the prior written consent of each Lender;
 
(C)       only the consent of the Required Revolving Lenders (and not the consent of the Required Lenders or any other Lender, except as set forth in clause (F) below), shall be required for any agreement that may waive, amend or modify Section 2.01, 2.02, 2.03 and 4.02 hereof as it pertains to any condition precedent and/or requests for and utilization of any Credit Extension in respect of the Revolving Facility;
 
(D)       only with the consent of the relevant Issuing Bank and, in the case of clause (x), the Administrative Agent, shall be required for any agreement that may (x) increase or decrease the Letter of Credit Sublimit, (y) waive, amend or modify any condition precedent set forth in Section 4.02 hereof as it pertains to the issuance of any Letter of Credit or (z) amend or modify the provisions of Section 2.05 or any letter of credit application and any bilateral agreement between the Borrower and any Issuing Bank regarding such Issuing Bank’s LC Exposure or the respective rights and obligations of the Borrower and such Issuing Bank in connection with the issuance of Letters of Credit;
 
(E)        (x) only with the consent of the Swingline Lender and the Administrative Agent, shall be required for any agreement that may increase or decrease the maximum amount of Swingline Loans permitted under Section 2.04 and (y) no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent, any Issuing Bank or the Swingline Lender hereunder without the prior written consent of the Administrative Agent, such Issuing Bank or the Swingline Lender, as the case may be; and
 
(F)         Soso long as any Waterfall/Voting Triggering Event is continuing, the consent of the Required Term Lenders shall be required with respect to any waiver of any condition precedent to any Credit Extension in respect of the Revolving Facility.
 
(c)          Notwithstanding anything to the contrary contained in this Section 9.02 or any other provision of this Agreement, in the case of an Affiliated Lender:
 
191
(i)          the Term Loans held by such Affiliated Lender shall be disregarded in both the numerator and denominator in the calculation of any Required Lender or other Lender vote; provided that (x) such Affiliated Lender shall have the right to vote (and the Term Loans held by such Affiliated Lender shall not be so disregarded) with respect to any amendment, modification, waiver, consent or other action that requires the vote of all Lenders or all Lenders directly and adversely affected thereby, as the case may be, and (y) no amendment, modification, waiver, consent or other action shall (1) disproportionately affect such Affiliated Lender in its capacity as a Lender as compared to other Lenders of the same Class that are not Affiliated Lenders or (2) deprive any Affiliated Lender of its share of any payments which the Lenders are entitled to share on a pro rata basis hereunder, in each case without the consent of such Affiliated Lender; and
 
(ii)         in any proceeding under any Debtor Relief Law, (A) the interest of any Affiliated Lender in any Term Loan will be deemed to be voted in the same proportion as the vote of Lenders that are not Affiliated Lenders on the relevant matter; provided that each Affiliated Lender will be entitled to vote its interest in any Term Loan to the extent that any plan of reorganization or other arrangement with respect to which the relevant vote is sought proposes to treat the interest of such Affiliated Lender in such Term Loan in a manner that is less favorable to such Affiliated Lender than the proposed treatment of Term Loans held by other Term Lenders and (B) all Affiliated Lenders shall be treated as a single lender for purposes of any “numerosity” or similar requirement applicable therein.
 
(d)         Notwithstanding anything to the contrary contained in this Section 9.02 or any other provision of this Agreement or any provision of any other Loan Document:
 
(i)          the Borrower and the Administrative Agent may, without the input or consent of any Lender, amend, supplement and/or waive any provision of this Agreement and/or any guaranty, collateral security agreement, pledge agreement and/or related document (if any) executed in connection with this Agreement to (A) comply with any Requirement of Law or the advice of counsel or (B) cause any such guaranty, collateral security agreement, pledge agreement or other document to be consistent with this Agreement and/or the relevant other Loan Documents,
 
(ii)        the Borrower and the Administrative Agent may, without the input or consent of any other Lender (other than the relevant Lenders (including Incremental Lenders) providing Loans under such Sections), effect amendments to this Agreement and the other Loan Documents as may be necessary or advisable in the reasonable opinion of the Borrower and the Administrative Agent to (A) effect the provisions of Sections 2.22, 2.23, 5.12, or 6.13, or any other provision specifying that any waiver, amendment or modification may be made with the consent or approval of the Administrative Agent and/or (B) add terms (including representations and warranties, conditions, prepayments, covenants or events of default), in connection with the addition of any Loan or Commitment hereunder and/or any Refinancing Indebtedness incurred in reliance on Section 6.01(p) that are favorable to the then-existing Lenders, as reasonably determined by the Administrative Agent (it being understood that, where applicable, any such amendment may be effectuated as part of an Incremental Facility Amendment).
 
(iii)        if the Administrative Agent, the Lender Representative and the Borrower have jointly identified any ambiguity, mistake, defect, inconsistency, obvious error or any error or omission of a technical nature or any necessary or desirable technical change, in each case, in any provision of any Loan Document, then the Administrative Agent and the Borrower shall be permitted to amend such provision solely to address such matter as reasonably determined by them acting jointly,
 
(iv)        the Administrative Agent and the Borrower may amend, restate, amend and restate or otherwise modify -any Intercreditor Agreement and/or any other Additional Agreement as provided therein,
 
192
(v)         the Administrative Agent may amend the Commitment Schedule to reflect assignments entered into pursuant to Section 9.05, Commitment reductions or terminations pursuant to Section 2.09, implementations of Additional Commitments or incurrences of Additional Loans pursuant to Sections 2.22 or 2.23 and reductions or terminations of any such Additional Commitments or Additional Loans,
 
(vi)       no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except as permitted pursuant to Section 2.21(b) and except that the Commitment of any Defaulting Lender may not be increased without the consent of such Defaulting Lender (it being understood that any Commitment or Loan held or deemed held by any Defaulting Lender shall be excluded from any vote hereunder that requires the consent of any Lender, except as expressly provided in Section 2.21(b)),
 
(vii)       this Agreement may be amended (or amended and restated) with the written consent of the Required Lenders, the Administrative Agent and the Borrower (i) to add one or more additional credit facilities to this Agreement and to permit any extension of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the relevant benefits of this Agreement and the other Loan Documents and (ii) to include appropriately the Lenders holding such credit facilities in any determination of the Required Lenders on substantially the same basis as the Lenders prior to such inclusion,
 
(viii)      any amendment, waiver or modification of any term or provision that directly affects Lenders under one or more Classes and does not directly and adversely affect Lenders under one or more other Classes may be effected with the consent of Lenders owning 50% of the aggregate commitments or Loans of such directly affected Class in lieu of the consent of the Required Lenders,
 
(ix)         This Agreement may be amended in the manner prescribed in Section 1.12 and/or Section 2.05(i),
 
(x)          this Agreement may be amended in the manner prescribed in Sections 2.22(i) and 2.23(c); it being understood and agreed that any such amendment may provide that with respect to any Class of Loans and/or Commitments that is structured as a “delayed draw” or similar facility, (i) any condition precedent to the funding of any Loan thereunder and/or (ii) any Event of Default arising as a result of any inaccuracy of any representation and/or warranty (including any certification) made in connection with the satisfaction of any such condition precedent, in each case, may be waived, amended or modified solely with the consent of a majority of the holders of such Loans and/or Commitments (or such other percentage of such holders as may be required in the amendment implementing such Class of Loans and/or Commitments (and without the consent of the Required Lenders or any other Lenders),
 
(xi)        for the avoidance of doubt, any “MFN” provision, including, without limitation, Sections 2.22(a)(v), may be amended solely with the consent of the Borrower and the Required Lenders,
 
(xii)      except as otherwise provided in Section 9.02(b)(C) above, the Required Lenders, without the consent of any other Lender, may (A) rescind any acceleration of the Loans and/or any other Obligation pursuant to Article 7 hereof and/or (B) agree that the Administrative Agent and the Lenders will forbear from exercising any remedy provided under any Loan Document with respect to any Event of Default, and
 
(xiii)     any amendment, waiver or modification of any term or provision of this Agreement or any other Loan Document that directly and adversely affects any Revolving Lender in its capacity as such in a disproportionate manner as compared to other Lenders under one or more other Classes (other than Revolving Loans) may be effected with the consent of the Required Revolving Lenders in lieu of the consent of the Required Lenders.
 
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Section 9.03.        Expenses; Indemnity.
 
(a)        Subject to Section 9.05(f), the Borrower shall pay (i)  all reasonable and documented out-of-pocket expenses incurred by each Arranger, the Administrative Agent, the Lender Representative and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of (x) one firm of outside counsel for the Administrative Agent and (y) one firm of outside counsel for the Arranger, the Lender Representative and their respective Affiliates (taken as a whole) and (z) if necessary, one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the syndication and distribution (including via the Internet or through a service such as Intralinks) of the Credit Facilities, the preparation, execution, delivery and administration of the Loan Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Loan Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Borrower and except as otherwise provided in a separate writing between the Borrower, the relevant Arranger and/or the Administrative Agent) and (ii) without duplication of the obligation set forth in Section 9.03(b), all reasonable and documented out-of-pocket expenses incurred by the Administrative Agent, the Arranger, the Issuing Banks or the Lenders or any of their respective Affiliates (but limited (x) in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of (A) one firm of outside counsel for the Administrative Agent and (B) one firm of outside counsel for all the Arranger and the Lender Representative and their respective Affiliates (taken as a whole) and (C) if necessary, one local counsel in any relevant material jurisdiction to the Administrative Agent and one local counsel for all such other Persons, taken as a whole, and (y) in the case of other third party advisors, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of only third party advisors the engagement of whom has been approved by the Borrower (such approval not to be unreasonably withheld, delayed or conditioned) in writing) in connection with the enforcement, collection or protection of their respective rights in connection with the Loan Documents, including their respective rights under this Section, or in connection with the Loans made and/or Letters of Credit issued hereunder.  Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Borrower within 30 days of receipt by the Borrower of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request.
 
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(b)         The Borrower shall indemnify each Arranger, the Administrative Agent, each Issuing Bank and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole and solely in the case of an actual or perceived conflict of interest, (x) one additional counsel to all affected Indemnitees, taken as a whole, and (y) one additional local counsel to all affected Indemnitees, taken as a whole), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Loan Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Loan Documents, (ii) the use of the proceeds of the Loans or any Letter of Credit, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned, leased or operated by the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Parent Loan Guarantor or any Environmental Liability related to the Borrower, any of its Restricted Subsidiaries or any other Loan Party or any Parent Loan Guarantor and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Borrower, any other Loan Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Loan Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Administrative Agent, any Issuing Bank or any Arranger, acting in its capacity as the Administrative Agent, as an Issuing Bank or as an Arranger) that does not involve any act or omission of Holdings, the Borrower or any of its subsidiaries.  Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Borrower pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof.  All amounts due under this paragraph (b) shall be payable by the Borrower within 30 days (x) after receipt by the Borrower of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Borrower of an invoice setting forth such costs and expenses in reasonable detail, together with reasonable backup documentation supporting the relevant reimbursement request.  This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim.
 
(c)         The Borrower shall not be liable for any settlement of any proceeding effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned) or any losses, claims, damages, liabilities and/or expenses incurred in connection therewith, but if any proceeding is settled with the written consent of the Borrower, or if there is a final judgment against any Indemnitee in any such proceeding, the Borrower agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above.  The Borrower shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.
 
Section 9.04.       Waiver of Claim.  To the extent permitted by applicable Requirements of Law, no party to this Agreement nor any Secured Party shall assert, and each hereby waives on behalf of itself and its Related Parties, any claim against any other party hereto, any Loan Party, any Parent Loan Guarantor and/or any Related Party of any thereof, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Loan or any Letter of Credit or the use of the proceeds thereof, except, in the case of any claim by any Indemnitee against the Borrower, to the extent such damages would otherwise be subject to indemnification pursuant to the terms of Section 9.03.
 
Section 9.05.        Successors and Assigns.
 
(a)         The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns; provided that (i) except as provided under Section 6.07, the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with the terms of this Section (any attempted assignment or transfer not complying with the terms of this Section shall be null and void and, with respect to any attempted assignment or transfer to any Disqualified Institution, subject to Section 9.05(f)).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and permitted assigns, to the extent provided in paragraph (e) of this Section, Participants and, to the extent expressly contemplated hereby, the Related Parties of each of the Arranger, the Administrative Agent, the Issuing Banks and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.
 
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(b)          (i)         Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of any Loan or Additional Commitment added pursuant to Sections 2.22 or 2.23 at the time owing to it) with the prior written consent of:
 
(A)        the Borrower (such consent not to be unreasonably withheld, conditioned or delayed); provided, that (x) the Borrower shall be deemed to have consented to any assignment of Term Loans (other than any such assignment to a Disqualified Institution) unless it has objected thereto by written notice to the Administrative Agent within 15 Business Days after receipt of written notice thereof, (y) the consent of the Borrower shall not be required for any assignment of Term Loans or Term Commitments (1) to any Term Lender or any Affiliate of any Term Lender or an Approved Fund or (2) at any time when an Event of Default under Section 7.01(a) or Sections 7.01(f) or (g) (with respect to the Borrower) exists; it being understood and agreed that the consent of the Borrower (not to be unreasonably withheld, conditioned or delayed) shall always be required for any assignment of Revolving Credit Commitments and/or Revolving Loans; and (z) the consent of the Borrower shall not be required for any assignment of Revolving Credit Commitments and/or Revolving Loans at any time when an Event of Default under Section 7.01(a) or Sections 7.01(f) or (g) (with respect to the Borrower) exists; provided, further, that notwithstanding the foregoing, the Borrower may withhold its consent to any assignment to any Person (other than a Competitor Debt Fund Affiliate, unless the Borrower has other reasonable grounds on which to withhold its consent) that is not a Disqualified Institution but is known by the Borrower to be an Affiliate of a Disqualified Institution regardless of whether such Person is identifiable as an Affiliate of a Disqualified Institution on the basis of such Affiliate’s name;
 
(B)        the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed); provided, that no consent of the Administrative Agent shall be required for any assignment to another Lender, any Affiliate of a Lender or any Approved Fund; and
 
(C)       in the case of any Revolving Facility, each Issuing Bank and the Swingline Lender, in each case, not to be unreasonably withheld, conditioned or delayed.
 
(ii)         Assignments shall be subject to the following additional conditions:
 
(A)       except in the case of any assignment to another Lender, any Affiliate of any Lender or any Approved Fund or any assignment of the entire remaining amount of the relevant assigning Lender’s Loans or Commitments of any Class, the principal amount of Loans or Commitments of the assigning Lender subject to the relevant assignment (determined as of the date on which the Assignment Agreement with respect to such assignment is delivered to the Administrative Agent and determined on an aggregate basis in the event of concurrent assignments to Related Funds or by Related Funds) shall not be less than (x) $1,000,000, in the case of Term Loans and Term Commitments and (y) $5,000,000 in the case of Revolving Loans and Revolving Credit Commitments, unless the Borrower and the Administrative Agent otherwise consent;
 
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(B)        any partial assignment shall be made as an assignment of a proportionate part of all the relevant assigning Lender’s rights and obligations under this Agreement;
 
(C)        the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment Agreement via an electronic settlement system acceptable to the Administrative Agent (or, if previously agreed with the Administrative Agent, manually), and shall pay to the Administrative Agent a processing and recordation fee of $3,500 (which fee may be waived or reduced in the sole discretion of the Administrative Agent); and
 
(D)        the relevant Eligible Assignee, if it is not a Lender, shall deliver on or prior to the effective date of such assignment, to the Administrative Agent (1) an Administrative Questionnaire, (2) any Internal Revenue Service form required under Section 2.17 and all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and (3) an executed acknowledgement to the AAL, substantially in the form of Exhibit A thereto.
 
(iii)        Subject to the acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in any Assignment Agreement, the Eligible Assignee thereunder shall be a party hereto and, to the extent of the interest assigned pursuant to such Assignment Agreement, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment Agreement, be released from its obligations under this Agreement (and, in the case of an Assignment Agreement covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be (A) entitled to the benefits of Sections 2.15, 2.17 and 9.03 with respect to facts and circumstances occurring on or prior to the effective date of such assignment and (B) subject to its obligations thereunder and under Section 9.13).  If any assignment by any Lender holding any Promissory Note is made after the issuance of such Promissory Note, the assigning Lender shall, upon the effectiveness of such assignment or as promptly thereafter as practicable, surrender such Promissory Note to the Administrative Agent for cancellation, and, following such cancellation, if requested by either the assignee or the assigning Lender, the Borrower shall issue and deliver a new Promissory Note to such assignee and/or to such assigning Lender, with appropriate insertions, to reflect the new commitments and/or outstanding Loans of the assignee and/or the assigning Lender.
 
(iv)        The Administrative Agent, acting for this purpose as a non-fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment Agreement delivered to it and a register for the recordation of the names and addresses of the Lenders and their respective successors and assigns, and the commitment of, and principal amount of and interest on the Loans and LC Disbursements owing to, each Lender or Issuing Bank pursuant to the terms hereof from time to time (the “Register”).  Failure to make any such recordation, or any error in such recordation, shall not affect the Borrower’s obligations in respect of such Loans and LC Disbursements.  The entries in the Register shall be conclusive, absent manifest error, and the Borrower, the Administrative Agent, the Issuing Banks and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection by the Borrower, each Issuing Bank and each Lender (but only as to its own holdings), at any reasonable time and from time to time upon reasonable prior notice.
 
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(v)        Upon its receipt of a duly completed Assignment Agreement executed by an assigning Lender and an Eligible Assignee, the Eligible Assignee’s completed Administrative Questionnaire and any tax certification required by Section 9.05(b)(ii)(D)(2) (unless the assignee is already a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section, if applicable, and any written consent to the relevant assignment required by paragraph (b) of this Section, the Administrative Agent shall promptly accept such Assignment Agreement and record the information contained therein in the Register.  No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
 
(vi)        By executing and delivering an Assignment Agreement, the assigning Lender and the Eligible Assignee thereunder shall be deemed to confirm and agree with each other and the other parties hereto as follows: (A) the assigning Lender warrants that it is the legal and beneficial owner of the interest being assigned thereby free and clear of any adverse claim and that the amount of its commitments, and the outstanding balances of its Loans, in each case without giving effect to any assignment thereof which has not become effective, are as set forth in such Assignment Agreement, (B) except as set forth in clause (A) above, the assigning Lender makes no representation or warranty and assumes no responsibility with respect to any statement, warranty or representation made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto, or the financial condition of the Borrower or any Restricted Subsidiary or the performance or observance by the Borrower or any Restricted Subsidiary of any of its obligations under this Agreement, any other Loan Document or any other instrument or document furnished pursuant hereto; (C) the assignee represents and warrants that it is an Eligible Assignee, legally authorized to enter into such Assignment Agreement; (D) the assignee confirms that it has received a copy of this Agreement and each applicable Intercreditor Agreement, together with copies of the financial statements referred to in Section 4.01(c) or the most recent financial statements delivered pursuant to Section 5.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Assignment Agreement; (E) the assignee will independently and without reliance upon the Administrative Agent, the assigning Lender or any other Lender and based on such documents and information as it deems appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (F) the assignee appoints and authorizes the Administrative Agent to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Administrative Agent, by the terms hereof, together with such powers as are reasonably incidental thereto; and (G) the assignee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Lender.
 
(c)          (i)       Any Lender may, without the consent of the Borrower, the Administrative Agent, any Issuing Bank or any other Lender, sell participations to any bank or other entity (other than to any Disqualified Institution, any natural Person, any holder of Preferred Shares (or any Affiliate of such holder) or, other than with respect to any participation to any Debt Fund Affiliate (any such participations to a Debt Fund Affiliate being subject to the limitation set forth in the first proviso of the final paragraph set forth in Section 9.05(g), as if the limitation applied to such participations), the Borrower or any of its Affiliates) (a “Participant”) in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its commitments and the Loans owing to it); provided, further that (A) such Lender’s obligations under this Agreement shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (C) the Borrower, the Administrative Agent, the Issuing Banks and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement.  Any agreement or instrument pursuant to which any Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the relevant Participant, agree to any amendment, modification or waiver described in (x) clause (A) of the first proviso to Section 9.02(b) that directly and adversely affects the Loans or commitments in which such Participant has an interest and (y) clauses (B)(1), (2) or (3) of the first proviso to Section 9.02(b).  Subject to paragraph (c)(ii) of this Section, the Borrower agree that each Participant shall be entitled to the benefits of Sections 2.15 and 2.17 (subject to the limitations and requirements of such Sections and Section 2.19) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section and it being understood that the documentation required under Section 2.17(f) shall be delivered to the participating Lender, and if additional amounts are required to be paid pursuant to Section 2.17(a) or Section 2.17(c), to the Borrower and the Administrative Agent).  To the extent permitted by applicable Requirements of Law, each Participant also shall be entitled to the benefits of Section 9.09 as though it were a Lender; provided that such Participant shall be subject to Section 2.18(c) as though it were a Lender.
 
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(ii)        No Participant shall be entitled to receive any greater payment under Sections 2.15 or 2.17 than the participating Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent (in its sole discretion), expressly acknowledging that such Participant’s entitlement to benefits under Sections 2.15 and 2.17 is not limited to what the participating Lender would have been entitled to receive absent the participation.
 
Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and their respective successors and registered assigns, and the principal and interest amounts of each Participant’s interest in the Loans or other obligations under the Loan Documents (a “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of any Participant Register (including the identity of any Participant or any information relating to any Participant’s interest in any Commitment, Loan, Letter of Credit or any other obligation under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, Letter of Credit or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations or under Section 1.163 5(b) of the proposed U.S. Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and each Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
 
(d)          (i)         Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (other than to any Disqualified Institution or any natural person) to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to any Federal Reserve Bank or other central bank having jurisdiction over such Lender, and this Section 9.05 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release any Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
 
(ii)        No Lender may at any time enter into a total return swap, total rate of return swap, credit default swap or other derivative instrument under which any Secured Obligation is a reference obligation with any counterparty that is a Disqualified Institution.
 
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(e)         Notwithstanding anything to the contrary contained herein, any Lender (a “Granting Lender”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower, the option to provide to the Borrower all or any part of any Loan that such Granting Lender would otherwise be obligated to make to the Borrower pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to make any Loan and (ii) if an SPC elects not to exercise such option or otherwise fails to provide all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof.  The making of any Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender.  Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including its obligations under Sections 2.15 or 2.17) and no SPC shall be entitled to any greater amount under Sections 2.15 or 2.17 or any other provision of this Agreement or any other Loan Document that the Granting Lender would have been entitled to receive, unless the grant to such SPC is made with the prior written consent of the Borrower (in its sole discretion), expressly acknowledging that such SPC’s entitlement to benefits under Sections 2.15 and 2.17 is not limited to what the Granting Lender would have been entitled to receive absent the grant to the SPC, (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Lender) and (iii) the Granting Lender shall for all purposes including approval of any amendment, waiver or other modification of any provision of the Loan Documents, remain the Lender of record hereunder.  In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the Requirements of Law of the U.S. or any State thereof; provided that (i) such SPC’s Granting Lender is in compliance in all material respects with its obligations to the Borrower hereunder and (ii) each Lender designating any SPC hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such SPC during such period of forbearance.  In addition, notwithstanding anything to the contrary contained in this Section 9.05, any SPC may (i) with notice to, but without the prior written consent of, the Borrower or the Administrative Agent and without paying any processing fee therefor, assign all or a portion of its interests in any Loan to the Granting Lender and (ii) disclose on a confidential basis any non-public information relating to its Loans to any rating agency, commercial paper dealer or provider of any surety, guaranty or credit or liquidity enhancement to such SPC.
 
(f)         (i)         Any assignment or participation by a Lender (A) to any Disqualified Institution or any Affiliate thereof or (B) to the extent the Borrower’s consent is required under this Section 9.05 (and not deemed to have been given pursuant to Section 9.05(b)(i)(A)) without the Borrower’s consent, to any other Person, shall be null and void, and the Borrower shall be entitled to seek specific performance to unwind any such assignment or participation and/or specifically enforce this Section 9.05(f) in addition to injunctive relief (without posting a bond or presenting evidence of irreparable harm) or any other remedies available to the Borrower at law or in equity; it being understood and agreed that Holdings, the Borrower and its subsidiaries will suffer irreparable harm if any Lender breaches any obligation under this Section 9.05 as it relates to any assignment, participation or pledge of any Loan or Commitment to any Disqualified Institution or any Affiliate thereof or any other Person to whom the Borrower’s consent is required but not obtained.  Nothing in this Section 9.05(f) shall be deemed to prejudice any right or remedy that Holdings or the Borrower may otherwise have at law or equity.  Upon the request of any Lender, the Administrative Agent may and the Borrower will make the list of Disqualified Institutions (other than any Disqualified Institution that is a reasonably identifiable Affiliate of another Disqualified Institution on the basis of such Person’s name) available to such Lender so long as such Lender agrees to keep the list of Disqualified Institutions confidential in accordance with the terms hereof.
 
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(ii)        If any assignment or participation under this Section 9.05 is made to any Disqualified Institution and/or Affiliate of any Disqualified Institution (other than any Competitor Debt Fund Affiliate) and/or any other person whom the Borrower’s consent is required but not obtained, in each case without the Borrower’s prior written consent (any such person, a “Disqualified Person”), then the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Person and the Administrative Agent, (A) terminate any Commitment of such Disqualified Person and repay all obligations of the Borrower owing to such Disqualified Person, (B) in the case of any outstanding Term Loans, held by such Disqualified Person, purchase such Term Loans by paying the lesser of (x) par and (y) the amount that such Disqualified Person paid to acquire such Term Loans, plus accrued interest thereon, accrued fees and all other amounts payable to it hereunder and/or (C) require such Disqualified Person to assign, without recourse (in accordance with and subject to the restrictions contained in this Section 9.05), all of its interests, rights and obligations under this Agreement to one or more Eligible Assignees; provided that (I) in the case of clause (B), the applicable Disqualified Person has received payment of an amount equal to the lesser of (1) par and (2) the amount that such Disqualified Person paid for the applicable Loans and participations in Letters of Credit and Swingline Loans, plus accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the Borrower, (II) in the case of clause (C), the relevant assignment shall otherwise comply with this Section 9.05 (except that (x) no registration and processing fee required under this Section 9.05 shall be required with any assignment pursuant to this paragraph and (y) any Term Loan acquired by any Affiliated Lender pursuant to this paragraph will not be included in calculating compliance with the Affiliated Lender Cap for a period of 90 days following such transfer; provided that, to the extent the aggregate principal amount of Term Loans held by Affiliated Lenders exceeds the Affiliated Lender Cap on the 91st day following such transfer, then such excess amount shall either be (x) contributed to Holdings, the Borrower or any of its subsidiaries and retired and cancelled immediately upon such contribution or (y) automatically cancelled)) and (III) in no event shall such Disqualified Person be entitled to receive amounts set forth in Section 2.13(d).  Further, any Disqualified Person identified by the Borrower to the Administrative Agent (A) shall not be permitted to (x) receive information or reporting provided by any Loan Party, the Administrative Agent or any Lender and/or (y) attend and/or participate in conference calls or meetings attended solely by the Lenders and the Administrative Agent, (B) (x) shall not for purposes of determining whether the Required Lenders or the majority Lenders under any Class have (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party therefrom, (ii) otherwise acted on any matter related to any Loan Document, or (iii) directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document, have a right to consent (or not consent), otherwise act or direct or require the Administrative Agent or any Lender to take (or refrain from taking) any such action; it being understood that all Loans held by any Disqualified Person shall be deemed to be not outstanding for all purposes of calculating whether the Required Lenders, majority Lenders under any Class or all Lenders have taken any action, and (y) shall be deemed to vote in the same proportion as Lenders that are not Disqualified Persons in any proceeding under any Debtor Relief Law commenced by or against the Borrower or any other Loan Party or any Parent Loan Guarantor and (C) shall not be entitled to receive the benefits of Section 9.03.  For the sake of clarity, the provisions in this Section 9.05(f) shall not apply to any Person that is an assignee of any Disqualified Person, if such assignee is not a Disqualified Person.
 
(iii)       Notwithstanding anything to the contrary herein, each of Holdings, the Borrower and each Lender acknowledges and agrees that the Administrative Agent shall not have any responsibility or obligation to determine whether any Lender or potential Lender is a Disqualified Institution or Disqualified Person and the Administrative Agent shall have no liability with respect to any assignment or participation made to any Disqualified Institution or Disqualified Person (regardless of whether the consent of the Administrative Agent is required thereto), and none of the Borrower, any Lender or their respective Affiliates will bring any claim to such effect.
 
(g)         Notwithstanding anything to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights and obligations under this Agreement in respect of its Term Loans to any Affiliated Lender on a non-pro rata basis (A) through Dutch Auctions open to all Lenders holding the relevant Term Loans on a pro rata basis or (B) through open market purchases, in each case with respect to clauses (A) and (B), without the consent of the Administrative Agent; provided that:
 
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(i)        (A) any Term Loans acquired by Holdings, the Borrower or any of its Restricted Subsidiaries shall, to the extent permitted by applicable Requirements of Law, be retired and cancelled immediately upon the acquisition thereof; provided that upon any such retirement and cancellation, the aggregate outstanding principal amount of the Term Loans shall be deemed reduced by the full par value of the aggregate principal amount of the Term Loans so retired and cancelled and (B) in no event shall Holdings, the Borrower or any of its Restricted Subsidiaries offer to acquire the Term Loans of any Affiliated Lender pursuant to this Section 9.05(g) unless such offer to acquire is made to all Lenders holding the relevant Class of Term Loans on a pro rata basis (it being understood and agreed that if such other Lenders of such Class decline (or fail to respond to) the offer to acquire such Term Loans within five (5) Business Days of receipt of the offer to acquire such Term Loans from Holdings, the Borrower or the applicable Restricted Subsidiary, as applicable, then Holdings, the Borrower and/or the applicable Restricted Subsidiary shall be permitted to offer the entire amount so declined (or with respect to which there was a failure to respond) to Affiliated Lenders;
 
(ii)        any Term Loans acquired by any Non-Debt Fund Affiliate (other than Holdings, the Borrower or any of its Restricted Subsidiaries) may (but shall not be required to) be contributed to the Borrower or any of its subsidiaries (it being understood that any such Term Loans shall, to the extent permitted by applicable Requirements of Law, be retired and cancelled promptly upon such contribution); provided that upon any such cancellation, the aggregate outstanding principal amount of the Term Loans shall be deemed reduced, as of the date of such contribution, by the full par value of the aggregate principal amount of the Term Loans so contributed and cancelled;
 
(iii)        the relevant Affiliated Lender and assigning or purchasing, as applicable, Lender shall have executed an Affiliated Lender Assignment and Assumption;
 
(iv)        after giving effect to the relevant assignment and to all other assignments to all Affiliated Lenders, the aggregate principal amount of all Term Loans then held by all Affiliated Lenders shall not exceed 25% of the aggregate principal amount of the Term Loans then outstanding (after giving effect to any substantially simultaneous cancellations thereof) (the “Affiliated Lender Cap”); provided that each party hereto acknowledges and agrees that the Administrative Agent shall not be liable for any losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses and disbursements of any kind or nature whatsoever incurred or suffered by any Person in connection with any compliance or non-compliance with this clause (g)(iv) or any purported assignment exceeding the Affiliated Lender Cap (it being understood and agreed that the Affiliated Lender Cap is intended to apply to any Loans made available to Affiliated Lenders by means other than formal assignment (e.g., as a result of an acquisition of another Lender (other than any Debt Fund Affiliate) by any Affiliated Lender or the provision of Additional Term Loans by the Sponsors); provided, further, that to the extent that any assignment to any Affiliated Lender would result in the aggregate principal amount of Term Loans held by Affiliated Lenders exceeding the Affiliated Lender Cap (after giving effect to any substantially simultaneous cancellations thereof), the assignment of the relevant excess amount shall be null and void; and
 
(v)         in connection with any assignment effected pursuant to a Dutch Auction and/or open market purchase conducted by Holdings, the Borrower or any of its Restricted Subsidiaries, (A) the relevant Person may not use the proceeds of any Revolving Loans to fund such assignment and (B) no Default or Event of Default exists at the time of acceptance of bids for the Dutch Auction or the confirmation of such open market purchase, as applicable; and
 
(vi)        by its acquisition of Term Loans, each relevant Affiliated Lender shall be deemed to have acknowledged and agreed that:
 
(A)        it is subject to the restrictions on voting set forth in Section 9.02(c); and
 
(B)       such Affiliated Lender, solely in its capacity as an Affiliated Lender, will not be entitled to (i) attend (including by telephone) or participate in any meeting or discussion (or portion thereof) among the Administrative Agent or any Lender or among Lenders to which the Loan Parties or their representatives are not invited or (ii) receive any information or material prepared by the Administrative Agent or any Lender or any communication by or among the Administrative Agent and one or more Lenders, except to the extent such information or materials have been made available by the Administrative Agent or any Lender to any Loan Party or its representatives (and in any case, other than the right to receive notices of Borrowings, prepayments and other administrative notices in respect of its Term Loans required to be delivered to Lenders pursuant to Article 2);
 
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(vii)       no Affiliated Lender shall be required to represent or warrant that it is not in possession of material non-public information with respect to Holdings, the Borrower and/or any subsidiary thereof and/or their respective securities in connection with any assignment permitted by this Section 9.05(g).
 
Notwithstanding the foregoing or anything to the contrary contained herein, the Crossholder Lender Term Loan Exchange and Cancellation may be consummated on the Second Amendment Effective Date.
 
Notwithstanding anything to the contrary contained herein, any Lender may, at any time, assign all or a portion of its rights and obligations under this Agreement in respect of its Loans and/or Commitments to any Debt Fund Affiliate, and any Debt Fund Affiliate may, from time to time, purchase Loans and/or Commitments (x) on a pro rata basis through Dutch auctions open to all applicable Lenders in accordance with customary procedures or (y) on a non-pro rata basis through open market purchases (including, for the avoidance of doubt, negotiated transactions) without the consent of the Administrative Agent, in each case, notwithstanding the requirements set forth in subclauses (i) through (vii) of this clause (g); provided that the Loans and Commitments held by all Debt Fund Affiliates shall not account for more than 49.9% of the amounts included in determining whether the Required Lenders or Required Revolving Lenders have (A) consented to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Loan Document or any departure by any Loan Party or any Parent Loan Guarantor therefrom, (B) otherwise acted on any matter related to any Loan Document or (C) directed or required the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) with respect to or under any Loan Document; it being understood and agreed that the portion of the Loan and/or Commitments that accounts for more than 49.9% of the relevant Required Lender or Required Revolving Lender action shall be deemed to be voted on pro rata basis in accordance with the votes of Lenders that are not Debt Fund Affiliates.  Any Loan acquired by any Debt Fund Affiliate may (but shall not be required to) be contributed to Holdings or any of its subsidiaries for purposes of cancelling such Indebtedness (it being understood that any Loan so contributed shall, to the extent permitted by applicable Requirements of Law, be retired and cancelled immediately upon thereof); provided that upon any such cancellation, the aggregate outstanding principal amount of the relevant Class of Loans shall be deemed reduced, as of the date of such contribution, by the full par value of the aggregate principal amount of the Loans so contributed and cancelled, and each principal repayment installment with respect to the Term Loans pursuant to Section 2.10(a) shall be reduced pro rata by the full par value of the aggregate principal amount of any applicable Term Loans so contributed and cancelled.
 
Section 9.06.       Survival.  All covenants, agreements, representations and warranties made by the Loan Parties and the Parent Loan Guarantors in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loan and issuance of any Letter of Credit regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect until the Termination Date.  The provisions of Sections 2.15, 2.17, 9.03 and 9.13 and Article 8 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans, the expiration or termination of the Letters of Credit and the Revolving Credit Commitment, the occurrence of the Termination Date or the termination of this Agreement or any provision hereof but in each case, subject to the limitations set forth in this Agreement.
 
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Section 9.07.      Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement, the other Loan Documents, each Intercreditor Agreement and the Fee Letters constitute the entire agreement among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  This Agreement shall become effective when it has been executed by Holdings, the Borrower and the Administrative Agent and when the Administrative Agent has received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.  Delivery of an executed counterpart of a signature page to this Agreement by facsimile or by email as a “.pdf” or “.tif” attachment shall be effective as delivery of a manually executed counterpart of this Agreement.  It is understood and agreed that, subject to any Requirement of Law, the words “execution”, “signed”, “signature”, “delivery” and words of like import in or relating to any Loan Document shall be deemed to include any Electronic Signature, delivery or the keeping of any record in electronic form, each of which shall have the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar state laws based on the Uniform Electronic Transactions Act.
 
Section 9.08.      Severability.  To the extent permitted by applicable Requirements of Law, any provision of any Loan Document held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
 
Section 9.09.       Right of Setoff.  At any time when an Event of Default exists, upon the written consent of the Administrative Agent and each Issuing Bank and each Lender is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Requirements of Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations (in any currency) at any time owing by the Administrative Agent, such Issuing Bank or such Lender to or for the credit or the account of any Loan Party or any Parent Loan Guarantor against any of and all the Secured Obligations held by the Administrative Agent, such Issuing Bank or such Lender, irrespective of whether or not the Administrative Agent, such Issuing Bank or such Lender shall have made any demand under the Loan Documents and although such obligations may be contingent or unmatured or are owed to a branch or office of such Lender or such Issuing Bank different than the branch or office holding such deposit or obligation on such Indebtedness.  The Administrative Agent shall promptly notify the Borrower and any applicable Lender or Issuing Bank shall promptly notify the Borrower and the Administrative Agent of such set-off or application; provided that any failure to give or any delay in giving such notice shall not affect the validity of any such set-off or application under this Section.  The rights of each Lender, each Issuing Bank and the Administrative Agent under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender, such Issuing Bank or the Administrative Agent may have.
 
Section 9.10.       Governing Law; Jurisdiction; Consent to Service of Process.
 
(a)       THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN ANY OTHER LOAN DOCUMENT) AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN ANY OTHER LOAN DOCUMENT), WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
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(b)         EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY U.S. FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM) OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL (EXCEPT AS PERMITTED BELOW) BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, FEDERAL COURT.  EACH PARTY HERETO AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY REGISTERED MAIL ADDRESSED TO SUCH PERSON SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT.  EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE REQUIREMENTS OF LAW.  EACH PARTY HERETO AGREES THAT THE ADMINISTRATIVE AGENT RETAINS THE RIGHT TO BRING PROCEEDINGS AGAINST ANY LOAN PARTY OR ANY PARENT LOAN GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION SOLELY IN CONNECTION WITH THE EXERCISE OF ITS RIGHTS UNDER ANY COLLATERAL DOCUMENT.
 
(c)         EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY CLAIM OR DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT.
 
(d)      TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL) DIRECTED TO IT AT ITS ADDRESS FOR NOTICES AS PROVIDED FOR IN SECTION 9.01.  EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY LOAN DOCUMENT THAT SERVICE OF PROCESS WAS INVALID AND INEFFECTIVE.  NOTHING IN THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE REQUIREMENTS OF LAW.
 
Section 9.11.       Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.  EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
 
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Section 9.12.        Headings.  Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
 
Section 9.13.       Confidentiality.  Each of the Administrative Agent, each Lender, each Issuing Bank and each Arranger agrees (and each Lender agrees to cause its SPC, if any) to maintain the confidentiality of the Confidential Information (as defined below), except that Confidential Information may be disclosed (a) to its Affiliates and/or funding and financing sources and its and their respective directors, officers, managers, employees, independent auditors, or other experts and advisors, including accountants, legal counsel and other advisors (collectively, the “Representatives”) on a “need to know” basis solely in connection with the transactions contemplated hereby and who are informed of the confidential nature of the Confidential Information and are or have been advised of their obligation to keep the Confidential Information of this type confidential; provided that such Person shall be responsible for its Affiliates’ and funding and financing sources’ and their Representatives’ compliance with this paragraph; provided, further, that unless the Borrower otherwise consents, no such disclosure shall be made by the Administrative Agent, any Issuing Bank, any Arranger, any Lender or any Affiliate or Representative thereof to any Affiliate or Representative of the Administrative Agent, any Issuing Bank, any Arranger, or any Lender that is a Disqualified Institution, (b) to the extent compelled by legal process in, or reasonably necessary to, the defense of such legal, judicial or administrative proceeding, in any legal, judicial or administrative proceeding or otherwise as required by applicable Requirements of Law (in which case such Person shall (i) to the extent permitted by applicable Requirements of Law, inform the Borrower promptly in advance thereof and (ii) use commercially reasonable efforts to ensure that any such information so disclosed is accorded confidential treatment), (c) upon the demand or request of any regulatory or governmental authority (including any self-regulatory body) purporting to have jurisdiction over such Person or its Affiliates (in which case such Person shall, except with respect to any audit or examination conducted by bank accountants or any Governmental Authority or regulatory or self-regulatory authority exercising examination or regulatory authority, to the extent permitted by applicable Requirements of Law, (i) inform the Borrower promptly in advance thereof and (ii) use commercially reasonable efforts to ensure that any information so disclosed is accorded confidential treatment), (d) [reserved], (e) subject to an acknowledgment and agreement by the relevant recipient that the Confidential Information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as otherwise reasonably acceptable to the Borrower and the Administrative Agent) in accordance with the standard syndication process of the Arranger or market standards for dissemination of the relevant type of information, which shall in any event require “click through” or other affirmative action on the part of the recipient to access the Confidential Information and acknowledge its confidentiality obligations in respect thereof, to (i) any Eligible Assignee of or Participant in, or any prospective Eligible Assignee of or prospective Participant in, any of its rights or obligations under this Agreement, including any SPC (in each case other than a Disqualified Institution and/or any Person to whom the Borrower has, at the time of disclosure, affirmatively declined to consent to any assignment), (ii) any pledgee referred to in Section 9.05, (iii) any actual or prospective, direct or indirect contractual counterparty (or its advisors) to any Derivative Transaction (including any credit default swap) or similar derivative product to which any Loan Party or any Parent Loan Guarantor is a party and (iv) in the case of the Administrative Agent, (i) the existence of this Agreement (but not the terms hereof) and the existence of the Credit Facility (but not the terms thereof) and (ii) certain other limited generic information regarding the Credit Facility (but not any other Confidential Information), may be disclosed to market data collectors and other similar service providers to the lending industry and to service providers to the Administrative Agent customarily used in the lending industry in connection with the administration of the Credit Facility in accordance with its customary practice and (g) to the extent the Confidential Information becomes publicly available other than as a result of a breach of this Section by such Person, its Affiliates or their respective Representatives.  For purposes of this Section, “Confidential Information” means all information relating to Holdings, the Borrower and/or any of its subsidiaries and their respective businesses or the Transactions (including any information obtained by the Administrative Agent, any Issuing Bank, any Lender or any Arranger, or any of their respective Affiliates or Representatives, based on a review of any books and records relating to Holdings, the Borrower and/or any of its subsidiaries and their respective Affiliates from time to time, including prior to the date hereof) other than any such information that is publicly available to the Administrative Agent or any Arranger, Issuing Bank or Lender on a non-confidential basis prior to disclosure by Holdings, the Borrower or any of its subsidiaries.  For the avoidance of doubt, in no event shall any disclosure of any Confidential Information be made to Person that is a Disqualified Institution at the time of disclosure.
 
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Section 9.14.      No Fiduciary Duty.  Each of the Administrative Agent, the Arranger, each Lender, each Issuing Bank and their respective Affiliates (collectively, solely for purposes of this paragraph, the “Lenders”), may have economic interests that conflict with those of the Loan Parties, the Parent Loan Guarantors, their stockholders and/or their respective affiliates.  Each Loan Party and Parent Loan Guarantor agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender, on the one hand, and such Loan Party or Parent Loan Guarantor, its respective stockholders or its respective affiliates, on the other.  Each Loan Party and Parent Loan Guarantor acknowledges and agrees that:  (i) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Lenders, on the one hand, and the Loan Parties and Parent Loan Guarantors, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Lender, in its capacity as such, has assumed an advisory or fiduciary responsibility in favor of any Loan Party or Parent Loan Guarantor, its respective stockholders or its respective affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Lender has advised, is currently advising or will advise any Loan Party or Parent Loan Guarantor, its respective stockholders or its respective Affiliates on other matters) or any other obligation to any Loan Party except the obligations expressly set forth in the Loan Documents and (y) each Lender, in its capacity as such, is acting solely as principal and not as the agent or fiduciary of such Loan Party or Parent Loan Guarantor, its respective management, stockholders, creditors or any other Person.  To the fullest extent permitted by applicable Requirements of Law, each Loan Party and each Parent Loan Guarantor waives any claim that it may have against any Lender with respect to any breach or alleged breach of fiduciary duty arising solely by virtue of this Agreement.  Each Loan Party and each Parent Loan Guarantor acknowledges and agrees that such Loan Party or Parent Loan Guarantor has consulted its own legal, tax and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto.
 
Section 9.15.       Several Obligations.  The respective obligations of the Lenders hereunder are several and not joint and the failure of any Lender to make any Loan, issue any Letter of Credit or perform any of its obligations hereunder shall not relieve any other Lender from any of its obligations hereunder.
 
Section 9.16.       USA PATRIOT Act.  Each Lender that is subject to the requirements of the USA PATRIOT Act and the requirements of the Beneficial Ownership Regulation hereby notifies the Loan Parties and the Parent Loan Guarantors that pursuant to the requirements of the USA PATRIOT Act and the Beneficial Ownership Regulation, it is required to obtain, verify and record information that identifies each Loan Party and each Parent Loan Guarantor, which information includes the name and address of such Loan Party or Parent Loan Guarantor and other information that will allow such Lender to identify such Loan Party or such Parent Loan Guarantor in accordance with the USA PATRIOT Act and the Borrower in accordance with the Beneficial Ownership Regulation.
 
Section 9.17.       Disclosure of Agent Conflicts.  Each Loan Party, the Parent Loan Guarantors, each Issuing Bank and each Lender hereby acknowledge and agree that the Administrative Agent and/or its Affiliates from time to time may hold investments in, make other loans to or have other relationships with any of the Loan Parties, the Parent Loan Guarantors and their respective Affiliates.
 
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Section 9.18.      Appointment for Perfection.  Each Lender hereby appoints each other Lender and each Issuing Bank as its agent for the purpose of perfecting Liens for the benefit of the Administrative Agent, the Issuing Banks and the Lenders, in assets which, in accordance with Article 9 of the UCC or any other applicable Requirement of Law can be perfected only by possession.  If any Lender or Issuing Bank (other than the Administrative Agent) obtains possession of any Collateral, such Lender or such Issuing Bank shall notify the Administrative Agent thereof and, promptly upon the Administrative Agent’s request therefor shall deliver such Collateral to the Administrative Agent or otherwise deal with such Collateral in accordance with the Administrative Agent’s instructions.
 
Section 9.19.      Interest Rate Limitation.  Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan or Letter of Credit, together with all fees, charges and other amounts which are treated as interest on such Loan or Letter of Credit under applicable Requirements of Law (collectively the “Charged Amounts”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender or Issuing Bank holding such Loan or Letter of Credit in accordance with applicable Requirements of Law, the rate of interest payable in respect of such Loan or Letter of Credit hereunder, together with all Charged Amounts payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charged Amounts that would have been payable in respect of such Loan or Letter of Credit but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charged Amounts payable to such Lender or Issuing Bank in respect of other Loans or Letters of Credit or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, have been received by such Lender or Issuing Bank.
 
Section 9.20.     Intercreditor Agreements.  (a) EACH LENDER AND EACH ISSUING BANK HEREUNDER AGREES THAT IT WILL BE BOUND BY AND WILL TAKE NO ACTION CONTRARY TO THE PROVISIONS OF EACHTHE SECOND LIEN INTERCREDITOR AND SUBORDINATION AGREEMENT AND EACH OTHER INTERCREDITOR AGREEMENT ENTERED INTO BY THE ADMINISTRATIVE AGENT AND AUTHORIZES AND INSTRUCTS THE ADMINISTRATIVE AGENT TO ENTER INTO EACH APPLICABLE INTERCREDITOR AGREEMENT CONTEMPLATED BY THIS AGREEMENT AS “FIRST LIEN AGENT” (OR EQUIVALENT) AND ON BEHALF OF SUCH SECURED PARTY.  REFERENCE MUST BE MADE TO EACH INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF.  EACH SECURED PARTY IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF EACH INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION TO ANY SECURED PARTY AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN ANY INTERCREDITOR AGREEMENT.  THE FOREGOING PROVISIONS ARE INTENDED AS AN INDUCEMENT TO THE LENDERS OR HOLDERS OF ANY OTHER INDEBTEDNESS SUBJECT TO ANY APPLICABLE INTERCREDITOR AGREEMENT TO EXTEND CREDIT THEREUNDER AND SUCH LENDERS AND/OR HOLDERS ARE INTENDED THIRD PARTY BENEFICIARIES OF SUCH PROVISIONS AND THE PROVISIONS OF EACH APPLICABLE INTERCREDITOR AGREEMENT.
 
(b)       EACH LENDER AND EACH ISSUING BANK HEREUNDER AGREES THAT IT WILL BE BOUND BY AND WILL TAKE NO ACTION CONTRARY TO THE PROVISIONS OF THE AAL. EACH LENDER AND EACH ISSUING BANK HEREBY AUTHORIZES AND INSTRUCTS THE ADMINISTRATIVE AGENT AND THE LENDER REPRESENTATIVE TO ENTER INTO THE AAL. EACH LENDER AND ISSUING BANK FURTHER AGREES THAT IT WILL BECOME A PARTY TO THE AAL IN ACCORDANCE WITH THE TERMS OF THE AAL.  REFERENCE MUST BE MADE TO THE AAL ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF.  EACH SECURED PARTY IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF THE AAL AND THE TERMS AND PROVISIONS THEREOF, AND NEITHER THE ADMINISTRATIVE AGENT, THE LENDER REPRESENTATIVE NOR ANY OF THEIR RESPECTIVE AFFILIATES MAKES ANY REPRESENTATION TO ANY SECURED PARTY AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED THEREIN.  THE FOREGOING PROVISIONS ARE INTENDED AS AN INDUCEMENT TO THE LENDERS SUBJECT TO THE AAL TO EXTEND CREDIT HEREUNDER AND SUCH LENDERS ARE INTENDED THIRD PARTY BENEFICIARIES OF SUCH PROVISIONS AND THE PROVISIONS OF THE AAL.
 
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Section 9.21.      Conflicts.  Notwithstanding anything to the contrary contained herein or in any other Loan Document, in the event of any conflict or inconsistency between this Agreement and any other Loan Document, the terms of this Agreement shall govern and control; provided, that in the case of any conflict or inconsistency between any Intercreditor Agreement and any Loan Document, the terms of such Intercreditor Agreement shall govern and control.
 
Section 9.22.      Release of Guarantors.  Notwithstanding anything in Section 9.02(b) to the contrary, (a) any Subsidiary Guarantor shall automatically be released from its obligations hereunder (and its Loan Guaranty and any Lien granted by such Subsidiary Guarantor pursuant to any Collateral Document shall be automatically released) (i) upon the consummation of any transaction or series of related transactions not prohibited hereunder if as a result thereof such Subsidiary Guarantor ceases to be a Restricted Subsidiary or is an Excluded Subsidiary (or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions not prohibited hereunder, including, for the avoidance of doubt, any Permitted Practice Subsidiary Restructuring) in each case subject, if applicable, to the Specified Guarantor Release Provision, (ii) upon the occurrence of the Termination Date and/or (iii) with respect to any Discretionary Guarantor, upon notice by the Borrower to the Administrative Agent at any time as a result of a single transaction or series of related transactions not prohibited hereunder and subject, if applicable, to the Specified Guarantor Release Provision and (b) any Subsidiary Guarantor that meets the definition of “Excluded Subsidiary” shall be released by the Administrative Agent promptly following the request therefor by the Borrower, subject, if applicable, to the Specified Guarantor Release Provision.
 
Section 9.23.      Acknowledgement and Consent to Bail-In of Affected Financial Institutions.  Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding of the parties hereto, each such party acknowledges that any liability of any Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
 
(a)          the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and
 
(b)          the effects of any Bail-in Action on any such liability, including, if applicable:
 
(i)          a reduction in full or in part or cancellation of any such liability;
 
(ii)         a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or
 
(iii)        the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of the applicable Resolution Authority.
 
Section 9.24.       Certain ERISA Matters.  Each Lender (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, that at least one of the following is and will be true:
 
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(a)         such Lender is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more benefit plans with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments or this Agreement,
 
(b)        the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement,
 
(c)          (i) such Lender is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (ii) such Qualified Professional Asset Manager made the investment decision on behalf of such Lender to enter into, participate in, administer and perform the Loans, the Letters of Credit, the Commitments and this Agreement, (iii) the entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (iv) to the best knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement, or
 
(d)         such other representation, warranty and covenant as may be agreed in writing between the Administrative Agent, in its sole discretion, and such Lender.
 
In addition, unless either (1) sub-clause (i) in the immediately preceding paragraph is true with respect to a Lender or (2) a Lender has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding paragraph, such Lender further (x) represents and warrants, as of the date such Person became a Lender party hereto, to, and (y) covenants, from the date such Person became a Lender party hereto to the date such Person ceases being a Lender party hereto, for the benefit of, the Administrative Agent and not, for the avoidance of doubt, to or for the benefit of the Borrower or any other Loan Party or Parent Loan Guarantor, that the Administrative Agent is not a fiduciary with respect to the assets of such Lender involved in such Lender’s entrance into, participation in, administration of and performance of the Loans, the Letters of Credit, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Administrative Agent under this Agreement, any Loan Document or any documents related hereto or thereto).  To the extent the Administrative Agent (or any sub-agent thereof) or any Related Party of any of the foregoing is not reimbursed and indemnified by the Borrower, the Lenders severally agree to reimburse and indemnify the Administrative Agent (or any such sub-agent) or such Related Party, as the case may be, in proportion to their respective “pro rata shares” (determined as set forth below) for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Administrative Agent (or such sub-agent) or such Related Party in performing its duties hereunder or under any other Loan Document or in any way relating to or arising out of this Agreement or any other Loan Document; provided, that no Lender shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from the Administrative Agent’s or such Related Party’s, as applicable, gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).  For purposes of this paragraph, a Lender’s “pro rata share” shall be determined based upon its share of the sum of, without duplication, the total Revolving Credit Exposures, unused Commitments and outstanding Loans, in each case, at the time (or most recently outstanding and in effect).
 
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Section 9.25.       Acknowledgement Regarding Any Supported QFCs.  To the extent that the Loan Documents provide support, through a guarantee or otherwise, for Derivative Transactions or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “US Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the US or any other state of the US):
 
(a)         In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a US Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the US Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the US or a state of the US.  In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a US Special Resolution Regime, Default Rights under the Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the US Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the US or a state of the US.  Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.
 
(b)          As used in this Section 9.25, the following terms have the following meanings:
 
“BHC ACT Affiliate” means an “affiliate” (as defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)).
 
“Covered Entity” means any of the following:
 
(i)           a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
 
(ii)          a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
 
(iii)         a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
 
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
 
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
 
[Signature Pages Follow]
 
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written.
 
Signature Page to Credit Agreement

EXHIBIT B to Amendment No. 2

Parent Loan Guaranty

[SEE ATTACHED]

PARENT LOAN GUARANTY
 
THIS PARENT LOAN GUARANTY (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, this “Loan Guaranty”) is entered into as of June [15], 2023, by and among, ATI Physical Therapy, Inc., a Delaware corporation (“Parent”), Wilco Holdco, Inc., a Delaware corporation (“Intermediate Parent”) and the other parent companies of Holdings (as defined below) from time to time party hereto (together with Parent and Intermediate Parent, collectively, the “Parent Loan Guarantors”) and Barclays Bank PLC, in its capacity as administrative agent and collateral agent for the lenders party to the Credit Agreement referred to below (in such capacities, the “Administrative Agent”).
 
PRELIMINARY STATEMENT
 
Reference is hereby made to that certain Credit Agreement, dated as of February 24, 2022 (as amended by Amendment No. 1 to Credit Agreement, dated as of March 30, 2022, Amendment No. 2 to Credit Agreement, dated as of April [17], 2023 and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among, inter alios, Wilco Intermediate Holdings, Inc., a Delaware corporation (“Holdings”), ATI Holdings Acquisition, Inc., a Delaware corporation (the “Borrower”), the Lenders from time to time party thereto and the Administrative Agent.
 
The Parent Loan Guarantors are entering into this Loan Guaranty in order to induce the Lenders to enter into and extend credit to the Borrower under the Credit Agreement and to guarantee the Secured Obligations.
 
Each Parent Loan Guarantor will obtain benefits from the incurrence of Loans by the Borrower and the issuance of, and participation in, Letters of Credit for the account of the Borrower and its respective subsidiaries and the incurrence by the Loan Parties of Secured Hedging Obligations and Banking Services Obligations.
 
ACCORDINGLY, the parties hereto agree as follows:
 
ARTICLE 1
DEFINITIONS
 
SECTION 1.01        Definitions of Certain Terms Used Herein.  As used in this Loan Guaranty, in addition to the terms defined in the preamble and Preliminary Statement above, the following terms shall have the following meanings:
 
“Accommodation Payments” has the meaning assigned to such term in Section 2.09.
 
“Administrative Agent” has the meaning assigned to such term in the preamble.
 
“Article” means a numbered article of this Loan Guaranty, unless another document is specifically referenced.
 
“Credit Agreement” has the meaning assigned to such term in the preamble.
 
“Guaranteed Obligations” has the meaning assigned to such term in Section 2.01.
 
“Guarantor Percentage” has the meaning assigned to such term in Section 2.01.
 
“Loan Guaranty” has the meaning assigned to such term in the preamble.
 
“Maximum Liability” has the meaning assigned to such term in Section 2.09.
 
“Non-Paying Guarantor” has the meaning assigned to such term in Section 2.09.
 
“Obligated Party” has the meaning assigned to such term in Section 2.02.
 
“Parent Loan Guarantors” has the meaning assigned to such term in the preamble.
 
“Paying Guarantor” has the meaning assigned to such term in Section 2.09.
 
“Section” means a numbered section of this Loan Guaranty, unless another document is specifically referenced.
 
“UFCA” has the meaning assigned to such term in Section 2.09(a).
 
“UFTA” has the meaning assigned to such term in Section 2.09(a).
 
The foregoing definitions shall be equally applicable to both the singular and plural forms of the defined terms.  Capitalized terms used in this Loan Guaranty and not otherwise defined herein shall have the meanings set forth in the Credit Agreement.
 
ARTICLE 2
LOAN GUARANTY
 
SECTION 2.01          Guaranty.  Except as otherwise provided for herein (including under Section 3.15), each Parent Loan Guarantor hereby agrees that it is jointly and severally liable for, and, as primary obligor and not merely as surety, and absolutely and unconditionally and irrevocably guarantees to the Administrative Agent (acting as agent for the Secured Parties, pursuant to Article 8 of the Credit Agreement) for the ratable benefit of the Secured Parties, the full and prompt payment in full in cash, when and as the same become due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of the Secured Obligations, including amounts that would become due but for the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §362(a) (excluding, for the avoidance of doubt, any Excluded Swap Obligation), together with any and all expenses which may be incurred by the Administrative Agent and the other Secured Parties in collecting any of the Guaranteed Obligations that are reimbursable in accordance with Section 9.03 of the Credit Agreement (collectively the “Guaranteed Obligations”).  Each Parent Loan Guarantor further agrees that the Guaranteed Obligations may be increased, extended or renewed in whole or in part without notice to or further assent from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal.  In addition, if any or all of the Guaranteed Obligations become due and payable hereunder, each Parent Loan Guarantor, unconditionally and irrevocably, promises to pay such Guaranteed Obligations to the Administrative Agent for the benefit of the Secured Parties, on demand.  Each Parent Loan Guarantor unconditionally and irrevocably guarantees the payment of any and all of the Guaranteed Obligations whether or not due or payable by the Borrower upon the occurrence of any of the Events of Default specified in Sections 7.01(f) or 7.01(g) of the Credit Agreement and thereafter irrevocably and unconditionally promises to pay such Guaranteed Obligations to the Administrative Agent for the benefit of the Secured Parties.  This Loan Guaranty is a continuing one and shall remain in full force and effect until the Termination Date, and all liabilities to which it applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
 
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SECTION 2.02          Guaranty of Payment.  This Loan Guaranty is a guaranty of payment and not of collection.  Each Parent Loan Guarantor waives any right to require the Administrative Agent or any Lender to sue the Borrower, any Parent Loan Guarantor, any other guarantor, or any other Person obligated for all or any part of the Guaranteed Obligations (the Borrower, each Parent Loan Guarantor, each Loan Guarantor each other guarantor or such other Person, an “Obligated Party”), or otherwise to enforce its rights in respect of any Collateral securing all or any part of the Guaranteed Obligations.  The Administrative Agent may enforce this Loan Guaranty at any time when an Event of Default has occurred and is continuing.
 
SECTION 2.03          No Discharge or Diminishment of Loan Guaranty.
 
(a)          Except as otherwise provided for herein (including under Section 3.15), the obligations of each Parent Loan Guarantor hereunder are unconditional, irrevocable and absolute and not subject to any reduction, limitation, impairment or termination for any reason, including: (i) any claim of waiver, release, extension, renewal, settlement, surrender, alteration, or compromise of any of the Guaranteed Obligations, by operation of law or otherwise; (ii) any change in the corporate existence, structure or ownership of any Obligated Party or sale of assets by the Obligated Party, in each case whether consented to by any Secured Party or otherwise; (iii) any insolvency, bankruptcy, reorganization or other similar proceeding affecting any other Obligated Party, or their assets or any resulting release or discharge of any obligation of any Obligated Party; (iv) the existence of any claim, setoff or other right which any Parent Loan Guarantor may have at any time against any Obligated Party, the Administrative Agent, any Lender or any other Person, whether in connection herewith or in any unrelated transaction; (v) any direction as to application of payments by the Borrower or by any other party; (vi) any other continuing or other guaranty, undertaking or maximum liability of a guarantor or of any other party as to the Guaranteed Obligations; (vii) any payment on or in reduction of any such other guaranty or undertaking; (viii) any dissolution, termination or increase, decrease or change in personnel by the Borrower; or (ix) any payment made to any Secured Party on the Guaranteed Obligations which any such Secured Party repays to the Borrower pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and each Parent Loan Guarantor waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding.
 
(b)          Except for termination of a Parent Loan Guarantor’s obligations hereunder or as expressly permitted by Section 3.15, the obligations of each Parent Loan Guarantor hereunder are not subject to any defense or setoff, counterclaim, recoupment, or termination whatsoever by reason of the invalidity, illegality, or unenforceability of any of the Guaranteed Obligations or otherwise, or any Requirement of Law purporting to prohibit payment by any Obligated Party, of the Guaranteed Obligations or any part thereof.
 
(c)          Further, the obligations of any Parent Loan Guarantor hereunder are not discharged or impaired or otherwise affected by: (i) the failure of the Administrative Agent to assert any claim or demand or to enforce any remedy with respect to all or any part of the Guaranteed Obligations; (ii) any waiver or modification of or supplement to any provision of any agreement relating to the Guaranteed Obligations; (iii) any release, non-perfection, or invalidity of any indirect or direct security for the obligations of the Borrower for all or any part of the Guaranteed Obligations or any obligations of any other guarantor of or other Person liable for any of the Guaranteed Obligations; (iv) any action or failure to act by the Administrative Agent with respect to any Collateral securing any part of the Guaranteed Obligations; (v) the acceleration of the maturity of any of the Guaranteed Obligations; (vi) the application by any of the Secured Parties of the proceeds of any other guaranty of or insurance for any of the Guaranteed Obligations to the payment of any of the Guaranteed Obligations; or (vii) any default, failure or delay, willful or otherwise, in the payment or performance of any of the Guaranteed Obligations, or any other circumstance, act, omission or delay that might in any manner or to any extent vary the risk of such Parent Loan Guarantor or that would otherwise operate as a discharge of any Parent Loan Guarantor as a matter of law or equity, in each case other than as set forth in Section 3.15.
 
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SECTION 2.04          Defenses Waived.  To the fullest extent permitted by applicable Requirements of Law, and except for termination of a Parent Loan Guarantor’s obligations hereunder or as otherwise provided for herein (including under Section 3.15), each Parent Loan Guarantor hereby waives any defense based on or arising out of any defense of any Parent Loan Guarantor, the Borrower or any other Loan Party or arising out of the disability of any Parent Loan Guarantor, the Borrower or any other Loan Party or any other party or the unenforceability of all or any part of the Guaranteed Obligations or any part thereof from any cause, or the cessation from any cause of the liability of any Parent Loan Guarantor, the Borrower or any other Loan Party.  Without limiting the generality of the foregoing, each Parent Loan Guarantor irrevocably waives acceptance hereof, presentment, demand, protest and, to the fullest extent permitted by applicable Requirements of Law, any notice not provided for herein or in any other Loan Document, including any notice of nonperformance, notice of protest, notice of dishonor, notice of acceptance of this Loan Guaranty, and any notice of the existence, creation or incurring of new or additional Guaranteed Obligations, as well as any requirement that at any time any action be taken by any Person against any Obligated Party, or any other Person, including any right (except as may be required by applicable Requirements of Law and to the extent the relevant requirement cannot be waived) to require the Administrative Agent to (i) proceed against the Borrower, any other guarantor or any other party, (ii) proceed against or exhaust any security held from any Parent Loan Guarantor, the Borrower or any other Loan Party or any other party or (iii) pursue any other remedy in the Administrative Agent’s power whatsoever.  The Administrative Agent may, at its election, and in accordance with the terms of the applicable Loan Documents, foreclose on any Collateral held by it by one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable (to the extent permitted by applicable Requirements of Law), accept an assignment of any such Collateral in lieu of foreclosure or otherwise act or fail to act with respect to any Collateral securing all or a part of the Guaranteed Obligations, and the Administrative Agent may, at its election compromise or adjust any part of the Guaranteed Obligations, make any other accommodation with any Obligated Party or exercise any other right or remedy available to it against any Obligated Party, or any security, without affecting or impairing in any way the liability of such Parent Loan Guarantor under this Loan Guaranty, except as otherwise provided in Section 3.15.  To the fullest extent permitted by applicable Requirements of Law, each Parent Loan Guarantor waives any defense arising out of any such election even though such election may operate, pursuant to applicable Requirements of Law, to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Parent Loan Guarantor against any Obligated Party or any security.
 
SECTION 2.05       Authorization.  Each Parent Loan Guarantor authorizes the Administrative Agent without notice or demand (except as may be required by applicable Requirements of Law and to the extent the relevant requirement cannot be waived), and without affecting or impairing its liability hereunder (except as set forth in Section 3.15), from time to time, subject to each applicable Intercreditor Agreement and the terms of the referenced Loan Documents, to:
 
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(a)          change the manner, place or terms of payment of, and/or change or extend the time of payment of, renew, increase, accelerate or alter, any of the Guaranteed Obligations (including any increase or decrease in the principal amount thereof or the rate of interest or fees thereon), any security therefor, or any liability incurred directly or indirectly in respect thereof, and this Loan Guaranty shall apply to the Guaranteed Obligations as so changed, extended, renewed or altered;
 
(b)         take and hold security for the payment of the Guaranteed Obligations and sell, exchange, release, impair, surrender, realize upon or otherwise deal with in any manner and in any order any property by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the Guaranteed Obligations or any liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and/or any offset there against;
 
(c)         exercise or refrain from exercising any rights against the Borrower, any other Loan Party or others or otherwise act or refrain from acting;
 
(d)         release or substitute any endorser, any guarantor, any Parent Loan Guarantor, the Borrower, any other Loan Party and/or any other obligor;
 
(e)         settle or compromise any of the Guaranteed Obligations, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and/or subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of the Borrower to its creditors other than the Secured Parties;
 
(f)          apply any sum by whomsoever paid or howsoever realized to any liability or liabilities of the Borrower to the Secured Parties regardless of what liability or liabilities of the Borrower remain unpaid;
 
(g)          consent to or waive any breach of, or any act, omission or default under, this Loan Guaranty, the Credit Agreement, any other Loan Document, any agreement relating to Banking Services Obligations, any Hedge Agreement with respect to any Secured Hedging Obligation or any of the instruments or agreements referred to herein or therein, or otherwise amend, modify or supplement this Loan Guaranty, the Credit Agreement, any other Loan Document, any agreement relating to Banking Services Obligations, any Hedge Agreement with respect to any Secured Hedging Obligation or any of such other instruments or agreements; and/or
 
(h)          take any other action which would, under otherwise applicable principles of common law, give rise to a legal or equitable discharge of the Parent Loan Guarantors from their respective liabilities under this Loan Guaranty.
 
SECTION 2.06         Rights of Subrogation.  No Parent Loan Guarantor will assert any right, claim or cause of action, including any claim of subrogation, contribution or indemnification that it has against any Parent Loan Guarantor or any Loan Party in respect of this Loan Guaranty until the occurrence of the Termination Date; provided that if any amount is paid to such Parent Loan Guarantor on account of such subrogation rights at any time prior to the Termination Date, then unless such Parent Loan Guarantor has already discharged its liabilities under this Loan Guaranty in an amount equal to such Parent Loan Guarantor’s Maximum Liability as of such date, such amount shall be held by the recipient Parent Loan Guarantor in trust for the benefit of the Secured Parties and shall forthwith be paid by the recipient Parent Loan Guarantor to the Administrative Agent (for the benefit of the Secured Parties) to be credited and applied to the Guaranteed Obligations, whether matured or unmatured, in accordance with Section 2.18(b) of the Credit Agreement.
 
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SECTION 2.07          Reinstatement; Stay of Acceleration.  If at any time any payment of any portion of the Guaranteed Obligations is rescinded or must otherwise be restored or returned upon the insolvency, bankruptcy, or reorganization of the Borrower or otherwise, each Parent Loan Guarantor’s obligations under this Loan Guaranty with respect to such payment shall be reinstated at such time as though the payment had not been made.  If acceleration of the time for payment of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy or reorganization of the Borrower, all such amounts otherwise subject to acceleration under the terms of any agreement relating to the Guaranteed Obligations shall nonetheless be payable by the other Parent Loan Guarantors forthwith on demand by the Administrative Agent.
 
SECTION 2.08        Information.  Each Parent Loan Guarantor assumes all responsibility for being and keeping itself informed of the Borrower’s financial condition and assets, and of all other circumstances bearing upon the risk of nonpayment of the Guaranteed Obligations and the nature, scope and extent of the risks that each Parent Loan Guarantor assumes and incurs under this Loan Guaranty, and agrees that none of the Administrative Agent, any Lender or any other Secured Party shall have any duty to advise any Parent Loan Guarantor of information known to it regarding those circumstances or risks.
 
SECTION 2.09          Contribution; Subordination; Maximum Liability.
 
(a)         In the event that any Parent Loan Guarantor (a “Paying Guarantor”) makes any payment or payments under this Loan Guaranty or suffers any loss as a result of any realization upon any Collateral granted by it to secure its obligations under this Loan Guaranty (each such payment or loss, an “Accommodation Payment”), each other Parent Loan Guarantor (each a “Non-Paying Guarantor”) shall contribute to such Paying Guarantor an amount equal to such Non-Paying Guarantor’s “Guarantor Percentage” of such Accommodation Payment by such Paying Guarantor.  For purposes of this Article 2, each Non-Paying Guarantor’s “Guarantor Percentage” with respect to any Accommodation Payment by a Paying Guarantor shall be determined as of the date on which such Accommodation Payment was made by reference to the ratio of (a) such Non-Paying Guarantor’s Maximum Liability (as defined below) as of such date to (b) the aggregate Maximum Liability of all Parent Loan Guarantors hereunder (including such Paying Guarantor) as of such date.  As of any date of determination, the “Maximum Liability” of each Parent Loan Guarantor shall be equal to the maximum amount of liability which could be asserted against such Parent Loan Guarantor hereunder and under the Credit Agreement without (i) rendering such Parent Loan Guarantor “insolvent” within the meaning of Section 101(32) of the Bankruptcy Code, Section 2 of the Uniform Fraudulent Transfer Act (“UFTA”) or Section 2 of the Uniform Fraud Conveyance Act (“UFCA”), (ii) leaving such Parent Loan Guarantor with unreasonably small capital or assets, within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA, or (iii) leaving such Parent Loan Guarantor unable to pay its debts as they become due within the meaning of Section 548 of the Bankruptcy Code, Section 4 of the UFTA or Section 5 of the UFCA.  Nothing in this provision shall affect any Parent Loan Guarantor’s several liability for the entire amount of the Guaranteed Obligations (up to such Parent Loan Guarantor’s Maximum Liability).  Each of the Parent Loan Guarantors covenants and agrees that its right to receive any contribution under this Loan Guaranty from a Non-Paying Guarantor shall be subordinate and junior in right of payment to the Secured Obligations until the Termination Date.  If, prior to the Termination Date, any such contribution payment is received by a Paying Guarantor at any time when an Event of Default has occurred and is continuing, such contribution payment shall be collected, enforced and received by such Parent Loan Guarantor as trustee for the Secured Parties and be paid over to the Administrative Agent on account of the Secured Obligations, but without affecting or impairing in any manner the liability of such Parent Loan Guarantor under the other provisions of this Loan Guaranty. This provision is for the benefit of the Administrative Agent, the Lenders and the other Secured Parties.
 
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(b)          It is the desire and intent of the Parent Loan Guarantors and the Secured Parties that this Loan Guaranty shall be enforced against the Parent Loan Guarantors to the fullest extent permissible under the Requirements of Law and public policies applied in each jurisdiction in which enforcement is sought.  The provisions of this Loan Guaranty are severable, and in any action or proceeding involving any state corporate law, or any state, Federal or foreign bankruptcy, insolvency, reorganization or other Requirements of Law affecting the rights of creditors generally, if the obligations of any Parent Loan Guarantor under this Loan Guaranty would otherwise be held or determined to be avoidable, invalid or unenforceable on account of the amount of such Parent Loan Guarantor’s liability under this Loan Guaranty, then, notwithstanding any other provision of this Loan Guaranty to the contrary, the amount of such liability shall, without any further action by the Parent Loan Guarantors or the Secured Parties, be automatically limited and reduced to such Parent Loan Guarantor’s Maximum Liability.  Each Parent Loan Guarantor agrees that the Guaranteed Obligations may at any time and from time to time exceed the Maximum Liability of such Parent Loan Guarantor without impairing this Loan Guaranty or affecting the rights and remedies of the Administrative Agent hereunder; provided that nothing in this sentence shall be construed to increase any Parent Loan Guarantor’s obligations hereunder beyond its Maximum Liability.
 
SECTION 2.10         Representations and Warranties.  As of the date hereof each Parent Loan Guarantors hereby represent and warrant to the Lenders that:
 
(a)          Each Parent Loan Guarantor (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 where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect.
 
(b)          The execution, delivery and performance by each Parent Loan Guarantor of each Loan Document to which such Parent Loan Guarantor is a party are within each applicable Parent Loan Guarantor’s corporate or other organizational power and have been duly authorized by all necessary corporate or other organizational action of such Parent Loan Guarantor.  Each Loan Document to which any Parent Loan Guarantor is a party has been duly executed and delivered by such Parent Loan Guarantor and is a legal, valid and binding obligation of such Parent Loan Guarantor, enforceable in accordance with its terms, subject to the Legal Reservations.
 
(c)          The execution and delivery of each Loan Document by each Parent Loan Guarantor thereto and the performance by such Parent Loan Guarantor thereof (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 Parent Loan Guarantor’s Organizational Documents or (ii) Requirement of Law applicable to such Parent Loan Guarantor 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 Parent Loan Guarantor is a party which violation, in the case of this clause (c), could reasonably be expected to result in a Material Adverse Effect.
 
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(d)          Each Parent Loan Guarantor 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 2.10(d) shall not apply to the Requirements of Law covered by Section 2.10(j) below.
 
(e)           No Parent Loan Guarantor is an “investment company” as defined in, or is required to be registered under, the Investment Company Act of 1940.
 
(f)           To the extent applicable, each Parent Loan Guarantor is in compliance, in all material respects, with the USA PATRIOT Act.
 
(g)           None of the Parent Loan Guarantors or any of its Subsidiaries or any of the respective directors or officers or, to the knowledge of each Parent Loan Guarantor, agents (solely to the extent acting in its capacity as an agent for a Parent Loan Guarantor or any of its Subsidiaries) or employees of each Parent Loan Guarantor 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 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 and any other applicable Requirement of Law of any Governmental Authority relating to the corruption or bribery; and (ii) each Parent Loan Guarantor has not used and will not use, directly or, to its knowledge, indirectly, any part of the proceeds of the Loans or Letters of Credit 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.
 
Each Parent Loan Guarantor hereby further acknowledges and agrees that such Parent Loan Guarantor has, independently and without reliance upon any Secured Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Loan Guaranty and each other Loan Document to which it is or is to be a party, and such Parent Loan Guarantor has established adequate means of obtaining from each other Parent Loan Guarantor on a continuing basis information pertaining to the business, condition (financial or otherwise), operations, performance, properties and prospects of each other Parent Loan Guarantor.
 
SECTION 2.11          Covenants.
 
(a)          Until the Termination Date, no Parent Loan Guarantor shall, without the prior written consent of the Administrative Agent, commence or join with any other Person in commencing any bankruptcy, reorganization or insolvency case or proceeding against the Borrower or any Guarantor (it being understood and agreed, for the avoidance of doubt, that nothing in this Section 2.11 shall prohibit any Guarantor from commencing or joining with the Borrower or Guarantor as a co-debtor in any bankruptcy, reorganization or insolvency case or proceeding).
 
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(b)           No Parent Loan Guarantor shall:
 
(i)          make any payment or distribution in respect of any Specified Junior Debt (including any refinancing, exchange or similar transaction, sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Specified Junior Debt) except for (i) customary agency and administration fees (including, for the avoidance of doubt, the costs of maintaining IntraLinks, SyndTrak or another relevant website for purposes of posting documents delivered to the Second Lien Agent and/or the applicable administrative agent under any other Specified Junior Debt) payable to the Second Lien Agent under the Second Lien Note Purchase Agreement and/or to the applicable administrative agent under the documents governing any other Specified Junior Debt; (ii) (A) reasonable out-of-pocket fees and expenses of legal counsel relating to the Second Amendment Effective Date Transactions and (B) so long as no Event of Default shall have occurred and be continuing, other reasonable out-of-pocket fees and expenses of legal counsel, (iii) payments of interest in kind by increasing the aggregate principal amount of such Specified Junior Debt and (iv) conversions of such Specified Junior Debt into Capital Stock of Parent and/or any direct or indirect parent company thereof (including pursuant to Article 10 of the Second Lien Note Purchase Agreement);
 
(ii)          incur any Indebtedness for borrowed money other than (A) the Indebtedness under the Loan Documents, the Second Lien Note Documents and/or the documentation governing any other Specified Junior Debt and (B) Guarantees of Indebtedness of other obligations of the Borrower and/or any Restricted Subsidiary that are permitted under Section 6.01 of the Credit Agreement; and
 
(iii)          create or suffer to exist any Lien on any asset now owned or hereafter acquired by it other than (A) the Liens created under the Collateral Documents, the Note Documents (as defined in the Second Lien Note Purchase Agreement) and/or the documentation governing any other Specified Junior Debt, (B) Permitted Liens on the Collateral that are secured on a junior basis1 with the Secured Obligations, so long as such Permitted Liens secure Guarantees permitted by Section 2.11(b)(ii)(B) above and the underlying Indebtedness subject to such Guarantee is permitted to be secured on the same basis pursuant to Section 6.02 of the Credit Agreement, and (C) Liens of the type permitted under Section 6.02 of the Credit Agreement (other than in respect of debt for borrowed money).
 
Notwithstanding the foregoing, the Parent Loan Guarantors shall not be permitted to incur any Indebtedness for borrowed money that is (A) pari passu with (except as permitted by Section 2.22(a)(xv) of the Credit Agreement) or senior to the Revolving Facility in right of payment or (B) secured by liens on the Collateral that are senior in right of priority to the Liens securing the Revolving Facility.
 
ARTICLE 3
GENERAL PROVISIONS
 
SECTION 3.01        Liability Cumulative.  The liability of each Parent Loan Guarantor under this Loan Guaranty is in addition to and shall be cumulative with all liabilities of such Parent Loan Guarantor to the Secured Parties under the Credit Agreement and the other Loan Documents to which such Parent Loan Guarantor is a party or in respect of any obligations or liabilities of the other Parent Loan Guarantors, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.
 

1 NTD:  Incremental pari debt will be incurred under the Credit Docs and so covered under clause (A)
 
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SECTION 3.02         No Waiver; Amendments.  No delay or omission of the Administrative Agent in exercising any right or remedy granted under this Loan Guaranty shall impair such right or remedy or be construed to be a waiver of any Default or Event of Default or an acquiescence therein, and any single or partial exercise of any such right or remedy shall not preclude any other or further exercise thereof or the exercise of any other right or remedy.  No waiver, amendment or other variation of the terms, conditions or provisions of this Loan Guaranty whatsoever shall be valid unless in writing signed by the Parent Loan Guarantors and the Administrative Agent in accordance with Section 9.02 of the Credit Agreement and then only to the extent specifically set forth in such writing.
 
SECTION 3.03          Severability of Provisions.  To the extent permitted by applicable Requirements of Law, any provision of this Loan Guaranty that is held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions of this Loan Guaranty; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
 
SECTION 3.04         Additional Parent Loan Guarantors.  Certain Persons of which Holdings is a direct or indirect Subsidiary may be required to enter into this Loan Guaranty as Parent Loan Guarantors pursuant to and in accordance with Section 5.17 of the Credit Agreement.  Upon execution and delivery by any such Person of a Joinder Agreement, such Person shall become a Parent Loan Guarantor hereunder with the same force and effect as if originally named as a Parent Loan Guarantor herein.  The execution and delivery of any such instrument shall not require the consent of any other Parent Loan Guarantor hereunder or any other Person.  The rights and obligations of each Parent Loan Guarantor hereunder shall remain in full force and effect notwithstanding the addition of any new Parent Loan Guarantor as a party to this Loan Guaranty.
 
SECTION 3.05          Headings.  The titles of and section headings in this Loan Guaranty are for convenience of reference only, and shall not govern the interpretation of any of the terms and provisions of this Loan Guaranty.
 
SECTION 3.06          Entire Agreement.  This Loan Guaranty and, the other Loan Documents constitute the entire agreement among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.
 
SECTION 3.07        CHOICE OF LAW.  THIS LOAN GUARANTY AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS LOAN GUARANTY, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
SECTION 3.08          CONSENT TO JURISDICTION; CONSENT TO SERVICE OF PROCESS.
 
(a)          EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY U.S. FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM) OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS LOAN GUARANTY AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL (EXCEPT AS PERMITTED BELOW) BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, FEDERAL COURT.  EACH PARTY HERETO AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY REGISTERED MAIL ADDRESSED TO SUCH PERSON SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT.  EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON SUCH JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE REQUIREMENTS OF LAW.
 
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(b)          EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS LOAN GUARANTY AND BROUGHT IN ANY COURT REFERRED TO IN PARAGRAPH (a) OF THIS SECTION.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY CLAIM OR DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT.
 
(c)      TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL) DIRECTED TO IT AT ITS ADDRESS FOR NOTICES PROVIDED IN SECTION 9.01 OF THE CREDIT AGREEMENT.  EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER THAT SERVICE OF PROCESS WAS INVALID AND INEFFECTIVE.  NOTHING IN THIS LOAN GUARANTY WILL AFFECT THE RIGHT OF ANY PARTY TO THIS LOAN GUARANTY TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
 
SECTION 3.09       WAIVER OF JURY TRIAL.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS LOAN GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.  EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS LOAN GUARANTY BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
 
SECTION 3.10         Indemnity.  Each Parent Loan Guarantor hereby agrees to indemnify the Administrative Agent and the other Indemnitees, as set forth in Section 9.03 of the Credit Agreement.
 
SECTION 3.11           Counterparts.  This Loan Guaranty may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  Delivery of an executed counterpart of a signature page of this Loan Guaranty by facsimile or by email as a “.pdf” or “.tif” attachment shall be effective as delivery of a manually executed counterpart of this Loan Guaranty.
 
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SECTION 3.12          [Reserved].
 
SECTION 3.13          Successors and Assigns.  Whenever in this Loan Guaranty any party hereto is referred to, such reference shall be deemed to include the successors and permitted assigns of such party; and all covenants, promises and agreements by or on behalf of any Parent Loan Guarantor or the Administrative Agent that are contained in this Loan Guaranty shall bind and inure to the benefit of their respective successors and permitted assigns.  Except in a transaction permitted (or not restricted) under the Credit Agreement, no Parent Loan Guarantor may assign any of its rights or obligations hereunder without the written consent of the Administrative Agent.
 
SECTION 3.14       Survival of Agreement.  Without limitation of any provision of the Credit Agreement or Section 3.10 hereof, all covenants, agreements, indemnities, representations and warranties made by the Parent Loan Guarantors in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to this Loan Guaranty or any other Loan Document shall be considered to have been relied upon by the Lenders and shall survive the execution and delivery of the Loan Documents and the making of any Loan, regardless of any investigation made by any such Lender or on its behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit is extended under the Credit Agreement, and shall continue in full force and effect until the Termination Date, or with respect to any individual Parent Loan Guarantor until such Parent Loan Guarantor is otherwise released from its obligations under this Loan Guaranty in accordance with Section 3.15.
 
SECTION 3.15          Release of Parent Loan Guarantors.  A Parent Loan Guarantor shall automatically be released from its obligations hereunder and its Loan Guaranty shall be automatically released upon the occurrence of the Termination Date.  In connection with any such release, the Administrative Agent shall promptly execute and deliver to any Parent Loan Guarantor, at such Parent Loan Guarantor’s expense, all documents that such Parent Loan Guarantor shall reasonably request to evidence such termination or release.  Any execution and delivery of documents pursuant to the preceding sentence of this Section 3.15 shall be without recourse to or warranty by the Administrative Agent (other than as to the Administrative Agent’s authority to execute and deliver such documents).
 
SECTION 3.16          Payments.  All payments made by any Parent Loan Guarantor hereunder will be made without setoff, counterclaim or other defense and on the same basis as payments are made by the Borrower under Sections 2.18 and 2.19 of the Credit Agreement.
 
SECTION 3.17        Notice, etc.  All notices and other communications provided for hereunder shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or email, as follows:
 
(a)           if to any Parent Loan Guarantor, at its address specified in Section 9.01 of the Credit Agreement;
 
(b)           if to the Administrative Agent or any Lender, at its address specified in Section 9.01 of the Credit Agreement;
 
(c)           if to any Secured Party in respect of any Secured Hedging Obligations, at its address specified in the Hedge Agreement to which it is a party; or
 
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(d)           if to any Secured Party in respect of any Banking Services Obligations, at its address specified in the relevant documentation to which it is a party
 
SECTION 3.18         Set Off.  In addition to any right now or hereafter granted under applicable Requirements of Law and not by way of limitation of any such right, while an Event of Default is continuing, the Administrative Agent, each Lender, each Issuing Bank and each of their respective Affiliates shall be entitled to rights of setoff to the extent provided in Section 9.09 of the Credit Agreement.
 
SECTION 3.19       Waiver of Consequential Damages, Etc.  To the extent permitted by applicable Requirements of Law, none of the Parent Loan Guarantors nor the Secured Parties shall assert, and each hereby waives, any claim against each other or any Related Party thereof, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Loan Guaranty or any agreement or instrument contemplated hereby, except, in the case of any claim by any Indemnitee against any of the Parent Loan Guarantors, to the extent such damages would otherwise be subject to indemnification pursuant to the terms of Section 3.10.
 
[SIGNATURE PAGE FOLLOWS]
 
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IN WITNESS WHEREOF, each Parent Loan Guarantor and the Administrative Agent have executed this Loan Guaranty as of the date first above written.
 
 
ATI PHYSICAL THERAPY, INC.
   
 
By:
  
   
Name:
   
Title:
   
 
WILCO HOLDCO, INC.
   
 
By:
  
   
Name:
   
Title:

[Signature Page to Parent Loan Guaranty]
 
 
BARCLAYS BANK PLC,
 
as Administrative Agent
   
 
By:
  
   
Name:
   
Title:

[Signature Page to Parent Loan Guaranty]
 
EXHIBIT C to Amendment No. 2

Parent Loan Guarantor Joinder to Security Agreement

[SEE ATTACHED]
EXECUTION VERSION

Exhibit 10.3

NOTE PURCHASE AGREEMENT
 
Dated as of April 17, 2023
 
among
 
ATI PHYSICAL THERAPY, INC.
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
DEFINITIONS
1
 
Section 1.01.
Defined Terms
1
 
Section 1.02.
Classification of Notes and Issuances
52
 
Section 1.03.
Terms Generally
52
 
Section 1.04.
Accounting Terms; GAAP
53
 
Section 1.05.
Effectuation of Transactions
55
 
Section 1.06.
Timing of Payment or Performance
55
 
Section 1.07.
Times of Day
55
 
Section 1.08.
Currency Equivalents Generally
55
 
Section 1.09.
Cashless Rollovers
56
 
Section 1.10.
Certain Calculations and Tests
56
 
Section 1.11.
[Reserved]
57
 
Section 1.12.
Negative Covenant Carveouts
57
 
Section 1.13.
[Reserved]
57
 
Section 1.14.
Guarantees and Collateral
57
 
Section 1.15.
Conflicts
58
 
Section 1.16.
Confidentiality; Privilege
58
ARTICLE 2
THE NOTES
58
 
Section 2.01.
Authorization of Notes
58
 
Section 2.02.
Purchase and Sale
58
 
Section 2.03.
Delayed Draw Notes
59
 
Section 2.04.
Additional Notes
59
 
Section 2.05.
Notes and Issuances
59
 
Section 2.06.
Restricted Securities
59
 
Section 2.07.
Restrictive Legend
59
 
Section 2.08.
Book Entry; Notes Not Certificated.
60
 
Section 2.09.
Funding Mechanics
60
 
Section 2.10.
[Reserved]
60
 
Section 2.11.
Termination and Reduction of Commitments
60
 
Section 2.12.
Repayment of Notes; Evidence of Debt
61
 
Section 2.13.
[Reserved]
61
 
Section 2.14.
Fees
61
 
Section 2.15.
Interest
62
 
Section 2.16.
[Reserved]
62
 
Section 2.17.
[Reserved]
62
 
Section 2.18.
Increased Costs
62

i
 
Section 2.19.
[Reserved]
63
 
Section 2.20.
Taxes
64
 
Section 2.21.
Payments Generally; Allocation of Proceeds; Sharing of Payments
67
 
Section 2.22.
Mitigation Obligations; Replacement of Purchasers
69
 
Section 2.23.
[Reserved]
70
 
Section 2.24.
Defaulting Purchasers
70
 
Section 2.25.
Additional Notes
71
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
73
 
Section 3.01.
Organization; Powers
73
 
Section 3.02.
Authorization; Enforceability
73
 
Section 3.03.
Governmental Approvals; No Conflicts
73
 
Section 3.04.
Financial Condition; No Material Adverse Effect
74
 
Section 3.05.
Properties
74
 
Section 3.06.
Litigation and Environmental Matters
74
 
Section 3.07.
Compliance with Laws; Healthcare Laws
75
 
Section 3.08.
Investment Company Status
75
 
Section 3.09.
Taxes
75
 
Section 3.10.
ERISA
 76
 
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

iii
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.
 161
 
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
  
Initial Purchasers of Initial Series B Preferred Stock
 
iv
EXHIBITS:
 
Exhibit A-1
–
Form of Transfer Agreement
Exhibit A-2
  
Form of Affiliated Purchaser Transfer Agreement
Exhibit B-1
–
Form of Initial Note
Exhibit B-2
–
Form of Delayed Draw Note
Exhibit B-3
–
Form of Additional 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

v
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 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.
 
D.           Accordingly, the parties hereto agree as follows:
 
ARTICLE 1          DEFINITIONS
 
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.
 
2
“Additional Notes” means any senior secured 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.
 
3
“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
 
4
(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.
 
5
“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.
 
6
“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 Moody’s (or, if at any time neither S&P nor Moody’s 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 Moody’s (or, if at any time neither S&P nor Moody’s 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 Moody’s; 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.
 
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“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, Alvarez & Marshal, Stax, Conway Mackenzie, Baker Tilly, Ernst & Young 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 Dodd-Frank Wall 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
 
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(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, 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 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;
 
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(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;
 
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(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, 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.
 
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“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;
 
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(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;
 
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(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
 
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(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
 
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(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.
 
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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,
 
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(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,
 
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(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.
 
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“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, $0.25 per share 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.
 
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“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.
 
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“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.
 
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“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.
 
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“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.
 
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“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.
 
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“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).
 
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“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,
 
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(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,
 
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(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.
 
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“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 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.
 
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“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.
 
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“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 “Stark 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.
 
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“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;
 
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(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).
 
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“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 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.
 
“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.
 
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“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.
 
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“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.
 
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“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.
 
“Moody’s” means Moody’s 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.
 
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“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 and, if applicable, any Delayed Draw Notes and any Additional Notes.
 
“Note Documents” means this Agreement, 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).
 
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“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:
 
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(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.
 
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“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.
 
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“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;
 
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(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 Sarbanes-Oxley 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 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.
 
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“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.
 
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“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.
 
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“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 McGraw-Hill 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.
 
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“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, 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.
 
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“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.
 
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“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.
 
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“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).
 
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“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).
 
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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.
 
Section 1.04.        Accounting Terms; GAAP.
 
(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 825-10-25 (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).
 
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(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.
 
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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).
 
Section 1.08.        Currency Equivalents Generally.
 
(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.
 
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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.
 
Section 1.10.        Certain Calculations and Tests.
 
(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.
 
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(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.
 
Section 1.11.        [Reserved].
 
Section 1.12.        Negative Covenant Carveouts.
 
(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 1.13.        [Reserved].
 
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.
 
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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.
 
ARTICLE 2          THE NOTES
 
Section 2.01.        Authorization of Notes.
 
(a)         On or prior to the Closing Date, the Issuer will 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.
 
(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.
 
Section 2.02.        Purchase and Sale.  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.
 
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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.
 
Section 2.05.        Notes and Issuances.
 
(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 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 are not fungible with the Initial 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., 790 REMINGTON BOULEVARD, BOLINGBROOK, ILLINOIS 60440), 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.
 
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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.
 
Section 2.09.        Funding Mechanics.
 
(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 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 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 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.
 
Section 2.10.        [Reserved].
 
Section 2.11.        Termination and Reduction of Commitments.
 
(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 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.
 
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Section 2.12.        Repayment of Notes; Evidence of Debt.
 
(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.
 
(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.
 
(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.
 
Section 2.13.        [Reserved].
 
Section 2.14.        Fees.
 
(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.
 
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(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).
 
Section 2.15.        Interest.
 
(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.
 
Section 2.16.        [Reserved].
 
Section 2.17.        [Reserved].
 
Section 2.18.        Increased Costs.
 
(a)          If any Change in Law:
 
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(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.
 
Section 2.19.        [Reserved].
 
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Section 2.20.        Taxes.
 
(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.
 
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(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
 
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(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.
 
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(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).
 
Section 2.21.        Payments Generally; Allocation of Proceeds; Sharing of Payments.
 
(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.
 
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(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.
 
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(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.
 
Section 2.22.        Mitigation Obligations; Replacement of Purchasers.
 
(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.
 
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Section 2.23.        [Reserved].
 
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.
 
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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.

Section 2.25.        Additional Notes.
 
(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],
 
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(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:
 
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(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.
 
ARTICLE 3          REPRESENTATIONS AND WARRANTIES
 
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.
 
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Section 3.04.        Financial Condition; No 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.
 
Section 3.05.        Properties.
 
(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.
 
Section 3.06.        Litigation and Environmental Matters.
 
(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.
 
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(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.
 
Section 3.07.        Compliance with Laws; Healthcare Laws.
 
(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.
 
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Section 3.10.        ERISA.
 
(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 3.12.        [Reserved].
 
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.
 
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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.
 
Section 3.17.        Sanctions; PATRIOT ACT and FCPA.
 
(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.
 
ARTICLE 4          CONDITIONS
 
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, (B) the Security Agreement, (iii) any Intellectual Property Security Agreement and (C) 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.
 
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(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 Weil, Gotshal & Manges 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 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.
 
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(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.
 
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(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 (x) each Purchaser to consummate the Term Loan Exchange and (y) each Delayed Draw Purchaser to purchase any Delayed Draw Notes:
 
(a)          The Purchaser Representative shall have received (i) 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.
 
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(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.
 
ARTICLE 5          AFFIRMATIVE COVENANTS
 
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;
 
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(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) information for the last month in the relevant Fiscal Quarter substantially consistent with that provided in the Monthly Reporting Package.
 
(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
 
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(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 “EDGAR”).
 
Notwithstanding the foregoing, the obligations in paragraphs (a), (b) and (h) 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.
 
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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).
 
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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.
 
Section 5.08.        Compliance with Laws.
 
(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.
 
Section 5.09.        Environmental.
 
(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);
 
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(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 5.10.        Reserved.
 
Section 5.11.       Use of  Proceeds.  The Issuer shall use the proceeds of 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.
 
Section 5.12.        Covenant to Guarantee Obligations and Give Security.
 
(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).
 
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(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;
 
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(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,
 
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(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 to which the cost of obtaining or perfecting such Lien (including any mortgage, stamp, intangibles or other tax or expenses relating to such Lien) is excessive in relation to the benefit to the Purchasers of the security afforded thereby as reasonably determined in writing by the Issuer and the Required Purchasers,
 
(xiv)       each Management Services Agreement, each other agreement constituting an Acceptable Practice Management Arrangement, and the proceeds thereof, shall be included in the Collateral, and
 
(xv)       until the First Lien Credit Agreement Obligations Payment Date, the representations and covenants made in this Agreement with respect to delivery to the Purchaser Representative of any Collateral, the security interest in which may be perfected only by possession or control, shall be deemed satisfied by the delivery and possession or control of such Collateral to or by the First Lien Credit Agreement Agent as bailee for the Secured Parties.
 
Section 5.13.        [Reserved].
 
Section 5.14.        Further Assurances.  Promptly upon request of the Purchaser Representative (at the direction of the Required Purchasers) and subject to the limitations described in Section 5.12:
 
(a)         The Issuer will, and will cause each other Note Party to, execute any and all further documents, financing statements, agreements, instruments, certificates, notices and acknowledgments and take all such further actions (including the filing and recordation of financing statements, fixture filings, Mortgages and/or amendments thereto and other documents), in each case that (i) may be required under any applicable Requirements of Law and (ii) the Required Purchasers may reasonably request to ensure the creation, perfection and priority of the Liens created or intended to be created under the Collateral Documents, all at the expense of the relevant Note Parties.
 
(b)          The Issuer will, and will cause each other applicable Note Party to, (i) correct any material defect or error that may be discovered in the execution, acknowledgment, filing or recordation of any Collateral Document or other document or instrument relating to any Collateral and (ii) do, execute, acknowledge, deliver, record, re-record, file, re-file, register and re-register any and all such further acts (including notices to third parties), deeds, certificates, assurances and other instruments, in each case as the Required Purchasers may reasonably request from time to time in order to ensure the creation, perfection and priority of the Liens created or intended to be created under the Collateral Documents.
 
Section 5.15.        Post-Closing Covenant.  The Issuer shall, and shall cause each Note Party to, take the actions required by Schedule 5.15 in each case within the time periods specified therein (or, in each case, such longer period to which the Required Purchasers may reasonably agree).
 
Section 5.16.        Affiliated Practices
 
(a)         The Issuer shall, and shall cause each Note Party to, enforce its material rights under each Management Services Agreement, each Securities Transfer Restriction Agreement, each Therapy Director Agreement and each Practice Loan Agreement, in each case, where failure to do so could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
 
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(b)         If any Person acquired by a Note Party or a Consolidated APC in a Permitted Acquisition becomes a Consolidated APC or is amalgamated, merged or consolidated with or into, or transfers or conveys substantially all of its assets to or is liquidated into any Consolidated APC or if any assets are purchased by or transferred to any Consolidated APC (other than as part of any Permitted Practice Subsidiary Restructuring), in each case, on or before the date on which financial statements are required to be delivered pursuant to Sections 5.01(a) or (b), as applicable, for the Fiscal Quarter in which such transaction occurs, such Note Party or the relevant APC Manager, as applicable, shall use commercially reasonable efforts to cause the relevant Consolidated APC (the “Relevant APC”) or the Person into which the relevant Consolidated APC is amalgamated, merged or consolidated or to which the Relevant APC transfers substantially all of its assets, to transfer to a Note Party substantially all of the assets of the Relevant APC (other than Accounts (as defined in the UCC), employment agreements, payor contracts, other assets which the Relevant APC must retain, in the reasonable judgment of the Issuer, to comply with any Requirement 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 third party consent and any effect on the ability of the Issuer and/or any subsidiary and/or any Affiliated Practice to conduct their respective operations and business in the ordinary course) of transferring such assets outweighs or is excessive in light of, the practical benefit to the Secured Parties afforded thereby).
 
Section 5.17.       Cash Flow Consultant.  During the Cash Flow Reporting Period, the Issuer or Opco shall, if either (a) requested by the Required Purchasers or (b) required at such time under the First Lien Credit Agreement, appoint and retain a Cash Flow Consultant.  The scope of services provided by, and cost of, such Cash Flow Consultant must be reasonably acceptable to the Required Purchasers and the Issuer or Opco, as applicable.
 
ARTICLE 6          NEGATIVE COVENANTS
 
From the Closing Date and until the Termination Date, the Issuer covenants and agrees with the Purchasers that:
 
Section 6.01.        Indebtedness.  The Issuer shall not, nor shall it permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or otherwise become or remain liable with respect to any Indebtedness, except:
 
(a)          the Secured Obligations (including any Delayed Draw Note or any Additional Note);
 
(b)         Indebtedness of the Issuer any Restricted Subsidiary and/or of any Restricted Subsidiary to the Issuer or any other Restricted Subsidiary; provided that in the case of any Indebtedness of any Restricted Subsidiary that is not a Note Party owing to any Restricted Subsidiary that is a Note Party, such Indebtedness shall be permitted as an Investment under Section 6.06; provided, further, that any Indebtedness of any Note Party to any Restricted Subsidiary that is not a Note Party must be unsecured and expressly subordinated to the Obligations of such Note Party on terms that are reasonably acceptable to the Required Purchasers (it being understood that the subordination terms set forth in the Intercompany Note are acceptable to the Required Purchasers);
 
(c)        Indebtedness owing in respect of any loan made by any Affiliated Practice to the Issuer and/or any Note Party so long as, except as the Required Purchasers may otherwise agree, (i) the obligations of any Note Party in respect of any such Indebtedness are subordinated to the Obligations, (ii) the relevant Affiliated Practice agrees to waive any right to set off management fees owing in respect of any Management Services Agreement and (iii) the cash used to fund any such loan to the Issuer and/or any Note Party is from internally generated cash of an Affiliated Practice;
 
(d)         Indebtedness arising from any agreement providing for indemnification, adjustment of purchase price or similar obligations (including contingent earn-out obligations) incurred in connection with any Disposition permitted hereunder, any acquisition permitted hereunder or consummated prior to the Closing Date or any other purchase of assets or Capital Stock, and Indebtedness arising from guaranties, letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments securing the performance of the Issuer or any such Restricted Subsidiary pursuant to any such agreement;
 
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(e)         Indebtedness of the Issuer and/or any Restricted Subsidiary (i) pursuant to tenders, statutory obligations, bids, leases, governmental contracts, trade contracts, surety, stay, customs, appeal, performance and/or return of money bonds or other similar obligations incurred in the ordinary course of business and (ii) in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments to support any of the foregoing items;
 
(f)         Indebtedness of the Issuer and/or any Restricted Subsidiary in respect of 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, including Banking Services Obligations and incentive, supplier finance or similar programs, in each case, entered into in the ordinary course of business;
 
(g)         (i) guaranties by the Issuer and/or any Restricted Subsidiary of the obligations of suppliers, customers and licensees in the ordinary course of business, (ii) Indebtedness incurred in the ordinary course of business in respect of obligations of the Issuer and/or any Restricted Subsidiary to pay the deferred purchase price of goods or services or progress payments in connection with such goods and services and (iii) Indebtedness in respect of letters of credit, bankers’ acceptances, bank guaranties or similar instruments supporting trade payables, warehouse receipts or similar facilities, in each case, entered into in the ordinary course of business;
 
(h)          Guarantees by the Issuer and/or any Restricted Subsidiary of Indebtedness or other obligations of the Issuer, any Restricted Subsidiary and/or any joint venture with respect to Indebtedness otherwise permitted to be incurred pursuant to this Section 6.01 or other obligations not prohibited by this Agreement; provided that (i) in the case of any Guarantee by any Note Party of the obligations of any non-Note Party, the related Investment is permitted under Section 6.06 and (ii) any Guarantee by any Restricted Subsidiary that is not a Note Party of any Indebtedness (other than the Obligations) of any Note Party is subject to the Non-Note Party Debt Cap;
 
(i)          Indebtedness of the Issuer and/or any Restricted Subsidiary existing, or pursuant to commitments existing, on the Closing Date and described on Schedule 6.01;
 
(j)          Indebtedness of Restricted Subsidiaries that are not Note Parties in an aggregate outstanding principal amount not to exceed $12,000,000; provided that the aggregate outstanding principal amount of any such Indebtedness incurred or guaranteed in reliance on this Section 6.01(j) shall not, at any time, together with the aggregate amount of Indebtedness incurred or guaranteed by Restricted Subsidiaries that are not Note Parties in reliance on Section 6.01(u), exceed the Non-Note Party Debt Cap;
 
(k)          Indebtedness of the Issuer and/or any Restricted Subsidiary consisting of obligations owing under incentive, supply, license or similar agreements entered into in the ordinary course of business;
 
(l)          Indebtedness of the Issuer and/or any Restricted Subsidiary consisting of (i) the financing of insurance premiums, (ii) take-or-pay obligations contained in supply arrangements, in each case, in the ordinary course of business and/or (iii) obligations to reacquire assets or inventory in connection with customer financing arrangements in the ordinary course of business;
 
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(m)        Indebtedness of the Issuer and/or any Restricted Subsidiary with respect to Capital Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $7,800,000 and 12.0% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
 
(n)          Indebtedness of any Person that becomes a Restricted Subsidiary or Indebtedness assumed in connection with an acquisition permitted hereunder after the Closing Date; provided that
 
(i)          such Indebtedness (A) existed at the time such Person became a Restricted Subsidiary or the assets subject to such Indebtedness were acquired and (B) was not created or incurred in anticipation thereof;
 
(ii)          no Event of Default under Section 7.01(a), (f) or (g) exists; and
 
(iii)        either (A) Opco is in compliance with the then applicable Financial Covenant (as defined in the First Lien Credit Agreement as in effect on the Signing Date) calculated on a Pro Forma Basis as of the last day of the most recently ended Test Period or (B) such Indebtedness is in an aggregate principal amount outstanding not to exceed the greater of $7,800,000 and 12.0% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;
 
(o)         Indebtedness consisting of promissory notes issued by the Issuer or any Restricted Subsidiary to any stockholder of any Parent Company or any current or former director, officer, employee, member of management, manager or consultant of any Parent Company, the Issuer or any subsidiary (or their respective Immediate Family Members) to finance the purchase or redemption of Capital Stock of any Parent Company permitted by Section 6.04(a);
 
(p)         Indebtedness refinancing, refunding or replacing any Indebtedness permitted under clauses (i), (m), (n), (r), (u), (w), and (y) of this Section 6.01 (in any case, including any refinancing Indebtedness incurred in respect thereof, “Refinancing Indebtedness”) and any subsequent Refinancing Indebtedness in respect thereof; provided that
 
(i)          the principal amount of such Indebtedness does not exceed the principal amount of the Indebtedness being refinanced, refunded or replaced, except by (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon plus underwriting discounts, other reasonable and customary fees, commissions and expenses (including upfront fees, original issue discount or initial yield payments) incurred in connection with the relevant refinancing, refunding or replacement and the related refinancing transaction, (B) an amount equal to any existing commitments unutilized thereunder and (C) additional amounts permitted to be incurred pursuant to this Section 6.01 (provided that (1) any additional Indebtedness referenced in this clause (C) satisfies the other applicable requirements of this definition (with additional amounts incurred in reliance on this clause (C) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted) and (2) if such additional Indebtedness is secured, the Lien securing such Indebtedness satisfies the applicable requirements of Section 6.02),
 
(ii)         other than in the case of Refinancing Indebtedness with respect to clauses (i), (m), (n), (u) and/or (y), such Indebtedness has (A) a final maturity equal to or later than (and, in the case of revolving Indebtedness does not require mandatory commitment reductions, if any, prior to) the earlier of (x) the Latest Maturity Date and (y) the final maturity of the Indebtedness being refinanced, refunded or replaced and (B) other than with respect to revolving Indebtedness, such Indebtedness (x) has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the Indebtedness being refinanced, refunded or replaced (without giving effect to any prepayments thereof) or (y) a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of the outstanding Notes at such time,
 
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(iii)        the terms of any Refinancing Indebtedness with an original principal amount in excess of the Threshold Amount (other than Indebtedness of the type described in Section 6.01(m)) (excluding, to the extent applicable, pricing, fees, premiums, rate floors, optional prepayment, redemption terms or subordination terms and, with respect to Refinancing Indebtedness incurred in respect of Indebtedness permitted under clause (a) above, security), are not, taken as a whole (as reasonably determined by the Issuer), more favorable to the lenders providing such Indebtedness than those applicable to the Indebtedness being refinanced, refunded or replaced (other than (A) any covenants or other provisions applicable only to periods after the applicable maturity date of the debt then-being refinanced as of such date, (B) any covenants or provisions which are then-current market terms for the applicable type of Indebtedness or (C) any covenants or other provisions which are conformed (or added) to the Note Documents for the benefit of the Purchasers or, as applicable, the Purchaser Representative pursuant to an amendment to this Agreement effectuated in reliance on Section 9.02(d)(ii)),
 
(iv)        in the case of Refinancing Indebtedness with respect to Indebtedness permitted under clauses (j), (m), (n), (r), (u), (w) (solely as it relates to the Non-Note Party Debt Cap) and (y) (solely as it relates to the Fixed Incremental Amount) of this Section 6.01, the incurrence thereof shall be without duplication of any amounts outstanding in reliance on the relevant clause such that the amount available under the relevant clause shall be reduced by the amount of the applicable Refinancing Indebtedness, and
 
(v)         (A) such Indebtedness, if secured, is secured only by Permitted Liens at the time of such refinancing, refunding or replacement (it being understood that secured Indebtedness may be refinanced with unsecured Indebtedness), and if the Liens securing such Indebtedness were originally contractually subordinated to the Liens on the Collateral securing the Initial Notes, the Liens securing such Indebtedness are subordinated to the Liens on the Collateral securing the Initial Notes on terms not materially less favorable (as reasonably determined by the Issuer), taken as a whole, to the Purchasers than those (x) applicable to the Liens securing the Indebtedness being refinanced, refunded or replaced, taken as a whole, (B) such Indebtedness is incurred by the obligor or obligors in respect of the Indebtedness being refinanced, refunded or replaced, except to the extent otherwise permitted pursuant to Section 6.01 (it being understood that any entity that was a guarantor in respect of the relevant refinanced Indebtedness may be the primary obligor in respect of the refinancing Indebtedness, and any entity that was the primary obligor in respect of the relevant refinanced Indebtedness may be a guarantor in respect of the refinancing Indebtedness), (C) if the Indebtedness being refinanced, refunded or replaced was expressly contractually subordinated to the Obligations in right of payment, (x) such Indebtedness is contractually subordinated to the Obligations in right of payment, or (y) if not contractually subordinated to the Obligations in right of payment, the purchase, defeasance, redemption, repurchase, repayment, refinancing or other acquisition or retirement of such Indebtedness is permitted under Section 6.04(b) (other than Section 6.04(b)(i)), and (D) as of the date of the incurrence of such Indebtedness and after giving effect thereto, no Event of Default exists;
 
(q)          [reserved];
 
(r)          Indebtedness of the Issuer and/or any Restricted Subsidiary that is a Note Party in an aggregate outstanding principal amount not to exceed 100% of the amount of Net Proceeds received in cash by the Issuer from (i) the issuance or sale of Qualified Capital Stock or (ii) any cash contribution to its common equity with the Net Proceeds from the issuance and sale by any Parent Company of its Qualified Capital Stock or a contribution to the common equity of any Parent Company, in each case, (A) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Issuer or any of its Restricted Subsidiaries or any Affiliated Practice, (B) to the extent the relevant Net Proceeds have not otherwise been applied to make Investments, Restricted Payments or Restricted Debt Payments hereunder and (C) other than any Cure Amount and/or any Available Excluded Contribution Amount; provided, that (x) immediately before and after giving effect to the incurrence of such Indebtedness, no Event of Default under Section 7.01(a), (f) or (g) exists, (y) such Indebtedness shall be unsecured and (z) such Indebtedness must be incurred within 30 days of receipt of the relevant issuance or contribution (the amount of any Net Proceeds or contribution utilized to incur Indebtedness in reliance on this clause (r), a “Contribution Indebtedness Amount”);
 
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(s)          Indebtedness of the Issuer and/or any Restricted Subsidiary under any Derivative Transaction not entered into for speculative purposes;
 
(t)          Indebtedness of the Issuer and/or any Restricted Subsidiary representing (i) deferred compensation to current or former directors, officers, employees, members of management, managers, and consultants of any Parent Company, the Issuer and/or any Restricted Subsidiary in the ordinary course of business and (ii) deferred compensation or other similar arrangements in connection with the Transactions, any Permitted Acquisition or any other Investment permitted hereby;
 
(u)         Indebtedness of the Issuer and/or any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed $4,200,000; provided that the aggregate outstanding principal amount of any such Indebtedness incurred or guaranteed in reliance on this Section 6.01(u) by Restricted Subsidiaries that are not Note Parties shall not, at any time, together with the aggregate amount of Indebtedness incurred or guaranteed by Restricted Subsidiaries that are not Note Parties in reliance on Section 6.01(j), exceed the Non-Note Party Debt Cap
 
(v)          [reserved];
 
(w)          (i) Indebtedness of the Issuer and/or any Restricted Subsidiary that is a Note Party incurred in respect of any First Lien Facility (including, without limitation, the First Lien Credit Agreement and/or any First Lien Incremental Facility) in an aggregate outstanding principal amount that does not exceed (A)(1)115% multiplied by (2)(x) $560,000,000 less (y) the amount of Term Loans (as defined in the First Lien Credit Agreement as in effect on the Signing Date) purchased by the Issuer pursuant to the Master Assignment Agreement and cancelled plus (B) an amount equal to the First Lien Incremental Cap plus (C) any interest payable in kind with respect to any such Indebtedness incurred pursuant to this Section 6.01(w)(i), (ii) any refinancing and/or replacement of any First Lien Facility or any such First Lien Incremental Facility after the Closing Date so long as the aggregate outstanding principal amount of such Indebtedness does not exceed the amount permitted to be incurred under preceding clause (i), plus (A) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon and (B) the amount of any underwriting discount, any other reasonable and customary fee, commission and/or expense (including any upfront fee, original issue discount and/or initial yield payment) incurred in connection with the relevant refinancing and (iii) Indebtedness in respect of Banking Services Obligations (as defined in the First Lien Credit Agreement as in effect on the Signing Date or the corresponding term in the documentation governing any First Lien Facility to the extent not less favorable to the Purchasers) and Secured Hedging Obligations (as defined in the First Lien Credit Agreement as in effect on the Signing Date or the corresponding term in the documentation governing any First Lien Facility to the extent not less favorable to the Purchasers);
 
(x)          [reserved];
 
(y)          Indebtedness of the Issuer and/or any Restricted Subsidiary incurred in connection with Sale and Lease-Back Transaction permitted pursuant to Section 6.07(bb);
 
(z)          [reserved];
 
(aa)      Indebtedness (including obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments with respect to such Indebtedness) incurred by the Issuer and/or any Restricted Subsidiary in respect of workers compensation claims, unemployment, insurance (including premiums related thereto), other types of social security, pension obligations, vacation pay, health, disability or other employee benefits;
 
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(bb)       unfunded pension fund and other employee benefit plan obligations and liabilities incurred by the Issuer and/or any Restricted Subsidiary in the ordinary course of business to the extent that the unfunded amounts would not otherwise cause an Event of Default under Section 7.01(i);
 
(cc)        customer deposits and advance payments received in the ordinary course of business from customers for goods and services purchased in the ordinary course of business; and
 
(dd)       without duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest and payment in kind interest), accretion or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness of the Issuer and/or any Restricted Subsidiary hereunder.
 
Notwithstanding the foregoing, the Issuer shall not permit any Consolidated APC, Non-Consolidated APC or any other Affiliated Practice to guarantee any Indebtedness of the Issuer and its subsidiaries (other than the Secured Obligations).
 
Section 6.02.        Liens.  The Issuer shall not, nor shall it permit any of its Restricted Subsidiaries to, create, incur or assume any Lien on or with respect to any property of any kind owned by it, whether now owned or hereafter acquired, or any income or profits therefrom, except:
 
(a)          Liens securing the Secured Obligations created pursuant to the Note Documents;
 
(b)          Liens for Taxes which (i) are not then due, (ii) if due, are not at such time required to be paid pursuant to Section 5.03 or (iii) are being contested in accordance with Section 5.03;
 
(c)         statutory Liens (and rights of set-off) of landlords, banks, carriers, warehousemen, mechanics, repairmen, workmen and materialmen, and other Liens imposed by applicable Requirements of Law, in each case incurred in the ordinary course of business (i) for amounts not yet overdue by more than 30 days, (ii) for amounts that are overdue by more than 30 days and that are being contested in good faith by appropriate proceedings, so long as any reserves or other appropriate provisions required by GAAP have been made for any such contested amounts or (iii) with respect to which the failure to make payment could not reasonably be expected to have a Material Adverse Effect;
 
(d)          Liens incurred (i) in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security laws and regulations, (ii) in the ordinary course of business to secure the performance of tenders, statutory obligations, surety, stay, customs and appeal bonds, bids, leases, government contracts, trade contracts, performance and return-of-money bonds and other similar obligations (exclusive of obligations for the payment of borrowed money), (iii) pursuant to pledges and deposits of Cash or Cash Equivalents in the ordinary course of business securing (x) any liability for reimbursement or indemnification obligations of insurance carriers providing property, casualty, liability or other insurance to the Issuer and its subsidiaries or (y) leases or licenses of property otherwise permitted by this Agreement and (iv) to secure obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments posted with respect to the items described in clauses (i) through (iii) above;
 
(e)          Liens consisting of easements, rights-of-way, restrictions, encroachments, and other minor defects or irregularities in title, in each case which do not, in the aggregate, materially interfere with the ordinary conduct of the business of the Issuer and/or its Restricted Subsidiaries, taken as a whole, or the use of the affected property for its intended purpose;
 
(f)          Liens consisting of any (i) interest or title, a lessor or sub-lessor under any lease of real estate permitted hereunder, (ii) landlord lien permitted by the terms of any lease, (iii) restriction or encumbrance to which the interest or title of such lessor or sub-lessor may be subject or (iv) subordination of the interest of the lessee or sub-lessee under such lease to any restriction or encumbrance referred to in the preceding clause (iii);
 
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(g)          Liens (i) solely on any Cash earnest money deposits (including as part of any escrow arrangement) made by the Issuer and/or any of its Restricted Subsidiaries in connection with any letter of intent or purchase agreement with respect to any Investment permitted hereunder and (ii) consisting of (A) an agreement to Dispose of any property in a Disposition permitted under Section 6.07 and/or (B) the pledge of Cash as part of an escrow arrangement required in any Disposition permitted under Section 6.07;
 
(h)          (i) purported Liens evidenced by the filing of UCC financing statements relating solely to operating leases or consignment or bailee arrangements entered into in the ordinary course of business, and (ii) Liens arising from precautionary UCC financing statements or similar filings;
 
(i)          Liens in favor of customs and revenue authorities arising as a matter of law to secure payment of customs duties in connection with the importation of goods;
 
(j)          Liens in connection with any zoning, building or similar Requirement of Law or right reserved to or vested in any Governmental Authority to control or regulate the use of any or dimensions of real property or the structure thereon, including Liens in connection with any condemnation or eminent domain proceeding or compulsory purchase order;
 
(k)          Liens securing Indebtedness permitted pursuant to Section 6.01(p) (solely with respect to the permitted refinancing of (x) Indebtedness permitted pursuant to Sections 6.01(a), (i), (m), (n), (u), (w), and (y) and (y) Indebtedness that is secured in reliance on Section 6.02(u) (provided that the granting of the relevant Lien shall be without duplication of any Lien outstanding under Section 6.02(u) such that the amount available under Section 6.02(u) shall be reduced by the amount of the applicable Lien granted in reliance on this clause (y)); provided that (i) no such Lien extends to any asset not covered by the Lien securing the Indebtedness that is being refinanced and (ii) if the Lien securing the Indebtedness being refinanced was subject to intercreditor arrangements, then (A) the Lien securing any refinancing Indebtedness in respect thereof shall be subject to intercreditor arrangements that are not materially less favorable to the Secured Parties, taken as a whole, than the intercreditor arrangements governing the Lien securing the Indebtedness that is refinanced or (B) the intercreditor arrangements governing the Lien securing the relevant refinancing Indebtedness shall be set forth in an Intercreditor Agreement and (iii) no such Lien shall be senior in priority as compared to the Lien securing the Indebtedness being refinanced;
 
(l)          Liens described on Schedule 6.02 and any modification, replacement, refinancing, renewal or extension thereof; provided that (i) no such Lien extends to any additional property other than (A) after-acquired property that is affixed or incorporated into the property covered by such Lien or financed by Indebtedness permitted under Section 6.01 and (B) proceeds and products thereof, replacements, accessions or additions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates) and (ii) any such modification, replacement, refinancing, renewal or extension of the obligations secured or benefited by such Liens, if constituting Indebtedness, is permitted by Section 6.01;
 
(m)         Liens arising out of Sale and Lease-Back Transactions permitted under Section 6.07(bb);
 
(n)         Liens securing Indebtedness permitted pursuant to Section 6.01(m); provided that any such Lien shall encumber only the asset acquired with the proceeds of such Indebtedness and proceeds and products thereof, replacements, accessions or additions thereto and improvements thereon (it being understood that individual financings of the type permitted under Section 6.01(m) provided by any lender may be cross-collateralized to other financings of such type provided by such lender or its affiliates);
 
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(o)         Liens securing Indebtedness permitted pursuant to Section 6.01(n) on the relevant acquired assets or on the Capital Stock and assets of the relevant newly acquired Restricted Subsidiary; provided that no such Lien (x) extends to or covers any other assets (other than the proceeds or products thereof, replacements, accessions or additions thereto and improvements thereon) or (y) was created in contemplation of the applicable acquisition of assets or Capital Stock;
 
(p)         (i) Liens that are contractual rights of setoff or netting relating to (A) the establishment of depositary relations with banks not granted in connection with the issuance of Indebtedness, (B) pooled deposit or sweep accounts of the Issuer or any Restricted Subsidiary to permit satisfaction of overdraft or similar obligations incurred in the ordinary course of business of the Issuer or any Restricted Subsidiary, (C) purchase orders and other agreements entered into with customers of the Issuer or any Restricted Subsidiary in the ordinary course of business and (D) commodity trading or other brokerage accounts incurred in the ordinary course of business, (ii) Liens encumbering reasonable customary initial deposits and margin deposits, (iii) bankers Liens and rights and remedies as to Deposit Accounts, (iv) Liens of a collection bank arising under Section 4-208 of the UCC on items in the ordinary course of business, (v) Liens in favor of banking or other financial institutions arising as a matter of law or under customary general terms and conditions encumbering deposits or other funds maintained with a financial institution and that are within the general parameters customary in the banking industry or arising pursuant to such banking institution’s general terms and conditions and (vi) Liens on the proceeds of any Indebtedness incurred in connection with any transaction permitted hereunder, which proceeds have been deposited into an escrow account on customary terms to secure such Indebtedness pending the application of such proceeds to finance such transaction;
 
(q)          Liens on assets owned by Restricted Subsidiaries that are not Note Parties  securing Indebtedness of Restricted Subsidiaries that are not Note Parties permitted pursuant to Section 6.01;
 
(r)          Liens securing obligations (other than obligations representing Indebtedness for borrowed money) under operating, reciprocal easement or similar agreements entered into in the ordinary course of business of the Issuer and/or its Restricted Subsidiaries;
 
(s)          Liens securing Indebtedness incurred in reliance on, and subject to the provisions set forth in, Section 6.01(w); provided, that any such Lien on the Collateral may be senior to the Lien on the Collateral securing the Secured Obligations subject to an Intercreditor Agreement;
 
(t)          [reserved];
 
(u)        Liens on assets securing Indebtedness or other obligations in an aggregate principal amount at any time outstanding not to exceed $4,200,000; provided, that any Lien on any Collateral granted in reliance on this clause (u) shall be junior to the Lien on the Collateral securing the Secured Obligations and be subject to an Intercreditor Agreement;
 
(v)         (i) Liens on assets securing judgments, awards, attachments and/or decrees and notices of lis pendens and associated rights relating to litigation being contested in good faith not constituting an Event of Default under Section 7.01(h) and (ii) any pledge and/or deposit securing any settlement of litigation;
 
(w)         leases, licenses, subleases or sublicenses granted to others in the ordinary course of business which do not secure any Indebtedness;
 
(x)          Liens on Securities that are the subject of repurchase agreements constituting Investments permitted under Section 6.06 arising out of such repurchase transaction;
 
(y)          Liens securing obligations in respect of letters of credit, bank guaranties, surety bonds, performance bonds or similar instruments permitted under Sections 6.01(d), (e), (g) and (aa);
 
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(z)         Liens arising (i) out of conditional sale, title retention, consignment or similar arrangements for the sale of any asset in the ordinary course of business and permitted by this Agreement or (ii) by operation of law under Article 2 of the UCC (or similar Requirement of Law under any jurisdiction);
 
(aa)        Liens (i) in favor of any Note Party and/or (ii) granted by any non-Note Party in favor of any Restricted Subsidiary that is not a Note Party, in the case of clauses (i) and (ii), securing intercompany Indebtedness permitted (or not restricted) under Section 6.01 or Section 6.09;
 
(bb)       Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto;
 
(cc)        Liens on specific items of inventory or other goods and the proceeds thereof securing the relevant Person’s obligations in respect of documentary letters of credit or banker’s acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or goods;
 
(dd)        Liens securing (i) obligations of the type described in Section 6.01(f) and/or (ii) obligations of the type described in Section 6.01(s);
 
(ee)        (i) Liens on Capital Stock of joint ventures securing capital contributions to, or obligations of, such Persons and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to non-Wholly-Owned Subsidiaries;
 
(ff)         Liens on cash or Cash Equivalents arising in connection with the defeasance, discharge or redemption of Indebtedness;
 
(gg)        Liens consisting of the prior rights of consignees and their lenders under consignment arrangements entered into in the ordinary course of business; and
 
(hh)       Liens disclosed in any Mortgage Policy delivered pursuant to Section 5.12 with respect to any Material Real Estate Asset and any replacement, extension or renewal thereof; provided that no such replacement, extension or renewal Lien shall cover any property other than the property that was subject to such Lien prior to such replacement, extension or renewal (and additions thereto, improvements thereon and the proceeds thereof).
 
Notwithstanding the foregoing, in no event shall any Lien on patient records securing Indebtedness for borrowed money (other than the Obligations) be permitted.

Section 6.03.        [Reserved].
 
Section 6.04.        Restricted Payments; Restricted Debt Payment.
 
(a)          The Issuer shall not, nor shall it permit any of its Restricted Subsidiaries to, pay or make, directly or indirectly, any Restricted Payment, except that:
 
(i)          the Issuer may make Restricted Payments to the extent necessary to permit any Parent Company:
 
(A)        to pay (I) reasonable and customary general administrative costs and expenses (including corporate overhead, legal or similar expenses and customary salary, bonus and other benefits payable to directors, officers, employees, members of management, managers and/or consultants of any Parent Company) and franchise Taxes, and similar fees and expenses, required to maintain the organizational existence of such Parent Company, in each case, which are incurred in the ordinary course of business  to the extent attributable to the ownership or operations of any Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, that is attributable to the ownership or operations of any subsidiary of any Parent Company other than the Issuer and/or its subsidiaries) and/or its subsidiaries; provided, that the aggregate amount of Restricted Payments made pursuant to this clause (I) shall not exceed $500,000 in any Fiscal Year, and (II) any reasonable and customary indemnification claims made by directors, officers, members of management, managers, employees or consultants of any Parent Company (but excluding for the avoidance of doubt, the portion of any such indemnification claims, if any, that are attributable to the ownership or operations of any subsidiary of such Parent Company other than the Issuer and/or its subsidiaries) and/or its subsidiaries;
 
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(B)        (x) for any taxable period for which the Issuer is a member of a consolidated, combined, unitary or similar tax group for U.S. federal and/or applicable state or local tax purposes of which such Parent Company is the common parent, to discharge the consolidated, combined, unitary or similar Tax liabilities of such Parent Company and its subsidiaries when and as due, to the extent such liabilities are attributable to the income of the Issuer and/or any subsidiary; provided that the amount of such payments in respect of any taxable year do not exceed the amount of such Tax liabilities that the Issuer and/or its applicable subsidiaries would have paid had such Tax liabilities been paid as standalone companies or as a standalone group and (y) for any taxable period for which the Issuer is a partnership or disregarded entity for U.S. federal income tax purposes that is wholly-owned (directly or indirectly) by a C corporation for U.S. federal and/or applicable state or local tax purposes, distributions to any direct or indirect parent of the Issuer in an amount not to exceed the amount of any Tax that the Issuer and/or its applicable subsidiaries would have paid had such Tax been paid as stand alone companies or as a standalone group (and assuming for purposes of such calculation that the Issuer is classified as a domestic corporation for U.S. federal income tax purposes);
 
(C)        to pay audit and other accounting and reporting expenses of such Parent Company to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such expenses, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than the Issuer and/or its subsidiaries), the Issuer and its subsidiaries;
 
(D)        (x) for the payment of insurance premiums to the extent attributable to any Parent Company (but excluding, for the avoidance of doubt, the portion of any such premiums, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than the Issuer and/or its subsidiaries), the Issuer and its subsidiaries, (y) for the payment of legal and other professional fees of any Parent Company (but excluding, for the avoidance of doubt, the portion of any legal and other professional fees, if any, that are attributable to the ownership or operations of any subsidiary of such Parent Company other than the Issuer and/or its subsidiaries) and (z) Public Company Costs;
 
(E)          to pay customary fees and expenses of third parties related to debt or equity offerings, investments or acquisitions (whether or not consummated) and expenses and indemnities of any trustee, agent, arranger, underwriter or similar role;
 
(F)         to finance any Investment permitted under Section 6.06 (provided that (x) any Restricted Payment under this clause (a)(i)(F) shall be made substantially concurrently with the closing of such Investment and (y) the relevant Parent Company shall, promptly following the closing thereof, cause (I) all property acquired to be contributed to the Issuer or one or more of its Restricted Subsidiaries, or (II) the merger, consolidation or amalgamation of the Person formed or acquired into the Issuer or one or more of its Restricted Subsidiaries, in order to consummate such Investment in compliance with the applicable requirements of Section 6.06 as if undertaken as a direct Investment by the Issuer or the relevant Restricted Subsidiary); and
 
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(G)         to pay customary salary, bonus, severance and other benefits payable to current or former directors, officers, members of management, managers, employees or consultants of any Parent Company (or any Immediate Family Member of any of the foregoing) to the extent such salary, bonuses and other benefits are attributable and reasonably allocated to the operations of the Issuer and/or its subsidiaries, in each case, so long as such Parent Company applies the amount of any such Restricted Payment for such purpose;
 
(ii)        the Issuer may (or may make Restricted Payments to allow any Parent Company to) repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of any Parent Company or any subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Issuer or any subsidiary:
 
(A)         with Cash and Cash Equivalents (and including, to the extent constituting a Restricted Payment, amounts paid in respect of promissory notes issued to evidence any obligation to repurchase, redeem, retire or otherwise acquire or retire for value the Capital Stock of any Parent Company or any subsidiary held by any future, present or former employee, director, member of management, officer, manager or consultant (or any Affiliate or Immediate Family Member thereof) of any Parent Company, the Issuer or any subsidiary) in an amount not to exceed $6,000,000 in any Fiscal Year, which, if not used in such Fiscal Year, shall be carried forward to succeeding Fiscal Years;
 
(B)         with the proceeds of any sale or issuance of, or any capital contribution in respect of, the Capital Stock of the Issuer or any Parent Company (to the extent such proceeds are contributed in respect of Qualified Capital Stock to the Issuer or any Restricted Subsidiary) in each case, (1) other than any Net Proceeds received from the sale of Capital Stock to, or contributions from, the Issuer, any of its Restricted Subsidiaries or any Affiliated Practice, (2) to the extent the relevant Net Proceeds have not otherwise been applied to make Investments, Restricted Payments or Restricted Debt Payments hereunder and (3) other than any Cure Amount, any Available Excluded Contribution Amount and/or any Contribution Indebtedness Amount; or
 
(C)          with the net proceeds of any key-man life insurance policies;
 
(iii)        the Issuer may make Restricted Payments in an amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Issuer elects to apply to this clause (iii)(A) and/or (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Issuer elects to apply to this clause (iii)(B);
 
(iv)        the Issuer may make Restricted Payments (i) to any Parent Company to enable such Parent Company to make Cash payments in lieu of the issuance of fractional shares in connection with the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock of such Parent Company and (ii) consisting of (A) payments made or expected to be made in respect of withholding or similar Taxes payable by any future, present or former officers, directors, employees, members of management, managers or consultants of the Issuer, any Restricted Subsidiary or any Parent Company or any of their respective Immediate Family Members and/or (B) repurchases of Capital Stock in consideration of the payments described in subclause (A) above, including demand repurchases in connection with the exercise of stock options;
 
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(v)         the Issuer may repurchase (or make Restricted Payments to any Parent Company to enable it to repurchase) Capital Stock upon the exercise of warrants, options or other securities convertible into or exchangeable for Capital Stock if such Capital Stock represents all or a portion of the exercise price of, or tax withholdings with respect to, such warrants, options or other securities convertible into or exchangeable for Capital Stock;
 
(vi)        the Issuer may make Restricted Payments, the proceeds of which are applied on the Closing Date solely to effect the consummation of the Transactions or pay Transaction Costs;
 
(vii)       each Restricted Subsidiary may make Restricted Payments with respect to any shares of any class of its Capital Stock; provided, that in the case of any Restricted Subsidiary that is not a Wholly-Owned Subsidiary, the share of the foregoing made or paid to the Issuer or any of the Restricted Subsidiaries is at least pro rata to the percentage of such class of Capital Stock in such Restricted Subsidiary that is not a Wholly-Owned Subsidiary owned by the Issuer and its other Restricted Subsidiaries;
 
(viii)      the Issuer may make Restricted Payments to (i) redeem, repurchase, retire or otherwise acquire any (A) Capital Stock (“Treasury Capital Stock”) of the Issuer and/or any Restricted Subsidiary or (B) Capital Stock of any Parent Company, in the case of each of subclauses (A) and (B), in exchange for, or out of the proceeds of the substantially concurrent sale (other than to the Issuer and/or any Restricted Subsidiary) of, Qualified Capital Stock of the Issuer or any Parent Company to the extent any such proceeds are contributed to the capital of the Issuer and/or any Restricted Subsidiary in respect of Qualified Capital Stock (“Refunding Capital Stock”) and (ii) declare and pay dividends on any Treasury Capital Stock out of the proceeds of the substantially concurrent sale (other than to the Issuer or a Restricted Subsidiary) of any Refunding Capital Stock;
 
(ix)        to the extent constituting a Restricted Payment, the Issuer may consummate any transaction permitted by Section 6.06 (other than Sections 6.06(j) and (t)), Section 6.07 (other than Section 6.07(g)) and Section 6.09 (other than Sections 6.09(a), (d), (j) and (o));
 
(x)         [reserved];
 
(xi)         the Issuer may make Restricted Payments so long as (i) no Event of Default exists at the time of the declaration of such Restricted Payment and (ii) the Total Net Leverage Ratio, calculated on a Pro Forma Basis, would not exceed 4.00:1.00;
 
(xii)      the Issuer may make Restricted Payments the proceeds of which are applied, directly or indirectly, to repay or redeem the Series A Preferred Shares, so long as (i) the Total Net Leverage Ratio, calculated on a Pro Forma Basis as of the most recently completed Test Period does not exceed 4.00:1.00 and (ii) no Event of Default has occurred and is continuing;
 
(xiii)      from and after February 24, 2025, the Issuer may, directly or indirectly, pay cash dividends on the Series A Preferred Shares to the extent that the Issuer has elected (or is required) to pay such dividends in cash in accordance with the Series A Certificate of Designation, so long as (A) the Total Net Leverage Ratio, calculated on a Pro Forma Basis as of the most recently completed Test Period does not exceed 4.75:1.00 and (B) no Event of Default has occurred and is continuing; and
 
(xiv)      to the extent constituting a Restricted Payment, the transfer by the Issuer of Capital Stock of the Issuer in connection with (A) the Transactions and/or (B) the conversion of any Note to Capital Stock of the Issuer;
 
(b)         the Issuer shall not, nor shall it permit any Restricted Subsidiary to, make any prepayment in Cash in respect of principal of or interest on (x) any Junior Lien Indebtedness, (y) any Junior Indebtedness or (z) any unsecured 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) (the Indebtedness described in clauses (x) through (z), the “Restricted Debt”), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any Restricted Debt (collectively, “Restricted Debt Payments”), except:
 
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(i)          with respect to any purchase, defeasance, redemption, repurchase, repayment or other acquisition or retirement thereof made by exchange for, or out of the proceeds of, Refinancing Indebtedness permitted by Section 6.01;
 
(ii)          as part of an “applicable high yield discount obligation” catch-up payment;
 
(iii)        payments of regularly scheduled interest (including any penalty interest, if applicable) and payments of fees, expenses and indemnification obligations as and when due (other than payments with respect to Junior Indebtedness that are prohibited by the subordination provisions thereof);
 
(iv)        Restricted Debt Payments in an aggregate amount not to exceed the RP/RDP Shared Cap;
 
(v)         (A) Restricted Debt Payments in exchange for, or with proceeds of any issuance of, Qualified Capital Stock of the Issuer and/or any capital contribution in respect of Qualified Capital Stock of the Issuer, (B) Restricted Debt Payments as a result of the conversion of all or any portion of any Restricted Debt into Qualified Capital Stock of the Issuer and/or Capital Stock of any Parent Company and (C) to the extent constituting a Restricted Debt Payment, payment-in-kind interest with respect to any Restricted Debt that is permitted under Section 6.01;
 
(vi)       Restricted Debt Payments in an aggregate amount not to exceed (A) the portion, if any, of the Available Amount on such date that the Issuer elects to apply to this clause (vi)(A) and/or (B) the portion, if any, of the Available Excluded Contribution Amount on such date that the Issuer elects to apply to this clause (vi)(B); and
 
(vii)       Restricted Debt Payments in an unlimited amount; provided that (A) no Event of Default exists at the time of delivery of irrevocable notice of such Restricted Debt Payment and (B) the Total Net Leverage Ratio, calculated on a Pro Forma Basis, would not exceed 4.00:1.00.
 
Section 6.05.       Burdensome Agreements.  Except as provided herein or in any other Note Document, any First Lien Credit Document, the Series A Certificate of Designation (solely with respect to clause (x) below) and/or any agreement with respect to any refinancing, renewal or replacement of such Indebtedness that is permitted by Section 6.01 or the Series A Preferred Shares, as applicable, the Issuer shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into or cause to exist any agreement restricting the ability of (x) any Restricted Subsidiary of the Issuer that is not a Note Party to pay dividends or other distributions to the Issuer or any Note Party or (y) any Note Party to create, permit or grant a Lien on any of its properties or assets to secure the Secured Obligations, except restrictions:
 
(a)          set forth in any agreement evidencing (i) Indebtedness of a Restricted Subsidiary that is not a Note Party permitted by Section 6.01, (ii) Indebtedness permitted by Section 6.01 that is secured by a Permitted Lien if the relevant restriction applies only to the Person obligated under such Indebtedness and its Restricted Subsidiaries or the assets intended to secure such Indebtedness and (iii) Indebtedness permitted pursuant to clauses (j), (m), (p) (as it relates to Indebtedness in respect of clauses (a), (m), (r), (u), (w) and/or (y) of Section 6.01), (r), (u), (w) and/or (y) of Section 6.01;
 
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(b)          arising under customary provisions restricting assignments, subletting or other transfers (including the granting of any Lien) contained in leases, subleases, licenses, sublicenses, joint venture agreements and other agreements entered into in the ordinary course of business;
 
(c)          that are or were created by virtue of any Lien granted upon, transfer of, agreement to transfer or grant of, any option or right with respect to any assets or Capital Stock not otherwise prohibited under this Agreement;
 
(d)         that are assumed in connection with any acquisition of property or the Capital Stock of any Person, so long as the relevant encumbrance or restriction relates solely to the Person and its subsidiaries (including the Capital Stock of the relevant Person or Persons) and/or property so acquired and was not created in connection with or in anticipation of such acquisition;
 
(e)          set forth in any agreement for any Disposition of any Restricted Subsidiary (or all or substantially all of the assets thereof) that restricts the payment of dividends or other distributions or the making of cash loans or advances by such Restricted Subsidiary pending such Disposition;
 
(f)          set forth in provisions in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any class of Capital Stock of a Person other than on a pro rata basis;
 
(g)          imposed by customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements;
 
(h)          on Cash, other deposits or net worth or similar restrictions imposed by any Person under any contract entered into in the ordinary course of business or for whose benefit such Cash, other deposits or net worth or similar restrictions exist;
 
(i)          set forth in documents which exist on the Closing Date and were not created in contemplation thereof;
 
(j)         arising pursuant to an agreement or instrument relating to any Indebtedness permitted to be incurred after the Closing Date if the relevant restrictions, taken as a whole, are not materially less favorable to the Purchasers than the restrictions contained in this Agreement, taken as a whole (as determined in good faith by the Issuer);
 
(k)          arising under or as a result of applicable Requirements of Law or the terms of any license, authorization, concession or permit;
 
(l)          arising in any Hedge Agreement and/or any agreement relating to any Banking Services Obligation (and/or any other obligation of the type described in Section 6.01(f));
 
(m)        relating to any asset (or all of the assets) of and/or the Capital Stock of the Issuer and/or any Restricted Subsidiary which is imposed pursuant to an agreement entered into in connection with any Disposition of such asset (or assets) and/or all or a portion of the Capital Stock of the relevant Person that is permitted or not restricted by this Agreement;
 
(n)          set forth in any agreement relating to any Permitted Lien that limits the right of the Issuer and/or any Restricted Subsidiary to Dispose of or encumber the assets subject thereto; and/or
 
(o)         imposed by any amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing of any contract, instrument or obligation referred to in clauses (a) through (n) above; provided that no such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing is, in the good faith judgment of the Issuer, more restrictive with respect to such restrictions, taken as a whole, than those in existence prior to such amendment, modification, restatement, renewal, increase, supplement, refunding, replacement or refinancing.
 
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Section 6.06.            Investments.  The Issuer shall not, nor shall it permit any of its Restricted Subsidiaries to, make or own any Investment in any other Person except:
 
(a)          Cash or Investments that were Cash Equivalents at the time made;
 
(b)          Investments:
 
(i)          existing on the Closing Date in the Issuer or in any subsidiary,
 
(ii)         made after the Closing Date among the Issuer and/or one or more Restricted Subsidiaries that are Note Parties,
 
(iii)        made after the Closing Date by any Note Party in any Restricted Subsidiary that is not a Note Party in an aggregate outstanding amount, together with the aggregate amount of (A) consideration paid in reliance on clause (a) of the proviso to the definition of “Permitted Acquisition” and (B) Investments made in Persons that are not Note Parties pursuant to Section 6.06(b)(aa), not to exceed the Specified Investment Cap,
 
(iv)         made by any Restricted Subsidiary that is not a Note Party in any Note Party and/or any other Restricted Subsidiary that is not a Note Party, and/or
 
(v)         in the form of loans or advances made in the ordinary course of business in any Affiliated Practice in connection with the provision of services to such Affiliated Practice under Acceptable Practice Management Arrangements, including any Investment contemplated by any Practice Loan Agreement and/or any Management Services Agreement (other than an Investment contemplated by clause (e) below) and/or the proceeds of which are used to pay management fees to the relevant APC Manager, working capital purposes or payroll or other ordinary course business expenses of such Affiliated Practice; provided, that any loans or advances made pursuant to this clause (b)(v) to any Non-Consolidated APC shall not exceed $6,000,000 at any time outstanding,
 
(c)         Investments (i) constituting deposits, prepayments and/or other credits to suppliers, (ii) made in connection with obtaining, maintaining or renewing client and customer contracts and/or (iii) in the form of advances made to distributors, suppliers, licensors and licensees, in each case, in the ordinary course of business or, in the case of clause (iii), to the extent necessary to maintain the ordinary course of supplies to the Issuer or any Restricted Subsidiary;
 
(d)          Investments in any joint ventures in an aggregate outstanding amount not to exceed $4,200,000;
 
(e)        (i) Permitted Acquisitions, (ii) any Investment in any Restricted Subsidiary that is not a Note Party in an amount required to permit such Restricted Subsidiary to consummate a Permitted Acquisition, which amount is actually applied by such Restricted Subsidiary to consummate, directly or indirectly, through one or more other Restricted Subsidiaries, such Permitted Acquisition and (iii) any Investment in any Consolidated APC in an amount required to permit such Consolidated APC to consummate, directly or indirectly, a Permitted Acquisition;
 
(f)         Investments (i) existing on, or contractually committed to or contemplated as of, the Closing Date and described on Schedule 6.06 and (ii) any modification, replacement, renewal or extension of any Investment described in clause (i) above so long as no such modification, renewal or extension increases the amount of such Investment except by the terms thereof or as otherwise permitted by this Section 6.06;
 
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(g)          Investments received in lieu of Cash in connection with any Disposition permitted by Section 6.07 or any other disposition of assets not constituting a Disposition;
 
(h)         loans or advances to present or former employees, directors, members of management, officers, managers or consultants or independent contractors (or their respective Immediate Family Members) of any Parent Company, the Issuer, its subsidiaries and/or any joint venture to the extent permitted by Requirements of Law, in connection with such Person’s purchase of Capital Stock of any Parent Company, either (i) in an aggregate principal amount not to exceed $1,200,000 at any one time outstanding or (ii) so long as the proceeds of such loan or advance are substantially contemporaneously contributed to the Issuer for the purchase of such Capital Stock;
 
(i)          Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business;
 
(j)          Investments consisting of (or resulting from) Indebtedness permitted under Section 6.01 (other than Indebtedness permitted under Sections 6.01(b) and (h)), Permitted Liens, Restricted Payments permitted under Section 6.04 (other than Section 6.04(a)(ix)), Restricted Debt Payments permitted by Section 6.04 and mergers, consolidations, amalgamations, liquidations, windings up, dissolutions or Dispositions permitted by Section 6.07 (other than Section 6.07(a), Section 6.07(b) (if made in reliance on clause (ii) therein), Section 6.07(c)(ii) (if made in reliance on clause (B) therein), Section 6.07(g), Section 6.07(o), and Section 6.07(t));
 
(k)          Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers;
 
(l)          Investments (including debt obligations and Capital Stock) received (i) in connection with the bankruptcy or reorganization of any Person, (ii) in settlement of delinquent obligations of, or other disputes with, customers, suppliers and other account debtors arising in the ordinary course of business, (iii) upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment and/or (iv) as a result of the settlement, compromise, resolution of litigation, arbitration or other disputes;
 
(m)        loans and advances of payroll payments or other compensation to present or former employees, directors, members of management, officers, managers or consultants of any Parent Company (to the extent such payments or other compensation relate to services provided to such Parent Company (but excluding, for the avoidance of doubt, the portion of any such amount, if any, attributable to the ownership or operations of any subsidiary of any Parent Company other than the Issuer and/or its subsidiaries)), the Issuer and/or any subsidiary in the ordinary course of business;
 
(n)          Investments to the extent that payment therefor is made solely with Capital Stock of any Parent Company or Qualified Capital Stock of the Issuer or any Restricted Subsidiary, in each case, to the extent not resulting in a Change of Control;
 
(o)          (i) Investments of any Restricted Subsidiary acquired after the Closing Date, or of any Person acquired by, or merged into or consolidated or amalgamated with, the Issuer or any Restricted Subsidiary after the Closing Date, in each case as part of an Investment otherwise permitted by this Section 6.06 to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of the relevant acquisition, merger, amalgamation or consolidation and (ii) any modification, replacement, renewal or extension of any Investment permitted under clause (i) of this Section 6.06(o) so long as no such modification, replacement, renewal or extension thereof increases the original amount of such Investment except as otherwise permitted by this Section 6.06;
 
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(p)          Investments on the Closing Date made in connection with the Transactions;
 
(q)          Investments made after the Closing Date by the Issuer and/or any of its Restricted Subsidiaries in an aggregate amount at any time outstanding not to exceed:
 
(i)          (A) the greater of $7,800,000 and 12.0% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, plus (B) at the election of the Issuer, the amount of Restricted Payments then permitted to be made by the Issuer or any Restricted Subsidiary in reliance on Section 6.04(a)(x) or, without duplication, Restricted Debt Payments then permitted to be made in reliance on Section 6.04(b)(iv) (it being understood that any amount utilized under this clause (B) to make an Investment shall result in a reduction in availability under Section 6.04(a)(x) and Section 6.04(b)(iv)), plus
 
(ii)         in the event that (A) the Issuer or any of its Restricted Subsidiaries makes any Investment after the Closing Date in any Person that is neither a Restricted Subsidiary nor a Consolidated APC and (B) such Person subsequently becomes a Note Party, an amount equal to 100% of the fair market value of such Investment as of the date on which such Person becomes a Note Party;
 
(r)          Investments made after the Closing Date by the Issuer and/or any of its Restricted Subsidiaries in an aggregate outstanding amount not to exceed (i) the portion, if any, of the Available Amount on such date that the Issuer elects to apply to this clause (r)(i) and/or (ii) the portion, if any, of the Available Excluded Contribution Amount on such date that the Issuer elects to apply to this clause (r)(ii);
 
(s)          (i) Guarantees of leases (other than Capital Leases) or of other obligations not constituting Indebtedness and (ii) Guarantees of the lease obligations of suppliers, customers, franchisees and licensees of the Issuer and/or its Restricted Subsidiaries, in each case, in the ordinary course of business;
 
(t)          Investments in any Parent Company in amounts and for purposes for which Restricted Payments to such Parent Company are permitted under Section 6.04(a); provided that any Investment made as provided above in lieu of any such Restricted Payment shall reduce availability under the applicable Restricted Payment basket under Section 6.04(a);
 
(u)          [reserved];
 
(v)          Investments in subsidiaries in connection with internal reorganizations and/or restructurings and activities related to tax planning; provided that, after giving effect to any such reorganization, restructuring or activity, neither the Note Guaranty, taken as a whole, nor the security interest of the Purchaser Representative in the Collateral, taken as a whole, is materially impaired;
 
(w)         Investments under any Derivative Transaction of the type permitted under Section 6.01(s);
 
(x)          Investments made in connection with any Permitted Practice Subsidiary Restructuring; provided that the aggregate amount of Investments made in Non-Consolidated APCs pursuant to this clause (x), shall not exceed $6,000,000;
 
(y)          Investments made in joint ventures as required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture agreements and similar binding arrangements entered into in the ordinary course of business;
 
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(z)         Investments made in connection with any nonqualified deferred compensation plan or arrangement for any present or former employee, director, member of management, officer, manager or consultant or independent contractor (or any Immediate Family Member thereof) of any Parent Company, the Issuer, its subsidiaries and/or any joint venture;
 
(aa)       Investments in the Issuer, any Restricted Subsidiary and/or joint venture in connection with intercompany cash management arrangements and related activities in the ordinary course of business; provided that the aggregate amount of Investments made in Persons that are not Note Parties under this Section 6.06(b)(aa), together with the aggregate amount of (A) consideration paid in reliance on clause (a) of the proviso to the definition of “Permitted Acquisition” and (B) Investments made in Persons that are not Note Parties under Section 6.06(b)(iii), shall not exceed the Specified Investment Cap;
 
(bb)        Investments so long as, after giving effect thereto on a Pro Forma Basis, the Total Net Leverage Ratio does not exceed 4.50:1.00;
 
(cc)        [reserved]
 
(dd)        [reserved]; and
 
(ee)        Investments consisting of the non-exclusive licensing in the ordinary course of business or contribution of IP Rights pursuant to joint marketing arrangements with other Persons.
 
Notwithstanding anything to the contrary in this Section 6.06,  this Section 6.06 shall not permit any IP Separation and Transaction.

Section 6.07.        Fundamental Changes; Disposition of Assets.  Other than as part of any Permitted Practice Subsidiary Restructuring, the Issuer shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction of merger, consolidation or amalgamation, or liquidate, wind up or dissolve themselves (or suffer any liquidation or dissolution), or make any Disposition of any assets having a fair market value in excess of $1,200,000 in a single transaction or a series of related transactions and in excess of $3,000,000 in the aggregate for all such transactions, except:
 
(a)        any Restricted Subsidiary may be merged, consolidated or amalgamated with or into the Issuer or any other Restricted Subsidiary; provided that (i) in the case of any such merger, consolidation or amalgamation with or into the Issuer or any Delaware LLC Division relating to the Issuer, (A) the Issuer shall be the continuing or surviving Person or (B) if the Person formed by or surviving any such merger, consolidation or amalgamation or Delaware LLC Division is not the Issuer (any such Person, the “Successor Issuer”), (x) the Successor Issuer shall be an entity organized or existing under the law of the U.S., any state thereof or the District of Columbia, (y) the Successor Issuer shall expressly assume the Obligations of the Issuer in a manner reasonably satisfactory to the Required Purchasers and (z) except as the Required Purchasers may otherwise agree, each Guarantor, unless it is the other party to such merger, consolidation or amalgamation, shall have executed and delivered a reaffirmation agreement with respect to its obligations under the Note Guaranty and the other Note Documents, it being understood and agreed that if the foregoing conditions under clauses (x) through (z) are satisfied, the Successor Issuer will succeed to, and be substituted for, the Issuer under this Agreement and the other Note Documents, and (ii) in the case of any such merger, consolidation or amalgamation with or into any Subsidiary Guarantor or any Delaware LLC Division relating to any Subsidiary Guarantor, either (A) the Issuer or a Subsidiary Guarantor shall be the continuing or surviving Person or the continuing or surviving Person shall expressly assume the obligations of such Subsidiary Guarantor in a manner reasonably satisfactory to the Required Purchasers or (B) the relevant transaction shall be treated as an Investment and shall comply with Section 6.06;
 
(b)         Dispositions (including of Capital Stock) among the Issuer and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided that any such Disposition made by any Note Party to any Person that is not a Note Party shall be (i) for fair market value (as reasonably determined by the Issuer) with at least 75% of the consideration for such Disposition consisting of Cash or Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 6.06 (other than in reliance on clause (j) thereof);
 
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(c)          (i) the liquidation, dissolution or Delaware LLC Division of any Restricted Subsidiary if the Issuer determines in good faith that such liquidation, dissolution or Delaware LLC Division is in the best interests of the Issuer, is not materially disadvantageous to the Purchasers and the Issuer or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided that in the case of any liquidation, dissolution or Delaware LLC Division of any Note Party that results in a distribution of assets to any Restricted Subsidiary that is not a Note Party, such distribution shall be treated as an Investment and shall comply with Section 6.06 (other than in reliance on clause (j) thereof); (ii) any merger, amalgamation, dissolution, liquidation, consolidation or Delaware LLC Division, the purpose of which is to effect (A) any Disposition otherwise permitted under this Section 6.07 (other than clause (a), clause (b) or this clause (c)) or (B) any Investment permitted under Section 6.06; and (iii) the conversion of the Issuer or any Restricted Subsidiary into another form of entity, so long as such conversion does not adversely affect the value of the Note Guaranty or Collateral, if any;
 
(d)          (i) Dispositions of inventory or equipment or immaterial assets in the ordinary course of business (including on an intercompany basis) and (ii) the leasing or subleasing of real property in the ordinary course of business;
 
(e)        Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Issuer, is (i) no longer useful in its business (or in the business of any Restricted Subsidiary of the Issuer) or (ii) otherwise economically impracticable to maintain;
 
(f)          Dispositions in the ordinary course of business of Cash and/or Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;
 
(g)         Dispositions, mergers, amalgamations, consolidations or conveyances that constitute (i) Investments permitted pursuant to Section 6.06 (other than Section 6.06(j)), (ii) Permitted Liens and (iii) Restricted Payments permitted by Section 6.04(a) (other than Section 6.04(a)(ix));
 
(h)          Dispositions for fair market value; provided that at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents; provided, further, that (A) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Default exists, (B) [reserved] and (C) this Section 6.07(h) shall not permit a Disposition of all or substantially all of the assets of the Issuer and its Restricted Subsidiaries;
 
(i)          to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;
 
(j)          Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venture or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;
 
(k)         Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof; provided that factoring or similar arrangements shall not be permitted pursuant to this clause (k);
 
(l)         Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Issuer and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;
 
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(m)         (i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;
 
(n)          Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);
 
(o)          Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed;
 
(p)          to the extent applicable, the consummation of the Transactions on the Closing Date;
 
(q)          Dispositions of non-core assets acquired in connection with any acquisition permitted hereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, within 90 days of the date of such acquisition, are designated in writing to the Purchaser Representative as being held for sale and not for the continued operation of the Issuer or any of its Restricted Subsidiaries or any of their respective businesses; provided that (A) no Event of Default exists on the date on which the definitive agreement governing the relevant Disposition is executed and (B) such Dispositions are for fair market value;
 
(r)          exchanges or swaps, including transactions covered by Section 1031 of the Code (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Issuer) for like assets; provided that upon the consummation of any such exchange or swap by any Note Party, to the extent the assets received do not constitute an Excluded Asset, the Purchaser Representative has a perfected Lien with the same priority as the Lien held on the Real Estate Assets so exchanged or swapped;
 
(s)          [reserved];
 
(t)          (i) non-exclusive licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Issuer or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable good faith determination of the Issuer, are not material to the conduct of the business of the Issuer and its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;
 
(u)          terminations or unwinds of Derivative Transactions;
 
(v)          [reserved];
 
(w)        Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of any Parent Company, the Issuer and/or any Restricted Subsidiary; provided that such Dispositions do not exceed $6,000,000 in the aggregate;
 
(x)          Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;
 
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(y)          any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary in the U.S. or any other jurisdiction;
 
(z)          any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;
 
(aa)        [reserved]; and
 
(bb)       Dispositions in connection with Sale and Lease-Back Transactions; provided that, in the case of this clause (bb), the fair market value of all property so Disposed of after the Closing Date shall not exceed the greater of $6,000,000 and 9.0% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period.
 
Dispositions in connection with Sale and Lease-Back Transactions may be made solely under clause (bb) of this Section 6.07 and not under any other clause.
 
To the extent that any Collateral is Disposed of as expressly permitted by this Section 6.07, such Collateral shall be sold free and clear of the Liens created by the Note Documents, which Liens shall be automatically released upon the consummation of such Disposition; it being understood and agreed that the Purchaser Representative shall be authorized to take, and shall take, any actions reasonably requested by the Note Parties in order to effect the foregoing in accordance with Article 8 hereof; provided, that in the case of a Disposition made to any Note Party, the relevant transferred assets shall become part of the Collateral of the transferee Note Party (except to the extent such assets constitute Excluded Assets of such transferee Note Party).
 
Notwithstanding the foregoing, this Section 6.07 shall not permit any IP Separation Transaction.
 
Section 6.08.        [Reserved].
 
Section 6.09.       Transactions with Affiliates.  The Issuer shall not, nor shall it permit any of its Restricted Subsidiaries to, enter into any transaction (including the purchase, sale, lease or exchange of any property or the rendering of any service) involving payment in excess of $1,200,000 in any individual transaction (it being understood that the threshold set forth above shall not apply to exempt more than $6,000,000 of payments (excluding, for the avoidance of doubt, any payment permitted in reliance on the proviso below) from the application of this Section 6.09) with any of their respective Affiliates on terms that are less favorable to the Issuer or such Restricted Subsidiary, as the case may be (as reasonably determined by the Issuer), than those that might be obtained at the time in a comparable arm’s-length transaction from a Person who is not an Affiliate; provided that the foregoing restriction shall not apply to:
 
(a)          any transaction between or among the Issuer and/or one or more Restricted Subsidiaries and/or Affiliated Practices (or any entity that becomes a Restricted Subsidiary or Affiliated Practice as a result of such transaction) to the extent permitted or not restricted by this Agreement;
 
(b)        any issuance, sale or grant of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of employment arrangements, stock options and stock ownership plans approved by the board of directors (or equivalent governing body) of any Parent Company or of the Issuer or any Restricted Subsidiary;
 
(c)        (i) any collective bargaining, employment or severance agreement or compensatory (including profit sharing) arrangement entered into by the Issuer or any of its Restricted Subsidiaries with their respective current or former officers, directors, members of management, managers, employees, consultants or independent contractors or those of any Parent Company, (ii) any subscription agreement or similar agreement pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights with current or former officers, directors, members of management, managers, employees, consultants or independent contractors and (iii) transactions pursuant to any employee compensation, benefit plan, stock option plan or arrangement, any health, disability or similar insurance plan which covers current or former officers, directors, members of management, managers, employees, consultants or independent contractors or any employment contract or arrangement;
 
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(d)          (i) transactions permitted by Sections 6.01(d), (o) and (ee), 6.04 and 6.06(h), (m), (o), (t), (v), (y), (z) and (aa) and (ii) issuances of Capital Stock and issuances and incurrences of Indebtedness not restricted by this Agreement;
 
(e)         transactions in existence on the Closing Date and any amendment, modification or extension thereof to the extent such amendment, modification or extension, taken as a whole, is not (i) materially adverse to the Purchasers or (ii) more disadvantageous to the Purchasers than the relevant transaction in existence on the Closing Date;
 
(f)          the payment of all indemnification obligations owed to any Investor and any of their respective directors, officers, members of management, managers, employees and consultants, and (ii) the payment or reimbursement of all expenses owed to any Investor and any of their respective directors, officers, members of management, managers, employees and consultants, whether currently due or paid in respect of accruals from prior periods, provided that the aggregate amount of expenses that may be paid in any Fiscal Year in reliance on this clause (f)(ii) shall not exceed $500,000;
 
(g)          the Transactions, including the payment of Transaction Costs;
 
(h)          [reserved];
 
(i)          Guarantees permitted by Section 6.01 or Section 6.06;
 
(j)          transactions among the Issuer, its Restricted Subsidiaries and/or any Affiliated Practice that are otherwise permitted (or not restricted) under this Article 6;
 
(k)         the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, members of the board of directors (or similar governing body), officers, employees, members of management, managers, consultants and independent contractors of the Issuer and/or any of its Restricted Subsidiaries in the ordinary course of business and, in the case of payments to such Person in such capacity on behalf of any Parent Company, to the extent attributable to the operations of the Issuer or its subsidiaries;
 
(l)         transactions with customers, clients, suppliers, joint ventures, purchasers or sellers of goods or services or providers of employees or other labor entered into in the ordinary course of business, which are (i) fair to the Issuer and/or its applicable Restricted Subsidiary in the good faith determination of the board of directors (or similar governing body) of the Issuer or the senior management thereof or (ii) on terms at least as favorable as might reasonably be obtained from a Person other than an Affiliate;
 
(m)         the payment of reasonable out-of-pocket costs and expenses related to registration rights and customary indemnities provided to shareholders under any shareholder agreement;
 
(n)          [reserved];
 
(o)          [reserved];
 
(p)          any transaction consummated in connection with any Permitted Practice Subsidiary Restructuring;
 
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(q)          any transaction (or series of related transactions) approved by a majority of the disinterested directors (or members of any similar governing body) of the Issuer;
 
(r)          any investment by any Investor or Parent Company in securities or Indebtedness of the Issuer and/or any Guarantor;
 
(s)          any payment to or from, and/or any transaction with, any joint venture in the ordinary course of business or consistent with past practice, industry practice or industry norms (including, any cash management activity related thereto);
 
(t)          the Transactions and the incurrence of any Indebtedness hereunder; and
 
(u)        (i) any Investment by any Affiliate in the Notes, loans, securities or other Indebtedness of the Issuer and/or any Restricted Subsidiary (and payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the investment is being offered by the Issuer or such Restricted Subsidiary generally to other investors on the same or more favorable terms and (ii) payments and/or distributions to Affiliates in respect of the Notes, loans, securities or Indebtedness of the Issuer or any Restricted Subsidiary in connection with the securities and other Indebtedness contemplated in the foregoing subclause (i) or that were acquired from Persons other than the Issuer and the Restricted Subsidiaries, in each case, in accordance with the terms of such securities or Indebtedness.
 
Section 6.10.       Conduct of Business.  From and after the Closing Date, the Issuer shall not, nor shall it permit any of its Restricted Subsidiaries to, engage in any material line of business other than (a) the businesses engaged in by the Issuer or any Restricted Subsidiary on the Closing Date and similar, incidental, complementary, ancillary or related businesses and (b) such other lines of business to which the Required Purchasers may consent.
 
Section 6.11.        Amendments or Waivers of Certain Documents.
 
(a)         The Issuer shall not, nor shall it permit any Subsidiary Guarantor to, amend or modify their respective Organizational Documents, in each case in a manner that is materially adverse to the Purchasers (in their capacities as such), taken as a whole, without obtaining the prior written consent of the Required Purchasers; provided that, for purposes of clarity, it is understood and agreed that the Issuer and/or any Subsidiary Guarantor may effect a change to its organizational form and/or consummate any other transaction that is permitted under Section 6.07.
 
(b)          Except as may be required in accordance with any applicable Requirement of Law, the Issuer shall not, nor shall it permit any Subsidiary Guarantor to, amend or modify any Management Services Agreement, Therapy Director Agreement, any Securities Transfer Restriction Agreement and/or any Practice Loan Agreement, in any case, in a manner that (i) is materially adverse to the business of the Issuer and its subsidiaries, taken as a whole, or (ii) is materially adverse to the interests of the Purchasers in their respective capacities as such; provided that it is understood and agreed for the avoidance of doubt that (A) any amendment, modification or other change to the management or other similar fee owing under any Management Services Agreement made in the reasonable business judgment of the relevant Note Party, (B) any amendment, modification or change to any interest rate or repayment and/or prepayment provision in any Practice Loan Agreement and/or (C) any amendment, modification or change to any Management Services Agreement, Therapy Director Agreement, any Securities Transfer Restriction Agreement and/or any Practice Loan Agreement made in the ordinary course of business shall not, in each case, be restricted by this Section 6.11(b)(ii).
 
(c)          [Reserved].
 
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(d)         The Issuer shall not permit any amendment or modification to the Series A Certificate of Designation in a manner that is materially adverse to the Purchasers (in their capacities as such), taken as a whole, without obtaining the prior written consent of the Required Purchasers.  It is understood and agreed that the amendments to the Series A Certificate of Designation made on the Closing Date in connection with the Transactions is not prohibited by this clause (d).
 
Section 6.12.       Amendments of or Waivers with Respect to Restricted Debt.  The Issuer shall not, nor shall it permit any of its Restricted Subsidiaries to, amend or otherwise modify the terms of any Restricted Debt (or the documentation governing any Restricted Debt) (a) if the effect of such amendment or modification, together with all other amendments or modifications made, is materially adverse to the interests of the Purchasers (in their capacities as such) or (b) in violation of any Intercreditor Agreement or the subordination terms set forth in the definitive documentation governing any Restricted Debt; provided that, for purposes of clarity, it is understood and agreed that the foregoing limitation shall not otherwise prohibit any Refinancing Indebtedness or any other replacement, refinancing, amendment, supplement, modification, extension, renewal, restatement or refunding of any Restricted Debt, in each case, that is permitted under this Agreement in respect thereof.
 
Section 6.13.        Fiscal Year.  The Issuer shall not change its Fiscal Year-end to a date other than December 31; provided that the Issuer may, upon written notice to the Purchaser Representative, change the Fiscal Year-end of the Issuer to another date, in which case the Issuer and the Purchaser Representative will, and are hereby authorized to, make any adjustments to this Agreement that are necessary to reflect such change in Fiscal Year.
 
ARTICLE 7          EVENTS OF DEFAULT
 
Section 7.01.        Events of Default.  If any of the following events (each, an “Event of Default”) shall occur after the Closing Date:
 
(a)          Failure To Make Payments When Due.  Failure by the Issuer to pay (i) any installment of principal of any Note when due, whether at stated maturity, by acceleration, by notice of voluntary redemption, by mandatory redemption or otherwise; or (ii) any interest on any Note or any fee or any other amount due hereunder within five Business Days after the date due; or
 
(b)          Default in Other Agreements.  Any of the following:
 
(i)          failure by the Issuer or any of its Restricted Subsidiaries to pay when due any principal of or interest on or any other amount payable in respect of one or more items of third party Indebtedness for borrowed money of such Person (other than Indebtedness referred to in clause (a) above) with an aggregate outstanding principal amount exceeding the Threshold Amount, in each case beyond the grace period, if any, provided therefor; provided that, with respect to the Loans (as defined in the First Lien Credit Agreement) under the First Lien Facility, such non-payment shall not result in an Event of Default pursuant to this Section 7.01(b)(i) unless such non-payment has resulted in an acceleration of the Loans (as defined in the First Lien Credit Agreement) in accordance with Article 7 of the First Lien Credit Agreement; or
 
(ii)         breach or default by the Issuer or any of its Restricted Subsidiaries with respect to any other term of (A) one or more items of third-party Indebtedness for borrowed money of such Person with an aggregate outstanding principal amount exceeding the Threshold Amount or (B) any loan agreement, mortgage, indenture or other agreement relating to such item(s) of Indebtedness (other than, for the avoidance of doubt, with respect to Indebtedness consisting of Hedging Obligations, termination events or equivalent events pursuant to the terms of the relevant Hedge Agreement which are not the result of any default thereunder by any Note Party or any Restricted Subsidiary), in each case beyond the grace period, if any, provided therefor, if the effect of such breach or default is to cause, or to permit the holder or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders) to cause (with the giving of notice, if required) such Indebtedness to become or be declared due and payable (or redeemable) prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be; provided that, with respect to the Loans (as defined in the First Lien Credit Agreement) under the First Lien Facility, such breach or default shall not result in an Event of Default pursuant to this Section 7.01(b)(i) unless such breach or default has resulted in an acceleration of the Loans (as defined in the First Lien Credit Agreement) in accordance with Article 7 of the First Lien Credit Agreement;
 
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provided that (x) clause (ii) of this paragraph (b) shall not apply to any secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the property securing such Indebtedness if such sale or transfer is permitted hereunder and (y) any failure described under clauses (i) or (ii) above is unremedied and is not waived by the holders of such Indebtedness prior to any termination of the Commitments or acceleration of the Notes pursuant to Article 7; or
 
(c)         Breach of Certain Covenants.  Failure of any Note Party, as required by the relevant provision, to perform or comply with any term or condition contained in (A) Section 5.01(e)(i), Section 5.02 (as it applies to the preservation of the existence of the Issuer), Section 5.11 or Article 6 or (B) Sections 5.01(j) or (l) which default has not been remedied or waived within 15 days after receipt by the Issuer of written notice from the Purchaser Representative; or
 
(d)         Breach of Representations, Etc.  Any representation, warranty or certification made or deemed made by any Note Party in any Note Document or in any certificate required to be delivered in connection herewith or therewith (including, for the avoidance of doubt, any Perfection Certificate) being untrue in any material respect as of the date made or deemed made; it being understood and agreed that any breach of any representation, warranty or certification resulting from the failure of the Purchaser Representative (at the direction of the Required Purchasers) to file any Uniform Commercial Code continuation statement shall not result in an Event of Default under this Section 7.01(d) or any other provision of any Note Document; or
 
(e)          Other Defaults Under Note Documents.  Default by any Note Party in the performance of or compliance with any term contained herein or any of the other Note Documents, other than any such term referred to in any other Section of this Article 7, which default has not been remedied or waived within 30 days after receipt by the Issuer of written notice thereof from the Purchaser Representative (at the direction of the Required Purchasers); or
 
(f)         Involuntary Bankruptcy; Appointment of Receiver, Etc.  (i) The entry by a court of competent jurisdiction of a decree or order for relief in respect of the Issuer or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) in an involuntary case under any Debtor Relief Law now or hereafter in effect, which decree or order is not stayed; or any other similar relief shall be granted under any applicable federal, state or local Requirements of Law, which relief is not stayed; or (ii) the commencement of an involuntary case against the Issuer or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) under any Debtor Relief Law; the entry by a court having jurisdiction in the premises of a decree or order for the appointment of a receiver, receiver and manager, (preliminary) insolvency receiver, liquidator, sequestrator, trustee, administrator, custodian or other officer having similar powers over the Issuer or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary), or over all or a material part of its property; or the involuntary appointment of an interim receiver, trustee or other custodian of the Issuer or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) for all or a material part of its property, which remains, in any case under this clause (f), undismissed, unvacated, unbounded or unstayed pending appeal for 60 consecutive days; or
 
(g)         Voluntary Bankruptcy; Appointment of Receiver, Etc.  (i) The entry against the Issuer or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) of an order for relief, the commencement by the Issuer or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) of a voluntary case under any Debtor Relief Law, or the consent by the Issuer or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) to the entry of an order for relief in an involuntary case or to the conversion of an involuntary case to a voluntary case, under any Debtor Relief Law, or the consent by the Issuer or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) to the appointment of or taking possession by a receiver, receiver and manager, insolvency receiver, liquidator, sequestrator, trustee, administrator, custodian or other like official for or in respect of itself or for all or a material part of its property; (ii) the making by the Issuer or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) of a general assignment for the benefit of creditors; or (iii) the admission by the Issuer or any of its Restricted Subsidiaries (other than any Immaterial Subsidiary) in writing of their inability to pay their respective debts as such debts become due; or
 
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(h)         Judgments and Attachments.  The entry or filing of one or more final money judgments, orders, writs or warrants of attachment or similar process (or any settlement of any litigation or other proceeding that, if breached, could result in a judgment, order, writ or warrant of attachment or similar process) against the Issuer or any of its Restricted Subsidiaries or any of their respective assets involving in the aggregate at any time an amount in excess of the Threshold Amount (in either case to the extent not adequately covered by indemnity from a third party or by insurance as to which, in each case, the relevant third party indemnifier or insurance company has been notified and not denied coverage), which judgment, writ, warrant or similar process or settlement remains unpaid, undischarged, unvacated, unbonded or unstayed pending appeal for a period of 60 consecutive days; or
 
(i)          Employee Benefit Plans.  The occurrence of one or more ERISA Events, which individually or in the aggregate result in liability of the Issuer or any of its Restricted Subsidiaries in an aggregate amount which would reasonably be expected to result in a Material Adverse Effect; or
 
(j)          Change of Control.  The occurrence of a Change of Control; or
 
(k)         Guaranties, Collateral Documents and Other Note Documents.  At any time after the execution and delivery thereof, (i) any material Note Guaranty for any reason, other than the occurrence of the Termination Date, shall cease to be in full force and effect (other than in accordance with its terms) or shall be declared, by a court of competent jurisdiction, to be null and void or any Note Guarantor shall repudiate in writing its obligations thereunder (in each case, other than as a result of the discharge of such Note Guarantor in accordance with the terms thereof and other than as a result of any act or omission by the Purchaser Representative or any Purchaser), (ii) this Agreement or any material Collateral Document ceases to be in full force and effect or shall be declared, by a court of competent jurisdiction, to be null and void or any Lien on a material portion of the Collateral created under any Collateral Document ceases to be perfected with respect to a material portion of the Collateral (other than (A) Collateral consisting of Material Real Estate Assets to the extent that the relevant losses are covered by a lender’s title insurance policy and such insurer has not denied coverage or (B) solely by reason of (w) such perfection not being required pursuant to the Collateral and Guarantee Requirement, the Collateral Documents, this Agreement or otherwise, (x) the failure of the Purchaser Representative or the First Lien Credit Agreement Agent to maintain possession of any Collateral actually delivered to it or the failure of the Purchaser Representative to file Uniform Commercial Code financing statement, amendment or continuation statements (so long as, in the case of any financing statement or amendment, the Purchaser Representative shall have received written notice from the Issuer of the event giving rise to the requirement to file such financing statement or amendment, as applicable, within the time periods therefor set forth in Section 5.12 (in the case of events giving rise to the requirement to file a new financing statement) or Section 5.01(i) (in the case of events giving rise to the requirement to file such an amendment) (it being understood and agreed that any notice delivered pursuant to Section 5.01(i) and receipt by the Purchaser Representative of the applicable Joinder Agreement in connection with the requirements of Section 5.12 shall satisfy such notice obligations), (y) a release of Collateral in accordance with the terms hereof or thereof or (z) the occurrence of the Termination Date or any other termination of such Collateral Document in accordance with the terms thereof) or (iii) other than in any bona fide, good faith dispute as to the scope of Collateral or whether any Lien has been, or is required to be released, any Note Party shall contest in writing, the validity or enforceability of any material provision of any Note Document (or any Lien purported to be created by the Collateral Documents on any material portion of the Collateral or any Note Guaranty) or deny in writing that it has any further liability (other than by reason of the occurrence of the Termination Date or any other termination of any other Note Document in accordance with the terms thereof), including with respect to future advances by the Purchasers, under any Note Document to which it is a party; it being understood and agreed that the failure of the Purchaser Representative to file any Uniform Commercial Code financing statement, amendment or continuation statement (so long as, in the case of any financing statement or amendment, the Purchaser Representative shall have received written notice from the Issuer of the event giving rise to the requirement to file such financing statement or amendment, as applicable, within the time periods therefor set forth in Section 5.12 (in the case of events giving rise to the requirement to file a new financing statement) or Section 5.01(i) (in the case of events giving rise to the requirement to file such an amendment) (it being understood and agreed that any notice delivered pursuant to Section 5.01(i) and receipt by the Purchaser Representative of the applicable Joinder Agreement in connection with the requirements of Section 5.12 shall satisfy such notice obligations) and/or maintain possession of any physical Collateral shall not result in an Event of Default under this Section 7.01(k) or any other provision of any Note Document;
 
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(l)          Subordination.  The Secured Obligations ceasing or the assertion in writing by any Note Party that the Obligations cease to constitute senior indebtedness under the subordination provisions of any document or instrument evidencing any Junior Lien Indebtedness in excess of the Threshold Amount or any such subordination provision being invalidated by a court of competent jurisdiction in a final non-appealable order, or otherwise ceasing, for any reason, to be valid, binding and enforceable obligations of the parties thereto;
 
(m)         Conversion of Notes.  Failure by the Issuer to comply with its obligation to convert any Notes in accordance with this Agreement upon exercise of a holder’s Conversion Right pursuant to Article 10 and such failure continues for five Business Days.
 
then, and in every such event (other than an event with respect to the Issuer described in clause (f) or (g) of this Article), and at any time thereafter during the continuance of such event, the Purchaser Representative, at the request of the Required Purchasers shall, by notice to the Issuer, take any of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon such Commitments shall terminate immediately and (ii) declare the Notes then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Notes so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Issuer accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Issuer; provided that upon the occurrence of an event with respect to the Issuer described in clauses (f) or (g) of this Article, any such Commitments shall automatically terminate and the principal of the Notes then outstanding, together with accrued interest thereon and all fees and other obligations of the Issuer accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Issuer without further action of the Purchaser Representative or any Purchaser.
 
ARTICLE 8          THE PURCHASER REPRESENTATIVE
 
Section 8.01.       Appointment and Authorization of Purchaser Representative.  Each of the Purchasers, on behalf of itself and its applicable Affiliates, and in their respective capacities as such, hereby irrevocably appoints Wilmington Savings Bank Society, FSB (or any successor appointed pursuant hereto) as Purchaser Representative and authorizes the Purchaser Representative to take such actions on its behalf, including execution of the other Note Documents, and to exercise such powers as are delegated to the Purchaser Representative by the terms of the Note Documents, together with such actions and powers as are reasonably incidental thereto.
 
Section 8.02.       Rights as a Purchaser.  Any Person serving as Purchaser Representative hereunder shall have the same rights and powers in its capacity as a Purchaser as any other Purchaser and may exercise the same as though it were not the Purchaser Representative, and the term “Purchaser” or “Purchasers” shall, unless otherwise expressly indicated, unless the context otherwise requires or unless such Person is in fact not a Purchaser, include each Person serving as Purchaser Representative hereunder in its individual capacity.  Such Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with any Note Party or any subsidiary of any Note Party or other Affiliate thereof as if it were not the Purchaser Representative hereunder.  The Purchasers acknowledge that, pursuant to such activities, the Purchaser Representative or its Affiliates may receive information regarding any Note Party or any of its Affiliates (including information that may be subject to confidentiality obligations in favor of such Note Party or such Affiliate) and acknowledge that the Purchaser Representative shall not be under any obligation to provide such information to them.
 
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Section 8.03.       Exculpatory Provisions.  The Purchaser Representative shall not have any duties or obligations except those expressly set forth in the Note Documents.  Without limiting the generality of the foregoing, (a) the Purchaser Representative shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, and the use of the term “agent” or “representative” herein and in the other Note Documents with reference to the Purchaser Representative is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Requirements of Law; it being understood that such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties, (b) the Purchaser Representative shall not have any duty to take any discretionary action or exercise any discretionary power, except discretionary rights and powers that are expressly contemplated by the Note Documents and which the Purchaser Representative is required to exercise as directed in writing by the Required Purchasers (or such other number or percentage of the Purchasers as shall be necessary under the relevant circumstances as provided in Section 9.02); provided that the Purchaser Representative shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Purchaser Representative to liability or that is contrary to any Note Document or applicable Requirements of Law and (c) except as expressly set forth in the Note Documents, the Purchaser Representative shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Issuer or any of its Restricted Subsidiaries that is communicated to or obtained by the Person serving as Purchaser Representative or any of its Affiliates in any capacity.  The Purchaser Representative shall not be liable to the Purchasers or any other Secured Party for any action taken or not taken by it with the consent or at the request or direction of the Required Purchasers (or such other number or percentage of the Purchasers as is necessary, or as the Purchaser Representative believes in good faith shall be necessary under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein.  The Purchaser Representative shall not be deemed to have knowledge of any Default or Event of Default or any other matter unless and until written notice thereof is given to the Purchaser Representative by the Issuer or any Purchaser, and the Purchaser Representative shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with any Note Document, (ii) the contents of any certificate, report or other document delivered hereunder or in connection with any Note Document, (iii) the performance or observance of any covenant, agreement or other term or condition set forth in any Note Document or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of any Note Document or any other agreement, instrument or document, (v) the creation, perfection or priority of any Lien on the Collateral or the existence, value or sufficiency of the Collateral or to assure that the Liens granted to the Purchaser Representative pursuant to any Note Document have been or will continue to be properly or sufficiently or lawfully created, perfected or enforced or are entitled to any particular priority or that the Collateral and Guarantee Requirement or the Perfection Requirements are complied with, (vi) the satisfaction of any condition set forth in Article 4 or elsewhere in any Note Document, other than to confirm receipt of items expressly required to be delivered to the Purchaser Representative or (vii) any property, book or record of any Note Party or any Affiliate thereof.  The Purchaser Representative shall not (i) be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default exists, (ii) be liable for the failure to disclose any information relating to the Issuer or any of its Restricted Subsidiaries or (iii) be liable to the Purchasers or any other Secured Party for any action taken or not taken by it with the consent or at the request of the Required Purchasers (or such other number or percentage of the Purchasers as is necessary under the relevant circumstances as provided in Section 9.02) or in the absence of its own gross negligence or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, in connection with its duties expressly set forth herein. The Purchaser Representative shall have no liability for, or obligation to ascertain, monitor, confirm or inquire as to, compliance by any Purchaser, any Note Party or any other Person with the Securities Act, federal or state securities laws or any other applicable law or restrictions relating to the Notes, including without limitation, with respect to the sale or transfer of any Notes. The Purchaser Representative shall not have any duty or responsibility in respect of (i) the acquisition or maintenance of any insurance or (ii) the payment or discharge of any tax, assessment, or other governmental charge or any lien or encumbrance of any kind owing with respect to, assessed or levied against, any part of the Collateral. No provision of this Agreement or any other Note Document shall require the Purchaser Representative to expend or risk its own funds or otherwise incur any liability, financial or otherwise, in the performance of any of its duties hereunder or thereunder or in the exercise of any of its rights or powers, if it shall have grounds to believe that repayment of such funds or indemnity reasonably satisfactory to it against such risk or liability is not assured to it. The rights, privileges, protections, immunities and benefits given to the Purchaser Representative, including, without limitation, the right to be indemnified, are extended to, and shall be enforceable: (i) by the Purchaser Representative in each Note Document and any other document related hereto or thereto to which it is a party and (ii) the entity serving as the Purchaser Representative in each of its capacities hereunder and in each of its capacities under any Note Document whether or not specifically set forth therein. In no event shall the Purchaser Representative be liable for any failure or delay in the performance of its obligations under this Agreement or any other Note Document because of circumstances beyond its control, including, but not limited to, a failure, termination, or suspension of a clearing house, securities depositary, settlement system or central payment system in any applicable part of the world or acts of God, flood, war (whether declared or undeclared), civil or military disturbances or hostilities, nuclear or natural catastrophes, political unrest, explosion, earthquake, terrorism, fire, riot, labor disturbances, strikes or work stoppages for any reason, embargo, epidemics or pandemics or other health crises, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county or municipal or foreign) which delay, restrict or prohibit the providing of the services contemplated by this Agreement or the other Note Documents, or the unavailability of communications or computer facilities, the failure of equipment or interruption of communications or computer facilities, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, or any other causes beyond such the Purchaser Representative’s control whether or not of the same class or kind as specified above. Notwithstanding anything herein to the contrary, the Purchaser Representative shall not be liable for any indirect, special, punitive or consequential damages (including but not limited to lost profits) whatsoever, even if it has been informed of the likelihood thereof and regardless of the form of action. The Purchaser Representative shall not be liable for interest on any money received by it and any amounts on deposit with it shall remain uninvested. Notwithstanding anything in this Agreement or any Note Document to the contrary, the Purchaser Representative: (a) shall not be responsible for, or chargeable with knowledge of, the terms and conditions of any other agreement, instrument, or document to which it is not a party (including, without limitation, the First Lien Credit Agreement, the Transaction Support Agreement and the Master Assignment and Assumption Agreement), whether or not an original or a copy of such agreement has been provided to it, (b) shall have no liability or responsibility with respect to the Term Loan Exchange or any other transactions contemplated with respect to the exchange of the Exchanged Term Loans and (c) shall have no duty or responsibility to monitor or otherwise confirm the performance or observance of any of the covenants, agreements or other terms or conditions applicable to the First Lien Credit Agreement Agent under any agreement or document.
 
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Section 8.04.        Exclusive Right to Enforce Rights and Remedies.  Notwithstanding anything to the contrary contained herein or in any of the other Note Documents, the Issuer, the Purchaser Representative and each Secured Party agree that:
 
(a)          no Secured Party shall have any right individually to realize upon any of the Collateral or to enforce the provisions of any Note Document, including this Agreement, the Security Agreement and/or the Note Guaranty; it being understood that any right to enforce any such provision (including to realize upon the Collateral or enforce any Note Guaranty against any Note Party pursuant hereto or pursuant to any other Note Document may be exercised solely by the Purchaser Representative on behalf of the Secured Parties in accordance with the terms hereof or thereof and (ii) in the event of a foreclosure by the Purchaser Representative on any of the Collateral pursuant to a public or private sale or in the event of any other Disposition (including pursuant to Section 363 of the Bankruptcy Code), (A) the Purchaser Representative, as agent for and representative of the Secured Parties, shall be entitled, for the purpose of bidding and making settlement or payment of the purchase price for all or any portion of the Collateral sold at any such sale, to use and apply all or any portion of the Obligations as a credit on account of the purchase price for any Collateral payable by the Purchaser Representative at such Disposition and (B) the Purchaser Representative or any Purchaser may be the purchaser or licensor of all or any portion of such Collateral at any such Disposition.
 
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(b)         Each Secured Party agrees that the Purchaser Representative may (either directly or through one or more acquisition vehicles) upon instruction by the Required Purchasers, but is under no obligation to, credit bid any part or all of the Secured Obligations (other than any Secured Obligations owing to the Purchaser Representative) to purchase or retain or acquire any portion of the Collateral.
 
Section 8.05.       Reliance by Purchaser Representative.  The Purchaser Representative shall be entitled to conclusively rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) that it believes to be genuine and to have been signed, sent or otherwise authenticated by the proper Person.  The Purchaser Representative also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon.  In determining compliance with any condition hereunder to the purchasing of a Note, that by its terms must be fulfilled to the satisfaction of a Purchaser, the Purchaser Representative may presume that such condition is satisfactory to such Purchaser unless the Purchaser Representative has received notice to the contrary from such Purchaser prior to the purchasing of such Note.  The Purchaser Representative may consult with legal counsel (who may be counsel for the Issuer), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.  Notwithstanding anything contained in this Agreement or the other Note Documents to the contrary, without limiting any rights, protections, immunities or indemnities afforded to the Purchaser Representative hereunder, phrases such as “satisfactory to the Purchaser Representative,” “approved by the Purchaser Representative,” “acceptable to the Purchaser Representative,” “as determined by the Purchaser Representative,” “consented to by the Purchaser Representative”, “designed by the Purchaser Representative”, “specified by the Purchaser Representative”, “in the Purchaser Representative’s discretion,” “selected by the Purchaser Representative,” “elected by the Purchaser Representative,” “requested by the Purchaser Representative,” “in the opinion of the Purchaser Representative,” and phrases of similar import that authorize or permit the Purchaser Representative to approve, disapprove, determine, act, evaluate or decline to act in its discretion shall be subject to the Purchaser Representative receiving written direction from the Required Purchasers (or such other number or percentage of the Purchasers as shall be required by the express terms of this Agreement) to take such action or to exercise such rights. The right of the Purchaser Representative to perform any discretionary act enumerated in this Agreement or any Note Document shall not be construed as a duty.
 
Section 8.06.        Delegation of Duties.  The Purchaser Representative may perform any and all of its duties and exercise its rights and powers by or through any one or more sub-agents appointed by it.  The Purchaser Representative and any such sub-agent may perform any and all of their respective duties and exercise their respective rights and powers through their respective Related Parties.  The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Purchaser Representative and any such sub-agent and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as the Purchaser Representative.  The Purchaser Representative shall not be responsible for the acts or omissions of any agents, sub-agents, delegates, co-security trustees or attorneys-in-fact selected by it without gross negligence or willful misconduct.
 
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Section 8.07.        Successor Purchaser Representative.
 
(a)          The Purchaser Representative shall have the right to resign at any time by giving thirty days’ prior written notice thereof to the Purchasers and the Issuer. If the Purchaser Representative delivers any such notice of resignation, the Required Purchasers shall have the right to appoint a financial institution which shall be a commercial bank, trust company or other Person reasonably acceptable to the Issuer with offices in the U.S. having combined capital and surplus in excess of $1,000,000,000, subject to the consent of the Issuer (such consent not to be unreasonably withheld or delayed); provided, that during the existence and during the continuation of an Event of Default under Section 7.01(a), or with respect to the Issuer, Sections 7.01(f) or (g), no consent of the Issuer shall be required. The Purchaser Representative’s resignation shall become effective on the earliest of (i) thirty (30) days after delivery of the notice of resignation (regardless of whether a successor has been appointed), and (ii) the acceptance of such successor Purchaser Representative by the Issuer and the Required Purchasers.

(b)          If, upon notice of resignation, the Required Purchasers have not appointed a successor Purchaser Representative, the Required Purchasers shall be deemed to have succeeded to and become vested with all the rights, powers, privileges and duties of the retiring Purchaser Representative; provided that, until a successor Purchaser Representative reasonably satisfactory to the Issuer is so appointed by the Required Purchasers, any collateral security held by the Purchaser Representative shall continue to be held by it until such time as a successor agent is appointed and the Purchaser Representative shall continue to be entitled to all of its rights, protections and indemnities hereunder and under the other Note Documents during such time.  If a successor Purchaser Representative is not appointed within 30 days after the retiring or removed Purchaser Representative provides a notice of resignation or is given a notice of removal, such retiring or removed Purchaser Representative may, at the Issuer’s expense, petition any court of competent jurisdiction for the appointment of a successor Purchaser Representative.  Upon the acceptance of any appointment as the Purchaser Representative hereunder by a successor Purchaser Representative, that successor Purchaser Representative shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring or removed Purchaser Representative and the retiring or removed Purchaser Representative shall promptly (i) transfer to such successor Purchaser Representative all sums, Securities and other items of Collateral held under the Note Documents, together with all records and other documents necessary or appropriate in connection with the performance of the duties of the successor Purchaser Representative under the Note Documents, and (ii) at the expense of the Issuer, execute and deliver to such successor Purchaser Representative such amendments to financing statements provided to it, and take such other actions, as may be reasonably requested of it in connection with the assignment to such successor Purchaser Representative of the security interests created under the Note Documents, whereupon such retiring Purchaser Representative shall be discharged from its duties and obligations hereunder (other than its obligations under Section 9.13 hereof).
 
(c)          The fees payable by the Issuer to any successor Purchaser Representative shall be the same as those payable to its predecessor unless otherwise agreed between the Issuer and such successor Purchaser Representative.
 
(d)          After the Purchaser Representative’s resignation or removal hereunder, the provisions of this Article and Section 9.03 shall continue in effect for the benefit of such retiring or removed Purchaser Representative, its sub-agents and their respective Related Parties in respect of any action taken or omitted to be taken by any of them while the relevant Person was acting as Purchaser Representative (including for this purpose holding any collateral security following the retirement or removal of the Purchaser Representative).
 
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(e)        Any corporation into which the Purchaser Representative may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Purchaser Representative shall be a party, or any corporation succeeding to the business of the Purchaser Representative, shall be the successor of the Purchaser Representative hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.

(f)          Notwithstanding anything to the contrary herein, no Disqualified Institution (nor any Affiliate thereof) may be appointed as a successor Purchaser Representative.
 
Section 8.08.        Non-Reliance On Purchaser Representative.  Each Purchaser acknowledges that it has, independently and without reliance upon the Purchaser Representative or any other Purchaser or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement.  Each of each Purchaser also acknowledges that it will, independently and without reliance upon the Purchaser Representative or any other Purchaser or any of their respective Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Note Document or related agreement or any document furnished hereunder or thereunder.  Except for notices, reports and other documents expressly required to be furnished to the Purchasers by the Purchaser Representative herein, the Purchaser Representative shall not have any duty or responsibility to provide any Purchaser with any credit or other information concerning the business, prospects, operations, property, financial and other condition or creditworthiness of any of the Note Parties or any of their respective Affiliates which may come into the possession of the Purchaser Representative or any of its Related Parties.
 
Section 8.09.        Collateral and Guaranty Matters.  Each Purchaser and each other Secured Party irrevocably authorizes and instructs the Purchaser Representative to, and the Purchaser Representative shall:
 
(a)         release (or evidence the release of) any Lien on any property granted to or held by Purchaser Representative under any Note Document (i) upon the occurrence of the Termination Date, (ii) that is sold or otherwise Disposed of (other than pursuant to a lease, sublease, license or sublicense) as part of or in connection with any Disposition permitted under (or not restricted by) the Note Documents (subject to the last paragraph of Section 6.07), (iii) that does not constitute (or ceases to constitute) Collateral (and/or otherwise becomes an Excluded Asset), (iv) if the property subject to such Lien is owned by a Subsidiary Guarantor, upon the release of such Subsidiary Guarantor from its Note Guaranty otherwise in accordance with the Note Documents, (v) as required under clause (d) below, (vi) pursuant to the provisions of any applicable Note Document or (vii) if approved, authorized or ratified in writing by the Required Purchasers in accordance with Section 9.02;
 
(b)          subject to Section 9.22, release (or evidence the release of) any Subsidiary Guarantor from its obligations under the Note Guaranty (i) if such Person ceases to be a Restricted Subsidiary or is an Excluded Subsidiary (or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions not prohibited hereunder, including for the avoidance of doubt, any Permitted Practice Subsidiary Restructuring) and/or (ii) in the case of any Discretionary Guarantor, at the election of the Issuer, upon notice from the Issuer to the Purchaser Representative at any time so long as, in the case of this clause (ii), after giving pro forma effect to such release and, if applicable, the relevant transaction, the Issuer is deemed to have made a new Investment in such Person (as if such Person was then newly acquired) on the date of such release and such Investment is not otherwise prohibited by the Note Documents; provided that if any Subsidiary Guarantor ceases to constitute a Wholly-Owned Subsidiary, such Subsidiary Guarantor shall not be released from its Note Guaranty unless (A) such Subsidiary Guarantor is no longer a direct or indirect subsidiary of the Issuer or (B) after giving pro forma effect to such release and the consummation of the relevant transaction, the Issuer is deemed to have made a new Investment in such Person (as if such Person was then newly acquired) and such Investment is not otherwise prohibited by the Note Documents; it being understood that this proviso shall not limit the release of any Subsidiary Guarantor that otherwise constitutes an Excluded Subsidiary for any reason other than not constituting a Wholly-Owned Subsidiary of the Issuer (this proviso, the “Specified Guarantor Release Provision”);
 
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(c)         subordinate any Lien on any property granted to or held by the Purchaser Representative under any Note Document to the holder of any Lien on such property that is permitted by Sections 6.02(d), 6.02(e), 6.02(g)(i), 6.02(l), 6.02(m), 6.02(n), 6.02(o)(i) (other than any Lien on the Capital Stock of any Subsidiary Guarantor), 6.02(q), 6.02(r), 6.02(s), 6.02(x), 6.02(y), 6.02(z)(i), 6.02(bb), 6.02(cc), 6.02(dd) (in the case of clause (ii), to the extent the relevant Lien covers cash collateral posted to secure the relevant obligation), 6.02(ee), 6.02(ff), 6.02(gg) and/or 6.02(hh) (and any Refinancing Indebtedness in respect of any thereof to the extent such Refinancing Indebtedness is permitted to be secured under Section 6.02(k));
 
(d)        enter into subordination, intercreditor, collateral trust and/or similar agreements with respect to Indebtedness (including any Intercreditor Agreement and/or any amendment to any Intercreditor Agreement) that is (i) required or permitted to be subordinated hereunder and/or (ii) secured by Liens, and with respect to which Indebtedness, this Agreement contemplates an intercreditor, subordination, collateral trust or similar agreement, with each of the Purchasers and the other Secured Parties irrevocably agreeing to the treatment of the Lien on the Collateral securing the Secured Obligations as set forth in any such agreement and it will be bound by and will take no action contrary to the provisions of any such agreement; and
 
(e)        execute and/or deliver, as applicable, any amendment to any UCC financing statement and/or any other document evidencing the security interest granted pursuant to the Collateral Documents to indicate that Excluded Assets and/or other assets that do not constitute and are not required to constitute Collateral are not subject to the security interest granted pursuant to the Collateral Documents.
 
Upon the request of the Purchaser Representative at any time, the Required Purchasers will confirm in writing the Purchaser Representative’s authority to release or subordinate its interest in particular types or items of property, or to release any Note Party from its obligations under the Note Guaranty or its Lien on any Collateral pursuant to this Article 8.  In each case as specified in this Article 8, the Purchaser Representative will (and each Purchaser hereby authorizes the Purchaser Representative to), at the Issuer’s expense, execute and deliver to the applicable Note Party such documents as such Note Party may prepare and reasonably request to evidence, effectuate or confirm the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents, to subordinate its interest therein, or to evidence, effectuate or confirm the release of such Note Party from its obligations under the Note Guaranty, in each case in accordance with the terms of the Note Documents and this Article 8; provided, that upon the request of the Purchaser Representative, the Issuer shall deliver a certificate of a Responsible Officer certifying that the relevant transaction has been consummated in compliance with the terms of this Agreement and that the execution by the Purchaser Representative of any documents or instruments evidencing or authorizing such release or subordination is authorized or permitted by the terms of this Agreement and the Note Documents.
 
Each of the Purchasers hereby direct and authorize the Purchaser Representative to execute and deliver any releases presented to it by the First Lien Credit Agreement Agent in accordance with the terms of the Second Lien Intercreditor and Subordination Agreement or by any other applicable agent in accordance with the terms of any Intercreditor Agreement, or otherwise presented to the Purchaser Representative for execution in accordance with the terms of Second Lien Intercreditor and Subordination Agreement or any other Intercreditor Agreement, and the Purchaser Representative shall have no obligations to investigate or determine whether any such release is permitted by the Note Documents or any other related document and shall incur no liability for executing and delivering any such release.
 
It is understood and agreed that, notwithstanding anything to the contrary herein, in any other Note Document, (a) unless otherwise agreed to by the Issuer, the obligations of the Issuer or any subsidiary under any such agreement shall be secured and guaranteed pursuant to the Collateral Documents and the Note Guaranty only to the extent that, and for so long as, the Obligations are so secured and guaranteed and (b) any release of any Lien on any Collateral and/or any Subsidiary Guarantor effected in a manner permitted by this Agreement and/or any other Note Document shall not require the consent of any such counterparty.
 
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Section 8.10.      Intercreditor Agreements.  The Purchaser Representative is authorized by the Purchasers and each other Secured Party to, and shall, enter into the Second Lien Intercreditor and Subordination Agreement, any other Intercreditor Agreement and any other intercreditor, subordination, collateral trust or similar agreement contemplated hereby with respect to any (a) Indebtedness that is (i) required or permitted to be subordinated hereunder and/or (ii) secured by any Lien permitted hereunder and (b) which contemplates an intercreditor, subordination, collateral trust or similar agreement (any such other intercreditor, subordination, collateral trust and/or similar agreement, which intercreditor, subordination, collateral trust and/or similar agreement shall be reasonably acceptable to the Required Purchasers, an “Additional Agreement”), and the Secured Parties party hereto acknowledge that any Intercreditor Agreement and any other Additional Agreement is binding upon them.  Each Purchaser and each other Secured Party party hereto hereby (a) agrees that it will be bound by, and will not take any action contrary to, the provisions of any Intercreditor Agreement or any other Additional Agreement and (b) authorizes and instructs the Purchaser Representative to enter into any Intercreditor Agreement and/or any other Additional Agreement and to subject the Liens on the Collateral securing the Secured Obligations to the provisions thereof.  The foregoing provisions are intended as an inducement to the Purchasers and other Secured Parties to extend credit to the Issuer, and the Purchasers and the other Secured Parties are intended third-party beneficiaries of such provisions and the provisions of any Intercreditor Agreement and/or any other Additional Agreement.
 
Section 8.11.       Indemnification of Purchaser Representative.  To the extent that the Purchaser Representative (or any Affiliate thereof) and each of its Related Parties is not reimbursed and indemnified by the Issuer in accordance with and to the extent required by Section 9.03 hereof, the Purchasers will reimburse and indemnify the Purchaser Representative (and any Affiliate thereof) and each of its Related Parties in proportion to their respective Applicable Percentages (determined as if there were no Defaulting Purchasers) for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Purchaser Representative (or any Affiliate thereof) in performing its duties hereunder or under any other Note Document or in any way relating to or arising out of this Agreement or any other Note Document; provided that no Purchaser shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from the Purchaser Representative’s (or such Affiliate’s) or such Related Party’s gross negligence, bad faith or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).   Notwithstanding anything to the contrary set forth in the Note Documents and for the avoidance of doubt, any restriction set forth in any Intercreditor Agreement with respect to the Purchaser Representative’s ability to seek reimbursement of its fees, expenses and indemnities from the Issuer shall not affect each Purchaser’s requirement to reimburse and indemnify the Purchaser Representative (and any Affiliate thereof) and each of its Related Parties pursuant to this Section 8.11 and in such event the Purchaser Representative shall not be required to make demand on the Issuer prior to seeking reimbursement and indemnification from the Purchasers pursuant to this Section 8.11
 
Section 8.12.   Withholding Taxes.  To the extent required by any applicable Requirement of Law (as determined in good faith by the Purchaser Representative), the Purchaser Representative may withhold from any payment to any Purchaser under any Note Document an amount equivalent to any applicable withholding Tax.  Without limiting or expanding the provisions of Section 2.20, each Purchaser shall indemnify and hold harmless the Purchaser Representative against, and shall make payable in respect thereof within ten days after demand therefor, any and all Taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Purchaser Representative) incurred by or asserted against the Purchaser Representative by the IRS or any other Governmental Authority as a result of the failure of the Purchaser Representative to properly withhold Tax from amounts paid to or for the account of such Purchaser for any reason (including because the appropriate form was not delivered or not properly executed, or because such Purchaser failed to notify the Purchaser Representative of a change in circumstance that rendered the exemption from, or reduction of withholding Tax ineffective).  A certificate as to the amount of such payment or liability delivered to any Purchaser by the Purchaser Representative shall be conclusive absent manifest error.  Each Purchaser hereby authorizes the Purchaser Representative to set off and apply any and all amounts at any time owing to such Purchaser under this Agreement or any other Note Document against any amount due the Purchaser Representative under this paragraph.  The agreements in this paragraph 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.
 
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Section 8.13.    Purchaser Representative May File Proofs of Claim.  In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative to any Note Party, the Purchaser Representative (irrespective of whether the principal of any Notes shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Purchaser Representative shall have made any demand on the Note Parties) shall be entitled and empowered, by intervention in such proceeding or otherwise:
 
(a)          to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Notes and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Secured Parties and the Purchaser Representative (including any claim for the reasonable compensation, expenses, disbursements and advances of the Secured Parties and the Purchaser Representative and their respective agents and counsel and all other amounts due the Secured Parties and the Purchaser Representative under Sections 2.14 and 9.03) allowed in such judicial proceeding; and
 
(b)          to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;
 
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Secured Party to make such payments to the Purchaser Representative and, in the event that the Purchaser Representative shall consent to the making of such payments directly to the Secured Parties, to pay to the Purchaser Representative any amount due for the reasonable compensation, expenses, disbursements and advances of the Purchaser Representative and its agents and counsel, and any other amounts due the Purchaser Representative under Sections 2.14 and 9.03
 
Section 8.14.       Erroneous Payments.
 
(a)         If the Purchaser Representative notifies a Purchaser or Secured Party, or any Person who has received funds on behalf of a Purchaser or Secured Party (any such Purchaser, Secured Party or other recipient, a “Payment Recipient”) that the Purchaser Representative has determined in its sole discretion that any funds received by such Payment Recipient from the Purchaser Representative or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Payment Recipient (whether or not known to such Purchaser, Secured Party or other Payment Recipient on its behalf) (any such funds, whether received as a payment, prepayment or repayment of principal, interest, fees, distribution or otherwise, individually and collectively, an “Erroneous Payment”), the Purchaser Representative shall, within thirty (30) calendar days of the date of the payment of such Erroneous Payment to the Payment Recipient, notify the Payment Recipient and demand the return of such Erroneous Payment (or a portion thereof), such Erroneous Payment shall at all times remain the property of the Purchaser Representative and shall be segregated by the Payment Recipient and held in trust for the benefit of the Purchaser Representative, and such Purchaser or Secured Party shall (or, with respect to any Payment Recipient who received such funds on its behalf, shall cause such Payment Recipient to) promptly, but in no event later than two Business Days thereafter, return to the Purchaser Representative the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Payment Recipient to the date such amount is repaid to the Purchaser Representative in same day funds at the greater of the Federal Funds Rate and a rate determined by the Purchaser Representative in accordance with banking industry rules on interbank compensation from time to time in effect.  A notice of the Purchaser Representative to any Payment Recipient under this clause (a) shall be conclusive, absent manifest error.  If a Payment Recipient receives any payment, prepayment or repayment of principal, interest, fees, distribution or otherwise and does not receive a corresponding payment notice or payment advice from the Purchaser Representative, such payment, prepayment or repayment shall be presumed to be in error absent written confirmation from the Purchaser Representative to the contrary.
 
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(b)          Each Purchaser or Secured Party hereby authorizes the Purchaser Representative to set off, net and apply any and all amounts at any time owing to such Purchaser or Secured Party under any Note Document, or otherwise payable or distributable by the Purchaser Representative to such Purchaser or Secured Party from any source, against any amount due to the Purchaser Representative under immediately preceding clause (a) or under the indemnification provisions of this Article 8.
 
(c)         For so long as an Erroneous Payment (or portion thereof) has not been returned by any Payment Recipient who received such Erroneous Payment (or portion thereof) (such unrecovered amount, an “Erroneous Payment Return Deficiency”) to the Purchaser Representative after demand therefor in accordance with clause (a) above, (i) the Purchaser Representative may elect, in its sole discretion upon written notice to the relevant Purchaser or Secured Party, that all rights and claims of such Purchaser or Secured Party with respect to the Notes or other Obligations owed to such Person up to the amount of the corresponding Erroneous Payment Return Deficiency in respect of such Erroneous Payment (the “Corresponding Amount”) shall immediately vest in the Purchaser Representative upon such election; after such election, with respect to Notes, the Purchaser Representative (x) may reflect its ownership interest in the relevant Notes in a principal amount equal to the Corresponding Amount in the Register, and (y) upon five business days’ written notice to such Purchaser may sell such Note (or portion thereof) to an Eligible Transferee in accordance with Section 9.05 in respect of the Corresponding Amount, and upon receipt of the proceeds of such sale, the Erroneous Payment Return Deficiency owing by such Purchaser shall be reduced by the net proceeds of the sale of such Note (or portion thereof), and the Purchaser Representative shall retain all other rights, remedies and claims against such Purchaser (and/or against any Payment Recipient that receives funds on its behalf), and (ii) each party hereto agrees that, except to the extent that the Purchaser Representative has sold such Notes, and irrespective of whether the Purchaser Representative may be equitably subrogated, the Purchaser Representative shall be contractually subrogated to all the rights and interests of such Purchaser or Secured Party with respect to the relevant Erroneous Payment Return Deficiency (determined after any reduction as a result of the vesting described in clause (i)) (it being understood and agreed that aggregate Obligations of the Note Parties shall not be increased as a result of the application of this clause (ii)).  For the avoidance of doubt, no vesting or sale pursuant to this clause (c) will reduce the Commitments of any Purchaser and such Commitments shall remain available in accordance with the terms of this Agreement.
 
(d)         The parties hereto agree that an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Issuer or any other Note Party, except, in each case, to the extent such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Purchaser Representative from the Issuer or any other Note Party for the purpose of making such Erroneous Payment.
 
(e)         No Payment Recipient shall assert any right or claim to an Erroneous Payment, and hereby waives, and is deemed to waive, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Purchaser Representative for the return of any Erroneous Payment received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine.
 
(f)         Each party’s obligations, agreements and waivers under this Section 8.14 shall survive the resignation or replacement of the Purchaser Representative, any transfer of rights or obligations by, or the replacement of, a Purchaser, and the occurrence of the Termination Date.
 
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(g)          This Section 8.14 shall not apply to the disbursement of any proceeds of a Note to or at the express direction of the Issuer unless otherwise expressly agreed to in writing by the Issuer.
 
(h)          Notwithstanding anything to the contrary herein or in any other Note Document, the Issuer and the Note Parties shall have no obligations or liabilities for any actions, consequences or remediation (including the repayment of any amounts) contemplated by this Section 8.14; provided that under no circumstances shall this Section 8.14(h) affect the Issuer’s or any Note Parties’ obligations or liabilities with respect to any Obligations that remain outstanding.
 
Section 8.15.        Representations and Warranties of the Purchasers.
 
Each Purchaser, severally, but not jointly or jointly and severally, represents and warrants to Issuer as to matters affecting itself that:
 
(a)         Securities Law Compliance.  Such Purchaser (a) is an “accredited investor”, as that term is defined in Regulation D under the Securities Act and (b) has such knowledge, skill, sophistication and experience in business and financial matters, based on actual participation, that it is capable of evaluating the merits and risks of the purchase and sale of the securities hereunder (including the Notes, Conversion Shares and the shares of Series B Preferred Stock) and the suitability thereof for such Purchaser.  The securities to be acquired by such Purchaser pursuant to this Agreement are being or will be acquired for its own account and with no intention of distributing or reselling such securities (within the meaning of the Securities Act) or any part thereof in any transaction that would be in violation of the securities laws of the United States of America, or any state, without prejudice, however, to its right at all times to sell or otherwise dispose of all or any part of the securities under an effective registration statement under the Securities Act, or under an exemption from such registration available under the Securities Act, and subject, nevertheless, to the disposition of its property being at all times within its control.  If such Purchaser should in the future decide to dispose of any of the securities, such Purchaser understands and agrees that it may do so only in compliance with the Securities Act and applicable state securities laws, as then in effect. Such Purchaser agrees to the entry of a book entry legend to such effect in respect of its securities on any ledger or other register maintained by the Issuer.
 
(b)          Broker’s, Finder’s or Similar Fees.  Such Purchaser did not employ any broker or finder in connection with the transactions contemplated in this Agreement.
 
(c)          Source of Funds.  Each Purchaser severally represents that at least one of the following statements is an accurate representation as to each source of funds (a “Source”) to be used by such Purchaser to pay the purchase price of the Notes to be purchased by such Purchaser hereunder:
 
(i)         the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the NAIC (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or
 
(ii)        the Source is a separate account that is maintained solely in connection with such Purchaser’s fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or
 
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(iii)        the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the Issuer in writing pursuant to this clause (c), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or
 
(iv)        the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM maintains an ownership interest in the Issuer that would cause the QPAM and the Issuer to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any employee benefit plans whose assets in the investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Issuer in writing pursuant to this clause (d); or
 
(v)         the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% or more interest in the Issuer and (i) the identity of such INHAM and (ii) the name(s) of the employee benefit plan(s) whose assets constitute the Source have been disclosed to the Issuer in writing pursuant to this clause (e); or
 
(vi)        the Source is a governmental plan; or
 
(vii)       the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Issuer in writing pursuant to this clause (g); or
 
(viii)      the Source does not include assets of any employee benefit plan, other than a plan exempt from the coverage of ERISA.
 
(d)          Organization and Qualification.  Such Purchaser is duly organized and validly existing and in good standing (or the equivalent thereof) under the laws of the jurisdiction in which it is formed, and has the requisite power and authority to own, operate or lease the properties and assets owned, operated or leased by it and to conduct its business as presently conducted. Such Purchaser is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction in which its ownership of property or the nature of the business conducted by it makes such qualification necessary.
 
(e)          Authorization; Validity; Enforcement.  Such Purchaser has the requisite power and authority to enter into and perform its obligations under this Agreement and the applicable Note Documents and to consummate the transactions contemplated hereby and thereby.  The execution and delivery of this Agreement and the applicable Note Documents by such Purchaser and the consummation by such Purchaser of the transactions contemplated hereby and thereby have been, or when executed will be, duly authorized by such Purchaser. This Agreement and the applicable Note Documents have been (or will be, upon execution) duly executed and delivered by such Purchaser and shall constitute the legal, valid and binding obligations of such Purchaser, enforceable against such Purchaser in accordance with their respective terms, except as such enforceability may be limited by customary bankruptcy and equitable exceptions.
 
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(f)        No Conflicts.  The execution, delivery and performance by such Purchaser of this Agreement and the applicable Note Documents do not and will not (i) violate or conflict with the organization certificate, bylaws or similar constitutive documents of such Purchaser; (ii) result in a breach, violation or default of any Law or Order applicable to such Purchaser; or (iii) conflict with, or constitute a default (or an event which with notice or lapse of time or both would become a default) in any respect under, or give to others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which such Purchaser is a party.
 
As used in this Section 8.15(c), the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in Section 3 of ERISA.  To the extent any Purchaser is relying on clause (viii) of this Section 8.15(c), such Purchaser shall not be in breach of this representation solely by reason of the fact the one or more investors in such Purchaser is, or is investing the assets of, an employee benefit plan subject to ERISA, as long as such Purchaser’s assets are not, and are not deemed to be, “plan assets” for purposes of ERISA.
 
ARTICLE 9          MISCELLANEOUS
 
Section 9.01.        Notices.
 
(a)          Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or email, as follows:
 
(i)          if to any Note Party, to such Note Party in the care of the Issuer at:
 
ATI Holdings, Inc.
790 Remington Boulevard
Bolingbrook, Illinois 60440
Attention: Joanne Fong and Joseph Jordan
Email: joanne.fong@atipt.com and joseph.jordan@atipt.com

with a copy to (which shall not constitute notice to any Note Party):
 
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, NY  10153
Telephone: +1 (212) 310-8260
Attention: Benton Lewis
Email: benton.lewis@weil.com
 
(ii)         if to the Purchaser Representative, at:
 
Wilmington Savings Fund Society, FSB
500 Delaware Ave.
Wilmington, DE 19801

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Attention: ATI Physical Therapy, Inc.
Email: phealy@wsfsbank.com

With a copy to (which shall not constitute notice):

Seward & Kissel LLP
One Battery Park Plaza
New York, New York 10004
Attention: Gregg Bateman
Email: bateman@sewkis.com

(iii)        if to any Purchaser, to it at its address or facsimile number set forth in its Administrative Questionnaire.
 
All such notices and other communications (A) sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when delivered in person or by courier service and signed for against receipt thereof or three Business Days after dispatch if sent by certified or registered mail, in each case, delivered, sent or mailed (properly addressed) to the relevant party as provided in this Section 9.01 or in accordance with the latest unrevoked direction from such party given in accordance with this Section 9.01 or (B) sent by facsimile shall be deemed to have been given when sent and when receipt has been confirmed by telephone; provided that notices and other communications sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, such notices or other communications shall be deemed to have been given at the opening of business on the next Business Day for the recipient).  Notices and other communications delivered through electronic communications to the extent provided in clause (b) below shall be effective as provided in such clause (b).
 
(b)        Notices and other communications to the Purchasers hereunder may be delivered or furnished by electronic communications (including e-mail and Internet or Intranet websites) pursuant to procedures set forth herein or otherwise approved by the Purchaser Representative.  The Purchaser Representative or the Issuer (on behalf of any Note Party) may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures set forth herein or otherwise approved by it; provided that approval of such procedures may be limited to particular notices or communications.  All such notices and other communications (i) sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided that any such notice or communication not given during the normal business hours of the recipient shall be deemed to have been given at the opening of business on the next Business Day for the recipient or (ii) posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause (b)(i) of notification that such notice or communication is available and identifying the website address therefor.
 
(c)         Any party hereto may change its address or facsimile number or other notice information hereunder by notice to the other parties hereto; it being understood and agreed that the Issuer may provide any such notice to the Purchaser Representative as recipient on behalf of itself and each Purchaser.
 
(d)         The Issuer hereby acknowledges that (a) the Purchaser Representative will make available to the Purchasers materials and/or information provided by, or on behalf of, the Issuer hereunder (collectively, the “Issuer Materials”) by posting the Issuer Materials on the Platform and (b) certain of the Purchasers may be “public-side” Purchasers (i.e., Purchasers that do not wish to receive material nonpublic information within the meaning of the United States federal securities laws with respect to the Issuer or their respective securities) (each, a “Public Purchaser”).  The Issuer hereby agrees that (i) all Issuer Materials that are to be made available to Public Purchasers shall be clearly and conspicuously marked “PUBLIC”, (ii) by marking Issuer Materials “PUBLIC,” the Issuer shall be deemed to have authorized the Purchaser Representative and the Purchasers to treat such Issuer Materials as information of a type that would (A) customarily be made publicly available, as determined in good faith by the Issuer, if the Issuer were to become public reporting companies or (B) would not be material with respect to the Issuer, their respective subsidiaries, any of their respective securities or the Transactions as determined in good faith by the Issuer for purposes of the United States federal securities laws and (iii) the Purchaser Representative shall be required to treat Issuer Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not marked as “Public Investor.”  Notwithstanding the foregoing, the following Issuer Materials shall be deemed to be marked “PUBLIC,” unless the Issuer notifies the Purchaser Representative promptly that any such document contains material nonpublic information (it being understood that the Issuer shall have a reasonable opportunity to review the same prior to distribution and comply with SEC or other applicable disclosure obligations): (1) the Note Documents, (2) any amendment to any Note Document and (3) any information delivered pursuant to Sections 5.01(a) or (b).
 
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Each Public Purchaser agrees to cause at least one individual at or on behalf of such Public Purchaser to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Purchaser or its delegate, in accordance with such Public Purchaser’s compliance procedures and applicable law, including United States federal and state securities laws, to make reference to communications that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Issuer or its securities for purposes of United States federal or state securities laws.
 
THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE PURCHASER REPRESENTATIVE NOR ANY OF ITS RELATED PARTIES WARRANTS THE ACCURACY OR COMPLETENESS OF THE COMMUNICATIONS ON, OR THE ADEQUACY OF, THE PLATFORM, AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN ANY SUCH COMMUNICATION.  NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD-PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE PURCHASER REPRESENTATIVE OR ANY OF ITS RELATED PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE PLATFORM.  IN NO EVENT SHALL ANY PARTY HERETO OR ANY OF ITS RELATED PARTIES HAVE ANY LIABILITY TO ANY OTHER PARTY HERETO OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND, WHETHER OR NOT BASED ON STRICT LIABILITY AND INCLUDING DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSSES OR EXPENSES (WHETHER IN TORT, CONTRACT OR OTHERWISE) ARISING OUT OF ANY NOTE PARTY’S OR THE PURCHASER REPRESENTATIVE’S TRANSMISSION OF COMMUNICATIONS THROUGH THE INTERNET, EXCEPT TO THE EXTENT THE LIABILITY OF ANY SUCH PERSON IS FOUND IN A FINAL RULING BY A COURT OF COMPETENT JURISDICTION TO HAVE RESULTED FROM SUCH PERSON’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR (IN THE CASE OF ANY PARTY OTHER THAN THE PURCHASER REPRESENTATIVE) MATERIAL BREACH OF THIS AGREEMENT.
 
Section 9.02.        Waivers; Amendments.
 
(a)          No failure or delay by the Purchaser Representative or any Purchaser in exercising any right or power hereunder or under any other Note Document shall operate as a waiver thereof except as provided herein or in any Note Document, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the Purchaser Representative and the Purchasers hereunder and under any other Note Document are cumulative and are not exclusive of any rights or remedies that they would otherwise have.  No waiver of any provision of any Note Document or consent to any departure by any party hereto therefrom shall in any event be effective unless the same is permitted by this Section 9.02, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which it is given.  Without limiting the generality of the foregoing, to the extent permitted by applicable Requirements of Law, the purchase of any Note shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Purchaser Representative or any Purchaser may have had notice or knowledge of such Default or Event of Default at the time.
 
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(b)        Subject to Sections 9.02(b) through (d) below and to Section 9.05(f), neither this Agreement nor any other Note Document nor any provision hereof or thereof may be waived, amended or modified, except (i) in the case of this Agreement, pursuant to an agreement or agreements in writing entered into by the Issuer and the Required Purchasers (or the Purchaser Representative with the consent of the Required Purchasers) or (ii) in the case of any other Note Document (other than any waiver, amendment or modification to effectuate any modification thereto expressly contemplated by the terms of such other Note Document), pursuant to an agreement or agreements in writing entered into by the Required Purchasers and each Note Party that is party thereto; provided that, notwithstanding the foregoing:
 
(A)         the consent of each Purchaser directly and adversely affected thereby (but not the consent of the Required Purchasers) shall be required for any waiver, amendment or modification that:
 
(1)        increases the Commitment of such Purchaser (other than with respect to any Additional Note pursuant to Section 2.22 in respect of which such Purchaser has agreed to be an Additional Purchaser); it being understood that no amendment, modification or waiver of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default or mandatory reduction of the Commitments shall constitute an increase of any Commitment of such Purchaser;
 
(2)          reduces the principal amount of any Note owed to such Purchaser or any amount due to such Purchaser on the Maturity Date;
 
(3)        (x) extends the scheduled final maturity of any Note held by such Purchaser or (y) postpones any Interest Payment Date with respect to any Note held by such Purchaser hereunder (in each case, other than any extension for administrative reasons agreed by the Purchaser Representative);
 
(4)          reduces the rate of interest (other than to waive any Default or Event of Default or any obligation of the Issuer to pay interest to such Purchaser at the default rate of interest under Section 2.15(d), which shall only require the consent of the Required Purchasers) or the amount of any fee or premium owed to such Purchaser; it being understood that no change in the definition of “Consolidated Adjusted EBITDA” or any other financial test, or in the calculation of any other interest, fee or premium due hereunder (including any component definition thereof) shall constitute a reduction in any rate of interest or fee hereunder;
 
(5)          extends the expiry date of such Purchaser’s Commitment; it being understood that no amendment, modification or waiver of, or consent to departure from, any condition precedent, representation, warranty, covenant, Default, Event of Default or mandatory reduction of any Commitment shall constitute an extension of any Commitment of any Purchaser; or
 
(6)          waives, amends or modifies the provisions of (I) Sections 2.21(a) or (c) of this Agreement in a manner that would by its terms alter the pro rata sharing of payments required thereby (except in connection with any transaction permitted under Sections 2.22 and/or 9.05(g) or as otherwise provided in this Section 9.02) or (II) Section 2.21(b);
 
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(7)          waives, amends or modifies the provisions of Article 10 that adversely affects the Conversion Rights of any Notes hereunder;
 
(B)         no such agreement shall:
 
(1)         change (x) any of the provisions of Section 9.02(a) or Section 9.02(b) or the definition of “Required Purchasers”, in each case to reduce any voting percentage required to waive, amend or modify any right thereunder or make any determination or grant any consent thereunder, without the prior written consent of each Purchaser, (y) the definition of “Required Delayed Draw Purchasers” without the consent of each Delayed Draw Purchaser (it being understood that neither the consent of the Required Purchasers nor the consent of any other Purchaser shall be required in connection with any change to the definition of “Required Delayed Draw Purchasers”) or (z) the definition of “Required Additional Purchasers” without the consent of each Additional Purchaser (it being understood that neither the consent of the Required Purchasers nor the consent of any other Purchaser shall be required in connection with any change to the definition of “Required Additional Purchasers”);
 
(2)          (A) release all or substantially all of the Collateral from the Lien granted pursuant to the Note Documents (except as otherwise permitted herein or in the other Note Documents, including pursuant to Article 8 or Section 9.22 hereof), without the prior written consent of each Purchaser or (B) subordinate the Lien on any of the Collateral securing the Secured Obligations or subordinate the payment priority of any of the Obligations to any other Indebtedness for borrowed money (other than in connection with (I) any Acceptable Debtor-In-Possession Financing and/or (II) any other financing with respect to which each Purchaser has been offered the opportunity to provide such financing without the prior written consent of each Purchaser, in the case of this clause (II), to the extent such Purchaser is offered a reasonable, bona fide opportunity to participate on a pro rata basis in any such Indebtedness on substantially the same terms as all other Purchasers, which offer shall remain open to such Purchaser for a period of not less than five Business Days; provided, that if any such Purchaser does not accept such offer to provide its pro rata share of such Indebtedness in writing within five Business Days of receipt of such offer, such Purchaser shall be deemed to have declined such offer); provided that the amendment of Section 6.01 and/or Section 6.02 to permit the incurrence of additional obligations that are secured by the Collateral on a pari passu basis with the “Secured Obligations” (or equivalent term) under the First Lien Facility shall not be subject to this clause (B)(2)(B); or
 
(3)          release all or substantially all of the value of the Guarantees under the Note Guaranty (except as otherwise permitted herein or in the other Note Documents, including pursuant to Section 9.22 hereof), without the prior written consent of each Purchaser;
 
(C)         solely with the consent of the Required Additional Purchasers with respect to any Additional Note Commitment (but without the consent of the Required Purchasers or any other Purchaser), any such agreement may waive, amend or modify any condition precedent set forth in Section 4.03 (other than Section 4.03(d))  as it pertains to any Additional Notes Issuance in respect of any Additional Note Commitment;
 
(D)         solely with the consent of the Required Delayed Draw Purchasers (but without the consent of the Required Purchasers or any other Purchaser), any such agreement may waive, amend or modify any condition precedent set forth in Section 4.02 or Section 4.03 (other than Section 4.03(d))  as it pertains to any Issuance of Delayed Draw Notes; and
 
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(E)          no such agreement shall amend, modify or otherwise affect the rights or duties of the Purchaser Representative hereunder without the prior written consent of the Purchaser Representative.
 
(c)          [Reserved].
 
(d)          Notwithstanding anything to the contrary contained in this Section 9.02 or any other provision of this Agreement or any provision of any other Note Document:
 
(i)         the Issuer and the Purchaser Representative may, without the input or consent of any Purchaser, amend, supplement and/or waive any provision of this Agreement and/or any guaranty, collateral security agreement, pledge agreement and/or related document (if any) executed in connection with this Agreement to (A) comply with any Requirement of Law or the advice of counsel or (B) cause any such guaranty, collateral security agreement, pledge agreement or other document to be consistent with this Agreement and/or the relevant other Note Documents,
 
(ii)         [reserved],
 
(iii)        [reserved],
 
(iv)        the Purchaser Representative and the Issuer may amend, restate, amend and restate or otherwise modify any Intercreditor Agreement and/or any other Additional Agreement as provided therein,
 
(v)        the Purchaser Representative may amend Schedule 2.01 to reflect assignments entered into pursuant to Section 9.05, Commitment reductions or terminations pursuant to Section 2.11, issuances of Delayed Draw Notes pursuant to Section 2.03 and reductions or redemptions of any such Delayed Draw Notes or issuances of Additional Notes pursuant to Section 2.25 and reductions or redemptions of any such Additional Notes,
 
(vi)        [reserved],
 
(vii)      no Defaulting Purchaser shall have any right to approve or disapprove any amendment, waiver or consent hereunder, except as permitted pursuant to Section 2.24(a) and except that the Commitment of any Defaulting Purchaser may not be increased without the consent of such Defaulting Purchaser (it being understood that any Commitment or Note held or deemed held by any Defaulting Purchaser shall be excluded from any vote hereunder that requires the consent of any Purchaser, except as expressly provided in Section 2.24(a)),
 
(viii)     this Agreement may be amended (or amended and restated) with the written consent of the Required Purchasers and the Issuer (i) to add one or more additional debt facilities to this Agreement and to permit any extension of credit from time to time outstanding thereunder and the accrued interest and fees in respect thereof to share ratably in the relevant benefits of this Agreement and the other Note Documents and (ii) to include appropriately the Purchasers holding such debt facilities in any determination of the Purchasers on substantially the same basis as the Purchasers prior to such inclusion,
 
(ix)       any amendment, waiver or modification of any term or provision that directly affects Purchasers under one or more Classes and does not directly and adversely affect Purchasers under one or more other Classes may be effected with the consent of Purchasers owning 50% of the aggregate commitments or Notes of such directly affected Class in lieu of the consent of the Required Purchasers, and
 
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(x)          [reserved];
 
(xi)       this Agreement may be amended in the manner prescribed in Section 2.25; it being understood and agreed that any such amendment may provide that with respect to any Class of Notes and/or Commitments that is structured as a “delayed draw” or similar facility, (i) any condition precedent to the funding of any Notes thereunder and/or (ii) any Event of Default arising as a result of any inaccuracy of any representation and/or warranty (including any certification) made in connection with the satisfaction of any such condition precedent, in each case, may be waived, amended or modified solely with the consent of a majority of the holders of such Notes and/or Commitments (or such other percentage of such holders as may be required in the amendment implementing such Class of Notes and/or Commitments (and without the consent of the Required Purchasers or any other Purchasers),
 
(xii)       [reserved],
 
(xiii)      except as otherwise provided in Section 9.02(b)(C) above, the Required Purchasers, without the consent of any other Purchaser, may (A) rescind any acceleration of the Notes and/or any other Obligation pursuant to Article 7 hereof and/or (B) agree that the Purchaser Representative and the Purchasers will forbear from exercising any remedy provided under any Note Document with respect to any Event of Default, and
 
(xiv)      [reserved].
 
Section 9.03.        Expenses; Indemnity.
 
(a)          Subject to Section 9.05(f), if the Closing Date occurs, the Issuer shall pay (i)  all reasonable and documented out-of-pocket expenses incurred by each Purchaser, the Purchaser Representative and their respective Affiliates (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of (x) one firm of outside counsel for the Purchaser Representative and (y) one firm of outside counsel for the Purchasers and their respective Affiliates (taken as a whole) and (z) if necessary, one local counsel in any relevant material jurisdiction to all such Persons, taken as a whole) in connection with the preparation, execution, delivery and administration of the Note Documents and any related documentation, including in connection with any amendment, modification or waiver of any provision of any Note Document (whether or not the transactions contemplated thereby are consummated, but only to the extent the preparation of any such amendment, modification or waiver was requested by the Issuer and except as otherwise provided in a separate writing between the Issuer and/or the Purchaser Representative) and (ii) without duplication of the obligation set forth in Section 9.03(b), all reasonable and documented out-of-pocket expenses incurred by the Purchaser Representative or the Purchasers or any of their respective Affiliates (but limited (x) in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of (A) one firm of outside counsel for the Purchaser Representative and (B) one firm of outside counsel for all the Purchasers and their respective Affiliates (taken as a whole) and (C) if necessary, one local counsel in any relevant material jurisdiction to the Purchaser Representative and one local counsel for all such other Persons, taken as a whole, and (y) in the case of other third party advisors, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of only third party advisors the engagement of whom has been approved by the Issuer (such approval not to be unreasonably withheld, delayed or conditioned) in writing) in connection with the enforcement, collection or protection of their respective rights in connection with the Note Documents, including their respective rights under this Section, or in connection with the Notes purchased hereunder.  Except to the extent required to be paid on the Closing Date, all amounts due under this paragraph (a) shall be payable by the Issuer within 30 days of receipt by the Issuer of an invoice setting forth such expenses in reasonable detail, together with backup documentation supporting the relevant reimbursement request.
 
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(b)         If the Closing Date occurs, the Issuer shall indemnify the Purchaser Representative and each Purchaser, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages and liabilities (but limited, in the case of legal fees and expenses, to the actual reasonable and documented out-of-pocket fees, disbursements and other charges of (x) one firm of outside counsel for the Purchaser Representative and (y) one firm of outside counsel for the Purchasers and their respective Affiliates (taken as a whole) and solely in the case of an actual or perceived conflict of interest, one additional counsel to all affected Purchasers, taken as a whole, and (z) if necessary, one local counsel in any relevant material jurisdiction to all Indemnitees, taken as a whole,  and solely in the case of an actual or perceived conflict of interest, one additional local counsel to all affected Indemnitees, taken as a whole), incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of (i) the execution or delivery of the Note Documents or any agreement or instrument contemplated thereby, the performance by the parties hereto of their respective obligations thereunder or the consummation of the Transactions or any other transactions contemplated hereby or thereby and/or the enforcement of the Note Documents, (ii) the use of the proceeds of the Notes, (iii) any actual or alleged Release or presence of Hazardous Materials on, at, under or from any property currently or formerly owned, leased or operated by the Issuer, any of its Restricted Subsidiaries or any other Note Party or any Environmental Liability related to the Issuer, any of its Restricted Subsidiaries or any other Note Party and/or (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a party thereto (and regardless of whether such matter is initiated by a third party or by the Issuer, any other Note Party or any of their respective Affiliates); provided that such indemnity shall not, as to any Indemnitee, be available to the extent that any such loss, claim, damage, or liability (i) is determined by a final and non-appealable judgment of a court of competent jurisdiction (or documented in any settlement agreement referred to below) to have resulted from the gross negligence, bad faith or willful misconduct of such Indemnitee or, other than with respect to the Purchaser Representative or its Related Parties, to the extent such judgment finds (or any such settlement agreement acknowledges) that any such loss, claim, damage, or liability has resulted from such Person’s material breach of the Note Documents or (ii) arises out of any claim, litigation, investigation or proceeding brought by such Indemnitee against another Indemnitee (other than any claim, litigation, investigation or proceeding that is brought by or against the Purchaser Representative, acting in its capacity as the Purchaser Representative or its Related Parties) that does not involve any act or omission of the Issuer or any of its subsidiaries.  Each Indemnitee shall be obligated to refund or return any and all amounts paid by the Issuer pursuant to this Section 9.03(b) to such Indemnitee for any fees, expenses, or damages to the extent such Indemnitee is not entitled to payment thereof in accordance with the terms hereof.  All amounts due under this paragraph (b) shall be payable by the Issuer within 30 days (x) after receipt by the Issuer of a written demand therefor, in the case of any indemnification obligations and (y) in the case of reimbursement of costs and expenses, after receipt by the Issuer of an invoice setting forth such costs and expenses in reasonable detail, together with reasonable backup documentation supporting the relevant reimbursement request.  This Section 9.03(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages or liabilities in respect of a non-Tax claim.
 
(c)         The Issuer shall not be liable for any settlement of any proceeding effected without its written consent (which consent shall not be unreasonably withheld, delayed or conditioned) or any losses, claims, damages, liabilities and/or expenses incurred in connection therewith, but if any proceeding is settled with the written consent of the Issuer, or if there is a final judgment against any Indemnitee in any such proceeding, the Issuer agrees to indemnify and hold harmless each Indemnitee to the extent and in the manner set forth above.  The Issuer shall not, without the prior written consent of the affected Indemnitee (which consent shall not be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened proceeding in respect of which indemnity could have been sought hereunder by such Indemnitee unless (i) such settlement includes an unconditional release of such Indemnitee from all liability or claims that are the subject matter of such proceeding and (ii) such settlement does not include any statement as to any admission of fault or culpability.
 
Section 9.04.       Waiver of Claim.  To the extent permitted by applicable Requirements of Law, no party to this Agreement nor any Secured Party shall assert, and each hereby waives on behalf of itself and its Related Parties, any claim against any other party hereto, any Note Party and/or any Related Party of any thereof, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement or any agreement or instrument contemplated hereby, the Transactions, any Note or the use of the proceeds thereof, except, in the case of any claim by any Indemnitee against the Issuer, to the extent such damages would otherwise be subject to indemnification pursuant to the terms of Section 9.03.
 
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Section 9.05.        Transfers of Notes.
 
(a)          The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns; provided that (i) except as provided under Section 6.07, the Issuer may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Purchaser (and any attempted assignment or transfer by the Issuer without such consent shall be null and void) and (ii) no Purchaser may transfer its rights or obligations hereunder except in accordance with the terms of this Section (any attempted transfer not complying with the terms of this Section shall be null and void and, with respect to any attempted transfer to any Disqualified Institution, subject to Section 9.05(f)).  Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and permitted transferees, to the extent provided in paragraph (e) of this Section, Participants and, to the extent expressly contemplated hereby, the Related Parties of each of the Purchaser Representative and the Purchasers) any legal or equitable right, remedy or claim under or by reason of this Agreement.
 
(b)          (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Purchaser may transfer to one or more Eligible Transferees all or a portion of its rights and obligations under this Agreement (including all or a portion of any Note or any Commitment) with the prior written consent of
 
(A)         the Issuer (such consent not to be unreasonably withheld, conditioned or delayed); provided, that (x) the Issuer shall be deemed to have consented to any transfer of Notes (other than any such assignment to a Disqualified Institution) unless it has objected thereto by written notice to the Purchaser Representative within 10 Business Days after receipt of written notice thereof, (y) the consent of the Issuer shall not be required for any transfer of Notes or Commitments (1) to any Affiliate of such Purchaser or an Approved Fund of such Purchaser, in each case under this clause (1), to the extent the relevant transferee constitutes a Permitted Holder or (2) at any time when an Event of Default under Section 7.01(a) or Sections 7.01(f) or (g) (with respect to the Issuer) exists; provided, further, that notwithstanding the foregoing, the Issuer may withhold its consent to any assignment to (1) any Person (other than a Competitor Debt Fund Affiliate, unless the Issuer has other reasonable grounds on which to withhold its consent) that is not a Disqualified Institution but is known by the Issuer to be an Affiliate of a Disqualified Institution regardless of whether such Person is identifiable as an Affiliate of a Disqualified Institution on the basis of such Affiliate’s name and/or (2) any Person, if the effect of such transfer would result in a change of control hereunder or under any other Indebtedness of the Issuer and/or any subsidiary thereof (including any First Lien Facility); and
 
(B)         the Purchaser Representative (such consent not to be unreasonably withheld, conditioned or delayed); provided, that no consent of the Purchaser Representative shall be required for any transfer to another Purchaser, any Affiliate of a Purchaser or any Approved Fund.
 
(ii)          Transfers shall be subject to the following additional conditions:
 
(A)        except in the case of any transfer to another Purchaser, any Affiliate of any Purchaser or any Approved Fund or any transfer of the entire remaining amount of the relevant transferring Purchaser’s Notes or Commitments of any Class, the principal amount of Notes or Commitments of the transferring Purchaser subject to the relevant transfer (determined as of the date on which the Transfer Agreement with respect to such transfer is delivered to the Purchaser Representative and determined on an aggregate basis in the event of concurrent transfers to Related Funds or by Related Funds) shall not be less than $1,000,000 unless the Issuer and the Purchaser Representative otherwise consent;
 
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(B)         any partial transfer shall be made as a transfer of a proportionate part of all the relevant transferring Purchaser’s rights and obligations under this Agreement;
 
(C)         the parties to each transfer shall execute and deliver to the Purchaser Representative a Transfer Agreement in the form attached as Exhibit A-1, together with a processing and recordation fee in the amount of $3,500; provided that the Purchaser Representative may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment; and
 
(D)        the relevant Eligible Transferee, if it is not a Purchaser, shall deliver on or prior to the effective date of such assignment, to the Purchaser Representative (1) an Administrative Questionnaire and (2) any Internal Revenue Service form required under Section 2.20 and all documentation and other information required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act.
 
(iii)        Subject to the acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in any Transfer Agreement, the Eligible Transferee thereunder shall be a party hereto and, to the extent of the interest assigned pursuant to such Transfer Agreement, have the rights and obligations of a Purchaser under this Agreement, and the transferring Purchaser thereunder shall, to the extent of the interest transferred by such Transfer Agreement, be released from its obligations under this Agreement (and, in the case of a Transfer Agreement covering all of the transferring Purchaser’s rights and obligations under this Agreement, such Purchaser shall cease to be a party hereto but shall continue to be (A) entitled to the benefits of Sections 2.18, 2.20 and 9.03 with respect to facts and circumstances occurring on or prior to the effective date of such transfer and (B) subject to its obligations thereunder and under Section 9.13).
 
(iv)       The Purchaser Representative, acting for this purpose as a non-fiduciary agent of the Issuer, shall maintain at one of its offices a copy of each Transfer Agreement delivered to it and a register for the recordation of the names and addresses of the Purchasers and their respective successors and assigns, and the commitment of, and principal amount of and interest on the Notes owing to, each Purchaser pursuant to the terms hereof from time to time (the “Register”).  Failure to make any such recordation, or any error in such recordation, shall not affect the Issuer’s obligations in respect of such Notes.  The entries in the Register shall be conclusive, absent manifest error, and the Issuer, the Purchaser Representative and the Purchasers shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Purchaser hereunder for all purposes of this Agreement, notwithstanding notice to the contrary.  The Register shall be available for inspection by the Issuer and each Purchaser (but only as to its own holdings), at any reasonable time and from time to time upon reasonable prior notice.
 
(v)         Upon its receipt of a duly completed Transfer Agreement executed by a transferring Purchaser and an Eligible Transferee, the Eligible Transferee’s completed Administrative Questionnaire and any tax certification required by Section 9.05(b)(ii)(D)(2) (unless the transferee is already a Purchaser hereunder), the processing and recordation fee referred to in paragraph (b) of this Section, if applicable, and any written consent to the relevant assignment required by paragraph (b) of this Section, the Purchaser Representative shall promptly accept such Transfer Agreement and record the information contained therein in the Register.  No transfer shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph.
 
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(vi)        By executing and delivering a Transfer Agreement, the transferring Purchaser and the Eligible Transferee thereunder shall be deemed to confirm and agree with each other and the other parties hereto as follows: (A) the transferring Purchaser warrants that it is the legal and beneficial owner of the interest being transferred thereby free and clear of any adverse claim and that the amount of its commitments, and the outstanding balances of its Notes, in each case without giving effect to any transfer thereof which has not become effective, are as set forth in such Transfer Agreement, (B) except as set forth in clause (A) above, the transferring Purchaser makes no representation or warranty and assumes no responsibility with respect to any statement, warranty or representation made in or in connection with this Agreement, or the execution, legality, validity, enforceability, genuineness, sufficiency or value of this Agreement, any other Note Document or any other instrument or document furnished pursuant hereto, or the financial condition of the Issuer or any Restricted Subsidiary or the performance or observance by the Issuer or any Restricted Subsidiary of any of its obligations under this Agreement, any other Note Document or any other instrument or document furnished pursuant hereto; (C) the transferee represents and warrants that it is an Eligible Transferee, legally authorized to enter into such Transfer Agreement; (D) the transferee confirms that it has received a copy of this Agreement and each applicable Intercreditor Agreement, together with copies of the financial statements referred to in Section 4.01(c) or the most recent financial statements delivered pursuant to Section 5.01 and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into such Transfer Agreement; (E) the transferee will independently and without reliance upon the Purchaser Representative, the transferring Purchaser or any other Purchaser and based on such documents and information as it deems appropriate at the time, continue to make its own credit decisions in taking or not taking action under this Agreement; (F) the transferee appoints and authorizes the Purchaser Representative to take such action as agent on its behalf and to exercise such powers under this Agreement as are delegated to the Purchaser Representative, by the terms hereof, together with such powers as are reasonably incidental thereto; and (G) the transferee agrees that it will perform in accordance with their terms all the obligations which by the terms of this Agreement are required to be performed by it as a Purchaser.
 
(c)         (i)         Any Purchaser may, without the consent of the Issuer, the Purchaser Representative or any other Purchaser, sell participations to any bank or other entity (other than to any Disqualified Institution, any natural Person, any holder of Series A Preferred Shares (or any Affiliate of such holder) or, other than with respect to any participation to any Debt Fund Affiliate (any such participations to a Debt Fund Affiliate being subject to the limitation set forth in the first proviso of the final paragraph set forth in Section 9.05(g), as if the limitation applied to such participations), the Issuer or any of its Affiliates) (a “Participant”) in all or a portion of such Purchaser’s rights and obligations under this Agreement (including all or a portion of its commitments and the Notes owing to it); 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 Issuer, 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.  Any agreement or instrument pursuant to which any Purchaser sells such a participation shall provide that such Purchaser shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Purchaser will not, without the consent of the relevant Participant, agree to any amendment, modification or waiver described in (x) clause (A) of the first proviso to Section 9.02(b) that directly and adversely affects the Notes or commitments in which such Participant has an interest and (y) clauses (B)(1), (2) or (3) of the first proviso to Section 9.02(b).  Subject to paragraph (c)(ii) of this Section, the Issuer agrees that each Participant shall be entitled to the benefits of Sections 2.18 and 2.20 (subject to the limitations and requirements of such Sections and Section 2.22) to the same extent as if it were a Purchaser and had acquired its interest by assignment pursuant to paragraph (b) of this Section and it being understood that the documentation required under Section 2.20(f) shall be delivered to the participating Purchaser, and if additional amounts are required to be paid pursuant to Section 2.20(a) or Section 2.20(c), to the Issuer and the Purchaser Representative).  To the extent permitted by applicable Requirements of Law, each Participant also shall be entitled to the benefits of Section 9.09 as though it were a Purchaser; provided that such Participant shall be subject to Section 2.21(c) as though it were a Purchaser.
 
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(i)          No Participant shall be entitled to receive any greater payment under Sections 2.18 or 2.20 than the participating Purchaser would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Issuer’s prior written consent (in its sole discretion), expressly acknowledging that such Participant’s entitlement to benefits under Sections 2.18 and 2.20 is not limited to what the participating Purchaser would have been entitled to receive absent the participation.
 
Each Purchaser that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Issuer, maintain a register on which it enters the name and address of each Participant and their respective successors and registered assigns, and the principal and interest amounts of each Participant’s interest in the Notes or other obligations under the Note Documents (a “Participant Register”); provided that no Purchaser shall have any obligation to disclose all or any portion of any Participant Register (including the identity of any Participant or any information relating to any Participant’s interest in any Commitment, Note or any other obligation under any Note Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Note or other obligation is in registered form under Section 5f.103-1(c) of the U.S. Treasury Regulations or under Section 1.163 5(b) of the proposed U.S. Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and each Purchaser shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Purchaser Representative (in its capacity as Purchaser Representative) shall have no responsibility for maintaining a Participant Register.
 
(d)        (i)         Any Purchaser may at any time pledge or transfer a security interest in all or any portion of its rights under this Agreement (other than to any Disqualified Institution or any natural person) to secure obligations of such Purchaser, including without limitation any pledge or assignment to secure obligations to any Federal Reserve Bank or other central bank having jurisdiction over such Purchaser, and this Section 9.05 shall not apply to any such pledge or assignment of a security interest; provided that no such pledge or assignment of a security interest shall release any Purchaser from any of its obligations hereunder or substitute any such pledgee or assignee for such Purchaser as a party hereto.
 
(i)          No Purchaser may at any time enter into a total return swap, total rate of return swap, credit default swap or other derivative instrument under which any Secured Obligation is a reference obligation with any counterparty that is a Disqualified Institution.
 
(e)        Notwithstanding anything to the contrary contained herein, any Purchaser (a “Granting Purchaser”) may grant to a special purpose funding vehicle (an “SPC”), identified as such in writing from time to time by the Granting Purchaser to the Purchaser Representative and the Issuer, the option to purchase from the Issuer all or any part of any Note that such Granting Purchaser would otherwise be obligated to purchase from the Issuer pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to purchase any Note and (ii) if an SPC elects not to exercise such option or otherwise fails to purchase all or any part of such Note, the Granting Purchaser shall be obligated to purchase such Note pursuant to the terms hereof.  The purchase of any Note by an SPC hereunder shall utilize the Commitment of the Granting Purchaser to the same extent, and as if, such Note was purchased by such Granting Purchaser.  Each party hereto hereby agrees that (i) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Issuer under this Agreement (including its obligations under Sections 2.18 or 2.20) and no SPC shall be entitled to any greater amount under Sections 2.18 or 2.20 or any other provision of this Agreement or any other Note Document that the Granting Purchaser would have been entitled to receive, unless the grant to such SPC is made with the prior written consent of the Issuer (in its sole discretion), expressly acknowledging that such SPC’s entitlement to benefits under Sections 2.18 and 2.20 is not limited to what the Granting Purchaser would have been entitled to receive absent the grant to the SPC, (ii) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement (all liability for which shall remain with the Granting Purchaser) and (iii) the Granting Purchaser shall for all purposes including approval of any amendment, waiver or other modification of any provision of the Note Documents, remain the Purchaser of record hereunder.  In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior indebtedness of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings under the Requirements of Law of the U.S. or any State thereof; provided that (i) such SPC’s Granting Purchaser is in compliance in all material respects with its obligations to the Issuer hereunder and (ii) each Purchaser designating any SPC hereby agrees to indemnify, save and hold harmless each other party hereto for any loss, cost, damage or expense arising out of its inability to institute such a proceeding against such SPC during such period of forbearance.  In addition, notwithstanding anything to the contrary contained in this Section 9.05, any SPC may (i) with notice to, but without the prior written consent of, the Issuer or the Purchaser Representative and without paying any processing fee therefor, transfer all or a portion of its interests in any Note to the Granting Purchaser and (ii) disclose on a confidential basis any non-public information relating to its Notes to any rating agency, commercial paper dealer or provider of any surety, guaranty or credit or liquidity enhancement to such SPC.
 
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(f)          (i)         Any transfer or participation by a Purchaser (A) to any Disqualified Institution or any Affiliate thereof or (B) to the extent the Issuer’s consent is required under this Section 9.05 (and not deemed to have been given pursuant to Section 9.05(b)(i)(A)) without the Issuer’s consent, to any other Person, shall be null and void, and the Issuer shall be entitled to seek specific performance to unwind any such transfer and/or specifically enforce this Section 9.05(f) in addition to injunctive relief (without posting a bond or presenting evidence of irreparable harm) or any other remedies available to the Issuer at law or in equity; it being understood and agreed that the Issuer and its subsidiaries will suffer irreparable harm if any Purchaser breaches any obligation under this Section 9.05 as it relates to any transfer, participation or pledge of any Note or Commitment to any Disqualified Institution or any Affiliate thereof or any other Person to whom the Issuer’s consent is required but not obtained.  Nothing in this Section 9.05(f) shall be deemed to prejudice any right or remedy that the Issuer may otherwise have at law or equity.  Upon the request of any Purchaser, the Purchaser Representative may and the Issuer will make the list of Disqualified Institutions (other than any Disqualified Institution that is a reasonably identifiable Affiliate of another Disqualified Institution on the basis of such Person’s name) available to such Purchaser so long as such Purchaser agrees to keep the list of Disqualified Institutions confidential in accordance with the terms hereof.
 
(i)          If any transfer under this Section 9.05 is made to any Disqualified Institution and/or Affiliate of any Disqualified Institution (other than any Competitor Debt Fund Affiliate) and/or any other Person whom the Issuer’s consent is required but not obtained, in each case without the Issuer’s prior written consent (any such person, a “Disqualified Person”), then the Issuer may, at its sole expense and effort, upon notice to the applicable Disqualified Person and the Purchaser Representative, (A) terminate any Commitment of such Disqualified Person and repay all obligations of the Issuer owing to such Disqualified Person, (B) in the case of any outstanding Notes, held by such Disqualified Person, purchase such Notes by paying the lesser of (x) par and (y) the amount that such Disqualified Person paid to acquire such Notes, plus accrued interest thereon, accrued fees and all other amounts payable to it hereunder and/or (C) require such Disqualified Person to transfer, without recourse (in accordance with and subject to the restrictions contained in this Section 9.05), all of its interests, rights and obligations under this Agreement to one or more Eligible Transferees; provided that (I) in the case of clause (B), the applicable Disqualified Person has received payment of an amount equal to the lesser of (1) par and (2) the amount that such Disqualified Person paid for the applicable Notes, plus accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the Issuer, (II) in the case of clause (C), the relevant transfer shall otherwise comply with this Section 9.05 (except that (x) no registration and processing fee required under this Section 9.05 shall be required with any transfer pursuant to this paragraph and (y) [reserved]) and (III) in no event shall such Disqualified Person be entitled to receive amounts set forth in Section 2.15(d).  Further, any Disqualified Person identified by the Issuer to the Purchaser Representative (A) shall not be permitted to (x) receive information or reporting provided by any Note Party, the Purchaser Representative or any Purchaser and/or (y) attend and/or participate in conference calls or meetings attended solely by the Purchasers and the Purchaser Representative, (B) (x) shall not for purposes of determining whether the Required Purchasers or the majority Purchasers under any Class have (i) consented (or not consented) to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Note Document or any departure by any Note Party therefrom, (ii) otherwise acted on any matter related to any Note Document, or (iii) directed or required the Purchaser Representative or any Purchaser to undertake any action (or refrain from taking any action) with respect to or under any Note Document, have a right to consent (or not consent), otherwise act or direct or require the Purchaser Representative or any Purchaser to take (or refrain from taking) any such action; it being understood that all Notes held by any Disqualified Person shall be deemed to be not outstanding for all purposes of calculating whether the Required Purchasers, majority Purchasers under any Class or all Purchasers have taken any action, and (y) shall be deemed to vote in the same proportion as Purchasers that are not Disqualified Persons in any proceeding under any Debtor Relief Law commenced by or against the Issuer or any other Note Party and (C) shall not be entitled to receive the benefits of Section 9.03.  For the sake of clarity, the provisions in this Section 9.05(f) shall not apply to any Person that is an assignee of any Disqualified Person, if such transferee is not a Disqualified Person.
 
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(ii)         Notwithstanding anything to the contrary herein, the Issuer and each Purchaser acknowledges and agrees that the Purchaser Representative shall not have any responsibility or obligation to determine whether any Purchaser or potential Purchaser is a Disqualified Institution or Disqualified Person and the Purchaser Representative shall have no liability with respect to any assignment or participation made to any Disqualified Institution or Disqualified Person (regardless of whether the consent of the Purchaser Representative is required thereto), and none of the Issuer, any Purchaser or their respective Affiliates will bring any claim to such effect.
 
(g)          Notwithstanding anything to the contrary contained herein, any Purchaser may, at any time, transfer all or a portion of its rights and obligations under this Agreement in respect of its Notes to any Affiliated Purchaser on a non-pro rata basis (A) through “Dutch auctions” open to all Purchasers holding the relevant Notes on a pro rata basis or (B) through open market purchases, in each case with respect to clauses (A) and (B), without the consent of the Purchaser Representative; provided that:
 
(i)          (A) any Notes acquired by the Issuer or any of its Restricted Subsidiaries shall, to the extent permitted by applicable Requirements of Law, be retired and cancelled immediately upon the acquisition thereof; provided that upon any such retirement and cancellation, the aggregate outstanding principal amount of the Notes shall be deemed reduced by the full par value of the aggregate principal amount of the Notes so retired and cancelled and (B) in no event shall the Issuer or any of its Restricted Subsidiaries offer to acquire the Notes of any Affiliated Purchaser pursuant to this Section 9.05(g) unless such offer to acquire is made to all Purchasers holding the relevant Class of Notes on a pro rata basis (it being understood and agreed that if such other Purchasers of such Class decline (or fail to respond to) the offer to acquire such Notes within five (5) Business Days of receipt of the offer to acquire such Notes from the Issuer or the applicable Restricted Subsidiary, as applicable, then the Issuer and/or the applicable Restricted Subsidiary shall be permitted to offer the entire amount so declined (or with respect to which there was a failure to respond) to Affiliated Purchasers;
 
(ii)         any Notes acquired by any Non-Debt Fund Affiliate (other than the Issuer or any of its Restricted Subsidiaries) may (but shall not be required to) be contributed to the Issuer or any of its subsidiaries (it being understood that any such Notes shall, to the extent permitted by applicable Requirements of Law, be retired and cancelled promptly upon such contribution); provided that upon any such cancellation, the aggregate outstanding principal amount of the Notes shall be deemed reduced, as of the date of such contribution, by the full par value of the aggregate principal amount of the Notes so contributed and cancelled;
 
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(iii)        the relevant Affiliated Purchaser and transferring or purchasing, as applicable, Purchaser shall have executed an Affiliated Purchaser Transfer Agreement;
 
(iv)        [reserved];
 
(v)         in connection with any assignment effected pursuant to a “Dutch auction” and/or open market purchase conducted by the Issuer or any of its Restricted Subsidiaries, no Default or Event of Default exists at the time of acceptance of bids for the “Dutch auction” or the confirmation of such open market purchase, as applicable;
 
(vi)        [reserved]; and
 
(vii)      no Affiliated Purchaser shall be required to represent or warrant that it is not in possession of material non-public information with respect to the Issuer and/or any subsidiary thereof and/or their respective securities in connection with any assignment permitted by this Section 9.05(g).
 
Notwithstanding anything to the contrary contained herein, any Purchaser may, at any time, assign all or a portion of its rights and obligations under this Agreement in respect of its Notes and/or Commitments to any Debt Fund Affiliate, and any Debt Fund Affiliate may, from time to time, purchase Notes and/or Commitments (x) on a pro rata basis through “Dutch auctions” open to all applicable Purchasers in accordance with customary procedures or (y) on a non-pro rata basis through open market purchases (including, for the avoidance of doubt, negotiated transactions) without the consent of the Purchaser Representative, in each case, notwithstanding the requirements set forth in subclauses (i) through (vii) of this clause (g); provided that the Notes and Commitments held by all Debt Fund Affiliates shall not account for more than 49.9% of the amounts included in determining whether the Required Purchasers have (A) consented to any amendment, modification, waiver, consent or other action with respect to any of the terms of any Note Document or any departure by any Note Party therefrom, (B) otherwise acted on any matter related to any Note Document or (C) directed or required the Purchaser Representative or any Purchaser to undertake any action (or refrain from taking any action) with respect to or under any Note Document; it being understood and agreed that the portion of the Note and/or Commitments that accounts for more than 49.9% of the relevant Required Purchaser action shall be deemed to be voted on pro rata basis in accordance with the votes of Purchasers that are not Debt Fund Affiliates; provided that in determining whether the Purchaser Representative shall be protected in relying on any such request, demand, authorization, direction, notice, consent, or waiver, only Notes for which the Purchaser Representative has received written notice that such Notes are so owned shall be so disregarded. Any Note acquired by any Debt Fund Affiliate may (but shall not be required to) be contributed to the Issuer or any of its subsidiaries for purposes of cancelling such Indebtedness (it being understood that any Note so contributed shall, to the extent permitted by applicable Requirements of Law, be retired and cancelled immediately upon thereof); provided that upon any such cancellation, the aggregate outstanding principal amount of the relevant Class of Notes shall be deemed reduced, as of the date of such contribution, by the full par value of the aggregate principal amount of the Notes so contributed and cancelled. The Purchaser Representative shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Debt Fund Affiliates, and, without limiting the generality of the foregoing, the Purchaser Representative shall not be obligated to ascertain, monitor or inquire as to whether any Purchaser or prospective Purchaser is a Debt Fund Affiliate.
 
(h)         Notwithstanding anything herein to the contrary, no Purchaser shall, directly or indirectly assign, sell, offer to sell, pledge, mortgage, hypothecate, encumber, dispose of or otherwise consummate or permit any like transfer or encumbrance of any Note held by such Purchaser, in each case other than together with a proportional interest in the applicable Stapled Series B Preferred Stock.
 
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Section 9.06.       Survival.  All covenants, agreements, representations and warranties made by the Note Parties in the Note Documents and in the certificates or other instruments delivered in connection with or pursuant to this Agreement or any other Note Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Note Documents and the purchase of any Note regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Purchaser Representative may have had notice or knowledge of any Default or Event of Default or incorrect representation or warranty at the time any credit is extended hereunder, and shall continue in full force and effect until the Termination Date.  The provisions of Sections 2.18, 2.20, 9.03 and 9.13 and Article 8 shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Notes, the expiration or termination of each Commitment, the occurrence of the Termination Date or the termination of this Agreement or any provision hereof or the earlier resignation or removal of the Purchaser Representative, but in each case, subject to the limitations set forth in this Agreement.
 
Section 9.07.       Counterparts; Integration; Effectiveness.  This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  This Agreement, the other Note Documents and each Intercreditor Agreement constitute the entire agreement among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof.  On and after the Agreement Effective Date, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.  Delivery of an executed counterpart of a signature page to this Agreement by facsimile or by email as a “.pdf” or “.tif” attachment shall be effective as delivery of a manually executed counterpart of this Agreement.  It is understood and agreed that, subject to any Requirement of Law, the words “execution”, “signed”, “signature”, “delivery” and words of like import in or relating to any Note Document shall be deemed to include any Electronic Signature, delivery or the keeping of any record in electronic form, each of which shall have the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar state laws based on the Uniform Electronic Transactions Act.
 
Section 9.08.       Severability.  To the extent permitted by applicable Requirements of Law, any provision of any Note Document held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
 
Section 9.09.       Right of Setoff.  At any time when an Event of Default exists, upon the written consent of the Required Purchasers, the Purchaser Representative and each Purchaser is hereby authorized at any time and from time to time, to the fullest extent permitted by applicable Requirements of Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other obligations (in any currency) at any time owing by the Purchaser Representative or such Purchaser to or for the credit or the account of any Note Party against any of and all the Secured Obligations held by the Purchaser Representative or such Purchaser, irrespective of whether or not the Purchaser Representative or such Purchaser has made any demand under the Note Documents and although such obligations may be contingent or unmatured or are owed to a branch or office of such Purchaser or Purchaser Representative different than the branch or office holding such deposit or obligation on such Indebtedness. The applicable Purchaser or Purchaser Representative shall promptly notify the Issuer and the Purchaser Representative of such set-off or application; provided that any failure to give or any delay in giving such notice shall not affect the validity of any such set-off or application under this Section. The rights of each Purchaser and the Purchaser Representative under this Section are in addition to other rights and remedies (including other rights of setoff) which such Purchaser or Purchaser Representative may have.
 
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Section 9.10.        Governing Law; Jurisdiction; Consent to Service of Process.
 
(a)        THIS AGREEMENT AND THE OTHER NOTE DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN OTHER NOTE DOCUMENTS) AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS AGREEMENT AND THE OTHER NOTE DOCUMENTS (OTHER THAN AS EXPRESSLY SET FORTH IN THE OTHER NOTE DOCUMENTS), WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
(b)         EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE EXCLUSIVE JURISDICTION OF ANY U.S. FEDERAL OR NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN, IN THE CITY OF NEW YORK (OR ANY APPELLATE COURT THEREFROM) OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY NOTE DOCUMENT AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING SHALL (EXCEPT AS PERMITTED BELOW) BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR, TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, FEDERAL COURT.  EACH PARTY HERETO AGREES THAT SERVICE OF ANY PROCESS, SUMMONS, NOTICE OR DOCUMENT BY REGISTERED MAIL ADDRESSED TO SUCH PERSON SHALL BE EFFECTIVE SERVICE OF PROCESS AGAINST SUCH PERSON FOR ANY SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT.  EACH PARTY HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY APPLICABLE REQUIREMENTS OF LAW.  EACH PARTY HERETO AGREES THAT THE PURCHASER REPRESENTATIVE RETAINS THE RIGHT TO BRING PROCEEDINGS AGAINST ANY NOTE PARTY IN THE COURTS OF ANY OTHER JURISDICTION SOLELY IN CONNECTION WITH THE EXERCISE OF ITS RIGHTS UNDER ANY COLLATERAL DOCUMENT.
 
(c)          EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT IT MAY LEGALLY AND EFFECTIVELY DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER NOTE DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH (B) OF THIS SECTION.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY CLAIM OR DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION, SUIT OR PROCEEDING IN ANY SUCH COURT.
 
(d)        TO THE EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON IT AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY REGISTERED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL) DIRECTED TO IT AT ITS ADDRESS FOR NOTICES AS PROVIDED FOR IN SECTION 9.01.  EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER OR UNDER ANY NOTE DOCUMENT THAT SERVICE OF PROCESS WAS INVALID AND INEFFECTIVE.  NOTHING IN THIS AGREEMENT OR ANY OTHER NOTE DOCUMENT WILL AFFECT THE RIGHT OF ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE REQUIREMENTS OF LAW.
 
Section 9.11.      Waiver of Jury Trial.  EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE REQUIREMENTS OF LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY SUIT, ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER NOTE DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.  EACH PARTY HERETO (a) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HERETO HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (b) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
 
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Section 9.12.        Headings.  Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement.
 
Section 9.13.       Confidentiality.  Each of the Purchaser Representative and each Purchaser agrees to maintain the confidentiality of the Confidential Information (as defined below), except that Confidential Information may be disclosed (a) to its Affiliates and/or funding and financing sources and its and their respective directors, officers, managers, employees, independent auditors, or other experts and advisors, including accountants, legal counsel and other advisors (collectively, the “Representatives”) on a “need to know” basis solely in connection with the transactions contemplated hereby and who are informed of the confidential nature of the Confidential Information and are or have been advised of their obligation to keep the Confidential Information of this type confidential; provided that such Person shall be responsible for its Affiliates’ and funding and financing sources’ and their Representatives’ compliance with this paragraph; provided, further, that unless the Issuer otherwise consents, no such disclosure shall be made by the Purchaser Representative, any Purchaser or any Affiliate or Representative thereof to any Affiliate or Representative of the Purchaser Representative or any Purchaser that is a Disqualified Institution, (b) to the extent compelled by legal process in, or reasonably necessary to, the defense of such legal, judicial or administrative proceeding, in any legal, judicial or administrative proceeding or otherwise as required by applicable Requirements of Law (in which case such Person shall (i) to the extent permitted by applicable Requirements of Law, inform the Issuer promptly in advance thereof and (ii) use commercially reasonable efforts to ensure that any such information so disclosed is accorded confidential treatment), (c) upon the demand or request of any regulatory or governmental authority (including any self-regulatory body) purporting to have jurisdiction over such Person or its Affiliates (in which case such Person shall, except with respect to any audit or examination conducted by bank accountants or any Governmental Authority or regulatory or self-regulatory authority exercising examination or regulatory authority, to the extent permitted by applicable Requirements of Law, (i) inform the Issuer promptly in advance thereof and (ii) use commercially reasonable efforts to ensure that any information so disclosed is accorded confidential treatment), (d) [reserved], (e) subject to an acknowledgment and agreement by the relevant recipient that the Confidential Information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as otherwise reasonably acceptable to the Issuer and the Purchaser Representative) in accordance with market standards for dissemination of the relevant type of information, which shall in any event require “click through” or other affirmative action on the part of the recipient to access the Confidential Information and acknowledge its confidentiality obligations in respect thereof, to (i) any Eligible Transferee of or Participant in, or any prospective Eligible Transferee of or prospective Participant in, any of its rights or obligations under this Agreement, including any SPC (in each case other than a Disqualified Institution and/or any Person to whom the Issuer has, at the time of disclosure, affirmatively declined to consent to any transfer), (ii) any pledgee referred to in Section 9.05 and (iii) any actual or prospective, direct or indirect contractual counterparty (or its advisors) to any Derivative Transaction (including any credit default swap) or similar derivative product to which any Note Party is a party and (g) to the extent the Confidential Information becomes publicly available other than as a result of a breach of this Section by such Person, its Affiliates or their respective Representatives.  For purposes of this Section, “Confidential Information” means all information relating to the Issuer and/or any of its subsidiaries and their respective businesses or the Transactions (including any information obtained by the Purchaser Representative, any Purchaser, or any of their respective Affiliates or Representatives, based on a review of any books and records relating to the Issuer and/or any of its subsidiaries and their respective Affiliates from time to time, including prior to the date hereof) other than any such information that is publicly available to the Purchaser Representative or Purchaser on a non-confidential basis prior to disclosure by the Issuer or any of its subsidiaries.  For the avoidance of doubt, in no event shall any disclosure of any Confidential Information be made to Person that is a Disqualified Institution at the time of disclosure
 
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Section 9.14.        No Fiduciary Duty.  Each of the Purchaser Representative, each Purchaser (in its capacity as such), and their respective Affiliates (collectively, solely for purposes of this paragraph, the “Purchasers”), may have economic interests that conflict with those of the Note Parties, their stockholders and/or their respective affiliates.  Each Note Party, in its capacity as such, agrees that nothing in the Note Documents will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Purchaser, on the one hand, and such Note Party, its respective stockholders or its respective affiliates, on the other.  Each Note Party acknowledges and agrees that:  (i) the transactions contemplated by the Note Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s-length commercial transactions between the Purchasers, on the one hand, and the Note Parties, on the other, and (ii) in connection therewith and with the process leading thereto, (x) no Purchaser, in its capacity as such, has assumed an advisory or fiduciary responsibility in favor of any Note Party, its respective stockholders or its respective affiliates with respect to the transactions contemplated hereby (or the exercise of rights or remedies with respect thereto) or the process leading thereto (irrespective of whether any Purchaser has advised, is currently advising or will advise any Note Party, its respective stockholders or its respective Affiliates on other matters) or any other obligation to any Note Party except the obligations expressly set forth in the Note Documents and (y) each Purchaser, in its capacity as such, is acting solely as principal and not as the agent or fiduciary of such Note Party, its respective management, stockholders, creditors or any other Person.  To the fullest extent permitted by applicable Requirements of Law, each Note Party waives any claim that it may have against any Purchaser with respect to any breach or alleged breach of fiduciary duty arising solely by virtue of this Agreement.  Each Note Party acknowledges and agrees that such Note Party has consulted its own legal, tax and financial advisors to the extent it deemed appropriate and that it is responsible for making its own independent judgment with respect to such transactions and the process leading thereto.
 
Section 9.15.       Several Obligations.  The respective obligations of the Purchasers hereunder are several and not joint and the failure of any Purchaser to purchase any Note or perform any of its obligations hereunder shall not relieve any other Purchaser from any of its obligations hereunder.
 
Section 9.16.        USA PATRIOT Act.  Each Purchaser and the Purchaser Representative that is subject to the requirements of the USA PATRIOT Act and the requirements of the Beneficial Ownership Regulation hereby notifies the Note Parties that pursuant to the requirements of the USA PATRIOT Act and the Beneficial Ownership Regulation, it is required to obtain, verify and record information that identifies each Note Party, which information includes the name and address of such Note Party and other information that will allow such Purchaser or Purchaser Representative to identify such Note Party in accordance with the USA PATRIOT Act and the Issuer in accordance with the Beneficial Ownership Regulation.
 
Section 9.17.       Disclosure of Purchaser Conflicts.  Each Note Party and each Purchaser hereby acknowledge and agree that the Purchaser Representative and/or its Affiliates from time to time may hold investments in, make other loans to or have other relationships with any of the Note Parties and their respective Affiliates.
 
Section 9.18.        Appointment for Perfection.  Each Purchaser hereby appoints each other Purchaser as its agent for the purpose of perfecting Liens for the benefit of the Purchaser Representative and the Purchasers, in assets which, in accordance with Article 9 of the UCC or any other applicable Requirement of Law can be perfected only by possession.  If any Purchaser (other than the Purchaser Representative) obtains possession of any Collateral, such Purchaser shall notify the Purchaser Representative thereof and, promptly deliver such Collateral to the Purchaser Representative or otherwise deal with such Collateral in accordance with the Purchaser Representative’s instructions (acting at the direction of the Required Purchasers).
 
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Section 9.19.        Interest Rate Limitation.  Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Note, together with all fees, charges and other amounts which are treated as interest on such Note under applicable Requirements of Law (collectively the “Charged Amounts”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Purchaser holding such Note in accordance with applicable Requirements of Law, the rate of interest payable in respect of such Note hereunder, together with all Charged Amounts payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charged Amounts that would have been payable in respect of such Note but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charged Amounts payable to such Purchaser in respect of other Notes or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate to the date of repayment, have been received by such Purchaser.
 
Section 9.20.      Intercreditor Agreement.  EACH PURCHASER HEREUNDER AGREES THAT IT WILL BE BOUND BY AND WILL TAKE NO ACTION CONTRARY TO THE PROVISIONS OF THE SECOND LIEN INTERCREDITOR AND SUBORDINATION AGREEMENT AND EACH OTHER INTERCREDITOR AGREEMENT ENTERED INTO BY THE PURCHASER REPRESENTATIVE AND AUTHORIZES AND INSTRUCTS THE PURCHASER REPRESENTATIVE TO ENTER INTO EACH APPLICABLE INTERCREDITOR AGREEMENT CONTEMPLATED BY THIS AGREEMENT AS “SECOND LIEN AGENT” OR “SUBORDINATED AGENT” (OR EQUIVALENT) AND ON BEHALF OF SUCH SECURED PARTY.  REFERENCE MUST BE MADE TO EACH INTERCREDITOR AGREEMENT ITSELF TO UNDERSTAND ALL TERMS AND CONDITIONS THEREOF.  EACH SECURED PARTY IS RESPONSIBLE FOR MAKING ITS OWN ANALYSIS AND REVIEW OF EACH INTERCREDITOR AGREEMENT AND THE TERMS AND PROVISIONS THEREOF, AND NEITHER THE PURCHASER REPRESENTATIVE NOR ANY OF ITS AFFILIATES MAKES ANY REPRESENTATION TO ANY SECURED PARTY AS TO THE SUFFICIENCY OR ADVISABILITY OF THE PROVISIONS CONTAINED IN ANY INTERCREDITOR AGREEMENT.  THE FOREGOING PROVISIONS ARE INTENDED AS AN INDUCEMENT TO THE PURCHASERS OR HOLDERS OF ANY OTHER INDEBTEDNESS SUBJECT TO ANY APPLICABLE INTERCREDITOR AGREEMENT TO EXTEND CREDIT THEREUNDER AND SUCH PURCHASERS AND/OR HOLDERS ARE INTENDED THIRD PARTY BENEFICIARIES OF SUCH PROVISIONS AND THE PROVISIONS OF EACH APPLICABLE INTERCREDITOR AGREEMENT.
 
Notwithstanding anything herein to the contrary, the priority of payments owing to the holders or lenders under this Agreement and the priority of the lien and security interest granted to the Subordinated Agent (as defined in the Second Lien Intercreditor and Subordination Agreement) pursuant to this Agreement and the exercise of any right or remedy by the Subordinated Agent (as defined in the Second Lien Intercreditor and Subordination Agreement) hereunder are subject to the provisions of the Second Lien Intercreditor and Subordination Agreement.

Section 9.21.       Conflicts.  Notwithstanding anything to the contrary contained herein or in any other Note Document, in the event of any conflict or inconsistency between this Agreement and any other Note Document, the terms of this Agreement shall govern and control; provided that in the case of any conflict or inconsistency between any Intercreditor Agreement and any other Note Document, the terms of such Intercreditor Agreement shall govern and control.
 
Section 9.22.       Release of Guarantors.  Notwithstanding anything in Section 9.02(b) to the contrary, (a) any Subsidiary Guarantor shall automatically be released from its obligations hereunder (and its Note Guaranty and any Lien granted by such Subsidiary Guarantor pursuant to any Collateral Document shall be automatically released) (i) upon the consummation of any transaction or series of related transactions not prohibited hereunder if as a result thereof such Subsidiary Guarantor ceases to be a Restricted Subsidiary or is an Excluded Subsidiary (or becomes an Excluded Subsidiary as a result of a single transaction or series of related transactions not prohibited hereunder, including, for the avoidance of doubt, any Permitted Practice Subsidiary Restructuring) in each case subject, if applicable, to the Specified Guarantor Release Provision, (ii) upon the occurrence of the Termination Date and/or (iii) with respect to any Discretionary Guarantor, upon notice by the Issuer to the Purchaser Representative at any time as a result of a single transaction or series of related transactions not prohibited hereunder and subject, if applicable, to the Specified Guarantor Release Provision and (b) any Subsidiary Guarantor that meets the definition of “Excluded Subsidiary” shall be released by the Purchaser Representative promptly following the request therefor by the Issuer, subject, if applicable, to the Specified Guarantor Release Provision.
 
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Section 9.23.      Acknowledgement and Consent to Bail-In of EEA Financial Institutions.  Notwithstanding anything to the contrary in any Note Document or in any other agreement, arrangement or understanding of the parties hereto, each such party acknowledges that any liability of any EEA Financial Institution arising under any Note Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:
 
(a)          the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEA Financial Institution; and
 
(b)          the effects of any Bail-in Action on any such liability, including, if applicable:
 
(i)          a reduction in full or in part or cancellation of any such liability;
 
(ii)        a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Note Document; or
 
(iii)        the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.
 
Section 9.24.        Certain ERISA Matters.  Each Purchaser (x) represents and warrants, as of the date such Person became a Purchaser party hereto, to, and (y) covenants, from the date such Person became a Purchaser party hereto to the date such Person ceases being a Purchaser party hereto, that at least one of the following is and will be true:
 
(a)          such Purchaser is not using “plan assets” (within the meaning of Section 3(42) of ERISA or otherwise) of one or more benefit plans with respect to such Purchaser’s entrance into, participation in, administration of and performance of the Notes, the Commitments or this Agreement,
 
(b)         the transaction exemption set forth in one or more PTEs, such as PTE 84-14 (a class exemption for certain transactions determined by independent qualified professional asset managers), PTE 95-60 (a class exemption for certain transactions involving insurance company general accounts), PTE 90-1 (a class exemption for certain transactions involving insurance company pooled separate accounts), PTE 91-38 (a class exemption for certain transactions involving bank collective investment funds) or PTE 96-23 (a class exemption for certain transactions determined by in-house asset managers), is applicable with respect to such Purchaser’s entrance into, participation in, administration of and performance of the Notes, the Commitments and this Agreement,
 
(c)          (i) such Purchaser is an investment fund managed by a “Qualified Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (ii) such Qualified Professional Asset Manager made the investment decision on behalf of such Purchaser to enter into, participate in, administer and perform the Notes, the Commitments and this Agreement, (iii) the entrance into, participation in, administration of and performance of the Notes, the Commitments and this Agreement satisfies the requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (iv) to the best knowledge of such Purchaser, the requirements of subsection (a) of Part I of PTE 84-14 are satisfied with respect to such Purchaser’s entrance into, participation in, administration of and performance of the Notes, the Commitments and this Agreement, or
 
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(d)          such other representation, warranty and covenant as may be agreed in writing between the Purchaser Representative, acting at the instruction of the Required Purchasers, and such Purchaser.
 
In addition, unless either (1) sub-clause (i) in the immediately preceding paragraph is true with respect to a Purchaser or (2) a Purchaser has provided another representation, warranty and covenant in accordance with sub-clause (iv) in the immediately preceding paragraph, such Purchaser further (x) represents and warrants, as of the date such Person became a Purchaser party hereto, to, and (y) covenants, from the date such Person became a Purchaser party hereto to the date such Person ceases being a Purchaser party hereto, for the benefit of, the Purchaser Representative and not, for the avoidance of doubt, to or for the benefit of the Issuer or any other Note Party, that the Purchaser Representative is not a fiduciary with respect to the assets of such Purchaser involved in such Purchaser’s entrance into, participation in, administration of and performance of the Notes, the Commitments and this Agreement (including in connection with the reservation or exercise of any rights by the Purchaser Representative under this Agreement, any Note Document or any documents related hereto or thereto).  To the extent the Purchaser Representative (or any sub-agent thereof) or any Related Party of any of the foregoing is not reimbursed and indemnified by the Issuer, the Purchasers severally agree to reimburse and indemnify the Purchaser Representative (or any such sub-agent) or such Related Party, as the case may be, in proportion to their respective “pro rata shares” (determined as set forth below) for and against any and all liabilities, obligations, losses, damages, penalties, claims, actions, judgments, costs, expenses or disbursements of whatsoever kind or nature which may be imposed on, asserted against or incurred by the Purchaser Representative (or such sub-agent) or such Related Party in performing its duties hereunder or under any other Note Document or in any way relating to or arising out of this Agreement or any other Note Document; provided, that no Purchaser shall be liable for any portion of such liabilities, obligations, losses, damages, penalties, claims, actions, judgments, suits, costs, expenses or disbursements resulting from the Purchaser Representative’s or such Related Party’s, as applicable, gross negligence or willful misconduct (as determined by a court of competent jurisdiction in a final and non-appealable decision).  For purposes of this paragraph, a Purchaser’s “pro rata share” shall be determined based upon its share of the sum of, without duplication, unused Commitments and outstanding Notes, in each case, at the time (or most recently outstanding and in effect).

Section 9.25.        Acknowledgement Regarding Any Supported QFCs.  To the extent that the Note Documents provide support, through a guarantee or otherwise, for Derivative Transactions or any other agreement or instrument that is a QFC (such support, “QFC Credit Support” and each such QFC a “Supported QFC”), the parties acknowledge and agree as follows with respect to the resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations promulgated thereunder, the “US Special Resolution Regimes”) in respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Note Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the US or any other state of the US):
 
(a)          In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes subject to a proceeding under a US Special Resolution Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be effective under the US Special Resolution Regime if the Supported QFC and such QFC Credit Support (and any such interest, obligation and rights in property) were governed by the laws of the US or a state of the US.  In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a US Special Resolution Regime, Default Rights under the Note Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the US Special Resolution Regime if the Supported QFC and the Note Documents were governed by the laws of the U.S. or a state of the U.S.  Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Purchaser shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support;
 
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(b)          As used in this Section 9.25, the following terms have the following meanings:
 
“BHC ACT Affiliate” means an “affiliate” (as defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)).
 
“Covered Entity” means any of the following:
 
(i)          a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
 
(ii)          a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
 
(iii)          a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
 
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
 
“QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).
 
Section 9.26.       Termination.  This Agreement and all obligations hereunder shall terminate on the date of the valid and legally binding termination of the Transaction Support Agreement 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), in each case, prior to the Closing Date.
 
ARTICLE 10          CONVERSION OF NOTES
 
Section 10.01.      Conversion Privilege.  Subject to the conditions and upon compliance with the provisions of this Article 10, each holder of a Note shall have the right, at such holder’s option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of such Note at any time prior to the close of business on the Business Day immediately preceding the Maturity Date (the “Conversion Right”).  Upon conversion of a Note, the holder of such Note shall be entitled to receive from the Issuer a number of shares of Common Stock equal to (i) the principal amount of such Note plus any accrued and unpaid interest thereon (the “Converted Amount”) divided by (ii) the Conversion Price (with cash in lieu of any fractional share as provided for herein) (the “Conversion Shares”).
 
Section 10.02.      Forced Conversion.
 
(a)          On or after the second anniversary of the Closing Date, the Issuer may, at its option, from time to time, elect to convert (a “Forced Conversion”) a portion of the outstanding Notes into the number of shares of Common Stock issuable upon conversion pursuant to Section 10.01 (with cash in lieu of any fractional share as provided for herein) based on the Conversion Price then in effect if, and only if (i) the Daily VWAP of the Common Stock has been at least 200% of the Conversion Price then in effect on at least 30 Trading Days (whether or not consecutive) in the period of 45 consecutive Trading Days ending on, and including, the Trading Day immediately preceding the Forced Conversion Notice Date, (ii) the Issuer provides the Forced Conversion Notice on a Trading Day and the Daily VWAP of the Common Stock is at least 200% of the Conversion Price in effect on such Forced Conversion Notice Date and (iii) a registration statement covering the resale of the shares of Common Stock issuable upon such Forced Conversion is effective and available for use by the holders of converted Notes on the Forced Conversion Notice Date and the Issuer in good faith expects such registration statement to remain effective and available for such purpose, without any blackout on the use thereof (any period when a blackout is in effect, a “Blackout Period”), for a period of at least twenty (20) days after the Forced Conversion Date, provided, that, in the event that the Issuer provides written notice of any Forced Conversion that would be effective but for the fact that the date of such written notice falls within any Blackout Period, such Forced Conversion shall only be effective if (A) the Daily VWAP of the Common Stock is at least 200% of the Conversion Price then in effect on each of the first two Trading Days immediately following the last day of such Blackout Period, (B) the Issuer provides written confirmation of such Forced Conversion on the second such Trading Day to all holders of the Notes and (C) the foregoing clause (iii) is satisfied on such second Trading Day, and in such event such second Trading Day shall be deemed the Forced Conversion Notice Date.  Notwithstanding anything to the contrary herein, the Issuer shall not be permitted to exercise the Forced Conversion right at any one time with respect to a principal amount of Notes exceeding 25% of the aggregate original principal amount of all Initial Notes and Delayed Draw Notes, if any, that have been issued hereunder (in each case, plus the amount of any interest thereon that has been capitalized thereon), and if the Issuer exercises the Forced Conversion right on any Trading Day, the Issuer may not exercise the Forced Conversion right again until the Trading Day immediately following the date on which the shares of Common Stock issuable in connection with the former Forced Conversion have been delivered to the applicable Purchasers.
 
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(b)          In order for the Issuer to exercise its right to elect a Forced Conversion of any portion of the outstanding Notes pursuant to this Section 10.02, the Issuer shall give written notice (the “Forced Conversion Notice”) to all holders of the Notes on a Trading Day (the date of such notice, the “Forced Conversion Notice Date”) stating that the Issuer elects to force conversion of such portion of the outstanding Notes pursuant to this Section 10.02 and shall state therein (i) the outstanding principal amount of such Purchaser’s Notes to be converted, (ii) the Conversion Price on the Forced Conversion Notice Date and (iii) the Issuer’s computation of the number of shares of Common Stock (together with cash in lieu of any fractional share) to be received by the Purchaser.  The Issuer shall deliver the shares of Common Stock (together with cash in lieu of any fractional share) issuable upon any Forced Conversion on the third Trading Day immediately following the applicable Forced Conversion Notice Date (the “Forced Conversion Date”).  For the avoidance of doubt, the exercise by the Issuer of its Forced Conversion right shall not limit or otherwise affect the right of any holder to convert all or any portion of its Notes at any time prior to the Forced Conversion Date.  The Forced Conversion Notice Date with respect to any Forced Conversion shall be deemed to be the Conversion Date with respect to such Forced Conversion.
 
(c)          Any Forced Conversion pursuant to this Section 10.02 shall be made in compliance with the provisions of Section 10.03 and the other applicable provisions of this Article 10.
 
Section 10.03.      Conversion Procedure; Settlement Upon Conversion.
 
(a)          Upon conversion of any Note, the Issuer shall deliver (or cause to be delivered) to the holder of converted Notes the number of Conversion Shares determined in accordance with Section 10.01 (with cash in lieu of any fractional share) on the second Business Day immediately following the relevant Conversion Date (except as specified in Section 10.02(b)). Such delivery shall be effected through the facilities of The Depository Trust Company and, if applicable, bear a customary legend regarding securities law restrictions registered in the name of the relevant holder (provided such Person must be an “accredited investor” within the meaning of Rule 501(a) of Regulation D under the Securities Act). Upon the Conversion Date, the holder of converted Notes shall be deemed for all corporate purposes to have become the holder of record of the Conversion Shares with respect to which such Note (or portion thereof) has been converted.
 
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(b)          To exercise the Conversion Right with respect to all or any portion of any Note on any date (the “Conversion Date”), the holder of such Note shall transmit by email (or otherwise deliver), for receipt on or prior to 5:00 p.m. New York City time on such date, an unsigned copy of a written holder conversion notice in the form attached hereto as Exhibit S to the offices of the Issuer, at ATI Physical Therapy, Inc., 790 Remington Boulevard, Bolingbrook, Illinois 60440 (Attention: Joseph Jordan, Chief Financial Officer, Email: joseph.jordan@atipt.com), or such other address or email address as the Issuer may designate in writing, and to the Purchaser Representative, at 500 Delaware Ave., Wilmington, DE 19801 (Attention: ATI Holdings Acquisition, Inc., Email: phealy@wsfsbank.com).  The Issuer shall maintain records showing the principal converted and the dates of such conversions or shall use such other method, reasonably satisfactory to the relevant holder and the Issuer. The holder of each Note and any assignee, by acceptance of such Note, acknowledge and agree that, by reason of the provisions of this paragraph, following conversion of any portion of any Note, the principal amount of any Note may be less than the principal amount stated on the face thereof.
 
(c)          If a Note is converted, the Issuer shall pay any documentary, stamp or similar issue or transfer tax due on the issue of the shares of Common Stock upon conversion, unless the tax is due because the holder requests such shares to be issued in a name other than the holder’s name, in which case the holder shall pay that tax.
 
(d)          The Person in whose name the shares of Common Stock shall be issuable upon conversion shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date.
 
(e)         The Issuer shall not deliver any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of delivering any fractional share of Common Stock issuable upon conversion based on the Last Reported Sale Price of the Common Stock on the relevant Conversion Date.
 
Section 10.04.      Adjustment of Conversion Price
 
.  The Conversion Price shall be adjusted from time to time by the Issuer if any of the following events occurs:
 
(a)          If the Issuer exclusively issues shares of Common Stock as a dividend or distribution on shares of the Common Stock, or if the Issuer effects a share split or share combination, the Conversion Price shall be adjusted based on the following formula:
 

where,

CP0 =           the Conversion Price in effect immediately prior to the close of business on the Record Date of such dividend or distribution, or immediately prior to the open of business on the Effective Date of such share split or share combination, as applicable;
 
CP'           =           the Conversion Price in effect immediately after the close of business on such Record Date or immediately after the open of business on such Effective Date, as applicable;
 
OS0 =           the number of shares of Common Stock outstanding immediately prior to the close of business on such Record Date or immediately prior to the open of business on such Effective Date, as applicable (before giving effect to any such dividend, distribution, split or combination); and
 
OS'           =           the number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination.
 
Any adjustment made under this clause (a) shall become effective immediately after the close of business on the Record Date for such dividend or distribution, or immediately after the open of business on the Effective Date for such share split or share combination, as applicable.  If any dividend or distribution of the type described in this clause (a) is declared but not so paid or made, the Conversion Price shall be immediately readjusted, effective as of the date the Issuer determines not to pay such dividend or distribution, to the Conversion Price that would then be in effect if such dividend or distribution had not been declared.
 
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(b)         If the Issuer issues to all or substantially all holders of the Common Stock any rights, options or warrants entitling them, for a period of not more than 45 calendar days after the announcement date of such issuance, to subscribe for or purchase shares of the Common Stock at a price per share that is less than the average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of such issuance, the Conversion Price shall be adjusted based on the following formula:
 

where,
 
CP0 =           the Conversion Price in effect immediately prior to the close of business on the Record Date for such issuance;
 
CP'           =           the Conversion Price in effect immediately after the close of business on such Record Date;
 
OS0 =           the number of shares of Common Stock outstanding immediately prior to the close of business on such Record Date;
 
X           =           the total number of shares of Common Stock issuable pursuant to such rights, options or warrants; and
 
Y           =           the number of shares of Common Stock equal to the aggregate price payable to exercise such rights, options or warrants, divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement of the issuance of such rights, options or warrants.
 
Any adjustment made under this clause (b) shall be made successively whenever any such rights, options or warrants are issued and shall become effective immediately after the close of business on the Record Date for such issuance.  To the extent that shares of the Common Stock are not delivered after the expiration of such rights, options or warrants, the Conversion Price shall be adjusted to the Conversion Price that would then be in effect had the adjustment with respect to the issuance of such rights, options or warrants been made on the basis of delivery of only the number of shares of Common Stock actually delivered.  If such rights, options or warrants are not so issued, the Conversion Price shall be adjusted to the Conversion Price that would then be in effect if such Ex-Dividend Date for such issuance had not occurred.
 
For purposes of this clause (b), in determining whether any rights, options or warrants entitle the holders to subscribe for or purchase shares of the Common Stock at less than such average of the Last Reported Sale Prices of the Common Stock for the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the date of announcement for such issuance, and in determining the aggregate offering price of such shares of Common Stock, there shall be taken into account any consideration received by the Issuer for such rights, options or warrants and any amount payable on exercise or conversion thereof, the value of such consideration, if other than cash, to be determined by the Issuer in good faith and in a commercially reasonable manner.
 
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(c)          If the Issuer distributes shares of its Capital Stock, evidences of its Indebtedness, other assets or property of the Issuer or rights, options or warrants to acquire its Capital Stock or other securities, to all or substantially all holders of the Common Stock, excluding (i) dividends, distributions or issuances as to which an adjustment was effected pursuant to Section 10.04(a) or Section 10.04(b), (ii) dividends or distributions paid exclusively in cash as to which the provisions set forth in Section 10.04(d) shall apply, and (iii) Spin-Offs as to which the provisions set forth below in this Section 10.04(c) shall apply (any of such shares of Capital Stock, evidences of Indebtedness, other assets or property or rights, options or warrants to acquire Capital Stock or other securities, the “Distributed Property”), then the Conversion Price shall be adjusted based on the following formula:
 

where,

CP0 =           the Conversion Price in effect immediately prior to the close of business on the Record Date for such distribution;
 
CP'           =           the Conversion Price in effect immediately after the close of business on such Record Date;
 
SP0 =           the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution; and
 
FMV           =           the fair market value (as determined by the Issuer in good faith and in a commercially reasonable manner) of the Distributed Property with respect to each outstanding share of the Common Stock on the Record Date for such distribution.
 
Any adjustment made under the portion of this clause (c) above shall become effective immediately after the close of business on the Record Date for such distribution.  If such distribution is not so paid or made, the Conversion Price shall be adjusted to the Conversion Price that would then be in effect if such distribution had not been declared.  Notwithstanding the foregoing, if “FMV” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing adjustment, each holder of a Note shall receive, in respect of each $1,000 principal amount thereof, at the same time and upon the same terms as holders of the Common Stock receive the Distributed Property, the amount and kind of Distributed Property such holder would have received if such holder exercised the Conversion Right with respect to such Note in full immediately prior to the Ex-Dividend Date for the distribution.  If the Issuer determines the “FMV” (as defined above) of any distribution for purposes of this clause (c) by reference to the actual or when-issued trading market for any securities, it shall in doing so consider the prices in such market over the same period used in computing the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on, and including, the Trading Day immediately preceding the Ex-Dividend Date for such distribution.
 
With respect to an adjustment pursuant to this clause (c) where there has been a payment of a dividend or other distribution on the Common Stock of shares of Capital Stock of any class or series, or similar equity interest, of or relating to a Subsidiary or other business unit of the Issuer, that are, or, when issued, will be, listed or admitted for trading on a U.S. national securities exchange (a “Spin-Off”), the Conversion Price shall be adjusted based on the following formula:
 

where,
 
CP0 =           the Conversion Price in effect immediately prior to the end of the Valuation Period;
 
CP'           =           the Conversion Price in effect immediately after the end of the Valuation Period;
 
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FMV0 =           the average of the Last Reported Sale Prices of the Capital Stock or similar equity interest distributed to holders of the Common Stock applicable to one share of the Common Stock (determined by reference to the definition of Last Reported Sale Price as if references therein to Common Stock were to such Capital Stock or similar equity interest) over the first 10 consecutive Trading Day period after, and including, the Ex-Dividend Date of the Spin-Off (the “Valuation Period”); and
 
MP0 =           the average of the Last Reported Sale Prices of the Common Stock over the Valuation Period.
 
The adjustment to the Conversion Price under the preceding paragraph shall occur at the close of business on the last Trading Day of the Valuation Period.
 
For purposes of this clause (c) (and subject in all respect to Section 10.09), rights, options or warrants distributed by the Issuer to all holders of the Common Stock entitling them to subscribe for or purchase shares of the Issuer’s Capital Stock, including Common Stock (either initially or under certain circumstances), which rights, options or warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are deemed to be transferred with such shares of the Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of the Common Stock, shall be deemed not to have been distributed for purposes of this clause (c) (and no adjustment to the Conversion Price under this clause (c) will be required) until the occurrence of the earliest Trigger Event, whereupon such rights, options or warrants shall be deemed to have been distributed and an appropriate adjustment (if any is required) to the Conversion Price shall be made under this clause (c).  If any such right, option or warrant, including any such existing rights, options or warrants distributed prior to the date of this Agreement, are subject to events, upon the occurrence of which such rights, options or warrants become exercisable to purchase different securities, evidences of indebtedness or other assets, then the date of the occurrence of any and each such event shall be deemed to be the date of distribution and Record Date with respect to new rights, options or warrants with such rights (in which case the existing rights, options or warrants shall be deemed to terminate and expire on such date without exercise by any of the holders thereof).  In addition, in the event of any distribution (or deemed distribution) of rights, options or warrants, or any Trigger Event or other event (of the type described in the immediately preceding sentence) with respect thereto that was counted for purposes of calculating a distribution amount for which an adjustment to the Conversion Price under this clause (c) was made, (1) in the case of any such rights, options or warrants that shall all have been redeemed or purchased without exercise by any holders thereof, upon such final redemption or purchase (x) the Conversion Price shall be readjusted as if such rights, options or warrants had not been issued and (y) the Conversion Price shall then again be readjusted to give effect to such distribution, deemed distribution or Trigger Event, as the case may be, as though it were a cash distribution, equal to the per share redemption or purchase price received by a holder or holders of Common Stock with respect to such rights, options or warrants (assuming such holder had retained such rights, options or warrants), made to all holders of Common Stock as of the date of such redemption or purchase, and (2) in the case of such rights, options or warrants that shall have expired or been terminated without exercise by any holders thereof, the Conversion Price shall be readjusted as if such rights, options and warrants had not been issued.
 
(d)          If any cash dividend or distribution is made to all or substantially all holders of the Common Stock, the Conversion Price shall be adjusted based on the following formula:

 

where,
 
CP0 =           the Conversion Price in effect immediately prior to the close of business on the Record Date for such dividend or distribution;
 
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CP'           =           the Conversion Price in effect immediately after the close of business on the Record Date for such dividend or distribution;
 
SP0 =           the Last Reported Sale Price of the Common Stock on the Trading Day immediately preceding the Ex-Dividend Date for such dividend or distribution; and
 
C           =           the amount in cash per share the Issuer distributes to all or substantially all holders of the Common Stock.
 
Any adjustment pursuant to this clause (d) shall become effective immediately after the close of business on the Record Date for such dividend or distribution.  If such dividend or distribution is not so paid, the Conversion Price shall be adjusted, effective as of the date the Issuer determines not to make or pay such dividend or distribution, to be the Conversion Price that would then be in effect if such dividend or distribution had not been declared.  Notwithstanding the foregoing, if “C” (as defined above) is equal to or greater than “SP0” (as defined above), in lieu of the foregoing adjustment, each holder of a Note shall receive, for each $1,000 principal amount of Notes, at the same time and upon the same terms as holders of shares of the Common Stock, the amount of cash that such holder would have received if such holder exercised the Conversion Right with respect to such Note in full immediately prior to the Ex-Dividend Date for such cash dividend or distribution.
 
(e)          If the Issuer or any of its Subsidiaries make a payment in respect of a tender or exchange offer for the Common Stock, to the extent that the cash and value of any other consideration included in the payment per share of the Common Stock exceeds the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer, the Conversion Price shall be adjusted based on the following formula:
 

where,
 
CP0 =           the Conversion Price in effect immediately prior to the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires;
 
CP'           =           the Conversion Price in effect immediately after the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires;
 
AC           =           the aggregate value of all cash and any other consideration (as determined by the Issuer) paid or payable for shares of Common Stock purchased in such tender or exchange offer;
 
OS0 =           the number of shares of Common Stock outstanding immediately prior to the date such tender or exchange offer expires (prior to giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer);
 
OS'           =           the number of shares of Common Stock outstanding immediately after the date such tender or exchange offer expires (after giving effect to the purchase of all shares of Common Stock accepted for purchase or exchange in such tender or exchange offer); and
 
SP'           =           the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next succeeding the date such tender or exchange offer expires.
 
156
The adjustment to the Conversion Price under this clause (e) shall occur at the close of business on the 10th Trading Day immediately following, and including, the Trading Day next succeeding the date such tender or exchange offer expires.
 
(f)
 
(i)          In the event the Issuer shall at any time after the date hereof issue Additional Shares of Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to the terms hereof), without consideration or for a consideration per share less than the Conversion Price in effect immediately prior to such issuance or deemed issuance, then the Conversion Price shall be reduced, concurrently with such issuance or deemed issuance, to the consideration per share received by the Issuer for such issue or deemed issue of the Additional Shares of Common Stock; provided that if such issuance or deemed issuance was without consideration, then the Issuer shall be deemed to have received an aggregate of one-tenth of a cent ($.001) of consideration for all such Additional Shares of Common Stock issued or deemed to be issued.
 
(ii)         If the Issuer at any time or from time to time after the date hereof shall issue any Options or Convertible Securities (excluding Options or Convertible Securities which are themselves Exempted Securities) or shall fix a Record Date for the determination of holders of any class of securities entitled to receive any such Options or Convertible Securities, then the maximum number of shares of Common Stock (as set forth in the instrument relating thereto, assuming the satisfaction of any conditions to exercisability, convertibility or exchangeability but without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or, in the case of Convertible Securities and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to be Additional Shares of Common Stock issued as of the time of such issue or, in case such a Record Date shall have been fixed, as of the close of business on such Record Date.
 
(iii)       If the terms of any Option or Convertible Security, the issuance of which resulted in an adjustment to the Conversion Price, are revised as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase or decrease in the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any such Option or Convertible Security or (2) any increase or decrease in the consideration payable to the Issuer upon such exercise, conversion and/or exchange, then, effective upon such increase or decrease becoming effective, the Conversion Price computed upon the original issue of such Option or Convertible Security (or upon the occurrence of a Record Date with respect thereto) shall be readjusted to such Conversion Price as would have obtained had such revised terms been in effect upon the original date of issuance of such Option or Convertible Security.  Notwithstanding the foregoing, no readjustment shall have the effect of increasing the Conversion Price to an amount which exceeds the lower of (i) the Conversion Price in effect immediately prior to the original adjustment made as a result of the issuance of such Option or Convertible Security, or (ii) the Conversion Price that would have resulted from any issuances of Additional Shares of Common Stock (other than deemed issuances of Additional Shares of Common Stock as a result of the issuance of such Option or Convertible Security) between the original adjustment date and such readjustment date.
 
(iv)        If the terms of any Option or Convertible Security (excluding Options or Convertible Securities which are themselves Exempted Securities), the issuance of which did not result in an adjustment to the Conversion Price (either because the consideration per share of the Additional Shares of Common Stock subject thereto was equal to or greater than the Conversion Price then in effect, or because such Option or Convertible Security was issued before the date hereof), are revised after the date hereof as a result of an amendment to such terms or any other adjustment pursuant to the provisions of such Option or Convertible Security (but excluding automatic adjustments to such terms pursuant to anti-dilution or similar provisions of such Option or Convertible Security) to provide for either (1) any increase in the number of shares of Common Stock issuable upon the exercise, conversion or exchange of any such Option or Convertible Security or (2) any decrease in the consideration payable to the Issuer upon such exercise, conversion or exchange, then such Option or Convertible Security, as so amended or adjusted, and the Additional Shares of Common Stock subject thereto shall be deemed to have been issued effective upon such increase or decrease becoming effective.
 
157
(v)         Upon the expiration or termination of any unexercised Option or unconverted or unexchanged Convertible Security (or portion thereof) which resulted (either upon its original issuance or upon a revision of its terms) in an adjustment to the Conversion Price, the Conversion Price shall be readjusted to such Conversion Price as would have obtained had such Option or Convertible Security (or portion thereof) never been issued.
 
(vi)        If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security, or the consideration payable to the Issuer upon such exercise, conversion and/or exchange, is calculable at the time such Option or Convertible Security is issued or amended but is subject to adjustment based upon subsequent events, any adjustment to the Conversion Price provided for in this provision shall be effected at the time of such issuance or amendment based on such number of shares or amount of consideration without regard to any provisions for subsequent adjustments (and any subsequent adjustments shall be treated as provided in the other provisions hereof).  If the number of shares of Common Stock issuable upon the exercise, conversion and/or exchange of any Option or Convertible Security, or the consideration payable to the Issuer upon such exercise, conversion and/or exchange, cannot be calculated at all at the time such Option or Convertible Security is issued or amended, any adjustment to the Conversion Price that would result at the time of such issuance or amendment shall instead be effected at the time such number of shares and/or amount of consideration is first calculable (even if subject to subsequent adjustments), assuming for purposes of calculating such adjustment to the Conversion Price that such issuance or amendment took place at the time such calculation can first be made.
 
(vii)       For purposes of this provision, the consideration received by the Issuer for the issuance or deemed issuance of any Additional Shares of Common Stock shall be computed as follows:
 
(A)          Cash and Property.  Such consideration shall:
 
(1)          insofar as it consists of cash, be computed at the aggregate amount of cash received by the Issuer, excluding amounts paid or payable for accrued interest;
 
(2)          insofar as it consists of property other than cash, be computed at the fair market value thereof at the time of such issue, as determined by the Issuer in good faith and in a commercially reasonable manner; and
 
(3)         in the event Additional Shares of Common Stock are issued together with other shares or securities or other assets of the Issuer for consideration which covers both, be the proportion of such consideration so received, computed as provided in clauses (1) and (2) above, as determined by the Issuer in good faith and in a commercially reasonable manner.
 
(B)          Options and Convertible Securities.  The consideration per share received by the Issuer for Additional Shares of Common Stock deemed to have been issued relating to Options and Convertible Securities shall be determined by dividing:
 
158
(1)         The total amount, if any, received or receivable by the Issuer as consideration for the issue of such Options or Convertible Securities, plus the minimum aggregate amount of additional consideration (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such consideration) payable to the Issuer upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities, by
 
(2)         the maximum number of shares of Common Stock (as set forth in the instruments relating thereto, without regard to any provision contained therein for a subsequent adjustment of such number) issuable upon the exercise of such Options or the conversion or exchange of such Convertible Securities, or in the case of Options for Convertible Securities, the exercise of such Options for Convertible Securities and the conversion or exchange of such Convertible Securities.
 
(viii)      In the event the Issuer shall issue on more than one date Additional Shares of Common Stock that are a part of one transaction or a series of related transactions and that would result in an adjustment to the Conversion Price pursuant to the terms hereof, and such issuance dates occur within a period of no more than ninety (90) days from the first such issuance to the final such issuance, then, upon the final such issuance, the Conversion Price shall be readjusted to give effect to all such issuances as if they occurred on the date of the first such issuance (and without giving effect to any additional adjustments as a result of any such subsequent issuances within such period).
 
(g)         In addition to those adjustments required by the foregoing provisions of this Section 10.04, and to the extent permitted by applicable law and subject to the applicable rules of any exchange on which any of the Issuer’s securities are then listed, the Issuer from time to time may decrease the Conversion Price by any amount for a period of at least 20 Business Days if the Issuer determines that such decrease would be in the Issuer’s best interest.  In addition, to the extent permitted by applicable law and subject to the applicable rules of any exchange on which any of the Issuer’s securities are then listed, the Issuer may (but is not required to) decrease the Conversion Price to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock in connection with a dividend or distribution of shares of Common Stock (or rights to acquire shares of Common Stock) or similar event.  Whenever the Conversion Price is decreased pursuant to either of the preceding two sentences, the Issuer shall deliver to the holder of each Note a notice of the decrease at least 15 days prior to the date the decreased Conversion Price takes effect, and such notice shall state the decreased Conversion Price and the period during which it will be in effect.
 
(h)          All calculations and other determinations under this Article 10 shall be made by the Issuer and shall be made to the nearest one-ten thousandth (1/10,000th) of a share.
 
(i)          Whenever the Conversion Price is adjusted as herein provided, the Issuer shall promptly deliver to holders of the Notes an Officers’ Certificate setting forth the Conversion Price after such adjustment and setting forth a brief statement of the facts requiring such adjustment.
 
(j)          For purposes of this Section 10.04, the number of shares of Common Stock at any time outstanding shall not include shares of Common Stock held in the treasury of the Issuer so long as the Issuer does not pay any dividend or make any distribution on shares of Common Stock held in the treasury of the Issuer, but shall include shares of Common Stock issuable in respect of scrip certificates issued in lieu of fractions of shares of Common Stock.
 
Section 10.05.     Shares To Be Fully Paid.  The Issuer shall provide free from preemptive rights, out of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock to provide for conversion of the Notes from time to time as such Notes are presented for conversion.
 
159
Section 10.06.      Effect of Recapitalizations; Reclassifications and Changes of Common Stock.
 
(a)          In the case of:
 
(i)          any recapitalization, reclassification or change of the Common Stock (other than changes resulting from a stock split, subdivision or combination),
 
(ii)         any consolidation, merger, combination or similar transaction involving the Issuer,
 
(iii)        any sale, lease or other transfer to a third party of the consolidated assets of the Issuer and the Issuer’s Subsidiaries substantially as an entirety or
 
(iv)        any statutory share exchange,
 
in each case, as a result of which the Common Stock would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then, at and after the effective time of such Merger Event, the right to convert the Notes shall be changed into a right to convert the Notes at the Conversion Price for the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of one share of Common Stock would have owned or been entitled to receive (the “Reference Property”) upon such Merger Event.
 
If the Merger Event causes the Common Stock to be converted into, or exchanged for, the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (i) the Reference Property into which the Notes will be convertible shall be deemed to be (x) the weighted average of the types and amounts of consideration received by the holders of Common Stock that affirmatively make such an election or (y) if no holders of Common Stock affirmatively make such an election, the types and amounts of consideration actually received by the holders of Common Stock, and (ii) the Reference Property for purposes of the immediately preceding paragraph shall refer to the consideration referred to in clause (i) attributable to one share of Common Stock.  The Issuer shall notify holders of such weighted average as soon as practicable after such determination is made.
 
Following any Merger Event, the anti-dilution and other adjustments set forth herein shall be applied in a manner as nearly equivalent as is possible to the adjustments provided for in this Article.  If, in the case of any Merger Event, the Reference Property includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, in such Merger Event, then such other Person shall agree to undertake the obligations of the Issuer in this Agreement and shall undertake such additional obligations to protect the interests of the holders of the Notes as the Issuer shall reasonably consider necessary by reason of the foregoing.
 
(b)         If a Merger Event occurs, the Issuer shall promptly deliver to holders of the Notes an Officers’ Certificate briefly stating the reasons therefor, the kind or amount of cash, securities or property or asset that will comprise the Reference Property after any such Merger Event, any adjustment to be made with respect thereto and that all conditions precedent have been complied with.
 
(c)          The Issuer shall not become a party to any Merger Event unless its terms are consistent with this Section.  None of the foregoing provisions shall affect the right of a holder of Notes to convert its Notes prior to the effective date of such Merger Event.
 
(d)          The above provisions of this Section shall similarly apply to successive Merger Events.
 
160
Section 10.07.      Certain Covenants.
 
(a)          No later than June 14, 2023, the Issuer shall convene and hold an annual or special meeting of the stockholders of the Issuer (the “Issuance Approval Meeting”) at which the stockholders of the Issuer will be asked to approve the issuance of all shares of Common Stock issuable upon the conversion of the Notes as provided for in this Agreement (the “Issuance Approval”), and the proxy statement related to such Issuance Approval Meeting will include a recommendation by the Issuer’s board of directors (subject to the fiduciary duties of the Issuer’s board of directors) that the stockholders of the Issuer vote in favor of such proposal.
 
(b)          The Issuer covenants that all shares of Common Stock issued upon conversion of Notes will be fully paid and non-assessable by the Issuer and free from all taxes, liens and charges with respect to the issue thereof.
 
(c)         The Issuer covenants that, if any shares of Common Stock to be provided for the purpose of conversion of Notes hereunder require registration with or approval of any governmental authority under any federal or state law before such shares of Common Stock may be validly issued upon conversion, the Issuer will, to the extent then permitted by the rules and interpretations of the SEC, secure such registration or approval, as the case may be.
 
(d)        The Issuer further covenants that if at any time the Common Stock shall be listed on any national securities exchange or automated quotation system, the Issuer will list and keep listed, so long as the Common Stock shall be so listed on such exchange or automated quotation system, any Common Stock issuable upon conversion of the Notes.
 
Section 10.08.      Notice to Holders Prior to Certain Actions.  In case of any:
 
(a)          action by the Issuer or one of its Subsidiaries that would require an adjustment in the Conversion Price pursuant to this Article;
 
(b)          Merger Event; or
 
(c)          voluntary or involuntary dissolution, liquidation or winding-up of the Issuer or any of its Subsidiaries;
 
then, in each case (unless notice of such event is otherwise required pursuant to another provision of this Agreement), the Issuer shall deliver to each holder of the Notes, as promptly as possible but in any event at least 20 days prior to the applicable date hereinafter specified, a notice stating (i) the date on which a record is to be taken for the purpose of such action by the Issuer or one of its Subsidiaries or, if a record is not to be taken, the date as of which the holders of Common Stock of record are to be determined for the purposes of such action by the Issuer or one of its Subsidiaries, or (ii) the date on which such Merger Event, dissolution, liquidation or winding-up is expected to become effective or occur, and the date as of which it is expected that holders of Common Stock of record shall be entitled to exchange their Common Stock for securities or other property deliverable upon such Merger Event, dissolution, liquidation or winding-up.  Failure to give such notice, or any defect therein, shall not affect the legality or validity of such action by the Issuer or one of its Subsidiaries, Merger Event, dissolution, liquidation or winding-up
 
Section 10.09.    Stockholder Rights Plans.  If the Issuer has a stockholder rights plan in effect upon conversion of the Notes, each share of Common Stock issued upon such conversion shall be entitled to receive the appropriate number of rights, if any, and the certificates representing the Common Stock issued upon such conversion shall bear such legends, if any, in each case as may be provided by the terms of any such stockholder rights plan, as the same may be amended from time to time. However, if, prior to any conversion of Notes, the rights have separated from the shares of Common Stock in accordance with the provisions of the applicable all or substantially all holders of the Distributed Property as provided in Section 10.04(c), subject to readjustment in the event of the expiration, termination or redemption of such rights.
 
161
Section 10.10.      Effect of Conversion.  Upon the conversion of all or any portion of any Note in accordance with the provisions of this Article 10, the relevant Converted Amount shall be deemed to have been paid in full in cash for all purposes under this Agreement, and neither the Issuer nor any other Note Party shall have any further liability with respect to such Converted Amount.  In the event of the conversion of all or any portion of any Note in accordance with the provisions of this Article 10, upon delivery of any Conversion Shares, Common Stock or other cash, securities or property or asset for the Converted Amount, the Issuer will provide the Purchaser Representative with (y) written confirmation of (I) such delivery, and (II) the amount of Converted Amount deemed to have been paid in full in cash for all purposes under this Agreement as a result of such delivery, and (z) an irrevocable instruction to reflect on the Register the payment of the Converted Amount that is deemed so paid in full as a result of such delivery. Other than to update the Register pursuant an instruction pursuant to the preceding sentence, the Purchaser Representative shall have no obligation or duty pursuant to Article 10 or with respect to the Conversion Shares, Common Stock or any other cash, securities or property or asset distributed pursuant to Article 10 or any requirements or conditions related to the delivery of, or exchange or conversion thereof, or any other fact or matter in connection with the Conversion Shares, Common Stock or any other cash, securities or property or asset distributed pursuant to Article 10 or the provisions of this Article 10. In furtherance of the foregoing, in no event shall the Purchaser Representative have any duties or obligations, nor shall they in any event have any liability, with respect to any Note Party’s or any Purchaser’s compliance with applicable securities laws in respect of the Notes, the Conversion Shares, Common Stock or any other cash, securities or property or asset distributed pursuant to Article 10.
 
Section 10.11.      Closing Date.  It is understood and agreed for the avoidance of doubt that the provisions of this Article 10 shall have no effect if the Closing Date does not occur.
 
ARTICLE 11          SERIES B PREFERRED STOCK
 
Section 11.01.      Authorization and Issuance of Series B Preferred Stock.
 
(a)         On or prior to the date of Issuance of the Initial Notes, the Issuer shall issue to each Initial Purchaser, and each Initial Purchaser shall acquire and receive from the Issuer, the respective number of Initial Series B Preferred Stock set forth opposite such Initial Purchaser’s name on Schedule 11.01 hereto in the column labeled “Initial Series B Preferred Stock”.
 
(b)        On or prior to the date of each Issuance of Delayed Draw Notes or Additional Notes, as applicable, the Issuer shall issue to each Delayed Draw Purchaser or Additional Purchaser, as applicable, and each Delayed Draw Purchaser or Additional Purchaser, as applicable, shall acquire and receive from the Issuer, shares of Additional Series B Preferred Stock in an amount equal to the quotient (rounded down to the nearest whole number) obtained by dividing (A) the aggregate principal amount of Delayed Draw Notes or Additional Notes issued, as applicable, issued to such Delayed Draw Purchaser or Additional Purchaser, as applicable, by (B) $1,000.
 
(c)        On or prior to each Interest Payment Date, the Issuer shall issue to each Purchaser, and each Purchaser shall acquire and receive from the Issuer, shares of PIK Series B Preferred Stock in an amount equal to the quotient (rounded down to the nearest whole number) obtained by dividing (A) the aggregate principal amount of interest paid in kind on such Interest Payment Date to such Purchaser by (B) $1,000.
 
Notwithstanding anything to the contrary herein, in the event that any holder holds less than $1,000 in principal amount of Notes, such holder will not be entitled to any shares of Series B Preferred Stock and any then-outstanding shares of Series B Preferred Stock held by such holder will be deemed automatically forfeited and cancelled without any further action by the Issuer.
 
Section 11.02.     Fully paid; Non-assessable; No Encumbrances.  The Series B Preferred Stock will be fully paid, non-assessable and free and clear of any Encumbrances (other than any restrictions set forth in the governing documents of the Issuer or Encumbrances created by applicable securities laws) and otherwise in accordance with the terms of this Agreement upon each issuance thereof, and have the designations, rights, preferences, powers, restrictions and limitations to be set forth in the Series B Certificate of Designation and the Charter.
 
162
Section 11.03.      Restricted Securities.  The Purchasers acknowledge that the shares of Series B Preferred Stock 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 11.04.      Restrictive Legend.  Each share of Series B Preferred Stock shall bear legends in substantially the following forms:
 
“THIS SECURITY HAS BEEN ACQUIRED FOR INVESTMENT AND WITHOUT A VIEW TO DISTRIBUTION AND HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE “ACT”), OR UNDER STATE SECURITIES LAWS. NO OFFER, TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THIS SECURITY OR ANY INTEREST OR PARTICIPATION THEREIN MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT OR (B) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS AND, IN THE CASE OF CLAUSE (B), UNLESS ATI PHYSICAL THERAPY, INC. (THE “ISSUER”) RECEIVES (OR WAIVES THE REQUIREMENT TO RECEIVE) AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER TO THE EFFECT THAT REGISTRATION IS NOT REQUIRED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS.”
 
Section 11.05.      Book Entry; Series B Preferred Stock Not Certificated. The Purchasers acknowledge that the Series B Preferred Stock will not be issued in certificated form. The Issuer shall issue the Series B Preferred Stock by book entry registration on the books and records of the Issuer’s transfer agent in the name of each Purchaser, reflecting the number of shares of Series B Preferred Stock then held by each such Purchaser, which book entries shall include the legend set forth in Section 11.04.
 
Section 11.06.      Purchaser Representative.  For the avoidance of doubt, the Purchaser Representative shall have no obligation or duty pursuant to this Article 11 or with respect to any Series B Preferred Stock or any requirements or conditions related to the delivery thereof, or any other fact or matter in connection with the Series B Preferred Stock or the provisions of this Article 11. In furtherance of the foregoing, in no event shall the Purchaser Representative have any duties or obligations, nor shall they in any event have any liability, with respect to any Note Party’s or any Purchaser’s compliance with applicable state or federal securities laws in respect of the Series B Preferred Stock or any other cash, securities or property or asset distributed pursuant to Article 11.
 
[Remainder of Page Intentionally Left Blank]
 
163
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Agreement as of the date first above written.

 
ATI PHYSICAL THERAPY, INC., as the Issuer

 
By:
 /s/ Joseph Jordan
 
Name: Joseph Jordan
 
Title: Chief Financial Officer
 
  
 
ATI HOLDINGS ACQUISITION, INC., as Opco

 
By:
 /s/ Joseph Jordan
 
Name: Joseph Jordan
 
Title: Chief Financial Officer
 
  
 
WILCO HOLDCO, INC., as Intermediate Parent

 
By:
 /s/ Joseph Jordan
 
Name: Joseph Jordan
 
Title: Chief Financial Officer
 
  
 
WILCO INTERMEDIATE HOLDINGS, INC., as Holdings

 
By:
 /s/ Joseph Jordan
 
Name: Joseph Jordan
 
Title: Chief Financial Officer

[Signature Page to Note Purchase Agreement]

 
WILMINGTON SAVINGS FUND SOCIETY, FSB, as
Purchaser Representative

 
By:
 /s/ John McNichol
 
Name: John McNichol
 
Title: Assistant Vice President

[Signature Page to Note Purchase Agreement]

 
OCP CLO 2020-8R, LTD., as a Purchaser
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2014-5, LTD., as a Purchaser
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2014-6, LTD, as a Purchaser
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2015-9, LTD., as a Purchaser
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2015-10, LTD., as a Purchaser
 
By: Onex Credit Partners, LLC, as Portfolio Manger
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel

[Signature Page to Note Purchase Agreement]

 
OCP CLO 2016-12, LTD., as a Purchaser
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2017-14, LTD., as a Purchaser
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2018-15, LTD., as a Purchaser
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
ONEX SENIOR CREDIT II, LP, as a Purchaser
 
By: Onex Credit Partners, LLC, its investment manager
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2019-16, LTD., as a Purchaser
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
ONEX SENIOR CREDIT FUND, LP., as a Purchaser
 
By: Onex Credit Partners, LLC its investment manager
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel

2
 
OCP CLO 2019-17, LTD., as a Purchaser
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2020-18, LTD., as a Purchaser
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2020-19 LIMITED, as a Purchaser
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
GORE MUTUAL INSURANCE COMPANY, as a Purchaser
 
By: Onex Credit Management LLC, as Investment Manager
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
ONEX CAPITAL SOLUTIONS HOLDINGS LP, as a Purchaser
 
By: Onex Capital Solutions GP, LP, its general partner
 
By: Onex Capital Solutions GP, LLC, its general partner
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel

3
 
OCM LOAN HOLDINGS LLC, as a Purchaser
 
By: Onex Credit Management LLC, as Portfolio Manager
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2021-22, LTD., as a Purchaser
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel
   
 
OCP CLO 2022-25, LTD., as a Purchaser
 
By: Onex Credit Partners, LLC, as Portfolio Manager
   
 
By:
 /s/ Steven Gutman
 
Name: Steven Gutman
 
Title: General Counsel

4
 
MARATHON DISTRESSED CREDIT MASTER FUND, as a Purchaser
   
 
By:
/s/ Lou Hanover
 
Name: Lou Hanover
 
Title: Managing Partner
   
 
MARATHON DISTRESSED CREDIT FUND, LP as a Purchaser
   
 
By:
/s/ Lou Hanover
 
Name: Lou Hanover
 
Title: Managing Partner
   
 
MARATHON STEPSTONE MASTER FUND LP, as a Purchaser
   
 
By:
/s/ Lou Hanover
 
Name: Lou Hanover
 
Title: Managing Partner
   
 
MCSP Sub, LLC, as a Purchaser
   
 
By:
/s/ Lou Hanover
 
Name: Lou Hanover
 
Title: Managing Partner

[Signature Page to Note Purchase Agreement]

 
KHSU SPV LP LLC, as a Purchaser
   
 
By:
 /s/ Laura Torrado
 
Name: Laura Torrado
 
Title: General Counsel
   
   
 
KNIGHTHEAD MASTER FUND, L.P., as a Purchaser
   
 
By: Knighthead Capital Management, LLC, its investment manager
   
 
By:
 /s/ Laura Torrado
 
Name: Laura Torrado
 
Title: General Counsel
   
 
KNIGHTHEAD (NY) FUND, L.P., as a Purchaser
   
 
By: Knighthead Capital Management, LLC, its investment advisor
   
 
By:
 /s/ Laura Torrado
 
Name: Laura Torrado
 
Title: General Counsel

[Signature Page to Note Purchase Agreement]

 
Caspian Select Credit Master Fund, Ltd.
 
Caspian Solitude Master Fund, L.P.
 
Caspian HLSC1, LLC
 
Caspian SC Holdings, L.P.
 
Spring Creek Capital, LLC
 
Caspian Focused Opportunities Fund, L.P.
 
Caspian Keystone Focused Fund, L.P.
 
Blackstone Alternative Multi-Strategy Fund IV L.L.C. II
 
Blackstone Alternative Multi-Strategy Fund IV L.L.C. IIA
   
 
CASPIAN CAPITAL L.P. in its capacity as manager, advisor, sub-advisor or similar capacity on behalf of certain funds and accounts, as a Purchaser
   
 
By:
 /s/ Dominick Cromartie
 
Name: Dominick Cromartie
 
Title: Authorized Signatory

[Signature Page to Note Purchase Agreement]

EXHIBIT B-1

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 THE CHIEF FINANCIAL OFFICER AT ATI PHYSICAL THERAPY, INC., 790 REMINGTON BOULEVARD, BOLINGBROOK, ILLINOIS 60440), 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.
 
[FORM OF]
INITIAL NOTE
 
$[●]
New York, New York
 
[●] [●], 20[●]

FOR VALUE RECEIVED, the undersigned ATI PHYSICAL THERAPY, INC., a Delaware corporation (the “Issuer”), hereby promises to pay on demand to [●] (the “Purchaser”) or its registered permitted assigns, at the office of Wilmington Savings Fund Society, FSB (“Wilmington”) at 500 Delaware Avenue, Wilmington, DE 19801, the principal sum of $[●] (or such lesser amount as shall not have been redeemed or repurchased), as increased by any PIK Interest (as defined below) that has been capitalized and added to the principal amount of this Note (and not subsequently redeemed or repurchased) on [August 24, 2028]1 (the “Maturity Date”).  The Issuer also promises to pay interest from the date hereof on the principal amount hereof outstanding in the manner and at the rate or rates per annum and payable on the dates provided in that certain Note Purchase Agreement, dated as of [•], 2023 (the “Note Purchase Agreement”), among, inter alios, the Issuer, the purchasers from time to time party thereto (the “Purchasers”) and Wilmington, in its capacities as purchaser representative and collateral agent for the Purchasers (in such capacity, the “Purchaser Representative”).  Capitalized terms used but not defined herein shall have the meanings given to them in the Note Purchase Agreement.
 
1.
General. The entire unpaid principal balance of this Note shall be payable on the Maturity Date, in accordance with Section 2.12 of the Note Purchase Agreement.  All amounts evidenced by this Note and all redemptions and repurchases hereof and payments of interest hereon and the respective dates thereof shall be endorsed by the holder hereof on the schedules attached hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof, or otherwise recorded by such holder in its internal records; provided, that the failure of the holder hereof to make such a notation or any error in such notation shall not affect the obligations of the Issuer under this Note.
 
2.
Repayment. The Issuer promises to pay interest on any overdue principal and, to the extent permitted by Requirements of Law, overdue interest from the relevant due dates, in each case, in the manner, at the rate or rates and under the circumstances provided in Section 2.15 of the Note Purchase Agreement.
 
3.
Interest. This Note 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 this Note in arrears on each Interest Payment Date for this Note (any such interest, “PIK Interest”) and shall be payable as part of the outstanding principal balance of this Note upon the Maturity Date or upon acceleration of the Notes.  All amounts capitalized in respect of this Note on any relevant date shall constitute principal under this Note and shall accrue interest at the Applicable Rate, payable in accordance with Section 2.15 of the Note Purchase Agreement.  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.
 
1 Note to Draft: To be updated.

B-1
4.
Redemptions. This Note is one of the Initial Notes referred to in the Note Purchase Agreement that, among other things, contains provisions for the acceleration of the maturity hereof upon the happening of certain events and for the amendment or waiver of certain provisions of the Note Purchase Agreement, all upon the terms and conditions therein specified.  This Note is entitled to the benefit of the Note Purchase Agreement, and the obligations hereunder are guaranteed and secured as provided therein and in the other Note Documents referred to in the Note Purchase Agreement.
 
5.
Conversion of Notes. Subject to the conditions and upon compliance with the provisions of the Note Purchase Agreement, the holder hereof has the right, at its option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of the Notes at any time prior to the close of business on the Business Day immediately preceding the Maturity Date, into shares of Common Stock, at the applicable Conversion Price specified in the Note Purchase Agreement, as adjusted from time to time as provided in the Note Purchase Agreement.
 
6.
Events of Default. The Events of Default and remedies described in Section 7.01 of the Note Purchase Agreement are incorporated herein by reference.
 
7.
Waiver. The Issuer hereby waives diligence, presentment, demand, protest and notice of any kind to the extent possible under any Requirements of Law.  The non-exercise by the holder hereof of any of its rights hereunder in any particular instance shall not constitute a waiver thereof in that or any subsequent instance.
 
8.
Cancellation. If any transfer by the Purchaser holding this Note occurs after the date of the Issuance hereof, the Purchaser agrees that it shall, upon the effectiveness of such transfer or as promptly thereafter as practicable, surrender this Note to the Purchaser Representative for cancellation.
 
9.
Notices. All notices, statements or other documents which are required or contemplated by this Note shall be made in accordance with Section 9.01 of the Note Purchase Agreement.
 
10.
Transfer. THE TRANSFER OF THIS NOTE AND ANY RIGHTS WITH RESPECT THERETO ARE SUBJECT TO THE PROVISIONS OF THE NOTE PURCHASE AGREEMENT, INCLUDING THE PROVISIONS GOVERNING THE REGISTER THEREIN.
 
11.
Governing Law. THIS NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS NOTE, WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
12.
Severability. To the extent permitted by applicable Requirements of Law, any provision of this Note held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
 
13.
Guarantees. The Issuer’s obligations under this Note are fully and unconditionally guaranteed, jointly and severally, by each Note Guarantor pursuant to the Note Guaranty.
 
B-2
14.
Security.  This Note and the related Guarantees are secured by the Collateral on the terms and subject to the conditions set forth in the Note Purchase Agreement and the Collateral Documents. The Purchaser Representative holds the Collateral in trust for the benefit of the Secured Parties, pursuant to the Collateral Documents and the Second Lien Intercreditor and Subordination Agreement. Each Purchaser, by accepting this Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the foreclosure and release of Collateral) and the Second Lien Intercreditor and Subordination Agreement, each as may be in effect or may be amended from time to time in accordance with their terms and the Note Purchase Agreement.
 
15.
Amendment; Waiver. Any amendment hereto or waiver of any provision hereof shall be made in accordance with the Section 9.02 of the Note Purchase Agreement.
 
16.
Successors and Assigns. The terms and conditions of this Note shall inure to the benefit of and be binding upon the respective successors and assigns of the parties, in accordance with Section 9.05 of the Note Purchase Agreement.
 
[Remainder of Page Intentionally Left Blank]
 
B-3
 
ATI PHYSICAL THERAPY, INC.

 
By:
  
 
Name:
 
Title:

B-4
SCHEDULE B

NOTES AND REPAYMENTS
 
Date
Amount of Decrease in Initial
Principal Balance of this
Note
Amount of Increase in Initial
Principal Balance of this Note
Unpaid Principal
Balance of this Note
following such
Decrease or Increase
Notation Made By
         
         
         
         
         
         
         
         
         

Schedule B to Exhibit B-1

EXHIBIT B-2

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 THE CHIEF FINANCIAL OFFICER AT ATI PHYSICAL THERAPY, INC., 790 REMINGTON BOULEVARD, BOLINGBROOK, ILLINOIS 60440), 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.
 
[FORM OF]
DELAYED DRAW NOTE
 
$[●]
New York, New York
 
[●] [●], 20[●]

FOR VALUE RECEIVED, the undersigned ATI PHYSICAL THERAPY, INC., a Delaware corporation (the “Issuer”), hereby promises to pay on demand to [●] (the “Purchaser”) or its registered permitted assigns, at the office of Wilmington Savings Fund Society, FSB (“Wilmington”) at 500 Delaware Avenue, Wilmington, DE 19801, the principal sum of $[●] (or such lesser amount as shall not have been redeemed or repurchased), as increased by any PIK Interest (as defined below) that has been capitalized and added to the principal amount of this Note (and not subsequently redeemed or repurchased), on [August 24, 2028]2 (the “Maturity Date”).  The Issuer also promises to pay interest from the date hereof on the principal amount hereof outstanding in the manner and at the rate or rates per annum and payable on the dates provided in that certain Note Purchase Agreement, dated as of [•], 2023 (the “Note Purchase Agreement”), among, inter alios, the Issuer, the purchasers from time to time party thereto (the “Purchasers”) and Wilmington, in its capacities as purchaser representative and collateral agent for the Purchasers (in such capacity, the “Purchaser Representative”).  Capitalized terms used but not defined herein shall have the meanings given to them in the Note Purchase Agreement.
 
1.
General. The entire unpaid principal balance of this Note shall be payable on the Maturity Date, in accordance with Section 2.12 of the Note Purchase Agreement.  All amounts evidenced by this Note and all redemptions and repurchases hereof and payments of interest hereon and the respective dates thereof shall be endorsed by the holder hereof on the schedules attached hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof, or otherwise recorded by such holder in its internal records; provided, that the failure of the holder hereof to make such a notation or any error in such notation shall not affect the obligations of the Issuer under this Note.
 
2.
Repayment. The Issuer promises to pay interest on any overdue principal and, to the extent permitted by Requirements of Law, overdue interest from the relevant due dates, in each case, in the manner, at the rate or rates and under the circumstances provided in Section 2.15 of the Note Purchase Agreement.
 
3.
Interest. This Note 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 this Note in arrears on each Interest Payment Date for this Note (any such interest, “PIK Interest”) and shall be payable as part of the outstanding principal balance of this Note upon the Maturity Date or upon acceleration of the Notes.  All amounts capitalized in respect of this Note on any relevant date shall constitute principal under this Note and shall accrue interest at the Applicable Rate, payable in accordance with Section 2.15 of the Note Purchase Agreement.  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.

2 Note to Draft: To be updated.

B-1
4.
Redemptions. This Note is one of the Delayed Draw Notes referred to in the Note Purchase Agreement that, among other things, contains provisions for the acceleration of the maturity hereof upon the happening of certain events and for the amendment or waiver of certain provisions of the Note Purchase Agreement, all upon the terms and conditions therein specified.  This Note is entitled to the benefit of the Note Purchase Agreement, and the obligations hereunder are guaranteed and secured as provided therein and in the other Note Documents referred to in the Note Purchase Agreement.
 
5.
Conversion of Notes. Subject to the conditions and upon compliance with the provisions of the Note Purchase Agreement, the holder hereof has the right, at its option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of the Notes at any time prior to the close of business on the Business Day immediately preceding the Maturity Date, into shares of Common Stock, at the applicable Conversion Price specified in the Note Purchase Agreement, as adjusted from time to time as provided in the Note Purchase Agreement.
 
6.
Events of Default. The Events of Default and remedies described in Section 7.01 of the Note Purchase Agreement are incorporated herein by reference.
 
7.
Waiver. The Issuer hereby waives diligence, presentment, demand, protest and notice of any kind to the extent possible under any Requirements of Law.  The non-exercise by the holder hereof of any of its rights hereunder in any particular instance shall not constitute a waiver thereof in that or any subsequent instance.
 
8.
Cancellation. If any transfer by the Purchaser holding this Note occurs after the date of the Issuance hereof, the Purchaser agrees that it shall, upon the effectiveness of such transfer or as promptly thereafter as practicable, surrender this Note to the Purchaser Representative for cancellation.
 
9.
Notices. All notices, statements or other documents which are required or contemplated by this Note shall be made in accordance with Section 9.01 of the Note Purchase Agreement.
 
10.
Transfer. THE TRANSFER OF THIS NOTE AND ANY RIGHTS WITH RESPECT THERETO ARE SUBJECT TO THE PROVISIONS OF THE NOTE PURCHASE AGREEMENT, INCLUDING THE PROVISIONS GOVERNING THE REGISTER THEREIN.
 
11.
Governing Law. THIS NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS NOTE, WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
12.
Severability. To the extent permitted by applicable Requirements of Law, any provision of this Note held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
 
13.
Guarantees. The Issuer’s obligations under this Note are fully and unconditionally guaranteed, jointly and severally, by each Note Guarantor pursuant to the Note Guaranty.
 
B-2
14.
Security.  This Note and the related Guarantees are secured by the Collateral on the terms and subject to the conditions set forth in the Note Purchase Agreement and the Collateral Documents. The Purchaser Representative holds the Collateral in trust for the benefit of the Secured Parties, pursuant to the Collateral Documents and the Second Lien Intercreditor and Subordination Agreement. Each Purchaser, by accepting this Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the foreclosure and release of Collateral) and the Second Lien Intercreditor and Subordination Agreement, each as may be in effect or may be amended from time to time in accordance with their terms and the Note Purchase Agreement.
 
15.
Amendment; Waiver. Any amendment hereto or waiver of any provision hereof shall be made in accordance with the Section 9.02 of the Note Purchase Agreement.
 
16.
Successors and Assigns. The terms and conditions of this Note shall inure to the benefit of and be binding upon the respective successors and assigns of the parties, in accordance with Section 9.05 of the Note Purchase Agreement.
 
[Remainder of Page Intentionally Left Blank]

B-3
 
ATI PHYSICAL THERAPY, INC.

 
By:
  
 
Name:
 
Title:

C-1
SCHEDULE A

NOTES AND REPAYMENTS
 
Date
Amount of Decrease
in Initial Principal
Balance of this Note
Amount of Increase in Initial
Principal Balance of this
Note
Unpaid Principal Balance of this
Note following such Decrease or
Increase
Notation Made By
         
         
         
         
         
         
         
         
         

Schedule A to Exhibit B-2

EXHIBIT B-3

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 THE CHIEF FINANCIAL OFFICER AT ATI PHYSICAL THERAPY, INC., 790 REMINGTON BOULEVARD, BOLINGBROOK, ILLINOIS 60440), 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
 
[FORM OF]
ADDITIONAL NOTE
 
$[●]
New York, New York
 
[●] [●], 20[●]

FOR VALUE RECEIVED, the undersigned ATI PHYSICAL THERAPY, INC., a Delaware corporation (the “Issuer”), hereby promises to pay on demand to [●] (the “Purchaser”) or its registered permitted assigns, at the office of Wilmington Savings Fund Society, FSB (“Wilmington”) at 500 Delaware Avenue, Wilmington, DE 19801, the principal sum of $[●] (or such lesser amount as shall not have been redeemed or repurchased), as increased by any PIK Interest (as defined below) that has been capitalized and added to the principal amount of this Note (and not subsequently redeemed or repurchased) on [August 24, 2028]3 (the “Maturity Date”).  The Issuer also promises to pay interest from the date hereof on the principal amount hereof outstanding in the manner and at the rate or rates per annum and payable on the dates provided in that certain Note Purchase Agreement, dated as of [•], 2023 (the “Note Purchase Agreement”), among, inter alios, the Issuer, the purchasers from time to time party thereto (the “Purchasers”) and Wilmington, in its capacities as purchaser representative and collateral agent for the Purchasers (in such capacity, the “Purchaser Representative”).  Capitalized terms used but not defined herein shall have the meanings given to them in the Note Purchase Agreement.
 
1.
General. The entire unpaid principal balance of this Note shall be payable on the Maturity Date, in accordance with Section 2.12 of the Note Purchase Agreement.  All amounts evidenced by this Note and all redemptions and repurchases hereof and payments of interest hereon and the respective dates thereof shall be endorsed by the holder hereof on the schedules attached hereto and made a part hereof or on a continuation thereof which shall be attached hereto and made a part hereof, or otherwise recorded by such holder in its internal records; provided, that the failure of the holder hereof to make such a notation or any error in such notation shall not affect the obligations of the Issuer under this Note.
 
2.
Repayment. The Issuer promises to pay interest on any overdue principal and, to the extent permitted by Requirements of Law, overdue interest from the relevant due dates, in each case, in the manner, at the rate or rates and under the circumstances provided in Section 2.15 of the Note Purchase Agreement.
 
3.
Interest. This Note 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 this Note in arrears on each Interest Payment Date for this Note (any such interest, “PIK Interest”) and shall be payable as part of the outstanding principal balance of this Note upon the Maturity Date or upon acceleration of the Notes.  All amounts capitalized in respect of this Note on any relevant date shall constitute principal under this Note and shall accrue interest at the Applicable Rate, payable in accordance with Section 2.15 of the Note Purchase Agreement.  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.
 
3 Note to Draft: To be updated.

B-1
4.
Redemptions. This Note is one of the Additional Notes referred to in the Note Purchase Agreement that, among other things, contains provisions for the acceleration of the maturity hereof upon the happening of certain events and for the amendment or waiver of certain provisions of the Note Purchase Agreement, all upon the terms and conditions therein specified.  This Note is entitled to the benefit of the Note Purchase Agreement, and the obligations hereunder are guaranteed and secured as provided therein and in the other Note Documents referred to in the Note Purchase Agreement.
 
5.
Conversion of Notes. Subject to the conditions and upon compliance with the provisions of the Note Purchase Agreement, the holder hereof has the right, at its option, to convert all or any portion (if the portion to be converted is $1,000 principal amount or an integral multiple thereof) of the Notes at any time prior to the close of business on the Business Day immediately preceding the Maturity Date, into shares of Common Stock, at the applicable Conversion Price specified in the Note Purchase Agreement, as adjusted from time to time as provided in the Note Purchase Agreement.
 
6.
Events of Default. The Events of Default and remedies described in Section 7.01 of the Note Purchase Agreement are incorporated herein by reference.
 
7.
Waiver. The Issuer hereby waives diligence, presentment, demand, protest and notice of any kind to the extent possible under any Requirements of Law.  The non-exercise by the holder hereof of any of its rights hereunder in any particular instance shall not constitute a waiver thereof in that or any subsequent instance.
 
8.
Cancellation. If any transfer by the Purchaser holding this Note occurs after the date of the issuance hereof, the Purchaser agrees that it shall, upon the effectiveness of such transfer or as promptly thereafter as practicable, surrender this Note to the Purchaser Representative for cancellation.
 
9.
Notices. All notices, statements or other documents which are required or contemplated by this Note shall be made in accordance with Section 9.01 of the Note Purchase Agreement.
 
10.
Transfer. THE TRANSFER OF THIS NOTE AND ANY RIGHTS WITH RESPECT THERETO ARE SUBJECT TO THE PROVISIONS OF THE NOTE PURCHASE AGREEMENT, INCLUDING THE PROVISIONS GOVERNING THE REGISTER THEREIN.
 
11.
Governing Law. THIS NOTE, AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS NOTE, WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
 
12.
Severability. To the extent permitted by applicable Requirements of Law, any provision of this Note held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.
 
13.
Guarantees. The Issuer’s obligations under this Note are fully and unconditionally guaranteed, jointly and severally, by each Note Guarantor pursuant to the Note Guaranty.
 
B-2
14.
Security.  This Note and the related Guarantees are secured by the Collateral on the terms and subject to the conditions set forth in the Note Purchase Agreement and the Collateral Documents. The Purchaser Representative holds the Collateral in trust for the benefit of the Secured Parties, pursuant to the Collateral Documents and the Second Lien Intercreditor and Subordination Agreement. Each Purchaser, by accepting this Note, consents and agrees to the terms of the Collateral Documents (including the provisions providing for the foreclosure and release of Collateral) and the Second Lien Intercreditor and Subordination Agreement, each as may be in effect or may be amended from time to time in accordance with their terms and the Note Purchase Agreement.
 
15.
Amendment; Waiver. Any amendment hereto or waiver of any provision hereof shall be made in accordance with the Section 9.02 of the Note Purchase Agreement.
 
16.
Successors and Assigns. The terms and conditions of this Note shall inure to the benefit of and be binding upon the respective successors and assigns of the parties, in accordance with Section 9.05 of the Note Purchase Agreement.
 
[Remainder of Page Intentionally Left Blank]

B-3
 
ATI PHYSICAL THERAPY, INC.

 
By:
  
 
Name:
 
Title:

C-1
NOTES AND REPAYMENTS
 
Date
Amount of
Decrease in
Initial Principal
Balance of this
Note
Amount of
Increase in Initial
Principal Balance
of this Note
Unpaid Principal
Balance of this Note
following such
Decrease or Increase
Notation Made
By
         
         
         
         
         
         
         
         
         

Exhibit C to Exhibit 10.3 – Form of Registration Rights Agreement
 
See Exhibit C-4 to Exhibit 10.1.

Exhibit D to Exhibit 10.3 – Form of Series B Certificate of Designation
 
See Exhibit C-5 to Exhibit 10.1.