waiverandfirstamendmente






                                                                   EXECUTION VERSION      LIMITED CONDITIONAL WAIVER AND AMENDMENT NO. 1 TO SUPER PRIORITY                                  CREDIT AGREEMENT           LIMITED  CONDITIONAL  WAIVER  AND  AMENDMENT  NO.  1  TO  SUPER  PRIORITY  CREDIT AGREEMENT (this “Agreement”), dated effective as of July 31, 2019 (the “Effective Date”),  among  NORTHSTAR  HEALTHCARE  ACQUISITIONS,  L.L.C.,  a  Delaware  limited  liability  company (the “Borrower”), NOBILIS HEALTH CORP., a British Columbia corporation (the “Parent”),  NORTHSTAR  HEALTHCARE  HOLDINGS,  INC.,  a  Delaware  corporation  (“Holdings”),  the  other  Loan Parties (as defined in the Super Priority Credit Agreement (defined below)) party hereto, BBVA  USA, an Alabama banking corporation f/k/a Compass Bank (in its individual capacity, “BBVA USA”), in  its capacity as Super Priority Agent (in such capacity for itself and the other Super Priority Lenders, the  “Super  Priority  Agent”),  and  the  Super  Priority  Lenders  party  hereto.  Unless  otherwise  indicated,  all  capitalized  terms  used  herein  and  not  otherwise  defined  herein shall  have  the  respective  meanings  provided to such terms in the Super Priority Credit Agreement referred to below.                                      W I T N E S S E T H:          WHEREAS, the Borrower, the Parent, Holdings, the other Loan Parties party thereto, the Super  Priority Lenders party thereto, the Super Priority Agent and the other parties thereto have entered into that  certain  Super  Priority  Credit  Agreement,  dated  as  of  May  22,  2019  (as  from  time  to  time  amended,  amended and restated, supplemented or otherwise modified, the “Super Priority Credit Agreement”);         WHEREAS, the Loan Parties acknowledge and agree that certain Events of Default as described  below  have  occurred  and  are  continuing  (collectively,  the  “Specified  Events  of  Default”):  (a)  under  Section 8.1(b) of the Super Priority Credit Agreement due to the Borrower’s failure to comply with the  financial  covenants  set  forth  in  Section  7.11  of  the  Super  Priority  Credit  Agreement  as  a  result  of  (i)  actual cash receipts being less than 90% of the projected cash receipts for the one week period ended June  28,  2019   as  set  forth  in  the  applicable  most  recent  Approved  Budget  and  (ii)  actual  surgical  cases  performed being less than 90% of the projected surgical cases for the one week periods ended June 28,  2019 and July 12, 2019, in each case as set forth in the applicable most recent Approved Budget and (b)  an  Event  of  Default  has  occurred  and  is  continuing  under  Section  8.1(e)  of  the  Super  Priority  Credit  Agreement as a result of the occurrence of events of default under the Existing Credit Agreement due to  Borrower’s failure to comply with Section 5(dd) of that certain Third Limited Conditional Forbearance  Agreement, dated effective June 14, 2019, by and among the Borrower, Parent Holdings, the loan parties  party thereto, the Existing Administrative Agent and the Existing Lenders party thereto;           WHEREAS, as a result of the Specified Events of Default, the Super Priority Agent has the right  to exercise all rights and remedies available to it under the Super Priority Credit Agreement, the other  Super Priority Loan Documents and applicable law;          WHEREAS, the Loan Parties have requested, and subject to the terms and conditions set forth  herein,  the  Super  Priority  Agent  and  the  Super  Priority  Lenders  party  hereto  (the  “Consenting  Super  Priority Lenders”) have agreed, subject to the terms and conditions set forth herein, to waive the Specified  Events of Default as specifically set forth herein.          NOW,  THEREFORE,  in  consideration of  the  foregoing  and  for  other  good  and  valuable  consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree to  the above Recitals and as follows:    502327881 v7 1205867.00001  





 






         SECTION 1.    Limited Conditional Waiver.  Pursuant to Section 10.1 of the Super Priority Credit  Agreement,  and  upon  the  occurrence  of  the  Waiver  Effective  Date  (as  defined  in  Section  5  below),  each  Super Priority Lender hereby temporarily waives each of the Specified Events of Default during the period  (the  “Waiver  Period”)  commencing  on  the  Waiver  Effective  Date  and  ending  on  the  earliest  of  (i)  the  occurrence of an Event of Default other than the Specified Events of Default during such Waiver Period, (ii)  any Loan Party’s actual knowledge of an Event of Default (other than the Specified Events of Default) that  occurred prior to the Waiver Period and that has not been cured within three (3) Business Days of a Loan  Party obtaining actual knowledge of such Event of Default, and (iii) August 30, 2019, after the earliest of  which such Specified Events of Default shall spring back into existence.         SECTION 2.    Amendments  to  Super  Priority  Credit  Agreement.   Effective  as  of  the  Waiver  Effective  Date  and  subject  to  the  terms  and  conditions  set  forth  herein  and  in  reliance  upon  representations and warranties set forth herein, the Super Priority Credit Agreement is hereby amended as  follows:          (a)   The  definition  of  the  term  “Maturity  Date”  in  the  Super  Priority  Credit  Agreement  is               amended and restated in its entirety to read as follows:                                     “Maturity Date” means the earlier to occur of (a) August 30, 2019 (or such later date as               the Super Priority Agent and the Super Priority Lenders may agree in writing in their sole               discretion)  or  (b)  the  indefeasible  payment  in  cash  of  a  discounted  amount  of  the               Indebtedness under the Existing Credit Agreement with the express written consent of the               Existing  Administrative  Agent  and  Existing  Lenders  in  full  satisfaction  of  the               Indebtedness under the Existing Credit Agreement; provided that, in each case, if such               date is not a Business Day, the Maturity Date shall be the next preceding Business Day.                       (b)    Section 6.48 of the Super Priority Credit Agreement is hereby amended and restated in its               entirety to read as follows:                                      “6.48  Transaction Covenants.                                (a)   The  Loan  Parties  shall  continue  the  process  to  seek  a  refinancing  of  the                Obligations  and  of  the  obligations  under  the  Existing  Credit  Agreement  (a                “Refinancing”)  or  sale  of  the  Assets  free  and  clear  of  all  liens,  with  the  refinancing                amount/purchase price to be paid at closing in cash resulting in the full and indefeasible                payment in cash of all of the Obligations and a discounted payment in cash of all of the                obligations  under  the  Existing  Credit  Agreement  that  is  expressly  consented  to  in                writing by the Existing Administrative Agent and the necessary Existing Lenders;                                  (b)   The Loan Parties shall  continue to (i) maintain and update a virtual data room                under  the  administration  of  SSG  (including,  without  limitation,  providing  updated                projections and such other information as may be reasonably required by SSG), and (ii)                identify lenders, investors, strategic and financial buyers for the Loan Parties' Assets;                                (c)   The Loan Parties shall continue to use their best efforts to set up a competitive                auction  or  other  Refinancing  or  sales  process  for  the  Assets  acceptable  to  the  Super                Priority Agent;                                (d)   The Loan Parties shall continue to (x) disclose to the Super Priority Agent the                identities of those parties that have executed a non-disclosure agreement (“NDA”) and                registered  for  access  to  the  data  room,  and  (y)  deliver  to  those  prospective  lenders,                investors  and  purchasers  who  have  executed  an  NDA,  a  cover  letter  and  confidential                                             2  502327881 v7 1205867.00001  





 






                 offering  memorandum  soliciting  from  such  prospective  lenders,  investors  and                purchasers offers to close a Refinancing or acquire the Loan Parties’ Assets pursuant to                a Refinancing or purchase transaction, which would provide at closing for the full and                indefeasible payment in cash of all of the Obligations and a discounted payment in cash                of all of the obligations under the Existing Credit Agreement that is expressly consented                to in writing by the Existing Administrative Agent and the necessary Existing Lenders;                and                                (e)   On  or  before  August  23,  2019  (or  such  later  date  as  expressly  agreed  by  the                Super Priority Agent in writing in its sole discretion), following obtaining the written                consent of the Super Priority Agent, the necessary Super Priority Lenders, the Existing                Administrative Agent and the necessary Existing Lenders, the Loan Parties shall close                the refinance or sale transaction(s) with respect to the Assets; provided, however, to the                extent that SSG and the Loan Parties have secured a binding contract from a purchaser                of the Assets and such contract is acceptable to the Super Priority Agent as evidenced by                a written consent thereto, then the August 23, 2019 deadline shall be extended by the                Super Priority Agent through August 30, 2019 to accommodate the closing of the sale;                provided,  further  that  (i)  the  Loan  Parties  have  sufficient  liquidity  to  maintain  their                operations for such additional period; and (ii) the Existing Administrative Agent and the                required  Existing  Lenders  have  agreed  in  writing  to  continue  to  forbear  from  the                exercise of remedies during such additional period in accordance with the terms of the                Existing Credit Agreement.”          SECTION 3.   Other Covenants and Agreements.  Each Loan Party hereby agrees as follows:         (a)      Authorization  to  Fund  the  Interest  Account.   The  Loan  Parties  hereby  authorize  the  Super Priority Agent to transfer from the Agent Controlled Account to the Interest Account an amount  equal to the amount of interest that will accrue on the Loans from the period beginning July 31, 2019  through and including August 30, 2019.                  (b)     Sale of Obsolete Equipment and Inventory from Closed Locations.  The Loan Parties  shall  as  soon  as  possible  and  no  later  than  August  9,  2019  (or such  later  date  as  may  be  agreed  to  in  writing by the Super Priority Agent in its sole discretion) (i) provide the Super Priority Agent with a third  party appraisal of all equipment and inventory located at or removed from any locations that are no longer  in operation (to the extent (A) such equipment and inventory is no longer useful to the ongoing operations  of the Loan Parties and (B) the Loan Parties have access to such equipment and inventory, as applicable)  (collectively,  the  “Obsolete  Equipment  and  Inventory”),  (ii)  provide  the  Super  Priority  Agent  with  a  listing of all Obsolete Equipment and Inventory, and (iii) cause Obsolete Equipment and Inventory to be  sold or otherwise disposed of on terms that are approved in writing by the Super Priority Agent in its sole  discretion.   The  Loan  Parties  shall  apply  all  net  cash  proceeds  of  any  such  sale  or  disposition  in  accordance with the terms of the Super Priority Credit Agreement.   The failure by the Loan Parties to comply with any of the requirements set forth in this Section 3 shall  constitute an Event of Default under Section 8.1(b) of the Super Priority Credit Agreement.         SECTION 4.    Acknowledgement  and  Confirmation.   Each  of  the  Loan Parties  party  hereto  hereby agrees and acknowledges that with respect to each Super Priority Loan Document to which it is a  party, after giving effect to this Agreement and the transactions contemplated hereunder:          (a)   as  of  July  31,  2019,  subject  to  additions  and  other  adjustments  as  permitted  under  the  Super  Priority  Loan  Documents,  the  aggregate  balance  of  the  outstanding  Obligations  under  the  Super                                              3  502327881 v7 1205867.00001  





 






   Priority Credit Agreement is equal to $7,846,875.00, and that the respective balances of the Loans and  unpaid interest as of such date were equal to the following:                Loans      $  7,750,000.00               Interest      $       96,875.00                              TOTAL     $  7,846,875.00                       The  foregoing  amounts  do  not  include  interest  accruing  after  July  31,  2019,  additional  fees,  expenses and other amounts that are chargeable or otherwise reimbursable under the Super Priority Credit  Agreement  and  the  other  Super  Priority  Loan  Documents.   Further,  each  of  the  Loan  Parties  acknowledges  and  agrees  that  the  above  described  amounts  are  not  subject  to  any  offset,  reduction,  counterclaim or defense by the Loan Parties.          (b)   all  of  its  obligations,  liabilities  and  indebtedness  under  such  Super  Priority  Loan  Document,  including  guarantee  obligations,  shall,  except  as  expressly  set  forth  herein  or  in  the  Super  Priority Credit Agreement, remain in full force and effect on a continuous basis; and          (c)   all of the Liens and security interests created and arising under such Super Priority Loan  Document remain in full force and effect on a continuous basis, and the perfected status and priority to  the  extent  provided  for  in  the  Super  Priority  Loan  Documents  of  each  such  Lien  and  security  interest  continues in full force and effect on a continuous basis, unimpaired, uninterrupted and undischarged as  Collateral for the Obligations, to the extent provided in such Super Priority Loan Documents.          SECTION 5.   Conditions  to  the  Waiver  Effective  Date.   Section  1 of  this  Agreement  shall  become  effective  on  the  date  when  the  following  conditions  shall  have  been  satisfied  or  waived  (such  date, the “Waiver Effective Date”):         (a)    Deliverables.   The  Super  Priority  Agent  shall  have  received  this  Agreement,  duly  executed by the Super Priority Agent, each of the Loan Parties and each of the Super Priority Lenders.          (b)   Representations and Warranties.  The representations and warranties of the Loan Parties  contained  in  Article  V  of  the  Super  Priority  Credit  Agreement  and  in  each  other  Super  Priority  Loan  Document shall be true and correct in all material respects (or, in the case of any such representation and  warranty that is subject to materiality or Material Adverse Effect qualifications, in all respects) on and as  of the Waiver Effective Date, except to the extent that such representations and warranties specifically  refer to an earlier date, in which case they shall be true and correct in all material respects (or, in the case  of  any  such  representation  and  warranty  that  is  subject  to  materiality  or  Material  Adverse  Effect  qualifications, in all respects as of such earlier date); provided that no representation or warranty shall be  rendered inaccurate as a result of the occurrence and continuation of the Specified Events of Default and  the Specified Events of Default (as defined in the Fourth Limited Conditional Forbearance Agreement,  dated  effective  July  31,  2019,  by  and  among  the  Borrower,  Parent,  Holdings,  the  loan  parties  party  thereto, the Existing Administrative Agent and the Existing Lenders party thereto.           (c)   Absence of Additional Defaults.  No Default or Event of Default under the Super Priority  Credit Agreement or the other Super Priority Loan Documents shall have occurred on or after the Waiver  Effective Date and be continuing, other than the Specified Events of Default.          (d)   Expenses  of  Super  Priority  Agent.   The  Borrower  shall  have  paid  all  reasonable  and  documented  expenses  of  the  Super  Priority  Agent  and  BBVA  USA  in  its  capacity  as  Super  Priority  Lender  incurred  or  accrued  through  the  Waiver  Effective  Date  (including,  without  limitation,  (i)  any                                              4  502327881 v7 1205867.00001  





 






   unpaid demand invoice from K&L Gates, LLP in its capacity as counsel to the Super Priority Agent and  DLA Piper in its capacity as Super Priority Agent’s local Delaware counsel, in each case  delivered to  Borrower on or prior to the Waiver Effective Date, and (ii) any unpaid demand invoices from Berkeley  Research Group in its capacity as financial advisor to the counsel to the Super Priority Agent delivered to  Borrower  for  services  incurred,  relating  to  the  period  prior  to the Waiver Effective Date), for which  demand invoices have been delivered to the Borrower on or prior to the Waiver Effective Date.   Without limiting the generality of the provisions of Section 9.3(c) of the Super Priority Credit Agreement,  for  purposes  of  determining  compliance  with  the  conditions  specified  in  this  Section  5,  each  Super  Priority  Lender  that  has  signed  this  Agreement  shall  be  deemed to  have  consented  to,  approved  or  accepted or to be satisfied with, each document or other matter required thereunder to be consented to or  approved by or acceptable or satisfactory to a Super Priority Lender unless the Super Priority Agent shall  have  received  notice  from  such  Super  Priority  Lender  prior  to  the  proposed  Waiver  Effective  Date  specifying its objection thereto.          SECTION 6.   Costs and Expenses. The Loan Parties hereby reconfirm their obligations under  the Super Priority Loan Documents, including Section 10.4 of the Super Priority Credit Agreement, to  make payments and reimbursements in accordance with the terms thereof (including with respect to this  Agreement).          SECTION 7.   Representations  and  Warranties.  To  induce  the  Super Priority  Agent  and  the  other Super Priority Lenders to enter into this Agreement, each Loan Party represents and warrants to the  Super Priority Agent and the other Super Priority Lenders on and as of the Waiver Effective Date (and, in  each case, after giving effect to the limited conditional waiver contained in Section 1 of this Agreement)  that, in each case:          (a)   the representations and warranties of the Loan Parties contained in Article V of the Super  Priority  Credit  Agreement  and in  each other  Super Priority  Loan  Document  are  true  and  correct  in  all  material respects (or, in the case of any such representation and warranty that is subject to materiality or  Material Adverse Effect qualifications, in all respects) on and as of the Waiver Effective Date, except to  the extent that such representations and warranties specifically refer to an earlier date, in which case they  shall be true and correct in all material respects (or, in the case of any such representation and warranty  that is subject to materiality or Material Adverse Effect qualifications, in all respects as of such earlier  date);  provided  that  no  representation  or  warranty  shall  be  rendered  inaccurate  as  a  result  of  the  occurrence and continuation of the Specified Events of Default;          (b)    no  Default  or  Event  of  Default  exists  and  is  continuing  immediately  prior  to  or  after  giving effect to this Agreement, in each case, other than as expressly waived or specified hereunder;         (c)    the execution, delivery and performance by such Loan Party of this Agreement have been  duly authorized by all necessary corporate and other organizational action and do not and will not require  any  approval,  consent,  exemption,  authorization,  or  other  action  by,  or  notice  to,  or  filing  with,  any  Governmental Authority or any other Person other than the authorizations, approvals, actions, notices and  filings listed on Schedule 5.3 of the Disclosure Schedules, all of which have been duly obtained, taken,  given or made and are in full force and effect on the Waiver Effective Date;         (d)    no Loan Party has sold or received partial payment for the assignment or sale of any of its  accounts receivable in connection with any arrangement involving any Loan Party or any non-Loan Party;  and          (e)    this Agreement has been duly executed and delivered by each Loan Party that is a party  hereto and constitutes a legal, valid and binding obligation of such Loan Party, enforceable against such                                              5  502327881 v7 1205867.00001  





 






   Loan  Party  in  accordance  with  its  terms;  provided  that  the  enforceability  hereof  is  subject  to  general  principles of equity, principles of good faith and fair dealing and to bankruptcy, insolvency and similar  Laws affecting the enforcement of creditors’ rights generally.          SECTION 8.   Reference to and Effect on the Super Priority Credit Agreement and the Super  Priority Loan Documents.          (a)    On and after the Effective Date, each reference in the Super Priority Credit Agreement to  “this Agreement,” “herein,” “hereto”, “hereof” and “hereunder” or words of like import referring to the  Super Priority Credit Agreement, and each reference in the Notes and each of the other Super Priority  Loan  Documents  to  “the  Super  Priority  Credit  Agreement”,  “thereunder”,  “thereof”  or  words  of  like  import  referring  to  the  Super  Priority  Credit  Agreement,  shall mean  and  be  a  reference  to  the  Super  Priority Credit Agreement, as modified by this Agreement.           (b)    The  Super  Priority  Credit  Agreement  and  each  of  the  other  Super  Priority  Loan  Documents,  as  specifically  modified  by  this  Agreement,  are  and shall  continue  to  be  in  full  force  and  effect and are hereby in all respects ratified and confirmed.          (c)    The execution, delivery and effectiveness of this Agreement shall not, except as expressly  provided herein, operate as a waiver of any right, power or remedy of any Super Priority Lender or the  Super Priority Agent under any of the Super Priority Loan Documents, nor constitute a waiver of any  provision of any of the Super Priority Loan Documents.  Without limiting the generality of the foregoing,  the Collateral Documents in effect immediately prior to the date hereof and all of the Collateral described  therein in existence immediately prior to the date hereof do and shall continue to secure the payment of all  Obligations of the Loan Parties under the Super Priority Loan Documents, in each case, as modified by  this Agreement.          SECTION 9.    Governing Law; Jurisdiction.          (A)    THIS AGREEMENT AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE  OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING  OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED  HEREBY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW  OF THE STATE OF NEW YORK.         (b)    EACH  LOAN  PARTY  IRREVOCABLY  AND  UNCONDITIONALLY  AGREES  THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND  OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT  OR OTHERWISE, AGAINST THE SUPER PRIORITY AGENT, ANY SUPER PRIORITY LENDER,  OR  ANY  RELATED  PARTY  OF  THE  FOREGOING  IN  ANY  WAY  RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER  SUPER  PRIORITY  LOAN  DOCUMENT  OR  THE  TRANSACTIONS  RELATING  HERETO  OR  THERETO,  IN  ANY  FORUM  OTHER  THAN  THE  COURTS  OF  THE  STATE  OF  NEW  YORK  SITTING  IN  NEW  YORK  COUNTY  AND     OF  THE  UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK, AND ANY  APPELLATE  COURT  FROM  ANY  THEREOF,  AND  EACH  OF  THE  PARTIES  HERETO  IRREVOCABLY  AND  UNCONDITIONALLY  SUBMITS  TO  THE  JURISDICTION  OF            SUCH  COURTS  AND  AGREES  THAT  ALL  CLAIMS  IN  RESPECT  OF  ANY  SUCH  ACTION,  LITIGATION  OR  PROCEEDING  MAY  BE  HEARD  AND  DETERMINED  IN  SUCH  NEW  YORK  STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH  FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN  ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE  ENFORCED  IN  OTHER  JURISDICTIONS  BY  SUIT  ON  THE  JUDGMENT  OR  IN  ANY  OTHER                                             6  502327881 v7 1205867.00001  





 






   MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER SUPER  PRIORITY  LOAN  DOCUMENT  SHALL  AFFECT  ANY  RIGHT  THAT  THE  SUPER  PRIORITY  AGENT, ANY SUPER PRIORITY LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION  OR  PROCEEDING  RELATING  TO  THIS  AGREEMENT  OR  ANY  OTHER  SUPER  PRIORITY  LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF  ANY JURISDICTION.          SECTION 10.  Counterparts.  This  Agreement  may  be  executed  in  any number  of  counterparts  and by the different parties hereto on separate counterparts, each of which counterparts when executed  and delivered shall be an original, but all of which shall together constitute one and the same instrument.  Delivery by facsimile or electronic transmission of an executed counterpart of a signature page to this  Agreement shall be effective as delivery of an original executed counterpart of this Agreement.         SECTION 11.  Release. Each of the Parent, Holdings, the Borrower and each other Loan Party,  on behalf of itself and its Subsidiaries, successors, assigns and other legal representatives, hereby releases,  waives,  and  forever  relinquishes  all  claims,  demands,  obligations,  liabilities  and  causes  of  action  of  whatever  kind  or  nature  (collectively,  the  “Claims”),  whether  known  or  unknown,  which  any  of  them  have, may have, or might assert at the time of the execution of this Agreement or in the future against the  Super  Priority  Agent,  the  Super  Priority  Lenders  and/or  their  respective  present  and  former  parents,  affiliates,  participants,  officers,  directors,  employees,  agents,  attorneys,  accountants,  consultants,  attorney’s consultants (including, without limitation, Berkeley Research Group, LLC), and each of their  respective  successors  and  assigns  (each  a  “Releasee”),  directly  or  indirectly,  which  occurred,  existed,  were taken, permitted or begun from the beginning of time through the date hereof, arising out of, based  upon,  or  in  any  manner  connected  with  (a)  this  Agreement,  the  other  Super  Priority  Loan  Documents  and/or the administration thereof or the Obligations created thereby, (b) any discussions, commitments,  negotiations, conversations or communications with respect to the refinancing, restructuring or collection  of any of the Obligations, or (c) any matter related to the foregoing; provided that (i) the foregoing shall  not release Claims arising following the date hereof, and (ii) such release shall not be available to any  Releasee  with  respect  to a  Claim  to  the  extent  that  such  Claim is  determined  by  a  court of  competent  jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or willful  misconduct of such Releasee.          SECTION 12.  Acknowledgments; Reservation of Rights.          (a)    The  Loan  Parties  hereby  acknowledge  and  agree  that  the  Specified  Events  of  Default  constitute Events of Default under the Super Priority Credit Agreement and, in the absence of the limited  conditional  waiver  set  forth  in  Section 1  of  this  Agreement,  permits  the  Super  Priority  Agent  and  the  Super Priority Lenders to, among other things,  take any enforcement action or otherwise exercise any or  all  rights  and  remedies  provided  for  under  the  Super  Priority  Loan  Documents  or  applicable  law  including, without limitation, those described in this Section 12.         (b)    The Loan Parties hereby acknowledge and agree that each of the Super Priority Agent  and the Super Priority Lenders expressly reserves all of its rights, powers, privileges and remedies under  the  Super  Priority  Credit  Agreement,  other  Super  Priority  Loan Documents  and/or  applicable  law,  including, without limitation, its right at any time from and after termination or expiration of the Waiver  Period, (i) to determine not to make further Disbursements under the Super Priority Credit Agreement as  a  result  of  the  Specified  Defaults,  (ii)  to  accelerate  the  Obligations,  (iii)  to  charge  the  default  rate  of  interest  in  respect  of  the  Obligations  (as  of  any  date  from  and  after  the  date  on  which  the  Specified  Defaults first occurred), (iv) to commence any legal or other action to collect any or all of the Obligations  from  any  or  all  of  the  Loan  Parties,  and  any  other  person  liable  therefor  and/or  any  collateral,  (v)  to  foreclose or otherwise realize on any or all of the collateral and/or as appropriate, set-off or apply to the  payment of any or all of the Obligations, any or all of the collateral, (vi) to take any other enforcement                                             7  502327881 v7 1205867.00001  





 






   action or otherwise exercise any or all rights and remedies provided for by any or all of the Super Priority  Credit  Agreement,  other  Super  Priority  Loan  Documents  or  applicable  law,  and  (vii)  to  reject  any  forbearance, financial restructuring or other proposal made by or on behalf of Borrower, any other Loan  Party or any creditor or equity holder.  Each of the Super Priority Agent and the Super Priority Lenders  may  exercise  their  respective  rights,  powers,  privileges  and  remedies,  including  those  set  forth  in  (i)  through (vii) above at any time after the termination or expiration of the Waiver Period in its sole and  absolute discretion without further notice.  No oral representations or course of dealing on the part of the  Super Priority Agent, any Super Priority Lender or any of its officers, employees or agents, and no failure  or  delay  by  the  Super  Priority  Agent or  any  Super  Priority  Lender  with  respect  to  the  exercise  of  any  right, power, privilege or remedy under any of the Super Priority Credit Agreement, other Super Priority  Loan Documents or applicable law shall operate as a waiver thereof, and the single or partial exercise of  any such right, power, privilege or remedy shall not preclude any later exercise of any other right, power,  privilege or remedy.          (c)   The Loan Parties, the Super Priority Agent and the Super Priority Lenders party hereto  hereby acknowledge and agree that to date, Super Priority Agent and the Super Priority Lenders have not  elected to exercise any such rights and remedies available to them.                        [The remainder of this page is intentionally left blank.]                                               8  502327881 v7 1205867.00001  





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






                                       AUSTRALIANSUPER, as a Super Priority Lender                       By: Marathon Asset Management L.P.                       Its Manager                                         By:                        Name:                       Title:                                                                     Northstar Healthcare Acquisitions, L.L.C.  Limited Conditional Waiver To Super Priority Credit Agreement                    Signature Pages  





 






  





 






                   MAM CORPORATE LOAN FUND, as a Super                    Priority Lender                     By: Marathon Asset Management L.P.                     Its Portfolio Manager                                      By:                      Name:                     Title:                                                          Northstar Healthcare Acquisitions, L.L.C.  Limited Conditional Waiver To Super Priority Credit Agreement                  Signature Pages