fourthforbearanceagreeme






                                                                EXECUTION VERSION                                                                                                     FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT                                                                                    P A R T I E S:         This FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT (this “Fourth  Forbearance Agreement”) is dated effective as of July 31, 2019 (subject to satisfaction of each condition  precedent set forth at Section 4 hereof, 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 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  Swingline Lender,  LC  Issuing  Lender  and  the  Administrative Agent (in such capacity for itself and the other Lenders, the “Administrative Agent”), and  the 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  Credit  Agreement  referred to below.                                       R E C I T A L S:          A. WHEREAS,  the  Borrower,  the  Parent,  Holdings,  the  other  Loan  Parties  party  thereto,  the            Lenders party thereto (the “Lenders”), the Administrative Agent and the other parties thereto            have entered into that certain Credit Agreement, dated as of October 28, 2016 (as amended by            Amendment No. 1 to Credit Agreement and Waiver, dated as of March 3, 2017, as further            amended  by  Amendment  No.  2  to  Credit  Agreement,  dated  as  of  November  15,  2017,  as            further amended by the Second Limited Conditional Waiver and Amendment No. 3 to Credit            Agreement,  dated  effective  as  of  December  31,  2018,  and  as  from  time  to  time  further            amended,  amended  and  restated,  supplemented  or  otherwise  modified,  the  “Credit            Agreement”);         B.  WHEREAS,  the  Loan  Parties  acknowledge  and  agree  that  certain  Events  of  Default  as            described  below  (collectively,  the  “Specified  Defaults”)  have  occurred  and  are  continuing            under  Section  8.1  of  the  Credit Agreement  due  to  the  Borrower’s  failure  to  comply  with            (i) the  financial  covenants  in  Section  7.11(a)  and  Section  7.11(b)  of  the  Credit  Agreement            (due to adjustments to the Borrower’s accounts receivable as communicated to the Lenders in            the Borrower’s presentation, dated November 14, 2018, and by Borrower’s financial advisors            in their interim report, dated December 28, 2018, which accounts receivable adjustments and            fiscal period of adjustments are subject to final determination by the Borrower) and (ii) the            restrictions on Restricted Payments contained in Section 7.6 of the Credit Agreement due to            certain Restricted Payments made to non-Loan Parties prior to November 15, 2018;          C. WHEREAS, the Administrative Agent maintains that the Borrower failed to comply with the            requirements  of  the  following  (collectively  the  “Disputed  Specified  Defaults”),  while  the            Loan  Parties  maintain  that  the  following  Disputed  Specified  Defaults  are  not  Events  of            Default  under  the  Credit  Agreement:  (i)  the  requirements  of  Section  6.12(a)  of  the  Credit            Agreement in respect of NHC Network, LLC; and (ii) the requirement of Nobilis Vascular            Texas,  LLC  to  make  payments  when  due  under  that  certain  Convertible  Promissory  Note,            dated  March  8,  2017,  executed  by  Nobilis  Vascular  Texas,  LLC  and  made  payable  to  the            order of Carlos R. Hamilton III, M.D.;      FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 1   502355849 v3 1205867.00001  





 






      D.  WHEREAS, as a result of the Specified Defaults, the Administrative Agent has the right to            exercise all rights and remedies available to it under the Credit Agreement, the other Loan            Documents and applicable law;          E. WHEREAS,  the  Loan  Parties,  the  Administrative  Agent  and  certain  of  the  Lenders  party            thereto entered into that certain Limited Waiver to Credit Agreement, dated effective as of            November 15, 2018 (the “First Limited Waiver”), pursuant to which, subject to the terms and            conditions set forth in the First Limited Waiver, those certain Specified Defaults (as defined            in the First Limited Waiver) were temporarily waived for the Waiver Period set forth therein            (as defined in the First Limited Waiver, the “First Waiver Period”);         F.  WHEREAS, the Loan Parties, Administrative Agent and certain of the Lenders party thereto            entered into that certain Second Limited Conditional Waiver and Amendment No. 3 to Credit            Agreement,  dated  effective  as  of  December  31,  2018  (the  “Second Limited Waiver”),            pursuant  to  which,  subject  to  the  terms  and  conditions  set  forth  in  the  Second  Limited            Waiver,  those  certain  Specified  Defaults  (as  defined  in  the  Second  Limited  Waiver)  were            temporarily waived for the Second Waiver Period set forth therein (as defined in the Second            Limited Waiver, the “Second Waiver Period”);         G.  WHEREAS,  the  Loan  Parties,  the  Administrative  Agent  and  certain  of  the  Lenders  party            thereto  entered  into  that  certain  Third  Limited  Conditional  Waiver  to  Credit  Agreement,            dated as of January 11, 2019 (the “Third Limited Waiver”), pursuant to which, subject to the            terms and conditions set forth in the Third Limited Waiver, those certain Specified Defaults            (as defined in the Third Limited Waiver) and those certain Disputed Specified Defaults (as            defined in the Third Limited Waiver) were temporarily waived for the Third Waiver Period            set forth therein (as defined in the Third Limited Waiver, the “Third Waiver Period”);         H.  WHEREAS,  the  Loan  Parties,  the  Administrative  Agent  and  certain  of  the  Lenders  party            thereto  entered  into  that  certain  Fourth  Limited  Conditional  Waiver  to  Credit  Agreement,            dated as of February 29, 2019 (the “Fourth Limited Waiver” and collectively with the First            Limited  Waiver,  the  Second  Limited  Waiver,  and  the  Third  Limited  Waiver,  the  “Prior            Limited  Waivers”),  pursuant  to  which,  subject  to  the  terms  and conditions  set  forth  in  the            Fourth  Limited  Waiver,  those  certain  Specified  Defaults  (as  defined  in  the  Fourth  Limited            Waiver)  and  those  certain  Disputed  Specified  Defaults  (as  defined  in  the  Fourth  Limited            Waiver) were temporarily waived for the Fourth Waiver Period set forth therein (as defined            in the Fourth Limited Waiver, the “Fourth Waiver Period”);         I.  WHEREAS, the Loan Parties represent to the Administrative Agent that they have dissolved            MPDSC  Management,  LLC,  a  Texas  limited  liability  company,  during  the  Third  Waiver            Period (thereby curing the Specified Default (as defined in the Third Limited Waiver) that            had occurred due to the failure to satisfy the requirements of Section 6.12(a) of the Credit            Agreement in respect of such entity);          J.  WHEREAS, on March 29, 2019, the Administrative Agent provided a notice of default and            reservation of rights letter (the “Default Letter”) to the Borrower, Parent and Holdings that            Borrower had (i) failed to pay that certain demand invoice in the amount of $104,475.50 from            K&L  Gates,  LLP  in  its  capacity as  counsel  to  the  Administrative  Agent,  which  demand            invoice was delivered to Borrower on or about March 5, 2019, which failure was an Event of            Default under the Credit Agreement pursuant to Section 2 of the Fourth Limited Waiver (the            "Invoice Payment Event of Default"), (ii) failed to comply with requirements of the Credit            Agreement and the Fourth Limited Waiver in respect of the Disposition of the Loan Parties'            equity interest in Mountain West Surgery Center, LLC (the "Disposition Defaults"), and that     FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 2   502355849 v3 1205867.00001  





 






          as  a  result  of  the  Invoice  Payment  Event  of  Default  and  Disposition  Defaults,  the  Fourth            Waiver Period had automatically terminated;          K. WHEREAS, the First Waiver Period, Second Waiver Period, Third Waiver Period and Fourth            Waiver Period (due to the Invoice Payment Event of Default and the Disposition Defaults)            have each ended on or before the Effective Date;           L. WHEREAS, the Borrower has failed to pay the principal payments that  became  due  on            March  29,  2019  under  the  Credit  Agreement  which  constituted  an immediate  Event  of            Default (the “Principal Payment Event of Default”);         M.  WHEREAS,  the  Borrower  has  failed  (i)  to  pay  the  interest  payment  that  became  due  on            March 26, 2019 under the Credit Agreement, which became an Event of Default when it was            not paid on March 29, 2019, (ii) to pay the interest payments that became due on March 29,            2019 under the Credit Agreement, which became Events of Default when not paid on April 1,            2019, (iii) to pay the LC Fee that became due and payable on April 10, 2019 under the Credit            Agreement, which became an Event of Default when not paid on April 13, 2019 (collectively,            the “Other Payment Events of Default”);         N.  WHEREAS, (i) the Borrower has failed to comply with the financial covenants set forth in            Section 5(dd) of the Third Forbearance Agreement as a result of (x) 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  (y)  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 (the “Third Forbearance Period Events of Default”) and (ii) an Event of            Default has occurred under Section 8.1(e) of the Credit Agreement due to defaults under the            Super  Priority  Credit  Agreement  (the  “Cross  Defaults”,  and  collectively  with  the  Third            Forbearance  Period  Events  of  Default,  the  Other  Payment  Events of  Default,  Invoice            Payment  Event  of  Default,  the  Disposition  Defaults,  and  the  Principal  Payment  Event  of            Default, the “Additional Events of Default”);         O.  WHEREAS, the Specified Defaults and Additional Events of Default are continuing and have            not  been  waived  by  the  Administrative  Agent  or  the  Lenders  except  as  expressly  waived            during the term of and pursuant to the Prior Limited Waivers and are not subject to cure by            the Loan Parties;         P.  WHEREAS, the Administrative Agent deems the Disputed Specified Defaults to be Events of            Default under the Credit Agreement that are continuing, and the Disputed Specified Defaults            have  not  been  waived  by  the  Administrative  Agent  or  the  Lenders,  except  as  expressly            waived in writing during the term of and pursuant to the Prior Limited Waivers and are not            subject to cure by the Loan Parties;          Q. WHEREAS, in accordance with the terms of the Super Priority Credit Agreement and the Super            Priority Subordination  Agreement, the  Borrower will not pay the  principal payments  that  will            become due on June 28, 2019 under the Credit Agreement which, after the Discharge of Senior            Indebtedness  (as  defined  in  the  Super  Priority  Subordination  Agreement),  if  such  amounts            remain unpaid will constitute an immediate Event of Default (the “Potential Event of Default”);         R.  WHEREAS, the Loan Parties, the Administrative Agent and certain of the Lenders party thereto            entered  into  that  certain  Limited  Conditional  Forbearance  Agreement,  dated  effective  as  of            March 31, 2019 (the “First Forbearance Agreement”), pursuant to which and subject to the terms     FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 3   502355849 v3 1205867.00001  





 






          and conditions set forth in the First Forbearance Agreement, the Administrative Agent and the            Lenders party to the First Forbearance Agreement agreed to forbear from exercising rights and            remedies  in  respect  of  those  certain  Specified  Events  of  Default  (as  defined  in  the  First            Forbearance  Agreement)  during  the  Forbearance  Period  (as  defined  in  the  First  Forbearance            Agreement,  the  “First Forbearance  Period”),  which First Forbearance  Period  expired  on  April            30, 2019;          S. WHEREAS, the Loan Parties, the Administrative Agent and the Lenders party thereto entered            into  that  certain  Second  Limited  Conditional  Forbearance  Agreement,  Consent  and  Fourth            Amendment to Credit Agreement, dated effective as of April 30, 2019 (the “Second Forbearance            Agreement”), pursuant to which, among other things, and subject to the terms and conditions set            forth in the Second Forbearance Agreement, the Administrative Agent and the Lenders party to            the  Second  Forbearance  Agreement  agreed  to  forbear  from  exercising  rights  and  remedies  in            respect  of  those  certain  Specified  Events  of  Default  (as  defined  in  the  Second  Forbearance            Agreement)  during  the  Second  Forbearance  Period  (as  defined  in the  Second  Forbearance            Agreement,  the  “Second  Forbearance  Period”),  which  Second  Forbearance  Period  expired  on            June 14, 2019;          T. WHEREAS, the Loan Parties, the Administrative Agent and the Lenders party thereto entered            into that certain Third Limited Conditional Forbearance Agreement, dated effective as of June            14,  2019  (the  “Third  Forbearance  Agreement”  and  collectively  with  the  First  Forbearance            Agreement  and  the  Second  Forbearance  Agreement,  the  “Prior  Forbearance  Agreements”),            pursuant to which, among other things, and subject to the terms and conditions set forth in the            Third  Forbearance  Agreement,  the  Administrative  Agent  and  the  Lenders  party  to  the  Third            Forbearance Agreement agreed to forbear from exercising rights and remedies in respect of those            certain Specified Events of Default (as defined in the Third Forbearance Agreement) during the            Third  Forbearance  Period  (as  defined  in  the  Third  Forbearance  Agreement,  the  “Third            Forbearance Period”), which Third Forbearance Period expired upon the occurrence of the Third            Forbearance Period Events of Default;          U. WHEREAS, the Third Forbearance Period has ended on or before the Effective Date;          V. WHEREAS, certain of the Loan Parties, certain of the Lenders party thereto (the “Super Priority            Lenders”), and BBVA USA, as super priority agent (the “Super Priority Agent”), entered into            that certain Super Priority Credit Agreement, dated as of May 22, 2019 (as amended, the “Super            Priority Credit Agreement”) which provided additional liquidity to the Loan Parties needed to            preserve the value of the Collateral until a Transaction (as defined below) can be consummated;           W. WHEREAS,  the  Loan  Parties  have  requested  that  the  Administrative  Agent  and  the  Lenders            continue to forbear temporarily from exercising certain of their respective rights and remedies            under the Credit Agreement, the other Loan Documents, and applicable law;           X.  WHEREAS, the Administrative Agent and the Lenders have agreed to temporarily forbear from            exercising certain rights and remedies under the Credit Agreement, the other Loan Documents,            and applicable law, subject to the terms, conditions, limitations and covenants contained in this            Fourth Forbearance Agreement;                                   ACKNOWLEDGMENTS:                (a)    Each  of  the  Loan  Parties  hereby  acknowledges  and  agrees  to the  accuracy  of  all        Recitals included in this Fourth Forbearance Agreement.      FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 4   502355849 v3 1205867.00001  





 






             (b)    Each  of  the  Loan  Parties  acknowledges  and  agrees  that  as  of  the  date  hereof,        neither the Administrative Agent nor the Lenders have any obligation to make Loans or otherwise        extend credit to, or for the benefit of, the Loan Parties.                (c)    To the extent that there is a conflict between the terms of this Fourth Forbearance        Agreement and the terms of the Credit Agreement or the other Loan Documents, the terms of this        Fourth Forbearance Agreement shall govern.                (d)    Each  of  the  Loan  Parties  hereby  acknowledges  and  agrees  that  this  Fourth        Forbearance Agreement, the First Forbearance Agreement, and each of the Prior Limited Waivers        are Loan Documents.                (e)    Each of the Loan Parties acknowledges and agrees:                       (i) that as of July 31, 2019 subject to additions and other adjustments as permitted               under the Loan Documents, the aggregate balance of the outstanding Obligations under the               Credit  Agreement  is  equal  to  $132,310,231.35,  and  that  the  respective  balances  of  the               various Loans and the LC Obligations as of such date were equal to the following:                Term A Loans       $ 47,206,250.00                Term B Loans        $ 47,500,000.00                Revolving Loans (excluding LC Obligations)     $  28,500,000.00                LC Obligations      $    1,500,000.00                Interest and LC Fees and Unused Fees           $    7,551,481.35                Deferred Forbearance Fees under               Third Forbearance Agreement    $         52,500.00                               TOTAL      $132,310,231.35                  (ii)  that  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        Credit Agreement and the other Loan Documents; and                (iii) that the above described amounts are not subject to any offset, reduction, counterclaim        or defense by the Loan Parties.                (f)    Each of the parties hereto (including the Loan Parties) acknowledges and agrees that        the  Default  Rate  continues  to  apply  to  the  Obligations  as  set  forth  in  the  First  Forbearance        Agreement.                                       AGREEMENTS         NOW,  THEREFORE,  in  consideration  of  the  premises  herein  contained  and  other  good  and  valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereto, intending to  be legally bound, agree to the above Recitals and Acknowledgments, and further agree as follows:     FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 5   502355849 v3 1205867.00001  





 






      1.     DEFINITIONS.   All  capitalized  terms  used  but  not  otherwise  defined  in  this  Fourth  Forbearance Agreement shall have the meanings ascribed to them in the Credit Agreement.         2.     FOURTH FORBEARANCE PERIOD AND FORBEARANCE FEE.                2.1.   Fourth  Forbearance  Period.   Subject  to  the  terms  and  conditions  set  forth  in  this  Fourth Forbearance Agreement and Loan Parties’ recitals, acknowledgments and agreements set forth above,  and  expressly  conditioned  upon  the  absence  of  any  Events  of  Default  or  Defaults  (other  than  Specified  Defaults, Additional Events of Default, the Disputed Specified Defaults and, from and after June 28, 2019,  the Potential Event of Default, collectively the “Specified Events of Default”) under the Credit Agreement,  the other Loan Documents or this Fourth Forbearance Agreement, and satisfaction and fulfillment of each of  the conditions precedent set forth in Section 4 below, the Administrative Agent and the Lenders agree (or are  otherwise  bound  pursuant  to  the  terms  hereof)  to  forbear  from  (a)  demanding  payment  in  full  of  all  Obligations  (including  principal,  interest,  fees,  expenses,  or any  other  amount  due  under  the  Credit  Agreement or other Loan Documents and (b) exercising their respective rights and remedies under the Credit  Agreement and other comparable provisions of the other Loan Documents solely as a result of the existence  and continuation of the Specified Events of Default, in each instance for a period (the “Fourth Forbearance  Period”)  beginning  on  the  date on  which each of the conditions precedent set  forth in Section 4 below is  satisfied and expiring on the earliest of (i) the occurrence of an Event of Default or an “Event of Default”  under the Super Priority Credit Agreement, in each case during the Fourth Forbearance Period other than  (A) the Specified Events of Default or (B) any Event of Default that occurs due to the failure of the Loan  Parties to comply with Section 7.11 of the Credit Agreement (“Financial Covenant Event of Default”), (ii)  any Loan Party’s actual knowledge of an Event of Default (other than the Specified Events of Default)  that occurred prior to the Fourth Forbearance 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.                2.2.   Forbearance  Fee.  The  Loan  Parties  hereby  agree  that  a  forbearance  fee  in  the  amount of $52,500 (the “Forbearance Fee”) shall be fully earned on the Forbearance Effective Date (as  defined below) and shall be due and payable to the Administrative Agent (solely for the benefit of those  Lenders  that  satisfied  the  Forbearance  Fee  Allocation  Requirement,  as  defined  below)  on  the  date  the  obligations  under  the  Super  Priority  Credit  Agreement  have  been  indefeasibly  paid  in  full  in  cash;  provided  that  without  reducing  the  total  amount  of  the  Forbearance  Fee,  the  Forbearance  Fee  will  be  allocated  pro  rata  among  the  Lenders  that  have  satisfied  the  Forbearance  Fee  Allocation  Requirement  based on the percentage of the Loans and loans under the Super Priority Credit Agreement held by each  such  Lender.   Any  unpaid  portion of  the  Forbearance  Fee  not  paid  when  due  shall  be  added  to  and  constitute  a  part  of  the  Obligations.   The  Loan  Parties  hereby acknowledge  and  agree  that  such  Forbearance Fee is non-refundable and is in addition to any other fees payable by the Loan Parties under  the Credit Agreement or any other Loan Document.  As used herein, the “Forbearance Fee Allocation  Requirement”  means  that  the  applicable  Lender  has  executed,  delivered  and  released  to  the  Administrative Agent its signature pages to (i) this Fourth Forbearance Agreement, and (ii) the right of  first refusal agreement (in form distributed by the Administrative Agent to the Lenders), in each case by  no later than August 2, 2019.                2.3    No Waiver/Cure Upon Termination of Fourth Forbearance Period.  Nothing in this  Fourth  Forbearance  Agreement  shall  be  construed  to  be  a  waiver of  any  Default  or  Event  of  Default,  including,  without  limitation,  the  Specified  Events  of  Default,  and  upon  termination  of  the  Fourth  Forbearance Period, whether at the stated termination thereof or earlier as the result of the occurrence of a  Default or Event of Default that results in the termination of the Fourth Forbearance Period in accordance  with Section 2.1 above, each of the Specified Events of Default, and each other Default or Event of Default  that shall have actually occurred shall be continuing without waiver by the Administrative Agent or cure by  the Loan Parties.      FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 6   502355849 v3 1205867.00001  





 






             2.4.   Limitation of Forbearance.  Without limiting the forbearance contained in Section  2.1 above, for purposes of determining the Loan Parties’ compliance with their respective representations,  warranties, covenants and agreements set forth in the Credit Agreement and the other Loan Documents one  or more Defaults and Events of Default shall be deemed continuing at all times notwithstanding the existence  and continuation of the Fourth Forbearance Period agreed to hereunder.                2.5.   Deferral  of  the  Forbearance  Fee  Under  Third  Forbearance  Agreement.   The  Administrative  Agent  and  the  Required  Lenders  hereby  agree  that  the  Forbearance  Fee  under  the  Third  Forbearance Agreement shall be deferred (in accordance with the terms of the Third Forbearance Agreement)  until the date that the obligations under the Super Priority Credit Agreement have been indefeasibly paid in  full in cash.            3.    [RESERVED].         4.     CONDITIONS  PRECEDENT  TO  EFFECTIVENESS  OF  FOURTH  FORBEARANCE  PERIOD.  Section 2.1 of this Fourth Forbearance Agreement shall become effective on the date when the  following conditions shall have been satisfied or waived (such date, the “Forbearance Effective Date”):                4.1.   Deliverables.   The  Administrative  Agent  shall  have  received  this  Fourth  Forbearance  Agreement,  duly  executed  by  each  of  the  Loan  Parties,  the  Administrative  Agent  and  the  Required Lenders.                4.2.   Representations and Warranties.  The representations and warranties of the Loan  Parties contained in Article V of the Credit Agreement and in each other 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  Forbearance  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.                 4.3.   Absence of Additional Defaults.  No Default or Event of Default under the Credit  Agreement or the other Loan Documents shall have occurred on or after the Forbearance Effective Date  and be continuing, other than the Specified Events of Default.                4.4    Expenses of Administrative Agent.  The Borrower shall have paid all reasonable  and documented expenses of the Administrative Agent and BBVA USA in its capacity as Lender incurred  or accrued through the Forbearance Effective Date (including, without limitation, (i) any unpaid demand  invoice from K&L Gates, LLP in its capacity as counsel to the Administrative 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 Forbearance Effective Date, and (ii) any unpaid demand invoices from Berkeley Research Group in  its  capacity  as  financial  advisor  to  the  counsel  to  the  Administrative  Agent  delivered  to  Borrower  for  services  incurred,  relating  to  the  period  prior  to  the  Forbearance  Effective  Date),  for  which  demand  invoices have been delivered to the Borrower on or prior to the Forbearance Effective Date.                Without  limiting  the  generality  of  the  provisions  of  Section  9.3(c)  of  the  Credit  Agreement, for purposes of determining compliance with the conditions specified in this Section 4, each  Lender  that  has  signed  this  Fourth  Forbearance  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 Lender unless the Administrative Agent      FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 7   502355849 v3 1205867.00001  





 






shall have received notice from such Lender prior to the proposed Forbearance Effective Date specifying  its objection thereto.          5.    ADDITIONAL  COVENANTS  AND  AGREEMENTS.   The  continued  effectiveness  of  the Fourth Forbearance Period is subject to satisfaction of the following covenants, and in addition to the  covenants set forth in the Credit Agreement and the other Loan Documents other than those set forth in  the Specified Events of Default, each of the Loan Parties hereby covenants and agrees as follows:                 (a)    Administrative  Agent  Consultant.   Without  limiting  the  obligations  of  the  Borrower under the Credit Agreement, each Loan Party expressly continues to (i) consent to retention by  counsel to the Administrative Agent of one or more consultants (including, without limitation, Berkeley  Research  Group,  LLC,  retained  by  counsel  to  the  Administrative Agent),  advisors  and/or  other  professionals in connection with the Credit Agreement and the other Loan Documents, in each case, as  permitted  under  such  Loan  Documents  (including,  but  not  limited  to  Section  10.4(a)  of  the  Credit  Agreement), but subject to the limitations and restrictions thereof, including for the purpose of analyzing  the Business Plan (as defined below) sales, collections, cash flow and similar operations of the Parent and  its subsidiaries (each a “Consultant”), (ii) agree to pay the reasonable fees and out-of-pocket expenses  (including payment of the amount of any reasonable retainer) of such Consultants promptly upon demand  from time to time by the Administrative Agent and (iii) agree to provide the Administrative Agent and  such  Consultants  with  such  information  and  direct  access  to  the  books,  records  and  management  of  Parent, Holdings, the Borrower and the other Loan Parties during reasonable business hours as reasonably  requested by the Administrative Agent or any such Consultant.  Without limiting the foregoing, the Loan  Parties shall cause the Consultant to be invited to and permitted to participate in all calls and meetings  held by the Loan Parties to discuss any of the following: (i) updates related to the review of accounts  payable and planning of cash disbursements, including without limitation any calls or meetings regarding  the status of the Company’s cash and decisions related to payment of accounts payable and vendors and  (ii) the review of accounts receivable, including without limitation any weekly calls or meetings regarding  the  status  of  collection  efforts  in  respect  of  any  accounts  receivable  (including,  without  limitation,  written-off or fully reserved accounts receivable).                              (b)    Borrower  Consultant.   The  Loan  Parties  shall,  at  their  sole  cost  and  expense,  continue to retain Morris Anderson (the “Borrower Consultant”), which consultant was selected by the  Loan  Parties  and  is  acceptable  to  the  Administrative  Agent,  to assist  management  with  the  review,  evaluation  and  improvement  of  their  operations  and  financial  performance,  on  terms  and  conditions  reasonably acceptable to the Administrative Agent, which shall continue to include (i) direct access by the  Borrower Consultant to the Parent, Holdings and the Borrower during reasonable business hours, and (ii)  the  Administrative  Agent  and  the Consultant  having  direct  and  unrestricted  access  to  the  Borrower  Consultant and direct communications with such Borrower Consultant, either with the Borrower, Parent  or  Holdings  or  their  counsel  present  or  without  the  presence  of  Borrower,  Parent  or  Holdings  or  their  counsel.                                (c)    Engagement of Chief Restructuring Officer.  The Loan Parties shall continue to  engage and maintain the services of Daniel Wiggins, as chief restructuring officer of the Loan Parties (the  “Chief  Restructuring  Officer”)  on  terms  consistent  with  that  certain  Agreement  for  Services,  dated  November  26,  2018,  by  and  between  Morris  Anderson  &  Associates,  Ltd.,  Parent,  Borrower  and  Holdings (as amended by that certain Amendment Number 1 to Agreement for Services, dated November  28,  2018,  as  further  amended  by  that  certain  Amendment  Number  2  to  Agreement  for  Services,  dated  April 10, 2019).  The Chief Restructuring Officer shall continue to have the full and exclusive power and  authority to (i) restructure the operations of Loan Parties and (ii) effect a transaction (the “Transaction”)  providing for (A) the complete and indefeasible payment in full in cash and satisfaction of the Obligations  or  (B)  the  indefeasible  payment  in  cash  of  a  discounted  amount of  the  Obligations  with  the  express      FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 8   502355849 v3 1205867.00001  





 






written consent of the Administrative Agent and the Lenders in full satisfaction of the Existing Lender  Debt,  and  as  to  each  of  the  foregoing,  subject  to  the  terms  and  conditions  of  this  Fourth  Forbearance  Agreement.   The  Chief  Restructuring  Officer  shall  continue  have  the  full  and  exclusive  power  and  authority  (including  the  exclusive  power  and  authority  to  manage  current  staff,  consultants  and  contractors of the Loan Parties) to implement the foregoing, including check-writing authority, and shall  have  full  access  to  and  authority  over  Loan  Parties’  cash  management  system.   Further,  the  Chief  Restructuring Officer shall continue be charged with ensuring the performance of all obligations of Loan  Parties under this Fourth Forbearance Agreement, the Credit Agreement and the other Loan Documents  (including the timely and accurate reporting of all required financial and collateral information).  Loan  Parties’ engagement letter with the Chief Restructuring Officer shall continue to provide (i) that the Chief  Restructuring Officer shall perform the tasks and shall have the exclusive authority as set forth in this  Section 5(c) and (ii) that the Administrative Agent, its counsel and its counsel's financial advisors will  have direct and unrestricted access to the Chief Restructuring Officer and direct communications with the  Chief Restructuring Officer, either with the Loan Parties' or their counsel present or without the presence  of the Loan Parties or their counsel.                               (d)    Retention of Investment Banker.  The Loan Parties shall continue to retain SSG  Advisors,  LLC  (“SSG”),  to  assist  the  Loan  parties  in  sourcing  and  evaluating  potential  financing,  restructuring, and other transactions (collectively, the “Transactions”).  The Loan Parties agree that the  engagement by Nobilis of SSG shall continue to require that:                          (i)    SSG provide to the Administrative Agent, its counsel, its counsel’s financial advisors                   and the Lenders with weekly updates on a continuous basis, or as often as may be                   requested by the Administrative Agent, its counsel or its counsel’s financial advisors,                   of  all  information  or  communications  pertaining  to  any  and  all Transactions,                   including, but not limited to, providing to the Administrative Agent, its counsel, its                   counsel’s financial advisors and the Lenders, letters of intent, purchase commitments,                   or expressions of interest relating to any and all the foregoing, together with any and                   all  correspondence  pertaining  to  the  status  of  the  completion  of  any  and  all  of  the                   foregoing.                               (ii)  SSG conduct ongoing, routine communications with the Loan Parties, and with the                  Administrative Agent, its counsel, its counsel’s financial advisors and the Lenders,                  including periodic progress towards obtaining any and all Transactions.                                                            (iii) SSG and the Loan Parties continue to acknowledge and agree that any Transactions                  shall be subject to the express prior written consent of the Administrative Agent and                  the Lenders, as provided under the governing credit agreements between and among                  the  Loan  Parties,  the  Administrative  Agent,  and  the  Lenders  and the other parties                  thereto and this Fourth Forbearance Agreement.                           (e)    Additional  Covenants  of  Loan  Parties  in  respect  of  the  Chief  Restructuring  Officer and Investment Banker Engagements.  No Loan Party shall alter the duties or responsibilities of  the Chief Restructuring Officer or SSG without the prior, written consent of the Administrative Agent.   Each Loan Party, together with its attorneys, officers, directors, agents, employees, and representatives, as  appropriate  (collectively,  the  “Loan  Party  Group”),  shall  fully  cooperate  with  the  Chief  Restructuring  Officer and SSG in performing its services as contemplated hereunder and in the applicable engagement  letter  and  shall  not  interfere  directly  or  indirectly  with  the Chief  Restructuring  Officer’s  or  SSG's  performance of such services.                     FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 9   502355849 v3 1205867.00001  





 






             (f)    Business Plan.  The Loan Parties will update the Administrative Agent from time  to time in writing with any material changes to the Business Plan presentation dated March 20, 2019 and  the underlying financial projection model provided in connection therewith (collectively, the “Business  Plan”) that was provided to the Administrative Agent in accordance with the terms of the Fourth Limited  Waiver.                                                                 (g)    Cash Flow Reports.  The Loan Parties shall continue to prepare and deliver to the  Administrative Agent no later than 4:00 pm Central Time on each Wednesday (or such later date as may  be agreed to by the Administrative Agent in writing in its reasonable discretion) (i) an updated rolling  cash  flow  forecast  for  the  succeeding  13  weeks,  in  each  case,  for  Holdings,  Parent,  Borrower,  its  Subsidiaries, and other parties whose cash flows contribute to the Borrower’s revenues (the “Contributing  Loan Parties”) on a consolidated basis and otherwise, in form and substance reasonably satisfactory to the  Administrative  Agent  (the  “Updated  Cash  Flow  Forecast”  and,  together  with  each  other  cash  flow  forecast  delivered  to  the  Administrative  Agent  pursuant  to  the Prior  Limited  Waivers,  the  Prior  Forbearance Agreements or this Fourth Forbearance Agreement, the “Cash Flow Forecasts”) and (ii) a  certificate of the chief financial officer of the Borrower to the effect that such Cash Flow Forecast reflects  the Borrower’s good faith projection of such weekly cash receipts and disbursements and ending balance  of available cash (as of the last Business Day of each week) for the Borrower, its Subsidiaries and the  Contributing Loan Parties on a consolidated basis. To the extent that any Updated Cash Flow Forecast  line item includes a variance of more than 10% from the prior projected amount for such line item, the  Updated Cash Flow Forecast shall include an explanation of the reason for such variance. Additionally,  on  each  Wednesday,  the  Borrower  shall  provide  with  respect  to  itself,  its  Subsidiaries  and  the  Contributing Loan Parties, on a consolidated basis, a report for the week ending the previous Friday, in  form and substance reasonably satisfactory to the Administrative Agent, specifying (A) the cash on hand  in deposit accounts at the beginning of such week, (B) cash receipts received during such week, with a  schedule detailing daily collections, (C) cash disbursed during such week in payment of expenses, (D) the  cash on hand in deposit accounts at the end of such week and (E) a comparison of such amounts to the  comparable  amounts  in  the  Cash  Flow  Forecast  for  such  week  and in the aggregate for the applicable  Cash Flow Forecast period.                              (h)    Approved Budget.  The Loan Parties shall continue to prepare and deliver to the  Administrative Agent no later than 4:00 pm Central Time on each Friday every two weeks (with the next  such  delivery  to  be  on  August  2,  2019,  no  later  than  4:00  pm  Central  Time  (or  such  later  date  as  the  Administrative Agent may agree in writing in its sole discretion): (i) an updated rolling cash flow forecast  for  the  succeeding  13  weeks,  in  each  case,  for  Holdings,  Parent,  Borrower,  its  Subsidiaries,  and  other  parties whose cash flows contribute to the Borrower’s revenues (the “Contributing Loan Parties”) in each  case showing projected daily cash receipts, cash disbursements to fund costs and expenses that are critical  to (x) operate and maintain the overall operational value of the Loan Parties' Assets (as defined below)  and  (y)  fund  the  critical  expenses  to  maintain  the  core  assets identified  on  Schedule  1  hereto,  which  Schedule  may  be  amended  in  writing  from  time  to  time  by  the  Loan  Parties  following  notice  to  and  written  approval  by  the  Administrative  Agent  (the  “Core  Assets”),  and  other  financial  information  required  by  the  Administrative  Agent  including,  without  limitation  (A)  payables  by  facility  and/or  subsidiary,  (B)  receivables  by  facility  and/or  subsidiary,  (C) cash  at  each  subsidiary  and  (D)  major  vendors by facility and/or subsidiary (as expressly approved in writing by the Administrative Agent from  time to time, the “Approved Budget”)  and (ii) a certificate of the chief financial officer and the Chief  Restructuring Officer of the Borrower to the effect that such Cash Flow Forecast reflects the Borrower’s  good  faith  projection  of  such  weekly  cash  receipts  and  disbursements  and  ending  balance  of  available  cash (as of the last Business Day of each week) for the Borrower, its Subsidiaries and the Contributing  Loan  Parties  on  a  consolidated  basis.   Such  Approved  Budget  shall  separate  the  costs  and  expenses  critical to maintain the Core Assets from the costs and expenses to operate and maintain the value of the      FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 10   502355849 v3 1205867.00001  





 






Loan Parties' Assets.  “Assets” mean any and all equity interests held directly or indirectly by any Loan  Party or any other assets of any Loan Party, including without limitation, personal or real property.                              (i)    [Reserved].                                                                (j)    Receivables Collection Process.  The Loan Parties shall continue to provide the  Administrative Agent every two (2) weeks an updated summary of actions the Loan Parties have taken to  improve the receivables collection process, which updates shall be prepared by the Borrower Consultant,  on behalf of the Loan Parties, and with the next such update to be delivered to the Administrative Agent  on July 31, 2019, no later than 4:00 pm Central Time (or such later date as the Administrative Agent may  agree in writing in its sole discretion), including updates as to the status of the transition of the receivables  collection  process  to  the  Equalize  RCM  Services.   The  Loan  Parties  shall  also  use  commercially  reasonable  efforts  to  cause  the  Equalize  RCM  Services  to  respond  to  questions  (including  questions  delivered to the Borrower from the Administrative Agent and the Consultant) related to the receivables  collection process.                                                                  (k)    Accounts  Receivable  Aging  Report.   Prior  to  the  Effective  Date hereof,  the  Borrower  has  provided  the  Administrative  Agent  with  (i)  a  copy of  the  prior  accounting  policy  and  methodology  (the  “Prior  Accounting  Policy  and  Methodology”),  (ii)  a  copy  of  the  revised  accounting  policy  and  methodology  implemented  by  the  Borrower  (the  “Revised  Accounting  Policy  and  Methodology”), and (iii) a written explanation (prepared with the input of the Borrower Consultant) for  the reasons the changes made to the Prior Accounting Policy and Methodology were required.   No later  than  4:00  pm  Central  Time  on  August  15,  2019  (or  such  later  date  as  may  be  agreed  to  by  the  Administrative  Agent  in  writing  in  its  sole  discretion)  and  on the  15th  calendar  day  of  each  month  thereafter  (or  such  later  date  as  may  be  agreed  to  by  the  Administrative  Agent  in  writing  in  its  sole  discretion),  the  Borrower  shall  continue  to  provide  the  Administrative  Agent  with  the  most  current  available accounts receivable aging report with respect to itself and its Subsidiaries which shall be based  on the Revised Accounting Policy and Methodology and shall provide detailed information by facility,  insurance payment source (separating in-network claims from out-of-network claims), and, to the extent  such  information  can  be  reasonably  compiled  within  the  aging  report  using  the  resources  of  the  Loan  Parties  and  the  Borrower  Consultant,  Loan  Party,  in  form  and  substance  reasonably  acceptable  to  the  Administrative Agent.                              (l)    Accounts Receivable Data.  No later than 4:00 pm Central Time on August 15,  2019 (or such later date as may be agreed to by the Administrative Agent in writing in its sole discretion)  and  on  the  15th  calendar  day of  each  month  thereafter  (or  such later  date  as  may  be  agreed  to  by  the  Administrative  Agent  in  writing  in  its  sole  discretion),  the  Borrower  shall  provide  the  Administrative  Agent  with  (i)  detail  of  amounts  outstanding  on  a  facility  and consolidated  basis  by  service  date  or  invoice,  as  applicable,  with  related  aging  of  accounts  receivable,  (ii)  detail  by  facility  and  on  a  consolidated basis relating to any accounts receivables write-offs for such period, including any collection  on  such  previously  written  off  account  balances,  and  (iii)  the Loan  Parties’  plan  to  collect  accounts  receivable, including any related write-offs, in each case, in form and substance reasonably acceptable to  the Administrative Agent.                                                               (m)    Indebtedness  Updates.   The  Loan  Parties  shall  continue  to  provide  the  Administrative  Agent  every  two (2)  weeks  with  updates  in  writing,  in  form  and  substance  reasonably  acceptable to the Administrative Agent, as to the status of the Indebtedness as described on Exhibit A  hereto (the “Specified Indebtedness”) and disputes related to such Specified Indebtedness, with the next  such update to be delivered on July 31, 2019, no later than 4:00 pm Central Time (or such later date as the  Administrative  Agent  may  agree  to  in  writing  in  its  sole  discretion).   The  Loan  Parties  shall  also  (i)  provide the Administrative Agent at least five (5) Business Days prior written notice of any payment to be      FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 11   502355849 v3 1205867.00001  





 






made in respect of any such Specified Indebtedness, and (ii) promptly (no later than two (2) Business  Days after receipt thereof) provide the Administrative Agent copies of any material filings, judgments,  communications,  notices  of  default,  term  sheets,  letters  of  intent  or  other  documents  that  relate  to  or  impact such disputes or related to such Specified Indebtedness.                                                                (n)    Intercompany  Promissory  Notes.   The  Loan  Parties  hereby  represent  that  no  amounts  are  outstanding  as  of  the  Effective  Date  under  any  of  the  intercompany  promissory  notes  described on Exhibit B hereto (the “Intercompany Promissory Notes”).  The Loan Parties shall provide  the  Administrative  Agent  with  prompt  written  notice  (not  to  exceed  one  Business  Day  after  the  occurrence thereof) of (i) any amounts advanced or becoming outstanding under any of the Intercompany  Promissory  Notes  or  under  any  replacement  note  issued  in  respect  thereof  and  (ii)  of  any  Investments  made pursuant to Section 7.3(c)(v) of the Credit Agreement.  At the request of the Administrative Agent,  the  Loan  Parties  shall  use  commercially  reasonable  efforts  to  provide  the  Administrative  Agent  with  originals  of  replacement  notes in  respect  of  each  of  the  Intercompany  Promissory  Notes  along  with  executed allonges for each such Intercompany Promissory Note, each in form and substance acceptable to  the Administrative Agent.                              (o)    Release  of  Liens.   The  Loan  Parties  shall  continue  to  use  commercially  reasonable efforts to cause the lien listed on Exhibit C hereto (the “Specified Lien”) to be released. The  Loan Parties shall provide the Administrative Agent with written notice not later than five (5) Business  Days after any Loan Party’s knowledge of (i) any change in the status of the Specified Lien or (ii) the  increase of the amount of indebtedness secured by the Specified Lien.                                                               (p)    Litigation  Updates.   The  Loan  Parties  shall  continue  to  provide the  Administrative  Agent  every  two (2)  weeks  with  updates  in  writing,  in  form  and  substance  reasonably  acceptable to the Administrative Agent, as to the status of the litigation described on Exhibit D hereto and  any  other  litigation  that  would  reasonably  be  expected  to  result  in  monetary  judgment(s)  or  relief,  individually or in the aggregate, in excess of $3,500,000 or seeks an injunction or other equitable relief  which  would  reasonably  be  expected  to  have  a  Material  Adverse  Effect  (collectively,  the  “Material  Litigation”), including updates as to the status of any stays, appeals, judgments, and the issuance of bonds  in  connection  with  the  appeal  of  such  Material  Litigation,  along  with  copies  of  all  material  pleadings,  orders, and judgements that any Loan Party or any of its officers, managers, or directors have received  and documentation evidencing the issuance of any such bonds and the stay of such Material Litigation,  with the next such update to be delivered on July 31, 2019, no later than 4:00 pm Central Time (or such  later date as the Administrative Agent may agree to in writing in its sole discretion).                              (q)    NHC Network, LLC.  The Administrative Agent continues to maintain that the  Organizational Documents of NHC Network, LLC (“NHC”) do not prohibit NHC from becoming a Loan  Party  and  that  pursuant  to  Section  6.12(a)  of  the  Credit  Agreement,  NHC  should  be  joined  as  a  Loan  Party, while the Loan Parties continue to maintain that the Organizational Documents of NHC do prohibit  NHC  from  becoming  a  Loan  Party  without  the  consent  of  Elite  Ambulatory  Surgery  Centers,  LLC  (“Elite”) because doing so would give the right to Elite, under the Organizational Documents of NHC, to  put its equity interests in NHC back to NHC and would be detrimental to the business operations of NHC.   The Loan Parties continue to agree to use commercially reasonable efforts to obtain the consent of Elite in  a  manner  that  will  not  be  detrimental  to  the  business  operations  of  NHC  and  will  provide  the  Administrative Agent with updates as to the status of such efforts every two (2) weeks with the next such  update to be delivered on July 31, 2019, no later than 4:00 pm Central Time (or such later date as the  Administrative Agent may agree to in writing in its sole discretion).                                                               (r)    Commercially  Reasonable  Efforts  to  Cause  Excluded  Subsidiaries to  Become  Loan  Parties.   The  Administrative  Agent  delivered a  notice  letter  dated  January  2,  2019  to  Parent  and      FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 12   502355849 v3 1205867.00001  





 






Holdings requiring Parent and Holdings to use commercially reasonable efforts to obtain the consent of  the third-party equityholders of each Excluded Subsidiary that is a Subsidiary of a Loan Party (including,  without limitation, Elite Sinus Spine and Ortho, LLC, Houston Metro Ortho and Spine Surgery Center,  LLC, Elite Center for Minimally Invasive Surgery, LLC, Elite Hospital Management, Athelite Holdings,  LLC,  and  Medical  Ambulatory  Surgical  Suites,  L.P.),  in  each  case  that  is  necessary  to  permit  such  Excluded Subsidiary to become a Guarantor (“Third Party Consent”).  The Loan Parties shall continue to  provide the Administrative Agent every two (2) weeks with (A) updates in writing, in form and substance  reasonably acceptable to the Administrative Agent, as to the status of efforts to obtain the Third Party  Consents together with (B) any documentation supporting whom they have contacted, the responses they  have received and a proposed timeline of when they anticipate obtaining such Third Party Consents, the  next such update to be delivered July 31, 2019, no later than 4:00 pm Central Time (or such later date as  the Administrative Agent may agree to in writing in its sole discretion).                              (s)    [Reserved].                               (t)    [Reserved].                                (u)    [Reserved].                                (v)    Other  Updates.   The  Loan  Parties shall  continue  to provide  the Administrative  Agent every two (2) weeks (or such later date as may be agreed to in writing by the Administrative Agent  in  its  sole  discretion)  with  updates  in  writing  in  respect  of  each  of  the  following,  with  the  next  such  update  to  be  delivered  July  31,  2019,  no  later  than  4:00  pm  Central  Time  (or  such  later  date  as  the  Administrative  Agent  may  agree  to  in  writing  in  its  sole  discretion):  (i) divestiture  or  facility  closure  plans,  by  facility  (including  wind-down  cost  projection  details  and  any  related  wind-down  plan,  as  applicable),  other  than  with  respect  to  divestitures  plans  that  are  otherwise  addressed  in  the  preceding  clauses (t) and (u) of this Fourth Forbearance Agreement, and (ii) details of any staffing or key personnel  retention plans.                                                               (w)    Notices  of  Changes.   The  Loan  Parties  will  provide  the  Administrative  Agent  with  written  notice  not  later  than  five  (5)  Business  Days  after  any  Loan  Party’s  knowledge  of  the  following: (i) any change in insurance payer contracts at any facility, (ii) any updates or developments  with respect to offers or formal negotiations with new potential HOPD partners, and (iii) any updates or  changes relating to divestitures or facility closures.                                                               (x)    Changes to Material Operations.  The Loan Parties shall not shut down or dispose  of material operations of any Loan Party without obtaining the prior written consent of the Administrative  Agent  in  its  sole  discretion;  provided,  that  the  Administrative  Agent  shall  endeavor  to  respond  to  any  request related to the foregoing promptly upon the Loan Parties having provided to the Administrative  Agent,  the  Administrative  Agent's  counsel  and  Berkeley  Research  Group,  LLC  (i)  notices  of  such  proposed change, (ii) all relevant documentation in respect thereof and (iii) the business rationale for such  proposed change.                                                               (y)    Consent.  In the event the Administrative Agent or one or more Lender agree to  enter  into  a  sale  of  its  loans  and  commitments  under  the  Credit  Agreement  and/or  the  Super  Priority  Credit Agreement, the Loan Parties agree that they shall, promptly (and no later than three (3) Business  Days  after  request  therefore)  upon  the  request  of  the  Administrative  Agent  (and  or  the  Super  Priority  Agent, if applicable), execute and deliver to the Administrative Agent (and/or the Super Priority Agent, if  applicable)  an  acknowledgement,  consent  and  release  in  form  and  substance  acceptable  to  the  Administrative Agent (and/or the Super Priority Agent, if applicable) in its sole discretion.                                                      FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 13   502355849 v3 1205867.00001  





 






             (z)    Expenses.  The Loan Parties shall promptly (and in any event no later than three  (3) Business Days after presentation of a demand invoice to such Loan Party in respect thereof) pay all  reasonable  and  documented  expenses  of  the  Administrative  Agent and  BBVA  USA  in  its  capacity  as  Lender incurred or accrued, including the reasonable and documented legal fees and expenses of counsel  for the Administrative Agent and all reasonable and documented fees and expenses of Berkeley Research  Group,  LLC  in  its  capacity  as  Consultant,  for  which  demand  invoices  have  been  delivered  to  the  Borrower (which demand invoices will be submitted to the Loan Parties every two weeks).  The Loan  Parties  agree  that  failure  to  timely  make  any  such  payment  shall  be  deemed  an  immediate  additional  Event of Default under Article VIII of the Credit Agreement and will immediately terminate the Fourth  Forbearance Period.                                                               (aa)   Financial  Covenants.   Upon  finalizing  the  Parent’s  financial  statements  for  the  third  fiscal  quarter  of  2018  (the  “Final  Q3  2018  Financial  Statements”),  the  Borrower  shall  promptly  provide  the  Administrative  Agent  with  a  Compliance  Certificate (in  form  and  substance  reasonably  satisfactory to the Administrative Agent) duly completed by a Senior Officer of Parent and Borrower and  demonstrating the calculation of the financial covenants set forth in Section 7.11 of the Credit Agreement  calculated  as  of  the  last  day  of  the  third  fiscal  quarter  of  2018  based  on  the  Final  Q3  2018  Financial  Statements.                                                                 (bb)   Additional Information.  The Loan Parties shall continue to provide such other  information  regarding  the  business,  financial,  legal  or  corporate  affairs  of  any  Loan  Party  or  any  Subsidiary thereof, or compliance with the terms of the Loan Documents, as the Administrative Agent  may from time to time reasonably request (including, without limitation, to the extent requested by the  Administrative  Agent,  a  daily  reporting  of  the  aggregate  cash  balance  (including  restricted  and  unrestricted cash) for the Loan Parties’ and Contributing Loan Parties’ bank accounts on a consolidated  basis).                                                               (cc)   Mandatory Prepayments.  Notwithstanding anything in the Credit Agreement to  the contrary, the Borrower and each of the other Loan Parties hereby agree that the Loan Parties shall not  have  any  reinvestment  rights  in  respect  of  proceeds  that  are  subject  to  the  mandatory  prepayment  requirements of Section 2.5(b) of the Credit Agreement unless expressly consented to in writing by the  Administrative Agent and such proceeds will be applied to the Obligations as otherwise set forth in the  Credit Agreement.                                                               (dd)   Additional Financial Covenants.  The Loan Parties shall each deliver a report to  the  Administrative  Agent  on  each  Wednesday  (or  such  later  date as  may  be  agreed  to  by  the  Administrative Agent in writing in its sole discretion) showing compliance with the following covenants  as of the last day of the immediately preceding Measurement Period: (i) the aggregate amount of Loan  Parties' actual cash expenses and disbursements during such Measurement Period shall not be more than  110% of the projected cash expenses and disbursements for such Measurement Period as set forth in the  Approved  Budget,  (ii)  the  aggregate  amount  of  Loan  Parties'  actual  cash  receipts  during  such  Measurement  Period  shall  not  be  less  than  90%  of  the  projected cash  receipts  for  such  Measurement  Period as set forth in the Approved Budget, (iii) the Loan Parties' actual surgical cases performed during  such Measurement Period shall not be less than 90% of the projected surgical cases for such Measurement  Period as set forth in the Approved Budget, and on each Determination Date the Borrower shall provide  such reports to the Administrative Agent evidencing such compliance with the foregoing obligations.  The  foregoing  covenant  calculations  shall  exclude  (x)  fees  and  expenses  paid  to  (A)  the  Loan  Parties'  professionals (including attorneys and financial advisors) in connection with any restructuring, and (B)  the  Administrative  Agent's  and  the  Super  Priority  Agent’s  professionals  (including  attorneys  and  attorney's financial advisors) and (y) all debt service payable in connection with the Credit Agreement  and  the  Super  Priority  Credit  Agreement.   “Measurement  Period” shall  mean  the  one  week  period      FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 14   502355849 v3 1205867.00001  





 






immediately  preceding  each  Determination  Date.   The  Loan  Parties  acknowledge  and  agree  that  a  violation of the covenants set forth in this clause (dd) shall be deemed an immediate additional Event of  Default  under  Article  VIII  of  the  Credit  Agreement  and  will  immediately terminate the Fourth  Forbearance Period.                              (ee)   Additional Budget Reporting.  The Loan Parties shall each deliver a report to the  Administrative Agent on each Wednesday (or such later date as may be agreed to by the Administrative  Agent in writing in its sole discretion) provide the Administrative Agent with a comparison of the actual  results of the Loan Parties during the most recent Measurement Period against each line item in the most  recent  Approved  Budget,  which  comparison  shall  be  certified  by the  Chief  Financial  Officer  of  the  Borrower as true, correct and complete.                                                               (ff)   Material Agreements; Disposition of Collateral.  The Loan Parties shall not take  any  action,  including  executing  any  term  sheet,  letter  of  intent  or  other  document  or  agreement:  (i)  designed to shut down or consolidate any existing operations or dispose of any assets (including, without  limitation, accounts receivable, equity interests, equipment or other personal or real property) of any Loan  Parties;  or  (ii)  designed  to  obligate  the  Borrower  or  any  of  the  Loan  Parties  for  payment  of  fees  or  commissions with respect to any financial, legal, collection, or third party services that may in any way  impact  the  value  of  or  realization  from  the  Collateral  (including,  but  not  limited  to,  outstanding  receivables),  in  each  case  without  the  express  prior  written  consent  of  the  Administrative  Agent;  provided, that the Administrative Agent shall endeavor to respond to any request related to the foregoing  promptly upon the Loan Parties having provided to the Administrative Agent, the Administrative Agent's  counsel  and  Berkeley  Research  Group,  LLC  (i)  notices  of  such  proposed  action,  (ii)  all  relevant  documentation  in  respect  thereof  and  (iii)  the  business  rationale  for  the  same.   Without  limiting  the  foregoing,  the  Loan  Parties  shall  not  (a)  settle  or  sell  the  claims  against  payors  in  respect  of  the  outstanding accounts receivable without the prior written consent of the Administrative Agent or (b) shut  down or dispose of any operations of any Loan Party without obtaining the prior written consent of the  Administrative Agent; provided, that the Administrative Agent shall endeavor to respond to any request  related to the foregoing promptly upon the Loan Parties having provided to the Administrative Agent, the  Administrative Agent's counsel and Berkeley Research Group, LLC (i) notices of such proposed action,  (ii) all relevant documentation in respect thereof and (iii) the business rationale for the same.                              (gg)   Retainers.   The  Loan  Parties  shall  (i)  not  use  any  cash  to  pay retainers  to  professionals without the express prior written consent of the Administrative Agent, and (ii) shall on or  before the Effective Date provide the Administrative Agent with a list of all retainers paid to professionals  prior to the Effective Date, detailing (x) the party that received such retainer, (y) the date such retainer  was paid and (z) the amount of such retainer.                                                                 (hh)   Transaction  Covenants.   The  Loan  Parties  shall  comply  with  the transaction  covenants set forth in the Side Letter Agreement, dated as of the date hereof and executed by Parent and  incorporated herein for all purposes (the “Side Letter Agreement”).                                                                (ii)   Contingency Plans.  Each of the Loan Parties agrees to reasonably confer with  the Administrative Agent and its counsel to prepare for a possible consensual filing of the Loan Parties  under the Bankruptcy Code of the United States with a view toward avoiding the disruption of the Loan  Parties’ operations, minimizing costs and ensuring the orderly transition of the Loan Parties assets from  any such proceedings.  If the Loan Parties conclude that such a filing or filings are appropriate, the Loan  Parties shall provide to Administrative Agent and its counsel at least ten (10) calendar days prior to the  commencement by any Loan Party of a voluntary case under any Debtor Relief Laws or of the filing of  one  or  more  petitions  seeking  to  take  advantage  of  any  Debtor  Relief  Laws  (any  such  action,  a  “Bankruptcy  Action”)  (unless  a  shorter  period  of  time  is  necessary  due  to  exigent  circumstances  as      FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 15   502355849 v3 1205867.00001  





 






determined in good faith by the Loan Parties) (i) written notice of the commencement by any Loan Party  of a Bankruptcy Action and (ii) all proposed pleadings to be filed in the first days of any such Bankruptcy  Action,  including,  as  applicable,  all  material  first-day  pleadings,  interim  and  final  financing  and  cash  collateral motions and orders, bid procedures and sale motions and orders, in each case in an effort to  reach  agreement  on  the  form  and  substance  of  drafts  thereof.   The  Loan  Parties  shall  also  reasonably  confer  with  the  Administrative  Agent  and  its  counsel  regarding a  disclosure  statement,  plan  of  reorganization and other documentation expected to be filed in connection with any filings in connection  with any Bankruptcy Action or otherwise under the Bankruptcy Code of the United States.                 (jj)   Failure  to  Comply  with  the  Fourth  Forbearance  Agreement  Covenants.  The  failure by the Loan Parties to comply with any of the requirements set forth in Section 5 shall constitute  an  Event  of  Default  under  Section  8.1(b)  of  the  Credit  Agreement  and  will  result  in  the  immediate  termination of the Fourth Forbearance Period.                     6.    COSTS AND EXPENSES. The Loan Parties hereby reconfirm their obligations under the  Loan Documents, including Section 10.4 of the Credit Agreement, to make payments and reimbursements  in accordance with the terms thereof (including with respect to this Fourth Forbearance Agreement).          7.    REPRESENTATIONS AND WARRANTIES. To induce the Administrative Agent and  the  other  Lenders  to  enter  into  this  Fourth  Forbearance  Agreement,  each  Loan  Party  represents  and  warrants to the Administrative Agent and the other Lenders on and as of the Forbearance Effective Date  that, in each case:          (a)   the representations and warranties of the Loan Parties contained in Article V of the Credit  Agreement and in each other 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 Forbearance 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 other than the Specified Events of  Default or as otherwise subject to this Fourth Forbearance Agreement;          (c)   the execution, delivery and performance by such Loan Party of this Fourth Forbearance  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 Forbearance 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;          (e)   this Fourth Forbearance 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 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;      FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 16   502355849 v3 1205867.00001  





 






      (f)    this  Fourth  Forbearance  Agreement  was  reviewed  by  each  such  Loan  Party,  who  acknowledges  and  agrees  that  such  Loan  Party  (i)  understands  fully the terms  of this  Fourth Forbearance  Agreement and the consequences of the issuance hereof, (ii) has been afforded an opportunity to have this  Fourth Forbearance Agreement reviewed by, and to discuss this Fourth Forbearance Agreement with, such  attorneys and other persons as such Loan Party may wish, and (iii) has entered into this Fourth Forbearance  Agreement of its own free will and accord and without threat or duress;         (g)    this  Fourth  Forbearance  Agreement  and  all  information  furnished  to  the  Administrative  Agent and the Lenders are made and furnished in good faith, for value and valuable consideration and this  Fourth  Forbearance  Agreement  has  not  been  made  or  induced  by  any  fraud,  duress  or  undue  influence  exercised by the Administrative Agent, any Lender, or any other person.         8.     REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE LOAN  DOCUMENTS.          (a)    On and after the Effective Date, each reference in the Credit Agreement to “this Credit  Agreement,” “herein,” “hereto”, “hereof” and “hereunder” or words of like import referring to the Credit  Agreement,  and  each  reference  in  the  Notes  and  each  of  the  other  Loan  Documents  to  “the  Credit  Agreement”,  “thereunder”,  “thereof”  or  words  of  like  import  referring  to  the  Credit  Agreement,  shall  mean and be a reference to the Credit Agreement, as modified by this Fourth Forbearance Agreement.           (b)    The Credit Agreement and each of the other Loan Documents, as specifically modified  by this Fourth Forbearance 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  Fourth  Forbearance  Agreement  shall  not, except as expressly provided herein, 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  any  of  the  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  Loan  Documents,  in  each  case,  as  modified  by  this  Fourth  Forbearance Agreement.           9.    GOVERNING LAW; JURISDICTION.          (a)    THIS   FOURTH     FORBEARANCE       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  FOURTH  FORBEARANCE 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 ADMINISTRATIVE AGENT, ANY LENDER, THE LC ISSUING  LENDER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS  FOURTH  FORBEARANCE  AGREEMENT,        THE  PRIOR  FORBEARANCE  AGREEMENTS, THE  PRIOR  LIMITED  WAIVERS  OR  ANY  OTHER  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     FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 17   502355849 v3 1205867.00001  





 






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 MANNER PROVIDED BY  LAW. NOTHING IN THIS FOURTH FORBEARANCE AGREEMENT OR IN ANY OTHER LOAN  DOCUMENT  SHALL  AFFECT  ANY  RIGHT  THAT  THE  ADMINISTRATIVE  AGENT,            ANY  LENDER OR THE LC ISSUING LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR  PROCEEDING RELATING TO THIS FOURTH FORBEARANCE AGREEMENT OR ANY OTHER  LOAN DOCUMENT AGAINST ANY LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF  ANY JURISDICTION.         10.    COUNTERPARTS. This Fourth Forbearance 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 Fourth Forbearance Agreement shall be effective as delivery of an original executed  counterpart of this Fourth Forbearance Agreement.          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 Fourth Forbearance Agreement or in  the  future  against  the  Administrative  Agent,  the  Swingline  Lender,  the  LC  Issuing  Bank,  the  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) the Super Priority Credit  Agreement,  this  Fourth  Forbearance  Agreement,  the  Prior  Forbearance  Agreements,  the  Prior  Limited  Waivers, the other 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  under  the  Credit  Agreement,  Loan  Documents, the Super Priority Credit Agreement or Super Priority Loan Documents, 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.          12.   ACKNOWLEDGMENTS; RESERVATION OF RIGHTS.          (a)    The  Loan  Parties  hereby  acknowledge  and  agree  that  the  Specified  Defaults  constitute  Events of Default under the Credit Agreement and, in the absence of the agreement to forbear set forth in  Section 2 of this Fourth Forbearance Agreement, permits the Administrative Agent and the Lenders to,  among other things,  take any enforcement action or otherwise exercise any or all rights and remedies      FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 18   502355849 v3 1205867.00001  





 






provided for under the 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 Administrative Agent  and  the  Lenders  expressly  reserves  all  of  its  rights,  powers,  privileges  and  remedies  under  the  Credit  Agreement, other Loan Documents and/or applicable law, including, without limitation, its right at any  time from and after termination or expiration of the Fourth Forbearance Period, (i) to determine not to  make  further  Loans  or  issue  Letters  of  Credit  under  the  Credit Agreement as a result of the Specified  Defaults  and/or  to  terminate  their  Commitments  to  make  Loans  and  issue  Letters  of  Credit,  (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)  and  to  enforce  the  prohibition against incurring, continuing or converting any Loan as or into a Eurodollar Rate Loan, (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 action or otherwise exercise  any or all rights and remedies provided for by any or all of the Credit Agreement, other 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 Administrative  Agent and the 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  Fourth  Forbearance Period in its sole and absolute discretion without further notice.  No oral representations or  course of dealing on the part of the Administrative Agent, any Lender or any of its officers, employees or  agents, and no failure or delay by the Administrative Agent or any Lender with respect to the exercise of  any  right,  power,  privilege  or  remedy  under  any  of  the  Credit  Agreement,  other  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  Administrative  Agent  and  the  Lenders party  hereto  hereby  acknowledge  and  agree  that  to  date,  the  Administrative  Agent  and  the  Lenders  have  not  elected  to  exercise any such rights and remedies available to them.          13.   FINAL  AGREEMENT.  THIS  FOURTH  FORBEARANCE  AGREEMENT  AND  THE  LOAN  DOCUMENTS  REPRESENT  THE  ENTIRE  EXPRESSION  OF  THE  PARTIES  WITH  RESPECT  TO  THE  SUBJECT  MATTER  HEREOF  ON  THE  DATE  THIS  FOURTH  FORBEARANCE AGREEMENT IS EXECUTED.  NEITHER THIS FOURTH FORBEARANCE  AGREEMENT  NOR  THE  LOAN  DOCUMENTS  MAY  BE  CONTRADICTED  BY  EVIDENCE  OF  PRIOR,  CONTEMPORANEOUS  OR  SUBSEQUENT  ORAL  AGREEMENTS  OF  THE  PARTIES.  THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.         14.    WAIVER  OF  JURY  TRIAL.  TO  THE  FULLEST  EXTENT  PERMITTED  BY  APPLICABLE  LAW,  EACH  LOAN  PARTY  HEREBY  IRREVOCABLY  AND  EXPRESSLY  WAIVES  ALL  RIGHT  TO  A  TRIAL  BY  JURY  IN  ANY  ACTION,  PROCEEDINGS          OR  COUNTERCLAIM  (WHETHER  BASED  UPON  CONTRACT,  TORT,  OR  OTHERWISE)  ARISING OUT OF OR RELATING TO THIS FOURTH FORBEARANCE AGREEMENT, THE  PRIOR  FORBEARANCE  AGREEMENTS,  THE  PRIOR  LIMITED  WAIVERS  OR  THE  TRANSACTIONS  CONTEMPLATED  HEREBY  OR  THEREBY  OR  THE  ACTIONS  OF  ANY  LENDER IN THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT THEREOF.      FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 19   502355849 v3 1205867.00001  





 






      15.    WAIVER;  MODIFICATION.  NO  PROVISION  OF  THIS  FOURTH  FORBEARANCE  AGREEMENT  MAY  BE  WAIVED,  CHANGED  OR  MODIFIED,  OR  THE  DISCHARGE THEREOF ACKNOWLEDGED, ORALLY, BUT ONLY BY AN AGREEMENT IN  WRITING  SIGNED  BY  THE  PARTY  AGAINST  WHOM  THE  ENFORCEMENT  OF  ANY  WAIVER, CHANGE, MODIFICATION OR DISCHARGE IS SOUGHT.  NO DELAY                ON THE  PART  OF  THE  ADMINISTRATIVE  AGENT  OF  THE  LENDERS  IN  EXERCISING  ANY  RIGHT,  POWER  OR  PRIVILEGE  HEREUNDER,  SHALL  OPERATE  AS  A  WAIVER  THEREOF,  NOR  SHALL  ANY  WAIVER  OF  ANY  RIGHT,  POWER  OR  PRIVILEGE  HEREUNDER OPERATE AS A WAIVER OF ANY OTHER RIGHT, POWER OR PRIVILEGE  HEREUNDER,  NOR  SHALL  ANY  SINGLE  OR  PARTIAL  EXERCISE  OF  ANY  RIGHT,  POWER OR PRIVILEGE HEREUNDER PRECLUDE ANY OTHER OR FURTHER EXERCISE  THEREOF,  OR  THE  EXERCISE  OF  ANY  OTHER  RIGHT,  POWER  OR  PRIVILEGE  HEREUNDER.   ALL  RIGHTS  AND  REMEDIES  HEREIN  PROVIDED  ARE  CUMULATIVE  AND  ARE  NOT  EXCLUSIVE  OF  ANY  RIGHTS  OR  REMEDIES,  WHICH  THE  PARTIES  HERETO MAY OTHERWISE HAVE AT LAW OR IN EQUITY.          16.   TIME  OF  ESSENCE.   The  parties  to  this  Fourth  Forbearance  Agreement  have  agreed  specifically  with  regard  to  the  times  for  performance  set  forth  in  this  Fourth  Forbearance  Agreement.   Further, the parties to this Fourth Forbearance Agreement acknowledge that the agreements with regard to  the  times  for  performance  are  material  to  this  Fourth  Forbearance  Agreement.   Therefore,  the  parties  agree and acknowledge that time is of the essence to this Fourth Forbearance Agreement.          17.   SURVIVAL.     All representations, warranties, covenants and agreements of the parties  made in this Fourth Forbearance Agreement shall survive the execution and delivery hereof, until such  time as all of the obligations of the parties hereto shall have lapsed in accordance with their respective  terms or shall have been discharged in full.          18.   NO COMMITMENT.  Loan Parties agree that the Administrative Agent and the Lenders  have  not  made  any  commitment  or  other  agreement  regarding  the  Credit  Agreement,  or  the  Loan  Documents, except as expressly set forth in this Fourth Forbearance Agreement, including any agreement  to waive the Specified Events of Default at the stated term of the  Fourth  Forbearance  Period.   Loan  Parties warrant and represent that Loan Parties have not, and will not, rely on any commitment, further  agreement to forbear or other agreement on the part of the Administrative Agent or the Lenders unless  such commitment or agreement is in writing and signed by the Administrative Agent and the Lenders.          19.   HEADINGS.  The headings of the sections and subsections of this Fourth Forbearance  Agreement  are  inserted  for  convenience  only  and  do  not  constitute  a  part  of  this  Fourth  Forbearance  Agreement.          20.   SUCCESSORS AND ASSIGNS. This Fourth Forbearance Agreement will inure to the  benefit of and be binding upon the parties hereto and their respective successors and permitted assigns.          21.   SEVERABILITY.  Any provision of this Fourth Forbearance Agreement held by a court  of competent jurisdiction to be invalid or unenforceable shall not impair or invalidate the remainder of  this Fourth Forbearance Agreement, and the effect thereof shall be confined to the provision so held to be  invalid or unenforceable.                                    [signature pages follow]      FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT   --Page 20   502355849 v3 1205867.00001  





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






 





 






                                                    AS                                  By:                                 Name:                                 Title:   [SIGNATURE   PAGE  TO FOURTII LIMITED CONDITIONAL FORBEARANCE           AGREEMENTI 





 






                                 AUSTRALIANSUPER, as a Lender                                   By: Marathon Asset Management L.P.                                   Its Manager                                                    By:                                    Name:                                    Title:    [SIGNATURE PAGE TO FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT]  





 






  





 






                                 MAM CORPORATE LOAN FUND, as a Lender                                   By: Marathon Asset Management L.P.                                   Its Portfolio Manager                                                    By:                                    Name:                                   Title:    [SIGNATURE PAGE TO FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT]  





 






                                     QUAMVIS SCA SICAV-FIS:CMAB - SIF -    Credit                                       Multi Asset Pool B, as a Lender                                       By: Marathon Asset Management L.P.                                       Its Sub-Investment Manager                                                         By:                                        Name:                                       Title:                                                                                                                                                                                                                                                          [SIGNATURE PAGE TO FOURTH LIMITED CONDITIONAL FORBEARANCE AGREEMENT]  





 






                                                                                SCHEDULE 1                                                                                   CORE ASSETS                                                         1.     Plano Surgical Hospital (Hospital)            2.     First Street / Bellaire Surgical Hospital (Hospital)            3.     First Street Surgical Center (ASC)            4.     Elite Hospital Management (Hospital)            5.     Elite Center for Minimally Invasive Surgery (ASC)            6.     Houston Metro Orthopedic & Spine Surgery-Elite (ASC)            7.     Elite Sinus Spine & Ortho (ASC)            8.     Kirby Surgical Center (Hospital)            9.     Uptown Surgery Center (ASC)            10.     Piney Point Women’s Center (ASC)            11.     P5 Performance (Clinic)            12.     IOM / Peak Neuromonitoring (Ancillary Services)            13.     Anesthesia (Ancillary Services)            14.     First Assist (Ancillary Services)            15.     Scottsdale Liberty Hospital (Hospital)                                                                 502355849 v3 1205867.00001  





 






                                                                                         EXHIBIT A                                                                             SPECIFIED INDEBTEDNESS                                                     1)  Convertible Promissory Note, dated March 8, 2017, executed by Nobilis Vascular Texas,            LLC and made payable to Carlos R. Hamilton III, M.D.          2) Convertible Promissory Note, dated November 15, 2017, executed by Northstar Healthcare            Surgery Center – Houston, LLC and made payable to Elite Ambulatory Surgery Centers,            LLC.     502355849 v3 1205867.00001                                            





 






                                                                                   EXHIBIT B                                                                      INTERCOMPANY PROMISSORY NOTES1       1)  Intercompany Promissory Note, effective December 1, 2017, executed by Elite Sinus Spine and        Ortho, LLC and made payable to the order of Northstar Healthcare Surgery Center – Houston        LLC, in an aggregate principal amount of up to $500,000.00.     2)  Intercompany Promissory Note, effective December 1, 2017, executed by Elite Hospital        Management, LLC and made payable to the order of Northstar Healthcare Surgery Center –        Houston LLC, in an aggregate principal amount of up to $500,000.00.     3)  Intercompany Promissory Note, effective December 1, 2017, executed by $500,000.00 of Elite        Center for Minimally Invasive Surgery, LLC and made payable to the order of Northstar        Healthcare Surgery Center – Houston LLC, in an aggregate principal amount of up to        $500,000.00.     4)  Intercompany Promissory Note, effective December 1, 2017, executed by Houston Metro Ortho        and Spine Surgery Center, LLC and made payable to the order of Northstar Healthcare Surgery        Center – Houston LLC, in an aggregate principal amount of up to $500,000.00.                                                                                              1  The  Loan  Parties  represent  and  warrant  that  no  amounts  are  currently  outstanding  under  any  of  the  listed  Intercompany Promissory Notes.     502355849 v3 1205867.00001                                            





 






                                                                                                                             EXHIBIT C                                         LIEN FILING           UCC Filing against Perimeter Road Surgical Hospital, LLC, as Debtor, in favor of Cardinal         Health, as Secured Party, filed on 2/10/16 with the Arizona Secretary of State (Filing # 2016-        0006161).             502355849 v3 1205867.00001                                            





 






                                                                                        EXHIBIT D                                                                               LITIGATION MATTERS          1)  Houston Metro Ortho and Spine Surgery Center LLC v. Richard Francis, M.D., Juansrich            Ltd., and Juansrich Management, LLC, Cause No. 2015-24460, District Court of Harris            County (215th Judicial District Court)                     2) Leo Van ‘T Hoofd, Individually and On Behalf of All Others Similarly Situated v. Nobilis            Health Corp., Harry Fleming, David Young, and Kenneth J. Klein, United States District            Court, Southern District of Texas, Houston Division.                                                     502355849 v3 1205867.00001                                            





 






                                                                                                                     SIDE LETTER AGREEMENT   This Side Letter Agreement, dated as of July 31, 2019, is entered into by Nobilis Health Corp. on behalf  of the Loan Parties (as defined in the Credit Agreement) in favor of the Administrative Agent.  Unless  otherwise  indicated,  all  capitalized  terms  used  herein  and  not otherwise  defined  herein  shall  have  the  respective  meanings  provided  to  such  terms  in  that  certain  Fourth  Limited  Conditional  Forbearance  Agreement, dated as of the date hereof, by and among the Loan Parties, the Administrative Agent, and the  Lenders.   This Side Letter Agreement amends, restates and replaces that certain Side Letter Agreement dated as of  June  14,  2019,  entered  into  by  Nobilis  Health  Corp.  on  behalf  of  the  Loan  Parties  in  favor  of  the  Administrative Agent.   The Loan Parties agree as follows:                (i)    The  Loan  Parties  shall  continue  the  process  to  seek  a  refinancing  of  the                      Obligations and of the obligations under the Super Priority Credit Agreement (a                      “Refinancing”) or sale of the Assets free and clear of all liens, with the refinance                      amount/purchase price to be paid at closing in cash resulting in the payment in                      full of all super priority obligations (if any) and a discounted payment in cash on                      the  Obligations  that  is  expressly  consented  to  in  writing  by  the  Administrative                      Agent and the necessary Lenders;                  (ii)   The Loan Parties shall continue to (a) maintain and update a virtual data room                      under the administration of SSG, and (b) identify lenders, investors, strategic and                      financial buyers for the Loan Parties' Assets;                (iii)  The Loan Parties shall use their best efforts to set  up a competitive auction or                      other Refinancing or sales process for the Assets acceptable to the Administrative                      Agent;                (iv)   The Loan Parties shall continue to (x) disclose to the Administrative Agent the                      identities  of  those  parties  that  have  executed  an  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 offering  memorandum  soliciting  from  such                      prospective  lenders,  investors  and  purchasers  offers  to  close  a  Refinance  or                      acquire  the  Loan  Parties'  Assets  pursuant  to  a  Refinancing  or  purchase                      transaction,  which  would  provide  at  closing  for  payment  in  full  of  all  super                      priority obligations (if any) and a discounted payment in cash on the Obligations                      that  is  expressly  consented  to  in  writing  by  the  Administrative  Agent  and  the                      necessary Lenders;                (v)    On  or  before  August  23,  2019  (or  such  later  date  as  expressly  agreed  by  the                      Administrative  Agent  in  writing  in  its  sole  discretion),  following  obtaining  the                      written consent of the Administrative Agent and the necessary Lenders, the Loan                      Parties shall close the refinance or sale transaction(s) with respect to the Assets;   502355849 v3 1205867.00001                                            





 






                                                              provided, however, to the extent that SSG and the Loan Parties have secured a                      binding contract from a purchaser of the Assets or a loan refinancing party and                      such  contract  is  acceptable  to  the  Administrative  Agent  and  the Lenders as                      evidenced  by  a  written  consent  thereto,  then  the  August  23,  2019  closing  date                      shall  be  extended  by  the  Administrative  Agent  through  August  30,  2019  to                      accommodate the closing of the sale or refinancing; provided, further that (i) the                      Loan  Parties  have  sufficient  liquidity  to  maintain  their  operations  for  such                      additional  period;  and  (ii)  the  Loan  Parties,  the  Administrative  Agent  and  the                      Required Lenders have agreed in writing to continue to forbear from the exercise                      of remedies during such additional period.           ACCEPTED:                    NOBILIS HEALTH CORP., on behalf of itself and the Loan Parties                              By:                       Daniel Wiggins     Date               Chief Restructuring Officer                                                          502355849 v3 1205867.00001