ATIフィジカルセラピーの適時開示・重要契約・その他

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): June 15, 2023

ATI Physical Therapy, Inc.

(Exact name of registrant as specified in its charter)

Delaware		001-39439		85-1408039
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

790 Remington Boulevard

Bolingbrook, Illinois 60440

(Address of Principal Executive Offices, including Zip Code)

Registrant’s telephone number, including area code: (630) 296-2223

Not Applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2 below):

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Class A Common Stock, $0.0001 par value	ATIP	New York Stock Exchange

Redeemable Warrants, each whole warrant exercisable for one share of Class A Common Stock at an exercise price of $11.50 per share	ATIP WS	New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01

Entry into a Material Definitive Agreement

On June 15, 2023 (the “Closing Date”), ATI Physical Therapy, Inc. (the “Company”) completed a transaction (the “Transaction”) to enhance the Company’s liquidity, as previously described in the Current Report on Form 8-K filed by the Company with the U.S. Securities and Exchange Commission on April 21, 2023 (the “Signing Date 8-K”), and as approved by the Company’s stockholders at the Company’s annual meeting of stockholders held on June 13, 2023.

Signing Date Definitive Documents

On the Closing Date, certain previously executed agreements became effective, including (i) Amendment No. 2 to Credit Agreement (the “Credit Agreement Amendment”), by, among others, ATI Holdings Acquisition, Inc., as borrower (“Opco”), Wilco Intermediate Holdings, Inc. (“Holdings”), Barclays Bank PLC, as administrative agent and issuing bank (the “Administrative Agent”), and the lenders party thereto, which amends that certain Credit Agreement, dated as of February 24, 2022 (the “2022 Credit Agreement” and together with the Credit Agreement Amendment, the “Credit Agreement”), by, among others, Opco, Holdings, the Administrative Agent and the lenders party thereto, (ii) a Second Lien Note Purchase Agreement (the “Original Note Purchase Agreement”), by, among others, the Company, Wilco Holdco, Inc. (“Wilco”), Holdings, Opco, the purchasers from time to time party thereto (the “Purchasers”) and Wilmington Savings Fund Society, FSB, as purchaser representative (the “Purchaser Representative”) and (iii) certain other definitive agreements relating to the Transaction (such documents referred to collectively as the “Signing Date Definitive Documents”).

Closing Date Definitive Documents

In addition, on the Closing Date, the Company entered into or filed with the Secretary of State of the State of Delaware, as applicable, certain other agreements (collectively, the “Closing Date Definitive Documents”) to implement certain terms of the previously described Amended and Restated Transaction Support Agreement (the “A&R TSA”), dated as of April 17, 2023, by and among the Company and certain of the Company’s affiliates, certain of its first lien lenders under the 2022 Credit Agreement, the Administrative Agent, holders of its Series A Senior Preferred Stock (the “Preferred Equityholders”) and holders of the majority of its Class A common stock, par value $0.0001 per share (the “Common Stock”). The Closing Date Definitive Documents include (i) the First Amendment to Note Purchase Agreement (together with the Original Note Purchase Agreement, the “Note Purchase Agreement”), dated as of the Closing Date, by and among the Company, Wilco, Holdings, Opco, the Purchasers party thereto (in such capacity, the “First Amendment Purchasers”) and the Purchaser Representative, pursuant to which the First Amendment Purchasers agreed to purchase, and the Company agreed to issue, an additional $3,243,302.02 aggregate principal amount of Notes, (ii) the Consent to Amendment No. 2 to Credit Agreement, dated as of the Closing Date, by, among others, Opco, Holdings, the lenders party thereto and the Administrative Agent, which amends the Credit Agreement Amendment, (iii) the First Amended and Restated Certificate of Designation of Series A Senior Preferred Stock of the Company, dated as of June 15, 2023 (the “A&R Series A COD”), which, as agreed under the A&R TSA, (A) revised the Preferred Equityholders’ preexisting rights to designate and elect one director to the Company’s board of directors (the “Board”) to provide that the Preferred Equityholders have the right to appoint three additional directors to the Board (resulting in the right of the Preferred Equityholders to appoint a total of four directors to the Board) until such time after the Closing Date that the Lead Purchaser (in each case, as defined in certain of the transaction agreements entered into in connection with the original issuance of the Series A Senior Preferred Stock) ceases to hold at least 50.1% of the Series A Preferred Senior Stock held by it as of the Closing Date, and (B) removed the provision that eliminated the Preferred Equityholders’ director designation rights upon the Company’s achievement of certain amounts of EBITDA; (iv) the First Amendment to that certain Investors’ Rights Agreement, dated as of February 24, 2022, by and among the Company and the Preferred Equityholders listed therein (the “Investors’ Rights Agreement Amendment”), which made changes similar to those under the A&R Series A COD and further provided that (A) all designee directors of the Preferred Equityholders will be subject to consideration by the Board (acting in good faith and consistent with their review of other Board candidates) and (B) at least one director appointed in accordance with the A&R Series A COD be unaffiliated with (and independent of) the Preferred Equityholders and meet the definition of “independent” under the listing standards of the New York Stock Exchange, and by the Securities and Exchange Commission; (v) the Certificate of Designation of Series B Preferred Stock of the Company, dated as of June 15, 2023 (the “Series B COD”), which Series B Preferred Stock is further described below, (vi) the Registration Rights Agreement, dated as of June 15, 2023, by and among the Company and the Purchasers with respect to the resale of shares of Common Stock into which such notes are convertible; and (vii) such other related documents and ancillary agreements required to implement the Transaction.

Issuance of New Second Lien PIK Convertible Notes and Series B Preferred Stock

On the Closing Date, pursuant to the Note Purchase Agreement and the other Signing Date Definitive Documents, the Company (i) exchanged $100.0 million of the aggregate principal amount of the term loans under the 2022 Credit Agreement held by certain of the Preferred Equityholders for $100.0 million aggregate principal amount of a new stapled security, comprised of (A) second lien PIK convertible notes (the “Notes”) and (B) shares of Series B Preferred Stock, par value $0.0001 per share (the “Series B Preferred Stock”), which provide the holder thereof with voting rights such that the holders thereof have the right to vote on corporate matters on an as-converted basis as if the conversion occurred at an initial price per share equal to $12.87, and (ii) issued to the First Amendment Purchasers, and the First Amendment Purchases purchased from the Company, an aggregate principal amount of $3,243,302.02 million in Notes and shares of stapled Series B Preferred Stock.

Holders of the Notes will also receive additional Notes upon the in-kind payment of interest on any outstanding Notes. The Notes are convertible into shares of Common Stock at a fixed conversion price of $12.50 (which reflects the 1-for-50 reverse stock split effective as of June 14, 2023), subject to adjustment.

This discussion of the Transaction does not purport to be complete and is qualified in its entirety by reference to the Signing Date Definitive Documents, which are further described in and certain of which are filed as exhibits to, the Signing Date 8-K, and the Closing Date Definitive Documents, which are filed with this Current Report on Form 8-K and incorporated herein by reference. You should read the Signing Date 8-K, including the exhibits thereto, carefully and in its entirety, in addition to this Current Report on Form 8-K.

Item 2.03

Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant

The information required by this Item 2.03 is set forth under Item 1.01 above and is hereby incorporated by reference in response to this Item.

Item 3.02

Unregistered Sales of Equity Securities

The information required by this Item 3.02 is set forth under Item 1.01 above and is hereby incorporated by reference in response to this Item.

Item 3.03

Material Modification to Rights of Security Holders

The information required by this Item 3.03 is set forth under Item 1.01 above and is hereby incorporated by reference in response to this Item.

Item 5.02

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers

As previously described, pursuant to the terms of the A&R TSA, on the Closing Date, certain corporate governance changes were made, including that John Maldonado, an affiliate of Advent International Corporation, resigned from the Company’s Board and all committees of the Board of which he was a member, effective as of the Closing Date. Andrew McKnight also notified the Board of his intent to resign from the Company’s Board and all committees of the Board of which he was a member, effective as of the Closing Date. Messrs. Maldonado’s and McKnight’s decisions to resign were not a result of any disagreement with the Company or the Board on any matter relating to the Company’s operations, policies or practices.

Effective as of the Closing Date, pursuant to the terms of the A&R TSA and as approved by the Board, Andrew Shannahan and Randy Raisman were appointed to the Board to serve as independent directors with terms expiring at the Company’s 2024 annual meeting of stockholders.

The newly appointed directors were elected pursuant to the rights granted to the Preferred Equityholders, in addition to Daniel Dourney, who is an independent director previously designated by the Preferred Equityholders. The Preferred Equityholders anticipate that they will designate a third director at a later date. There are no other arrangements or understandings between the directors and any other persons pursuant to which they were elected as a director. Other than with regard to the Transaction and rights granted to the Preferred Equityholders, there are no transactions or proposed transactions between the newly appointed directors and the Company that would be required to be disclosed pursuant to Item 404(a) of Regulation S-K.

The newly appointed directors will not receive any compensation for their Board service. In connection with their appointments, the directors will enter into standard indemnification agreements with the Company.

Item 5.03

Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

The information required by this Item 5.03 set forth under Item 1.01 above related to the A&R Series A COD and Series B COD is hereby incorporated by reference in response to this Item.

Item 7.01

Regulation FD Disclosure

On June 15, 2023, the Company issued a press release announcing the closing of the Transaction. A copy of the press release is attached hereto as Exhibit 99.1 and is incorporated herein by reference.

The information in this Item 7.01, including Exhibit 99.1, is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, regardless of any general incorporation language in such filing.

Item 9.01

Financial Statements and Exhibits

(d) Exhibits:

3.1 First Amended and Restated Certificate of Designation of Series A Senior Preferred Stock of ATI Physical Therapy, Inc., filed on June 15, 2023.

3.2 Certificate of Designation of Series B Preferred Stock of ATI Physical Therapy, Inc., filed on June 15, 2023.

10.1 Amended and Restated Transaction Support Agreement, dated April 17, 2023, by and among ATI Physical Therapy, Inc., ATI Holdings Acquisition, Inc., Wilco Intermediate Holdings, and other parties thereto (incorporated by reference to Exhibit 10.1 to the Company’s Form 8-K filed on April 21, 2023).

10.2 Amendment No. 2 to Credit Agreement, dated April 17, 2023, by and among ATI Holdings Acquisition, Inc., Wilco Intermediate Holdings, Inc., HPS Investment Partners, LLC, as Lender Representative and Barclays Bank PLC, as Administrative Agent (incorporated by reference to Exhibit 10.2 to the Company’s Form 8-K filed on April 21, 2023).

10.3 Consent to Amendment No. 2 to Credit Agreement, dated June 15, 2023, by and among ATI Holdings Acquisition, Inc., Wilco Intermediate Holdings, Inc., HPS Investment Partners, LLC, as Lender Representative and Barclays Bank PLC as Administrative Agent.

10.4 Second Lien Note Purchase Agreement, dated April 17, 2023, by and among ATI Physical Therapy, Inc., Wilco Holdco, Inc., Wilco Intermediate Holdings, Inc., ATI Holdings Acquisition, Inc., the Purchasers party thereto and Wilmington Savings Fund Society, FSB (incorporated by reference to Exhibit 10.3 to the Company’s Form 8-K filed on April 21, 2023).

10.5 First Amendment to the Investors’ Rights Agreement, dated February 24, 2022, by and among the Company and the Preferred Equityholders party thereto.

10.6 Registration Rights Agreement, dated June 15, 2023, by and among the Company and certain Preferred Equityholders.

10.7 First Amendment to Note Purchase Agreement, dated June 15, 2023, by and among ATI Physical Therapy, Inc., Wilco Holdco, Inc., Wilco Intermediate Holdings, Inc., ATI Holdings Acquisition, Inc., the Subsidiary Guarantors party thereto, the other Purchasers party thereto and Wilmington Savings Fund Society, FSB.

99.1 Press Release of ATI Physical Therapy, Inc., dated June 15, 2023.

104 Cover Page Interactive Data File (embedded within the Inline XBRL document)

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Date: June 15, 2023	ATI PHYSICAL THERAPY, INC.

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

EX-3.1 2 brhc20054312_ex3-1.htm EXHIBIT 3.1

Exhibit 3.1

FIRST AMENDED AND RESTATED CERTIFICATE OF DESIGNATION

SERIES A SENIOR PREFERRED STOCK

ATI PHYSICAL THERAPY, INC.

FILED IN THE OFFICE OF THE SECRETARY OF STATE OF DELAWARE

ON JUNE 15, 2023

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

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

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

WHEREAS, on February 23, 2022, the Board of Directors approved and adopted that certain Certificate of Designation of Series A Senior Preferred Stock of the Issuer filed in the office of the Secretary of State of Delaware on February 24, 2022 (the “Certificate of Designation”), for purposes of issuing shares of Preferred Stock, with a par value of $0.0001 per share, designated as a series known as “Series A Senior Preferred Stock”, with each such share having voting rights, if any, designations, powers, preferences and relative, participating, optional, special and other rights, if any, and the qualification, limitations and restrictions, as set forth in the Certificate of Designation; and

WHEREAS, on April 16, 2023, pursuant to the authority conferred upon the Board of Directors by the Certificate of Incorporation and Section 151 of the Delaware General Corporation Law, the Board of Directors duly adopted the following resolution amending and restating the provisions of the Certificate of Designation to read in its entirety as set forth herein (this “First A&R Certificate of Designation”), and such resolution has not been modified, and is in full force and effect on the date hereof;

NOW THEREFORE, BE IT RESOLVED, that, pursuant to authority conferred upon the Board of Directors by the Certificate of Incorporation, the Board of Directors hereby confirms the issuance out of the unissued shares of the Preferred Stock a series of Preferred Stock designated as “Series A Senior Preferred Stock” and authorizes for issuance 165,000 shares of the Series A Preferred Stock (as defined below), and hereby fixes the designations, powers, preferences and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions of the Series A Preferred Stock, as follows:

1. Designation.

(a) Series A Preferred Stock. A total of 165,000 shares of Preferred Stock, with a par value of $0.0001 per share, shall be designated as a series known as “Series A Senior Preferred Stock”, with each such share having an initial Stated Value of $1,000 per share (the “Series A Preferred Stock”), which Series A Preferred Stock will have the respective designations, powers, preferences and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions set forth in this First A&R Certificate of Designation.

2. Ranking; Liquidation. With respect to (a) payment of dividends, (b) distribution of assets and (c) all other liquidation, winding up, dissolution, dividend and redemption rights, the Series A Preferred Stock shall rank senior in priority of payment to all Junior Stock in any liquidation, dissolution, winding up or distribution of the Company, and junior to any existing or future secured or unsecured Indebtedness and other liabilities (including trade payables) of the Company.

3. Voting.

(a) Generally. The Holders have no voting rights with respect to the Series A Preferred Stock except as set forth in this First A&R Certificate of Designation, any other Related Agreement, or as otherwise required by law; provided, that the Holders, voting as a separate class, shall have the right to designate and elect four (4) directors to serve on the Board of Directors (the “Series A Directors”) until such time after the Initial Issue Date that the Lead Purchaser ceases to hold at least 50.1% of the Series A Preferred Stock held by it as of the Initial Issue Date.

(b) Voting Power. At the time of any vote or consent of any of the Holders under this First A&R Certificate of Designation, any other Related Agreement or as otherwise required by law, the voting power of one share of Series A Preferred Stock, that is otherwise entitled to vote, as a percentage of the aggregate voting power of all shares of Series A Preferred Stock, shall equal the product of (i) the quotient of (A) the Liquidation Value of such share of Series A Preferred Stock as of such time divided by (B) the aggregate Liquidation Value of all shares of Series A Preferred Stock as of such time multiplied by (ii) 100.

4. Dividends.

(a) Generally. All Dividends, including Compounded Dividends, are prior to and in preference over any dividend on any Junior Stock and shall be declared and fully paid before any dividends are declared and paid, or any other distributions are made, on any Junior Stock. Except as set forth in Section 6, Dividends shall be payable to the Holders as they appear on the records of the Company on the record date for such Dividends, which, to the extent the Board of Directors determines to declare Dividends in respect of any Dividend Period, shall be the date that is 15 days prior to the applicable Dividend Payment Date, and which record date and Dividend Payment Date, to the extent so determined, shall be declared by the Board of Directors during each Dividend Period on the date that is at least 20 days prior to the Dividend Payment Date and five days prior to the record date.

(b) Dividend Calculation. From and after the Initial Issue Date, preferential cumulative dividends (“Dividends”) shall accrue on each share of Series A Preferred Stock outstanding on a daily basis in arrears at the applicable Dividend Rate then in effect. Dividends with respect to each Dividend Period shall be the sum of the dividends calculated on a daily basis during such period. The daily dividend shall be calculated as the product of (i) the Stated Value of each share of the Series A Preferred Stock outstanding as of the Dividend Payment Date for such Dividend Period, and (ii) the applicable dividend rate specified in clause (c) below (the “Dividend Rate”) for each day elapsed during such Dividend Period divided by 360. Dividends will be due and payable quarterly in arrears on each Dividend Payment Date by either (A) a cash payment or (B) to the extent not paid in cash, automatically compounded quarterly on each Dividend Payment Date; provided that, the Company may elect to pay in cash any Dividends due and payable pursuant to the preceding clause (i) only from and after the three-year anniversary of the Initial Issue Date. On each Dividend Payment Date related to a Dividend Period for which the Company does not for any reason (including because payment of any Dividend is prohibited by law) pay in cash all Dividends that accumulated during such Dividend Period, any such unpaid Dividends shall (whether or not earned or declared) become part of the Stated Value of such share as of the applicable Dividend Payment Date (“Compounded Dividends”); provided that, unless the Board of Directors shall otherwise notify the Holders on or prior to the fifth Business Day prior to the applicable Dividend Period, any such unpaid Dividends shall (whether or not earned or declared) become part of the Stated Value of such share as of the applicable Dividend Payment Date pursuant to this Section 4.

(c) Dividend Rate. The Dividend Rate for the Series A Preferred Stock shall initially be 12.00% per annum (the “Base Dividend Rate”); provided that, with respect to any Dividends that are paid in cash on a Dividend Payment Date, the Dividend Rate shall be decreased by 1.00%; provided, further, that the Company shall inform the Holders of the intention to pay in cash prior to the start of the applicable Dividend Period.

(d) Increase to Dividend Rate. The Base Dividend Rate shall be increased by (i) 1.00% per annum on the first day following the fifth (5th) anniversary of the Initial Issue Date and each one (1)-year anniversary thereafter; and (ii) 2.00% per annum upon the occurrence of either an Event of Noncompliance or the failure by the Issuer to redeem in full for cash all of the shares of Series A Preferred Stock upon a Mandatory Redemption Event (a “Redemption Failure”); provided that, in the case of clause (ii) (A) the applicable Dividend Rate shall be so increased only while such Event of Noncompliance is continuing or during the period commencing upon the occurrence of a Redemption Failure and ending on the date on which all shares of Series A Preferred Stock are redeemed, as applicable, and, (B) thereafter, such increase shall not apply to the applicable Dividend Rate at such time as such Event of Noncompliance or Redemption Failure, as applicable, has been cured or is no longer continuing.

5. Redemption.

(a) Redemption Generally.

(i) Optional Redemption.

(A) At any time and from time to time, from and after the Initial Issue Date, to the extent not prohibited by law, the Company may elect to redeem all outstanding shares of Series A Preferred Stock, or any portion thereof in an amount not less than the Minimum Portion, in cash at a redemption price per share of Series A Preferred Stock equal to the Redemption Price on the terms and subject to the conditions set forth in this Section 5 (an “Optional Redemption”).

(B) Any election by the Company pursuant to this Section 5 shall be made by delivery to the Holders of written notice of the Company’s election to redeem, at least 10 days but no more than 60 days prior to the elected Redemption Date (each such date, an “Optional Redemption Date”), which notice shall indicate (1) the number of shares of Series A Preferred Stock being redeemed, (2) the Optional Redemption Date (or, to the extent not ascertainable at the time of such notice, a good faith estimate of the Optional Redemption Date), (3) the Redemption Price, and (4) the manner of and place designated for surrender (as set forth in Section 5(d)) of certificates representing shares of Series A Preferred Stock to be redeemed. Any such notice may, at the Company’s discretion, be subject to one or more conditions precedent. Any redemption that is effected pursuant to this Section 5 shall be made on a pro rata basis among the Holders in proportion to the aggregate Liquidation Value of the shares of Series A Preferred Stock held by such Holders. For the avoidance of doubt, shares of Series A Preferred Stock are not redeemable at the Company’s election except pursuant to this Section 5.

(b) Redemption Price. The total price for each share of Series A Preferred Stock redeemed pursuant to Section 5(a) or Section 6 (the “Redemption Price”) shall be:

(i) with respect to any Redemption Date occurring prior to the First Call Date, an amount per share of Series A Preferred Stock equal to the Make-Whole Amount as of the Redemption Date; and

(ii) with respect to any Redemption Date occurring on or after the First Call Date, an amount per share of Series A Preferred Stock equal to (A)(x) the Liquidation Value of such share Series A Preferred Stock, multiplied by (y) the Redemption Percentage, plus (B) the aggregate accumulated and unpaid Dividends from the last Dividend Payment Date up to and including the Redemption Date.

(c) Rights After a Redemption Date. If any shares of Series A Preferred Stock are not redeemed on the applicable Redemption Date for any reason, until such shares are redeemed, all such unredeemed shares of Series A Preferred Stock shall remain outstanding and entitled to all of the designations, powers, preferences and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions of the Series A Preferred Stock set forth in this First A&R Certificate of Designation, including the right to accumulate and receive Dividends thereon as set forth in Section 4 until the date on which the Company redeems and pays in full the Redemption Price for such Series A Preferred Stock.

(d) Surrender of Certificates. The Holder of each share of Series A Preferred Stock to be redeemed pursuant to this Section 5 shall surrender the certificates representing such shares of Series A Preferred Stock to the Company, duly assigned or endorsed for transfer to the Company (or accompanied by duly executed share powers relating thereto), or, in the event the certificates are lost, stolen, missing, destroyed or mutilated, shall deliver an affidavit of loss, at the principal executive office of the Company or such other place as the Company may from time to time designate by notice to the Holders, and each surrendered certificate shall be canceled and retired and the Company shall thereafter make payment of the Redemption Price by certified check or wire transfer of immediately available funds; provided that to the extent such certificates represent a greater number of share of Series A Preferred Stock than the shares of Series A Preferred Stock actually redeemed, such Holder shall, in addition to receiving the payment of the Redemption Price for each redeemed share of Series A Preferred Stock, receive a new share certificate for the shares of Series A Preferred Stock not so redeemed.

(e) Redemption Preference. Any redemption under this Section 5 or Section 6 shall be in preference to and in priority over any dividend, distribution or redemption rights of any Junior Stock.

6. Mandatory Redemption Event.

(a) Redemption. Upon any (i) Liquidation Event, (ii) Bankruptcy Event, (iii) Change of Control Event or (iv) Forced Transaction Event (together with any Liquidation Event, Bankruptcy Event, Change of Control Event, each a “Mandatory Redemption Event”), the Company shall, to the extent not prohibited by law, redeem all of the shares of Series A Preferred Stock (such redemption, a “Mandatory Redemption”) on the applicable Redemption Date pursuant to Section 6(b) (the “Mandatory Redemption Date”), in cash at a price per share of Series A Preferred Stock equal to the then applicable Redemption Price of such share under Section 5(b). If, on the Mandatory Redemption Date, the Company is prohibited by law from redeeming all shares of Series A Preferred Stock held by Holders, then the Company shall redeem such Series A Preferred Stock to the fullest extent not so prohibited. Any shares of Series A Preferred Stock that are not redeemed pursuant to the immediately preceding sentence shall remain outstanding and entitled to all of the designations, powers, preferences and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions of the Series A Preferred Stock set forth in this First A&R Certificate of Designation, including the right to continue to accumulate and receive Dividends thereon as set forth in Section 4 and, under such circumstances, the redemption requirements provided hereby shall be continuous, so that at any time thereafter when the Company is not prohibited by law from redeeming such shares of Series A Preferred Stock, the Company shall immediately redeem such shares of Series A Preferred Stock at a price per share of Series A Preferred Stock equal to the Redemption Price as of the Mandatory Redemption Date in accordance with Section 5 and this Section 6, together with payment of an amount equal to the product of (i) the additional accumulated and unpaid Dividends following the Mandatory Redemption Date multiplied by (ii) the Redemption Percentage applicable as of the Mandatory Redemption Date (which Redemption Percentage shall be, for the avoidance of doubt, 106.0% prior to the First Call Date).

(b) Redemption Mechanics.

(i) Prior to commencing a Mandatory Redemption, the Company shall send a notice (the “Mandatory Redemption Notice”) to each Holder, which shall state:

(A) that a Mandatory Redemption is being made and that all of such Holder’s shares of Series A Preferred Stock will be redeemed pursuant to this Section 6;

(B) (1) the Redemption Price, (2) the bank or trust company with which the aggregate Redemption Price shall be deposited on or prior to the Mandatory Redemption Date and (3) the Mandatory Redemption Date (or, to the extent not ascertainable at the time of such notice, a good faith estimate of the Mandatory Redemption Date); and

(ii) On or before any Mandatory Redemption Date, the Company shall deposit the amount of the applicable aggregate Redemption Price with a bank, trust company or exchange agent having an office in New York City irrevocably in trust for the benefit of such Holders. On the Mandatory Redemption Date, the Company shall immediately cause to be paid in cash or public securities (or a combination thereof) the applicable Redemption Price for such shares of Series A Preferred Stock to such Holders. Upon such payment in full, such shares of Series A Preferred Stock will be deemed to have been redeemed, whether or not the certificates for such shares of Series A Preferred Stock have been surrendered for redemption and canceled, and Dividends with respect to such redeemed shares of Series A Preferred Stock shall cease to accumulate and all designations, rights, preferences, powers, qualifications, restrictions and limitations of such redeemed shares of Series A Preferred Stock shall forthwith terminate.

(iii) In case fewer than all shares of Series A Preferred Stock represented by any certificate are redeemed in accordance with this Section 6, new certificates shall be issued representing the unredeemed shares of Series A Preferred Stock without cost to the Holder thereof.

(iv) The Company shall comply, to the extent applicable, with the requirements of Section 14 of the Exchange Act and any other securities laws (or rules of any exchange on which any Series A Preferred Stock are then listed) in connection with a redemption under this Section 6. To the extent there is any conflict between the notice or other timing requirements of this Section 6 and the applicable requirements of Section 14 of the Exchange Act, Section 14 of the Exchange Act shall govern.

(c) Company Efforts. The Company shall take such actions as are necessary to give effect to the provisions of Section 5 and this Section 6, including (i) in the case of a Change of Control Event, irrevocably and unconditionally offering each Holder the right to require the Company to redeem all shares of Series A Preferred Stock held by such Holder in connection with and as a condition to such Change of Control Event for a price per share of Series A Preferred Stock in cash equal to the Redemption Price and (ii) in the event the Company is prohibited by law from redeeming or is otherwise unable to redeem any shares of Series A Preferred Stock in connection with any Mandatory Redemption Event on the applicable Redemption Date, taking any action necessary or appropriate to remove promptly any impediments to its ability to redeem such shares of Series A Preferred Stock required to be so redeemed, including (A) to the extent not prohibited by law, reducing the stated capital of the Company or revaluing the assets of the Company to their fair market values under Section 154 of the DGCL if such revaluation would create surplus sufficient to make all or any portion of such Mandatory Redemption Event payment, and (B) borrowing the cash necessary to make such Mandatory Redemption Event payment to the extent it would not result in an Event of Noncompliance. In the event of any Change of Control Event in which the Company is not the continuing or surviving corporation or entity, proper provision shall be made so that such continuing or surviving corporation or entity shall agree to carry out and observe the obligations of the Company under this First A&R Certificate of Designation.

7. Exit Rights.

(a) If any Event of Noncompliance shall occur, then, for so long as it is continuing, the Majority Holders shall have the right, exercisable by written notice to the Company (a “Sale/Refinancing Demand”), to require the Company to commence and to engage in a process (the “Sale/Refinancing Process”) in good faith within 30 days of receipt of the Sale/Refinancing Demand to consummate a transaction (the form of which would be determined by the Board of Directors, as applicable, in good faith) in which the Net Proceeds resulting therefrom would be used to redeem the shares of Series A Preferred Stock then outstanding at the then applicable Redemption Price in accordance with the terms hereof, which transaction may include:

(i) a refinancing of the Series A Preferred Stock (a “Forced Refinancing”);

(ii) a sale of the Company and its Subsidiaries, including a sale of all or substantially all of the assets, or a sale of certain assets, lines of business or divisions, in each case, of the Company and its Subsidiaries (a “Forced Sale”); or (iii) a transaction other than a Forced Sale or a combination of the transactions described in the foregoing clauses (i) and (ii) (together with a Forced Refinancing and Forced Sale, each a “Forced Transaction”).

The Company shall, within 30 days of receipt of the Sale/Refinancing Demand, commence a comprehensive Sale/Refinancing Process in good faith and shall thereafter use its commercially reasonable efforts, subject to applicable law, to promptly consummate a Forced Transaction in accordance with this Section 7, including (A) selecting a nationally-recognized investment banking firm experienced in similar transactions in the industry in which the Company and its Subsidiaries are engaged to assist the Company with respect to a Forced Transaction (the “Investment Bank”), (B) cooperating with the Investment Bank and the Holders in the evaluation of such Forced Transactions, (C) facilitating a customary due diligence process in respect of any such Forced Transaction, including establishing, populating and maintaining an online “data room,” (D) executing customary documents consistent with the consummation of any such Forced Transaction, (E) making required governmental filings and using commercially reasonable efforts to obtain required third party consents necessary to consummate any such Forced Transaction and (F) providing any financial or other information or audit reasonably required by the proposed acquirer’s or lender’s financing sources, and shall consult with the Supermajority Holders with respect thereto. The Company shall direct the Investment Bank to establish procedures reasonably acceptable to the Majority Holders to effect an orderly Forced Transaction with the objective of achieving the highest practicable value for the Company within a reasonable period of time. The process undertaken in furtherance of such Sale/Refinancing Demand shall be conducted under the direction of the Board of Directors of the Company.

Notwithstanding anything to the contrary set forth herein, (1) at any time prior to the consummation of a Forced Transaction, the Majority Holders may withdraw such Sale/Refinancing Demand, in their sole discretion, by providing written notice of such withdrawal to the Board of Directors (a “Withdrawal Event”), (2) no Sale/Refinancing Demand shall be exercised if Holders of less than two-thirds of the then-outstanding shares of Series A Preferred Stock (which must include the Lead Purchaser for so long as it holds at least 50.1% of the shares of Series A Preferred Stock held by it as of the Initial Issue Date) (the “Supermajority Holders”) consent to the exercise of the Sale/Refinancing Demand, and (3) a Sale/Refinancing Demand may not be exercised on more than one occasion in any twelve (12)-month period. Any shares of Series A Preferred Stock held by Advent shall be excluded from the numerator and the denominator for purposes of determining whether the Supermajority Holders is achieved.

(b) Notwithstanding anything to the contrary in this Section 7(b), if (i) the Issuer has breached its obligations set forth in Section 7(a), a Forced Transaction that results in the redemption of all of the shares of Series A Preferred Stock at the applicable Redemption Price is not consummated within twelve (12) months of the receipt by the Company of any Sale/Refinancing Demand, or less than all of the shares of Series A Preferred Stock have been redeemed at the applicable Redemption Price within twelve (12) months of the receipt by the Company of any Sale/Refinancing Demand, and (ii) a Withdrawal Event has not occurred, then, upon the consent or approval of the Supermajority Holders, as evidenced by written notice to the Company, the Holders shall have the right, by written notice to the Company, to direct a process in good faith to refinance the then outstanding shares of Series A Preferred Stock and/or consummate a Forced Sale; provided, that, in the case of a Forced Refinancing, such Forced Refinancing must be on terms reasonably acceptable to the Company and, in the case of a Forced Sale, such Forced Sale must be on terms that maximize the equity value of the Company. The Company and the Company’s Board of Directors shall (and shall request that the Company’s Affiliates) reasonably cooperate with the Supermajority Holders and the Investment Bank in such process and, subject to requirements under applicable law, the Company shall use its commercially reasonable to consummate a Forced Transaction as a result of such process.

(c) Promptly after, and no later than five Business Days following the date upon which the Company obtains actual knowledge thereof, the Company shall notify the Holders of the occurrence of any Event of Noncompliance (or any event that, if not timely cured, would constitute an Event of Noncompliance).

8. Negative Covenants.

(a) For so long as any shares of Series A Preferred Stock are outstanding, without the prior affirmative vote or written consent of the Majority Holders, the Company shall not (either directly or indirectly, including by merger, consolidation, operation of law or otherwise):

(i) issue any new Equity Interests of the Company, or cause or permit any of its the Restricted Subsidiaries to issue any new Equity Interests, in each case, ranking (with respect to dividends or distributions or entitlement on a return of capital or assets in a winding up or otherwise) pari passu with, or senior to, the Series A Preferred Stock; provided, however, notwithstanding anything to the contrary herein, the Company shall be permitted to issue shares of Preferred Stock, with a par value of $0.0001 per share, designated as a series known as “Series B Senior Preferred Stock” (the “Series B Preferred Stock”), pursuant to and in accordance with the Second Lien Note Purchase Agreement;

(ii) incur Indebtedness for borrowed money or Liens in order to secure any Indebtedness, in each case, except for (A) the Second Lien Indebtedness, (B) Guarantees of Indebtedness or other obligations of the Borrower or any of its Restricted Subsidiaries incurred in connection with any First Lien Facility and/or any Second Lien Indebtedness, (C) Indebtedness owed to or from any Wholly-Owned Subsidiary and/or (D) Permitted Liens;

(iii) cause or permit the Borrower or any of its Restricted Subsidiaries to incur Indebtedness or Liens in order to secure any Indebtedness, in each case, except for Permitted Restricted Subsidiary Indebtedness and Permitted Restricted Subsidiary Liens;

(iv) make any Restricted Payment, other than any Restricted Payment as a result of Optional Redemption, Mandatory Redemption, Dividend or any other payments with respect to the shares of Series A Preferred Stock in accordance with this First A&R Certificate of Designation;

(v) make or hold, or cause or permit any Restricted Subsidiary to make or hold, any Investment that is not a Permitted Investment;

(vi) enter, or cause or permit any Restricted Subsidiary to enter, into any transaction with any Affiliate of the Company or its Subsidiaries involving payment in excess of $1,000,000 in any individual transaction (it being understood that the threshold set forth above shall not apply to exempt more than $5,000,000 of payments from the application of this clause (vi)), on terms that are less favorable to the Company or such Restricted Subsidiary, as the case may be (as reasonably determined by the Company), than those that might be obtained at the time in a comparable arm’s-length transaction from a Person who is not an Affiliate, other than Permitted Affiliate Transactions;

(vii) consummate any Change of Control unless, upon consummation of such Change of Control, the Series A Preferred Stock is redeemed in full in cash in accordance with this First A&R Certificate of Designation;

(viii) consummate, or cause or permit any Restricted Subsidiary to consummate, any Asset Disposition that is not a Permitted Asset Disposition; provided, that no later than the fifth Business Day following the receipt of net proceeds in respect of any Prepayment Asset Disposition in excess of $15,000,000 in the aggregate, the Company or the applicable Restricted Subsidiary shall apply the proceeds of such sale to repay Indebtedness (other than intercompany Indebtedness); provided, further, that if no Event of Noncompliance then exists, the Company and its Restricted Subsidiaries shall not be required to make a mandatory prepayment under this clause in respect of such proceeds to the extent (A) such proceeds are reinvested in the business of the Company and its Restricted Subsidiaries within 365 days following receipt thereof, or (B) the Company or any of its Restricted Subsidiaries has committed to so reinvest the such proceeds during such 365-day period and the such proceeds are so reinvested within 180 days after the expiration of such 365-day period; it being understood that if the proceeds have not been so reinvested prior to the expiration of the applicable period, the Company or its applicable Restricted Subsidiary shall promptly repay Indebtedness with the amount of such proceeds not so reinvested as set forth above (without regard to the immediately preceding proviso);

(ix) alter the designation of any Subsidiary that is a Restricted Subsidiary as of the Initial Issue Date to be an Unrestricted Subsidiary or make any Investment in or Restricted Payment in respect of any Unrestricted Subsidiary; provided, that the Company may at any time after the Initial Issue Date designate (or redesignate) any subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a Restricted Subsidiary if: (A) immediately after giving effect to such designation, no Event of Noncompliance exists; (B) as of the date of the designation thereof, such Unrestricted Subsidiary does not own any Capital Stock in any Restricted Subsidiary (unless such Restricted Subsidiary is also designated as an Unrestricted Subsidiary) or hold any Indebtedness of or any Lien on any property of the Company or its Restricted Subsidiaries (unless the Company or such Restricted Subsidiary is permitted to incur such Indebtedness or grant such Liens in favor of such Unrestricted Subsidiary pursuant to Sections 6.01 and 6.02 of the Credit Agreement as in effect on the First Amendment Effective Date); (C) at the time of any designation of a Restricted Subsidiary as an Unrestricted Subsidiary, the aggregate amount of the fair market value (as determined by the Company in good faith) of the assets of such subsidiary, together with the aggregate amount of the fair market value (as determined by the Company in good faith) of all assets transferred from Restricted Subsidiaries to Unrestricted Subsidiaries prior to such time, do not exceed $10,000,000; (D) no agreements evidencing Acceptable Practice Management Arrangements and/or Management Services Agreement or Material Intellectual Property may be transferred to an Unrestricted Subsidiary; and (E) at the time any Restricted Subsidiary is designated as an Unrestricted Subsidiary, such Restricted Subsidiary does not own any Material Intellectual Property or be party to an Acceptable Practice Management Arrangement. The designation of any subsidiary as an Unrestricted Subsidiary shall constitute an Investment by the Company (or its applicable Restricted Subsidiary) therein at the date of designation in an amount equal to the portion of the fair market value of the net assets of such subsidiary attributable to the Company’s (or its applicable Restricted Subsidiary’s) equity interest therein as reasonably estimated by the Company (and such designation shall only be permitted to the extent such Investment is also permitted under Section 6.06 of the Credit Agreement as in effect on the Initial Issue Date). The designation of any Unrestricted Subsidiary as a Restricted Subsidiary shall constitute the making, incurrence or granting, as applicable, at the time of designation of any then-existing Investment, Indebtedness or Lien of such subsidiary, as applicable; provided, that upon any re-designation of any Unrestricted Subsidiary as a Restricted Subsidiary, the Company shall be deemed to continue to have an Investment in the resulting Restricted Subsidiary in an amount (if positive) equal to (1) the Company’s “Investment” in such Restricted Subsidiary at the time of such re-designation, less (2) the portion of the fair market value of the net assets of such Restricted Subsidiary attributable to the Company’s equity therein at the time of such re-designation; (x) amend, alter or repeal any provision of the Governing Documents of the Company or any of the Restricted Subsidiaries in a manner that is material and adverse to the Holders; it being understood and agreed that the amendments of the Governing Documents contemplated by the Transaction Support Agreement do not violate this clause (x);

(xi) change, in any material respect, the nature of the Company’s and the Restricted Subsidiaries’ businesses, taken as a whole, as of the Initial Issue Date, in each case other than to engage in (A) similar, incidental, complementary, ancillary or related businesses and (B) such other lines of business to which the Majority Holders may consent (such consent not to be unreasonably withheld, conditioned or delayed);

(xii) allow any Subsidiary of the Company that is a direct or indirect parent of Holdings or Successor Holdings (or the immediate parent of the Borrower or Successor Borrower) (each such Person, an “Intermediate Holdings”) to (A) incur any Indebtedness (other than Indebtedness incurred by (1) Holdings pursuant to (x) the Loan Guaranty (as defined in the Credit Agreement as in effect on the Initial Issue Date) and Guarantees by Holdings of Indebtedness or other obligations of the Borrower and/or any Restricted Subsidiary that is otherwise permitted under the Credit Agreement (as in effect on the First Amendment Effective Date) and this First A&R Certificate of Designation) and, in each case, corresponding obligations under any First Lien Facility and (y) the Note Guaranty (as defined in the Second Lien Note Purchase Agreement) and Guarantees by Holdings of Indebtedness or other obligations of the Borrower and/or any Restricted Subsidiary that is otherwise permitted under the Second Lien Note Purchase Agreement, and, in each case, corresponding obligations under any Second Lien Indebtedness and (2) any Intermediate Holdings pursuant to (x) the Parent Loan Guaranty (as defined in the Credit Agreement as in effect on the Initial Issue Date) and Guarantees by Intermediate Holdings of Indebtedness or other obligations of the Borrower and/or any Restricted Subsidiary that is otherwise permitted under the Credit Agreement (as in effect on the First Amendment Effective Date) and this First A&R Certificate of Designation) and, in each case, corresponding obligations under any First Lien Facility and (y) the Note Guaranty (as defined in the Second Lien Note Purchase Agreement) and Guarantees by Intermediate Holdings of Indebtedness or other obligations of the Company and/or any Subsidiary of the Company that is otherwise permitted under the Second Lien Note Purchase Agreement and, in each case, corresponding obligations under any Second Lien Indebtedness, (B) create or suffer to exist any Lien on any asset now owned or hereafter acquired by it (other than (1) Liens created by Holdings under the (x) Collateral Documents (as defined in the Credit Agreement as in effect on the First Amendment Effective Date) and, in each case, Liens securing obligations under any other First Lien Facility and (y) the Collateral Documents (as defined in the Second Lien Note Purchase Agreement as in effect on the First Amendment Effective Date) and, in each case, Liens securing obligations under any other Second Lien Indebtedness, (2) Liens on assets of Holdings securing Indebtedness of the type permitted to be incurred under clause (A) above, (3) other Liens on assets of Holdings of the type permitted under the Credit Agreement as in effect on the Initial Issue Date (other than in respect of Indebtedness for borrowed money, (4) Liens created by Intermediate Holdings under the (x) Collateral Documents (as defined in the Credit Agreement as in effect on the First Amendment Effective Date) and, in each case, Liens securing obligations under any other First Lien Facility and (y) the Collateral Documents (as defined in the Second Lien Note Purchase Agreement as in effect on the First Amendment Effective Date) and, in each case, Liens securing obligations under any other Second Lien Indebtedness, (5) Liens on assets of Intermediate Holdings securing Indebtedness of the type permitted to be incurred under clause (A) above and (6) other Liens on assets of Intermediate Holdings of the type permitted under the Second Lien Purchase Agreement as in effect on the First Amendment Effective Date (other than in respect of Indebtedness for borrowed money)), and (C) consolidate or amalgamate with, or merge with or into, or convey, sell or otherwise transfer all or substantially all of its assets to, any Person; provided, that, so long as no Event of Noncompliance exists or would result therefrom, such Intermediate Holdings may consolidate or amalgamate with, or merge with or into, any other Person (other than the Company or any of its Subsidiaries) so long as Intermediate Holdings is the continuing or surviving Person and it is in compliance with this clause (xii); or (xiii) conduct, transact or otherwise engage in any business or operations other than (A) the direct or indirect ownership and/or acquisition of the Equity Interests of any Subsidiary, (B) the maintenance of its legal existence, including the ability to incur fees, costs and expenses relating to such maintenance, (C) participating in tax, accounting and other administrative matters as a member of the consolidated group of the Company and its Subsidiaries, (D) the performance of its obligations under and in connection with this First A&R Certificate of Designation and any documentation governing any Series A Preferred Stock issued in compliance with this First A&R Certificate of Designation and the other agreements and transactions contemplated thereby and hereby, (E) any public offering of its or any of its direct or indirect parent’s common stock or any other issuance or registration of its Equity Interests for sale or resale not prohibited by this First A&R Certificate of Designation, including the costs, fees and expenses related thereto, (F) making any Restricted Payment or dividend or distribution or other transaction similar to a Restricted Payment and not otherwise prohibited by this First A&R Certificate of Designation, or any Investment in any Restricted Subsidiary (including, for the avoidance of doubt, the acquisition thereof), (G) incurring fees, costs and expenses relating to overhead and general operating including professional fees for legal, tax and accounting issues and paying taxes, (H) providing indemnification to officers and members of the Board of Directors, (I) activities incidental to the consummation of the Transactions, (J) guarantees of ordinary course obligations that do not constitute Indebtedness, (K) the performance of its obligations under and in connection with the certificate of designation for the Series B Preferred Stock and any documentation governing any Series B Preferred Stock issued in compliance with the Second Lien Note Purchase Agreement and the other agreements and transactions contemplated thereby and (L) activities incidental to the businesses or activities described in clauses (A) to (L) of this clause (xiii).

For so long as any Series A Preferred Stock is outstanding, the Company and each Intermediate Holdings shall own, directly or indirectly, all of the outstanding Equity Interests of the Borrower.

(b) In the event of (i) any reclassification, statutory exchange, merger, consolidation or other similar business combination of the Company with or into another Person, in each case, pursuant to which at least a majority of the common Capital Stock (but not the Series A Preferred Stock) is changed or converted into, or exchanged for, securities or other property of another Person, (ii) any reclassification, recapitalization or reorganization of the common Capital Stock (but not the Series A Preferred Stock) into securities of another Person or (iii) the conveyance, sale, lease, assignment, transfer or other disposition of all or substantially all of the Company’s assets or other properties (taken as a whole) (a “Reorganization Event”), each share of Series A Preferred Stock outstanding immediately prior to such Reorganization Event will, without the consent of the Holders and subject to all the other terms hereof, remain outstanding unless redeemed in accordance with this First A&R Certificate of Designation in connection with such Reorganization Event; provided, that in no event will the Company enter into or effect any such Reorganization Event if it would materially and adversely affect the rights of Holders. This provision shall similarly apply to successive Reorganization Events. To the extent that the Company is not the surviving or resulting entity in such Reorganization Event or will be dissolved in connection with such Reorganization Event, the Company shall not consummate any such transaction constituting a Reorganization Event unless proper provision shall be made in the agreements governing such Reorganization Event for the assumption of the obligations of the Company by such surviving or resulting entity in such Reorganization Event in accordance with this provision.

(c) Actions Taken without Approval. Any of the actions or omissions of the Company prohibited by this Section 8 (if taken without the prior written consent of the Majority Holders approving such action or omission) shall be ultra vires, null and void ab initio and of no force or effect. The Company shall not, and shall cause its Subsidiaries not to (either directly or indirectly, including by merger, consolidation, operation of law or otherwise), by amendment, modification, repeal, restatement, supplementation, termination or waiver of, or consent to any departure by the Company or any of its Subsidiaries from, any provision of this First A&R Certificate of Designation or any other Related Agreement or through any Mandatory Redemption Event, any Change of Control, any disposition or any other reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, agreement or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed under this First A&R Certificate of Designation or any other Related Agreement.

9. Amendments and Waivers.

(a) So long as any shares of Series A Preferred Stock remain outstanding, and unless a greater percentage is required by law, the Issuer shall not, without the affirmative vote or written consent of the Majority Holders, voting separately as one class, amend, alter or change the rights, preferences or privileges of the shares of Series A Preferred Stock, or waive the compliance of any of the covenants included in this First A&R Certificate of Designation or the Investors’ Rights Agreement; provided, however, that the Issuer shall not effect any of the following matters without the consent of each Holder that is adversely affected thereby:

(i) reduce the Dividend Rate or alter the timing or method of payment of any Dividends pursuant to Section 4;

(ii) reduce the Stated Value;

(iii) alter any of the redemption provisions set forth in Sections 5 and 6, other than with respect to notice periods and other immaterial provisions; and

(iv) alter any terms applicable to any Mandatory Redemption.

(b) Any shares held by Advent shall be excluded from the numerator and the denominator for purposes of determining whether the Majority Holders is achieved.

10. Cancellation; No Conversion Rights. No shares of Series A Preferred Stock acquired by the Company by reason of redemption, purchase or otherwise shall be reissued or held in treasury for reissuance, and the Company shall take all necessary action to cause such shares of Series A Preferred Stock immediately to be canceled, retired and eliminated from the shares of Series A Preferred Stock which the Company shall be authorized to issue. The Holders have no rights to convert any Series A Preferred Stock into any other Equity Interests of the Company.

11. Rights and Remedies of Holders.

(a) The various provisions set forth under this First A&R Certificate of Designation are for the benefit of the Holders and, subject to the terms and conditions hereof and applicable law, will be enforceable by them, including by one or more actions for specific performance.

(b) Except as expressly set forth herein, all remedies available under this First A&R Certificate of Designation, at law, in equity or otherwise, will be deemed cumulative and not alternative or exclusive of other remedies. The exercise by any Holder of a particular remedy will not preclude the exercise of any other remedy.

12. Definitions. As used in this First A&R Certificate of Designation, the following terms shall have the meanings specified below:

“2021 Equity Incentive Plan” shall have the meaning assigned to such term in Section 8(a)(iv).

“Acceptable Practice Management Arrangements” has the meaning set forth in the Credit Agreement as in effect on the Initial Issue Date.

“Advent” shall mean Advent International Corporation, together with its controlled Affiliates and funds managed or advised by it or any or its respective controlled Affiliates (other than any portfolio company).

“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.

“Affiliated Practice” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“Alternative Forced Transaction” means a transaction other than a Forced Refinancing or a Forced Sale, the Net Proceeds of which shall be used to redeem the Series A Preferred Stock in full at the then applicable Redemption Price in accordance with Section 5.

“APC Manager” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“Asset Disposition” means: (a) the voluntary sale, conveyance, transfer or other disposition, whether in a single transaction or a series of related transactions of property or assets (including by way of a sale and leaseback transaction) of the Company or any Restricted Subsidiary (in each case other than Capital Stock of the Company) (each referred to in this definition as a “sale”; the term “sale” as a verb has a corresponding meaning), having a fair market value in excess of $2,000,000 in a single transaction or a series of related transactions and in excess of $5,000,000 in the aggregate for all such transactions; or (b) the issuance or sale of Capital Stock of any Restricted Subsidiary (other than issuances or sales to the Company or any Restricted Subsidiary); in each case, whether in a single transaction or a series of related transactions.

“Available Excluded Contribution Amount” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“Bankruptcy Event” means:

(1) an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking (i) relief in respect of the Company or any of its Subsidiaries (other than Immaterial Subsidiaries), or of all or substantially all of the property or assets of the Company or any of its Subsidiaries (other than Immaterial Subsidiaries), under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any of its Subsidiaries (other than Immaterial Subsidiaries) or for all or substantially all of the property or assets of the Company or any of its Subsidiaries (other than Immaterial Subsidiaries), or (iii) the winding-up or liquidation of the Company or any of its Subsidiaries (other than Immaterial Subsidiaries), and in the case of any proceeding described in this clause (1), such proceeding or petition shall continue in effect and undismissed or unstayed for 90 days or an order or decree approving or ordering any of the foregoing shall be entered; or

(2) the Company or any of its Subsidiaries (other than Immaterial Subsidiaries) shall (i) voluntarily commence any proceeding or file any petition seeking relief under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or the filing of any petition described in clause (1) above, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Company or any of its Subsidiaries (other than Immaterial Subsidiaries) or for all or substantially all of the property or assets of the Company or any of its Subsidiaries (other than Immaterial Subsidiaries), (iv) make a general assignment for the benefit of creditors, and in the case of any proceeding described in this clause (2), such proceeding or petition shall continue in effect and undismissed or unstayed for 90 days or an order or decree approving or ordering any of the foregoing shall be entered, or (v) commence any voluntary out-of-court restructuring transaction that has a material adverse impact on the Series A Preferred Stock or the rights of the Holders. For purposes of this definition, “Board of Directors” means the board of directors of the Company from time to time.

“Borrower” means ATI Holdings Acquisition, Inc.

“Business Day” means each day that is not a Legal Holiday.

“Capital Stock” means:

(1) in the case of a corporation, corporate stock;

(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

“Capital Lease” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“Cash Equivalents” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“Certificate of Designation” shall have the meaning assigned to such term in the recitals hereof.

“Certificate of Incorporation” shall have the meaning assigned to such term in the recitals hereof.

“Change of Control” means the occurrence of any of the following:

(a) the acquisition of the beneficial ownership by any Person or group (as used in this definition, within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) (including any group acting for the purpose of acquiring, holding or disposing of Securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), but excluding (i) any employee benefit plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor, (ii) one or more Permitted Holders and (iii) any underwriter in connection with any offering of Capital Stock after the Initial Issue Date), of voting stock representing more than 50% of the total voting power of all of the outstanding voting stock of the Company; provided, that notwithstanding the provisions of this clause (a), no “Change of Control” shall be deemed to have occurred under this clause (a) if the Permitted Holders have the right, by voting power, contract or otherwise, to elect or designate for election at least a majority of the Board of Directors;

(b) the acquisition of the beneficial ownership by any Person or group (as used in this definition, within the meaning of Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) (including any group acting for the purpose of acquiring, holding or disposing of Securities (within the meaning of Rule 13d-5(b)(1) under the Exchange Act), but excluding (i) any employee benefit plan and/or Person acting as the trustee, agent or other fiduciary or administrator therefor, (ii) one or more Permitted Holders and (iii) any underwriter in connection with any offering of Capital Stock after the First Amendment Effective Date), of voting stock representing more than 50% of the total voting power of all of the outstanding voting stock of Holdings; provided, that notwithstanding the provisions of this clause (b), no “Change of Control” shall be deemed to have occurred under this clause (b) if the Permitted Holders have the right, by voting power, contract or otherwise, to elect or designate for election at least a majority of the Board of Directors; or

For purposes of this definition, (i) a Person or group shall not be deemed to beneficially own Capital Stock or voting power subject to a stock or asset purchase agreement, merger agreement or similar agreement (or voting or similar agreement related thereto) until the consummation of the acquisition of the Capital Stock or voting power pursuant to the transactions contemplated by such agreement and (ii) it is understood and agreed that any transaction resulting in a Successor Borrower or Successor Holdings (in each case as defined in the Credit Agreement in effect on the Initial Issue Date) in accordance with the terms of the Credit Agreement as in effect on the Initial Issue Date shall not give rise to a Change of Control.

“Change of Control Event” means the occurrence of a Change of Control.

“Common Stock” means any shares of common stock, with a par value of $0.01 per share, of the Company.

“Company” shall have the meaning assigned to such term in the recitals hereof.

“Compounded Dividends” shall have the meaning assigned to such term in Section 4(b).

“Consolidated Adjusted EBITDA” shall have the meaning assigned to such term in the Credit Agreement as in effect on the First Amendment Effective Date.

“Consolidated APC” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.

“Credit Agreement” means that certain Credit Agreement, dated as of February 24, 2022, by and among the Borrower, Wilco Intermediate Holdings, Inc., the lenders from time to time party thereto, and Barclays Bank PLC, as administrative agent and collateral agent, as amended by (a) that certain Amendment No. 1 to Credit Agreement, dated as of March 30, 2022, and (b) that certain Amendment No. 2 to Credit Agreement, dated as of April 17, 2023 (“Amendment No. 2 to Credit Agreement”) and as further amended, restated, amended and restated, supplemented, extended, replaced, refinanced or otherwise modified from time to time; provided, that, where any term is defined herein by reference to the Credit Agreement “as in effect on the Initial Issue Date” or “as in effect on the First Amendment Effective Date” or any such similar qualification, such reference shall be deemed to be a reference to the Credit Agreement as it existed on the Initial Issue Date or the First Amendment Effective Date after giving effect to the Amendment No. 2 to Credit Agreement, as applicable, and shall not, for the avoidance of doubt, give effect to any amendment to the Credit Agreement consummated after effectiveness of Amendment No. 2 to Credit Agreement.

“Delaware LLC Division” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“Derivative Transactions” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“DGCL” shall have the meaning assigned to such term in the recitals hereof.

“Dividend Payment Date” means the last day of each fiscal quarter of the Issuer following the Initial Issue Date (or, if such date is not a Business Day, the immediately succeeding Business Day).

“Dividend Period” means the period commencing on and including a Dividend Payment Date that ends on, but does not include, the next Dividend Payment Date; provided that the initial Dividend Period shall commence on and include the Initial Issue Date and end on, but not include, the first Dividend Payment Date.

“Dividend Rate” shall have the meaning assigned to such term in Section 4(b).

“Dividends” shall have the meaning assigned to such term in Section 4(b).

“Equity Interests” means Capital Stock and all warrants, options or other rights to acquire Capital Stock, but excluding any debt security that is convertible into, or exchangeable for, Capital Stock.

“Event of Noncompliance” means any one of the following events:

(a) failure by the Issuer to comply with its obligations, covenants or agreements contained in Section 9(a);

(b) any breach of any material term of this First A&R Certificate of Designation (other than an event referred to in clause (a) above) or the Investors’ Rights Agreement, which breach remains uncured following 15 Business Days (which period shall be extended to 45 Business Days to the extent the breach is capable of being cured and the Issuer is using commercially reasonable efforts to cure such breach); and

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

“fair market value” means with respect to any investment, asset, property or liability, the value of the consideration obtainable in a sale of such investment, asset, property or liability at such date of determination assuming a sale by a willing seller to a willing purchaser dealing at arm’s length and arranged in an orderly manner over a reasonable period of time having regard to the nature and characteristics of such asset, investment, property or liability as determined in good faith by the Board of Directors.

“FASB” means the Financial Accounting Standards Board.

“Financial Covenants” shall have the meaning assigned to such term in the Credit Agreement as in effect on the First Amendment Effective Date.

“First A&R Certificate of Designation” shall have the meaning assigned to such term in the recitals hereof.

“First Amendment Effective Date” means the effective filing date of this First A&R Certificate of Designation.

“First Call Date” means February 24, 2024.

“First Lien Facility” means the credit facilities governed by the Credit Agreement, including any Incremental Facility (as defined in the Credit Agreement) and one or more debt facilities or other financing arrangements (including indentures or note purchase agreements) providing for loans or other indebtedness that replace or refinance such credit facilities or other Indebtedness, including any such replacement or refinancing facility, indenture or note purchase agreement that increases or decreases the amount permitted to be borrowed thereunder or alters the maturity thereof and whether by the same or any other agent, lender or group of lenders, and any amendments, supplements, modifications, extensions, renewals, restatements, amendments, replacements and restatements or refundings thereof or any such debt financings or other financing arrangements that replace or refinance such credit facilities or other Indebtedness (or any subsequent replacement thereof), in each case to the extent otherwise permitted or not restricted by this First A&R Certificate of Designation.

“Fiscal Quarter” means a fiscal quarter of any Fiscal Year.

“Fiscal Year” means the fiscal year of the Company ending December 31 of each calendar year.

“Forced Transaction Event” means the completion of a Forced Transaction following a Sale/Refinancing Demand.

“GAAP” means generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, as in effect from time to time.

“Governing Documents” means, as to any Person, the certificate of incorporation and by‑laws, certificate of formation and operating agreement, or other organizational or governing documents of such Person.

“Holder” means, as of the relevant date, any Person that is the holder of record of at least one share of Series A Preferred Stock, as of such date.

“Holdings” means Wilco Intermediate Holdings, Inc.

“Immaterial Subsidiaries” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“Immediate Family Members” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“Incur” or “incur” means, with respect to any Indebtedness, Capital Stock or Lien, to issue, assume, guarantee, incur or otherwise become liable for such Indebtedness, Capital Stock or Lien, as applicable; provided that any Indebtedness, Capital Stock or Lien of a Person existing at the time such Person becomes a Subsidiary (whether by merger, amalgamation, consolidation, acquisition or otherwise) shall be deemed to be Incurred by such Person at the time it becomes a Subsidiary. The term “Incurrence” has a corresponding meaning.

“Indebtedness” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“Initial Issue Date” means February 24, 2022.

“Intermediate Holdings” shall have the meaning assigned to such term in Section 8(a)(xii).

“Investment” means (a) any purchase or other acquisition for consideration by the Company or any of its Restricted Subsidiaries of any of the Securities of any other Person (other than any Restricted Subsidiary), (b) the acquisition for consideration by purchase or otherwise (other than any purchase or other acquisition of inventory, materials, supplies and/or equipment in the ordinary course of business) of all or a substantial portion of the business, property or fixed assets of any other Person or any division or line of business or other business unit of any other Person and (c) any loan, advance (other than any advance to any current or former employee, officer, director, member of management, manager, consultant or independent contractor of the Company, any Restricted Subsidiary, or any parent company for moving, entertainment and travel expenses, drawing accounts and similar expenditures in the ordinary course of business) or capital contribution by the Company or any of its Restricted Subsidiaries to any other Person. Subject to Section 8(a)(ix), the amount of any Investment shall be the original cost of such Investment, plus the cost of any addition thereto that otherwise constitutes an Investment, without any adjustments for increases or decreases in value, or write-ups, write-downs or write-offs with respect thereto, but giving effect to any repayments of principal in the case of any Investment in the form of a loan and any return of capital or return on Investment in the case of any equity Investment (whether as a distribution, dividend, redemption or sale but not in excess of the amount of the relevant initial Investment).

“Investors’ Rights Agreement” means the Investors’ Rights Agreement, dated as of the Initial Issue Date (as amended, restated, supplemented or otherwise modified from time to time), by and among the Company and the Holders party thereto.

“IP Rights” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“Junior Stock” means Common Stock, any other preferred stock and any other Equity Interest of the Company (other than the Series A Preferred Stock).

“Lead Purchaser” means, collectively, Knighthead Master Fund, LP, Knighthead (NY) Fund, L.P., Knighthead Annuity & Life Assurance Company and Knighthead Distressed Opportunities Fund, L.P. and any of their Affiliates that are Holders.

“Legal Holiday” means a Saturday, a Sunday or a day on which commercial banking institutions are not required or authorized to be open in the State of New York.

“Lien” means any mortgage, pledge, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any Capital Lease having substantially the same economic effect as any of the foregoing); provided, that, for the avoidance of doubt, in no event shall an operating lease in and of itself be deemed to constitute a Lien.

“Liquidation Event” means an involuntary proceeding shall be commenced or an involuntary petition shall be filed in a court of competent jurisdiction seeking the liquidation, dissolution or winding up of the Company or any of its Subsidiaries (other than Immaterial Subsidiaries), and such proceeding or petition shall continue undismissed or unstayed for 90 days or an order or decree approving or ordering any of the foregoing shall be entered.

“Liquidation Value” means, as of the relevant time and with respect to each share of Preferred Stock, the sum of (a) the Stated Value of such share as of such date, plus (b) any declared but unpaid Dividends on such share for the most recent Dividend Period as of such date (to the extent not part of the Stated Value of such Share as of such date), plus (c) the amount of accumulated and unpaid Dividends on such share from the last Dividend Payment Date to, but not including, such date (to the extent not part of the Stated Value of such share as of such date).

“Majority Holders” means, as of any date of determination, the Holders holding a majority of the then outstanding shares of Series A Preferred Stock (the affirmative vote or written consent of which must include the Lead Purchaser for so long as it holds at least 50.1% of the shares of Series A Preferred Stock held by it as of the Initial Issue Date). Any shares of Series A Preferred Stock held by Advent shall be excluded from the numerator and the denominator for purposes of determining whether a majority is achieved.

“Make-Whole Amount” means, with respect to any share of Series A Preferred Stock as of any Redemption Date occurring prior to the First Call Date, an amount equal to the present value (calculated as provided below) as of such date of the product of 106% multiplied by the Liquidation Value of such share of Series A Preferred Stock being redeemed (assuming that, for purposes of calculating such Liquidation Value, (a) such share of Series A Preferred Stock remained outstanding through the First Call Date, and (b) all scheduled, but not yet actually capitalized, Dividends (including, for the avoidance of doubt, any Dividends that would accrue from the Dividend Payment Date immediately prior to the First Call Date through the First Call Date) prior to the First Call Date have been capitalized and added to the then-outstanding Stated Value of such share of Series A Preferred Stock on each applicable Dividend Payment Date (in the case of scheduled Dividends) and the First Call Date (in the case of accrued Dividends since the Dividend Payment Date immediately prior to the First Call Date)), with the present value of such amount being computed using an annual discount rate equal to the rate on U.S. Treasury notes with a maturity closest to the applicable Redemption Date plus 50 basis points.

“Mandatory Redemption” shall have the meaning assigned to such term in Section 6(a).

“Mandatory Redemption Date” shall have the meaning assigned to such term in Section 6(a).

“Mandatory Redemption Event” shall have the meaning assigned to such term in Section 6(a).

“Mandatory Redemption Notice” shall have the meaning assigned to such term in Section 6(b)(i).

“Material Intellectual Property” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“Minimum Portion” means, on any date, shares of Series A Preferred Stock for which the sum of the Stated Value thereof at such time is not less than $10,000,000 (unless the aggregate sum of the Stated Value of all shares of Series A Preferred Stock that would remain outstanding after such redemption would be less than $10,000,000, in which case “Minimum Portion” means all such shares of Series A Preferred Stock then outstanding).

“Net Proceeds” of a transaction means the aggregate cash proceeds and the fair market value of any Cash Equivalents received by the Company or any of its Subsidiaries in respect of such transaction, net of the direct costs relating to such transaction, including legal, accounting and investment banking fees, payments made in order to obtain a necessary consent or required by applicable law, and brokerage and sales commissions, any relocation expenses incurred as a result thereof, other fees and expenses, including title and recordation expenses, taxes paid or payable as a result thereof or any transactions occurring or deemed to occur to effectuate a payment under this First A&R Certificate of Designation.

“Non-Consolidated APCs” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“Optional Redemption” shall have the meaning assigned to such term in Section 5(a)(i)(A).

“Optional Redemption Date” shall have the meaning assigned to such term in Section 5.

“Permitted Affiliate Transaction” means:

(a) any transaction between or among the Company and/or one or more Restricted Subsidiaries and/or Affiliated Practices (or any entity that becomes a Restricted Subsidiary or Affiliated Practice as a result of such transaction) to the extent permitted or not restricted by this First A&R Certificate of Designation;

(b) any issuance, sale or grant of securities or other payments, awards or grants in cash, securities or otherwise pursuant to, or the funding of employment arrangements, stock options and stock ownership plans approved by the board of directors (or equivalent governing body) of the Company or any Restricted Subsidiary;

(c) (i) any collective bargaining, employment or severance agreement or compensatory (including profit sharing) arrangement entered into by the Company or any of its Restricted Subsidiaries with their respective current or former officers, directors, members of management, managers, employees, consultants or independent contractors or those of the Company, (ii) any subscription agreement or similar agreement pertaining to the repurchase of Capital Stock pursuant to put/call rights or similar rights with current or former officers, directors, members of management, managers, employees, consultants or independent contractors and (iii) transactions pursuant to any employee compensation, benefit plan, stock option plan or arrangement, any health, disability or similar insurance plan which covers current or former officers, directors, members of management, managers, employees, consultants or independent contractors or any employment contract or arrangement;

(d) transactions permitted by Sections 6.01(d), (o) and (ee), 6.04 and 6.06(h), (m), (o), (t), (v), (y), (z) and (aa) of the Credit Agreement as in effect on the Initial Issue Date;

(e) [reserved]

(f) the payment or reimbursement of all indemnification obligations and expenses owed to any Investor and any of their respective directors, officers, members of management, managers, employees and consultants, whether currently due or paid in respect of accruals from prior periods;

(g) the Transactions, including the payment of Transaction Costs, each as defined in the Credit Agreement as in effect on the Initial Issue Date;

(h) (i) the Transactions (as defined in the Transaction Support Agreement) and the payment of transaction costs in connection therewith and (ii) the transactions contemplated by the Second Lien Note Purchase Agreement and/or any Second Lien Facility; (i) Guarantees permitted by Section 8(a)(ii), Section 8(a)(iii) or Section 8(a)(xii);

(j) transactions among the Company and its Restricted Subsidiaries and/or any Affiliated Practice that are otherwise permitted (or not restricted) under Section 8;

(k) (i) the payment of customary fees and reasonable out-of-pocket costs to, and indemnities provided on behalf of, members of the board of directors (or similar governing body), officers, employees, members of management, managers, consultants and independent contractors of the Company and/or any of its Restricted Subsidiaries in the ordinary course of business and, in the case of payments to such Person in such capacity on behalf of the Company, to the extent attributable to the operations of the Company or its subsidiaries and (ii) payments or distributions required to be made to the Company’s directors, officers or Affiliates pursuant to any indemnification agreement or other obligation pursuant to which the Company or any of its Subsidiaries is bound in respect of indemnification, exculpation or advancement of expenses to directors, officers or agents of the Company or any of its Affiliates;

(l) transactions with customers, clients, suppliers, joint ventures, purchasers or sellers of goods or services or providers of employees or other labor entered into in the ordinary course of business, which are (i) fair to the Company and/or its applicable Restricted Subsidiary in the good faith determination of the board of directors (or similar governing body) of the Company or the senior management thereof or (ii) on terms at least as favorable as might reasonably be obtained from a Person other than an Affiliate;

(m) the payment of reasonable out-of-pocket costs and expenses related to registration rights and customary indemnities provided to shareholders under any shareholder agreement;

(n) (i) any purchase by the Company of the Capital Stock of (or contribution to the equity capital of) the Company and (ii) any intercompany loan made by the Company to the Borrower or any Restricted Subsidiary and/or any Affiliated Practice;

(o) any transaction approved by a majority of disinterested directors (or members of any similar governing body) of the Company (including at least one of the Series A Directors, the consent of whom shall not be unreasonably withheld, conditioned or delayed) in respect of which the Company delivers to the Majority Holders a letter addressed to the board of directors (or equivalent governing body) of the Company from an accounting, appraisal or investment banking firm of nationally recognized standing stating that such transaction is on terms that are either (i) no less favorable to the Company or the applicable Restricted Subsidiary than might be obtained at the time in a comparable arm’s length transaction from a Person who is not an Affiliate or (ii) fair to the Company or the relevant Restricted Subsidiary from a financial point of view;

(p) any transaction consummated in connection with any Permitted Practice Subsidiary Restructuring (as defined in the Credit Agreement in effect on the Initial Issue Date);

(q) any transaction (or series of related transactions) approved by a majority of the disinterested directors (or members of any similar governing body) of the Company (including at least one of the Series A Directors, the consent of whom shall not be unreasonably withheld, conditioned or delayed);

(r) any investment by any Investor or the Company in Securities or Indebtedness of the Borrower and/or any Guarantor;

(s) any payment to or from, and/or any transaction with, any joint venture in the ordinary course of business or consistent with past practice, industry practice or industry norms (including, any cash management activity related thereto); and (t) any (i) Investment by any Affiliate in the Loans, loans, securities or other Indebtedness of the Company and/or any Restricted Subsidiary (and payment of reasonable out-of-pocket expenses incurred by such Affiliates in connection therewith) so long as the investment is being offered by the Company or such Restricted Subsidiary generally to other investors on the same or more favorable terms and (ii) payments and/or distributions to Affiliates in respect of the Loans, loans, securities or Indebtedness of the Company or any Restricted Subsidiary in connection with the securities and other Indebtedness contemplated in the foregoing clause (i) or that were acquired from Persons other than the Company and the Restricted Subsidiaries, in each case, in accordance with the terms of such securities or Indebtedness.

“Permitted Acquisition” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“Permitted Asset Disposition” means:

(a) Dispositions (including of Capital Stock) as part of any Permitted Practice Subsidiary Restructuring and/or among the Company and/or any Restricted Subsidiary (upon voluntary liquidation or otherwise); provided, that any such Disposition made by any Company and/or any Restricted Subsidiary to any Person that is not the Company or any Restricted Subsidiary shall be (i) for fair market value (as reasonably determined by such Person) with at least 75% of the consideration for such Disposition consisting of Cash and Cash Equivalents at the time of such Disposition or (ii) treated as an Investment and otherwise made in compliance with Section 8(a)(v);

(b) (i) the liquidation, dissolution or Delaware LLC Division of any Restricted Subsidiary if the Company determines in good faith that such liquidation, dissolution or Delaware LLC Division is in the best interests of the Company and the Company or any Restricted Subsidiary receives any assets of the relevant dissolved or liquidated Restricted Subsidiary; provided, that, in the case of any liquidation, dissolution or Delaware LLC Division of the Company or any Restricted Subsidiary that results in a distribution of assets to any Restricted Subsidiary that is not a the Company or any Restricted Subsidiary, such distribution shall be treated as an Investment and shall comply with Section 8(a)(v), (ii) any merger, amalgamation, dissolution, liquidation, consolidation or Delaware LLC Division, the purpose of which is to effect (A) any Asset Disposition otherwise permitted under Section 6.03 of the Credit Agreement in effect on the Initial Issue Date or (B) any Investment permitted under Section 8(a)(v), and (iii) the conversion of the Company or any Restricted Subsidiary into another form of entity;

(c) (i) Dispositions of inventory or equipment or immaterial assets in the ordinary course of business (including on an intercompany basis) and (ii) the leasing or subleasing of real property in the ordinary course of business;

(d) Dispositions of surplus, obsolete, used or worn out property or other property that, in the reasonable judgment of the Company, is (i) no longer useful in its business (or in the business of any Restricted Subsidiary of the Company) or (ii) otherwise economically impracticable to maintain;

(e) Dispositions in the ordinary course of business of Cash and Cash Equivalents and/or other assets that were Cash Equivalents when the relevant original Investment was made;

(f) Dispositions, mergers, amalgamations, consolidations or conveyances that constitute (i) Investments permitted pursuant to Section 8(a)(v), (ii) Permitted Liens and (iii) Restricted Payments permitted by Section 8(a)(iv); (g) Dispositions for fair market value; provided, that, with respect to any such Disposition with a purchase price in excess of $10,000,000, at least 75% of the consideration for such Disposition shall consist of Cash or Cash Equivalents (provided, that, for purposes of the 75% Cash consideration requirement, (i) the amount of any Indebtedness or other liabilities of the Company or any Restricted Subsidiary (as shown on such Person’s most recent balance sheet or statement of financial position (or in the notes thereto) that are assumed by the transferee of any such assets and for which the Company and/or its applicable Restricted Subsidiary have been validly released by all relevant creditors in writing), (ii) the amount of any trade-in value applied to the purchase price of any replacement assets acquired in connection with such Disposition, (iii) any Security received by the Company or any Restricted Subsidiary from such transferee that is converted by such Person into Cash or Cash Equivalents (to the extent of the Cash or Cash Equivalents received) within 180 days following the closing of the applicable Disposition and (iv) any non-Cash consideration received in respect of such Disposition having an aggregate fair market value, taken together with all other non-Cash consideration received pursuant to this clause that is at that time outstanding, not in excess of $20,000,000 during the term of this Agreement, in each case, shall be deemed to be Cash); provided, further, that (A) immediately prior to and after giving effect to such Disposition, as determined on the date on which the agreement governing such Disposition is executed, no Event of Noncompliance exists, (B) this provision shall not permit a Disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries and (C) the net proceeds of such disposition shall be applied and/or reinvested as (and to the extent) required by the Credit Agreement (as in effect on the First Amendment Effective Date);

(h) to the extent that (i) the relevant property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of the relevant Disposition are promptly applied to the purchase price of such replacement property;

(i) Dispositions of Investments in joint ventures to the extent required by, or made pursuant to, buy/sell arrangements between joint venture or similar parties set forth in the relevant joint venture arrangements and/or similar binding arrangements;

(j) Dispositions of notes receivable or accounts receivable in the ordinary course of business (including any discount and/or forgiveness thereof) or in connection with the collection or compromise thereof; provided that factoring or similar arrangements shall not be permitted pursuant to this clause (k);

(k) Dispositions and/or terminations of leases, subleases, licenses or sublicenses (including the provision of software under any open source license), (i) the Disposition or termination of which will not materially interfere with the business of the Company and its Restricted Subsidiaries or (ii) which relate to closed facilities or the discontinuation of any product line;

(l) (i) any termination of any lease in the ordinary course of business, (ii) any expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights or the settlement, release or surrender of contractual rights or litigation claims (including in tort) in the ordinary course of business;

(m) Dispositions of property subject to foreclosure, casualty, eminent domain or condemnation proceedings (including in lieu thereof or any similar proceeding);

(n) Dispositions or consignments of equipment, inventory or other assets (including leasehold interests in real property) with respect to facilities that are temporarily not in use, held for sale or closed; (o) Dispositions of non-core assets acquired in connection with any acquisition permitted hereunder and sales of Real Estate Assets acquired in any acquisition permitted hereunder which, within 90 days of the date of such acquisition, are designated in writing to the Majority Holders as being held for sale and not for the continued operation of the Company or any of its Restricted Subsidiaries or any of their respective businesses; provided, that (i) no Event of Noncompliance exists on the date on which the definitive agreement governing the relevant Disposition is executed, (ii) such Dispositions are for fair market value and (iii) the net proceeds of such disposition shall be applied and/or reinvested as (and to the extent) required by the Credit Agreement (as in effect on the First Amendment Effective Date);

(p) exchanges or swaps, including transactions covered by Section 1031 of the Internal Revenue Code of 1986 (or any comparable provision of any foreign jurisdiction), of assets so long as any such exchange or swap is made for fair value (as reasonably determined by the Company) for like assets;

(q) (i) non-exclusive licensing and cross-licensing arrangements involving any technology, intellectual property or IP Rights of the Company or any Restricted Subsidiary in the ordinary course of business and (ii) Dispositions, abandonments, cancellations or lapses of IP Rights, or issuances or registrations, or applications for issuances or registrations, of IP Rights, which, in the reasonable good faith determination of the Company, are not material to the conduct of the business of the Company or its Restricted Subsidiaries, or are no longer economical to maintain in light of its use;

(r) terminations or unwinds of Derivative Transactions;

(s) Dispositions of Real Estate Assets and related assets in the ordinary course of business in connection with relocation activities for directors, officers, employees, members of management, managers or consultants of the Company and/or any Restricted Subsidiary; provided, that such Dispositions do not exceed $5,000,000 in the aggregate;

(t) Dispositions made to comply with any order of any Governmental Authority or any applicable Requirement of Law;

(u) any merger, consolidation, Disposition or conveyance the sole purpose of which is to reincorporate or reorganize (i) any Domestic Subsidiary (as defined in the Credit Agreement as in effect on the Initial Issue Date) in another jurisdiction in the U.S. and/or (ii) any Foreign Subsidiary (as defined in the Credit Agreement as in effect on the Initial Issue Date) in the U.S. or any other jurisdiction;

(v) any sale of motor vehicles and information technology equipment purchased at the end of an operating lease and resold thereafter;

(w) Dispositions in connection with Sale and Lease-Back Transactions; provided, that, in the case of this clause (w), the fair market value of all property so disposed of after the Initial Issue Date shall not exceed the greater of $5,000,000 and 7.5% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period; provided, further, that Dispositions in connection with Sale and Lease-Back Transactions may be made solely under clause (w) of this definition and not under any other clause;

(x) Dispositions for fair market value; provided, that, with respect to any such Disposition, the proceeds of such Disposition are used to make any mandatory prepayment (including applicable call protection) to the extent required under the Credit Agreement (as in effect on the First Amendment Effective Date); and (y) to the extent applicable, the consummation of the Transactions (as defined in the Transaction Support Agreement).

“Permitted Holders” means Advent and the Specified Preferred Equityholders.

“Permitted Investment” means:

(a) Cash or Investments that were Cash Equivalents at the time made;

(b) Investments:

(i) existing on the Initial Issue Date in the Borrower or in any Restricted Subsidiary,

(ii) made after the Initial Issue Date among the Borrower and/or one or more Restricted Subsidiaries,

(iii) in the form of loans or advances made in the ordinary course of business in any Affiliated Practice in connection with the provision of services to such Affiliated Practice under Acceptable Practice Management Arrangements, including any Investment contemplated by any Practice Loan Agreement (as defined in the Credit Agreement as in effect on the Initial Issue Date) and/or any Management Services Agreement (as defined in the Credit Agreement as in effect on the Initial Issue Date) (other than an Investment contemplated by clause (e) below) and/or the proceeds of which are used to pay management fees to the relevant APC Manager, working capital purposes or payroll or other ordinary course business expenses of such Affiliated Practice; provided, that any loans or advances made pursuant to this clause (b)(iii) to any Non-Consolidated APC shall not exceed $5,000,000 at any time outstanding,

(c) Investments (i) constituting deposits, prepayments and/or other credits to suppliers, (ii) made in connection with obtaining, maintaining or renewing client and customer contracts and/or (iii) in the form of advances made to distributors, suppliers, licensors and licensees, in each case, in the ordinary course of business or, in the case of clause (iii), to the extent necessary to maintain the ordinary course of supplies to the Company or any Restricted Subsidiary;

(d) Investments in (i) any Unrestricted Subsidiary and/or any Similar Business in an aggregate outstanding amount not to exceed $10,000,000 and (ii) any joint ventures and/or Similar Business in an aggregate outstanding amount not to exceed the greater of $6,500,000 and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period;

(e) (i) Permitted Acquisitions, so long as after giving effect thereto on a Pro Forma Basis, the Borrower is in compliance with the then applicable Financial Covenant in the Credit Agreement as in effect on the First Amendment Effective Date, and (ii) any Investment in any Consolidated APC in an amount required to permit such Consolidated APC to consummate, directly or indirectly, a Permitted Acquisition;

(f) Investments (i) existing on, or contractually committed to or contemplated as of, the Initial Issue Date and described on Schedule 6.06 to the Credit Agreement as in effect on the Initial Issue Date and (ii) any modification, replacement, renewal or extension of any Investment described in clause (i) above so long as no such modification, renewal or extension increases the amount of such Investment except by the terms thereof or as otherwise permitted by this definition; (g) Investments received in lieu of Cash in connection with any Disposition that is permitted hereby and by Section 6.07 of the Credit Agreement as of the Initial Issue Date or any other disposition of assets not constituting a Disposition;

(h) loans or advances to present or former employees, directors, members of management, officers, managers or consultants or independent contractors (or their respective Immediate Family Members) of any the Company, its subsidiaries and/or any joint venture to the extent permitted by Requirements of Law, in connection with such Person’s purchase of Capital Stock of the Company, either (i) in an aggregate principal amount not to exceed $1,000,000 at any one time outstanding or (ii) so long as the proceeds of such loan or advance are substantially contemporaneously contributed to the Company for the purchase of such Capital Stock;

(i) Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business;

(j) Investments consisting of (or resulting from) mergers, consolidations, amalgamations, liquidations, windings up, dissolutions or Dispositions permitted by clauses (b)(i), (c)(i) and (h) of Section 6.07 of the Credit Agreement as of the Initial Issue Date;

(k) Investments in the ordinary course of business consisting of endorsements for collection or deposit and customary trade arrangements with customers;

(l) Investments (including debt obligations and Capital Stock) received (i) in connection with the bankruptcy or reorganization of any Person, (ii) in settlement of delinquent obligations of, or other disputes with, customers, suppliers and other account debtors arising in the ordinary course of business, (iii) upon foreclosure with respect to any secured Investment or other transfer of title with respect to any secured Investment and/or (iv) as a result of the settlement, compromise, resolution of litigation, arbitration or other disputes;

(m) loans and advances of payroll payments or other compensation to present or former employees, directors, members of management, officers, managers or consultants of the Company or any Intermediate Holdings (to the extent such payments or other compensation relate to services provided to the Company and/or any subsidiary in the ordinary course of business);

(n) Investments to the extent that payment therefor is made solely with Capital Stock of the Company or Qualified Capital Stock of any Restricted Subsidiary, in each case, to the extent not resulting in a Change of Control;

(o) (i) Investments of any Restricted Subsidiary acquired after the Initial Issue Date, or of any Person acquired by, or merged into or consolidated or amalgamated with, the Company or any Restricted Subsidiary after the Initial Issue Date, in each case as part of an Investment otherwise permitted by this definition to the extent that such Investments were not made in contemplation of or in connection with such acquisition, merger, amalgamation or consolidation and were in existence on the date of the relevant acquisition, merger, amalgamation or consolidation and (ii) any modification, replacement, renewal or extension of any Investment permitted under clause (i) hereof so long as no such modification, replacement, renewal or extension thereof increases the original amount of such Investment except as otherwise permitted by this definition;

(p) (i) Investments on the Initial Issue Date made in connection with the Transactions (as defined in the Credit Agreement as in effect on the Initial Issue Date) and (ii) to the extent applicable, Investments necessary to consummate the Transactions (as defined in the Transaction Support Agreement); (q) Investments made after the Initial Issue Date by the Company and/or any of its Restricted Subsidiaries in an aggregate amount at any time outstanding not to exceed:

(i) the greater of $6,500,000 and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, plus

(ii) in the event that (A) the Company or any of its Restricted Subsidiaries makes any Investment after the Initial Issue Date in any Person that is neither a Restricted Subsidiary nor a Consolidated APC and (B) such Person subsequently becomes a party to the Credit Agreement, an amount equal to 100% of the fair market value of such Investment as of the date on which such Person becomes a party to the Credit Agreement;

(r) [reserved]

(s) (i) Guarantees of leases (other than Capital Leases) or of other obligations not constituting Indebtedness and (ii) Guarantees of the lease obligations of suppliers, customers, franchisees and licensees of the Company and/or its Restricted Subsidiaries, in each case, in the ordinary course of business;

(t) [reserved]

(u) [reserved]

(v) Investments in subsidiaries in connection with internal reorganizations and/or restructurings and activities related to tax planning;

(w) Investments under any Derivative Transaction of the type permitted under Section 6.01(s) of the Credit Agreement as of the Initial Issue Date;

(x) Investments made in connection with any Permitted Practice Subsidiary Restructuring; provided, that the aggregate amount of Investments made in Non-Consolidated APCs pursuant to this clause (x), shall not exceed $5,000,000;

(y) Investments made in joint ventures as required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture agreements and similar binding arrangements entered into in the ordinary course of business;

(z) Investments made in connection with any nonqualified deferred compensation plan or arrangement for any present or former employee, director, member of management, officer, manager or consultant or independent contractor (or any Immediate Family Member thereof) of the Company, its subsidiaries and/or any joint venture;

(aa) Investments in any Restricted Subsidiary and/or joint venture in connection with intercompany cash management arrangements and related activities in the ordinary course of business;

(bb) Investments so long as, after giving effect thereto on a Pro Forma Basis, the Total Net Leverage Ratio does not exceed 4.50:1.00;

(cc) any Investment made by any Unrestricted Subsidiary prior to the date on which such Unrestricted Subsidiary is designated as a Restricted Subsidiary so long as the relevant Investment was not made in contemplation of the designation of such Unrestricted Subsidiary as a Restricted Subsidiary; and (dd) Investments consisting of the non-exclusive licensing in the ordinary course of business or contribution of IP Rights pursuant to joint marketing arrangements with other Persons.

Notwithstanding anything to the contrary in this definition, (A) this definition shall not permit any IP Separation Transaction and (B) the aggregate amount of assets held by all Subsidiaries that are designated as Unrestricted Subsidiaries together with the aggregate amount of Investments in Unrestricted Subsidiaries shall not exceed the $10,000,000 in the aggregate.

“Permitted Liens” means (a) statutory Liens (and rights of set-off) and other Liens imposed by applicable Requirements of Law, in each case incurred in the ordinary course of business, (b) Liens on insurance policies and the proceeds thereof securing the financing of the premiums with respect thereto, (c) Liens for taxes, assessments or other governmental charges or statutory obligations the payment of which is not required, (d) Liens (other than Liens securing debt for borrowed money) of the type described in clauses (d), (e), (f), (p), (v), (x) and (y) of Section 6.02 of the Credit Agreement and (e) Liens securing any Second Lien Facility and/or securing any First Lien Facility.

“Permitted Practice Subsidiary Restructuring” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“Permitted Restricted Subsidiary Indebtedness” means (a) Indebtedness incurred pursuant to any First Lien Facility in an aggregate outstanding principal amount not to exceed the sum of (i) (A) 115% multiplied by (B) (x) $560,000,000 less (y) the amount of Term Loans (as defined in the Credit Agreement as in effect on the First Amendment Effective Date) purchased by the Issuer pursuant to the Master Assignment Agreement and cancelled, (ii) an amount not to exceed the “Incremental Cap” (as defined in the Credit Agreement as in effect on the First Amendment Effective Date) and (iii) the amount of any interest payable in kind with respect to any such Indebtedness, (b) Indebtedness permitted under Sections 6.01(a) (with respect to Secured Banking Services Obligations and Secured Hedging Obligations), (c), (d), (e), (f), (g), (h), (i), (k), (n), (o), (s), (t), (y), (aa), (bb), (cc) and (dd) of the Credit Agreement, (c) Second Lien Indebtedness and (d) Indebtedness with respect to Capital Leases and purchase money Indebtedness in an aggregate outstanding principal amount not to exceed the greater of $6,500,000 and 10% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period, (e) Indebtedness of the any Restricted Subsidiary in an aggregate outstanding principal amount not to exceed the greater of $10,000,000 and 15% of Consolidated Adjusted EBITDA as of the last day of the most recently ended Test Period and (f) any refinancing or replacement of any First Lien Facility or any such Incremental Facility (as defined in the Credit Agreement) after the First Amendment Effective Date so long as the aggregate outstanding principal amount of such Indebtedness does not exceed the amount permitted to be incurred under clause (a) of this definition, plus (i) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon, (ii) the amount of any underwriting discount, any other reasonable and customary fee, commission and/or expense (including any upfront fee, original issue discount and/or initial yield payment) incurred in connection with the relevant refinancing, (iii) an amount equal to any existing commitment unutilized thereunder and (iv) any additional amount permitted to be incurred pursuant to this definition (with any additional amount incurred in reliance on this clause (f)(iv) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted).

“Permitted Restricted Subsidiary Liens” means Liens securing any Permitted Restricted Subsidiary Indebtedness and any Permitted Liens.

“Person” means any individual, corporation, limited liability company, partnership (including limited partnership), joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.

“Preferred Stock” means any Equity Interest with preferential rights of payment of dividends or upon liquidation, dissolution or winding up, including, in the case of the Company, the Series A Preferred Stock.

“Purchase Agreement” means the Series A Senior Preferred Stock Purchase Agreement, dated as of the Initial Issue Date (as amended, restated, supplemented or otherwise modified from time to time), by and among the Purchasers and the Company.

“Purchasers” shall have the meaning assigned to such term in the Purchase Agreement.

“Redemption Date” means an Optional Redemption Date or a Mandatory Redemption Date, as applicable.

“Redemption Failure” shall have the meaning assigned to such term in Section 4(d).

“Redemption Percentage” means, as of the relevant date, the applicable percentage under the heading “Redemption Percentage” set forth in the table below:

	Period In Which Such Date Occurs	Redemption Percentage
	If such date occurs on or after the First Call Date and prior to the first anniversary of the First Call Date	106.0%
	If such date occurs on or after the first anniversary of the First Call Date and prior to the second anniversary of the First Call Date	103.0%
	If such date occurs on or after the second anniversary of the First Call Date	100.0%

“Redemption Price” shall have the meaning assigned to such term in Section 5(b).

“Related Agreements” means this First A&R Certificate of Designation, the Investors’ Rights Agreement, and the Purchase Agreement.

“Restricted Payment” means (a) any dividend or other distribution on account of any shares of any class of the Capital Stock of the Company or any Restricted Subsidiary, except a dividend payable (i) in the case of the Company, solely in shares of Common Stock to the holders of such class and (ii) in the case of any Restricted Subsidiary, solely in shares of Qualified Capital Stock (as defined in the Credit Agreement as in effect on the Initial Issue Date) to the holders of such class; (b) any redemption, retirement, sinking fund or similar payment, purchase or other acquisition for value of any shares of any class of the Capital Stock of the Company and (c) any payment made to retire, or to obtain the surrender of, any outstanding warrants, options or other rights to acquire shares of any class of the Capital Stock of the Company now or hereafter outstanding.

“Restricted Subsidiary” means, as to any Person, any subsidiary of such Person that is not an Unrestricted Subsidiary. Unless otherwise specified, “Restricted Subsidiary” shall mean any Restricted Subsidiary of the Company (including the Borrower and each Intermediate Holdings).

“Sale and Lease-Back Transactions” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“Second Lien Facility” means the notes governed by the Second Lien Note Purchase Agreement, and one or more debt facilities or other financing arrangements (including indentures or note purchase agreements) providing for notes, loans or other indebtedness that replace or refinance such notes or other Indebtedness, including any such replacement or refinancing facility, indenture or note purchase agreement that increases or decreases the amount permitted to be borrowed or issued thereunder or alters the maturity thereof and whether by the same or any other agent, lender or group of lenders, and/or other debt facilities or other financing arrangements and any amendments, supplements, modifications, extensions, renewals, restatements, amendments, replacements and restatements or refundings thereof or any such debt financings or other financing arrangements that replace or refinance such notes or other Indebtedness (or any subsequent replacement thereof), in each case to the extent otherwise permitted or not restricted by this First A&R Certificate of Designation.

“Second Lien Indebtedness” means (a)(i) the aggregate principal amount of the Notes (as defined in the Second Lien Note Purchase Agreement) issued on the First Amendment Effective Date, plus (ii) the aggregate principal amount of the Notes (as defined in the Second Lien Note Purchase Agreement) issued under Section 2.03 of the Second Lien Note Purchase Agreement after the First Amendment Effective Date, which amount under this clause (ii) shall not exceed $25,000,000, plus (iii) Indebtedness incurred pursuant to any Second Lien Facility (including any Additional Notes (as defined in the Second Lien Note Purchase Agreement) in an aggregate outstanding principal amount not to exceed $150,000,000, plus (iv) the amount of any interest payable in kind with respect to the Indebtedness described in the foregoing clauses (i) through (iv) and (b) any refinancing or replacement of any Second Lien Facility after the First Amendment Effective Date so long as the aggregate outstanding principal amount of such Indebtedness does not exceed the amount permitted to be incurred under clause (a) of this definition, plus (i) an amount equal to unpaid accrued interest, penalties and premiums (including tender premiums) thereon, (ii) the amount of any underwriting discount, any other reasonable and customary fee, commission and/or expense (including any upfront fee, original issue discount and/or initial yield payment) incurred in connection with the relevant refinancing, (iii) an amount equal to any existing commitment unutilized thereunder and (iv) any additional amount permitted to be incurred pursuant to this definition (with any additional amount incurred in reliance on this clause (b)(iv) constituting a utilization of the relevant basket or exception pursuant to which such additional amount is permitted).

“Second Lien Note” means any “Note” as defined in the Second Lien Note Purchase Agreement.

“Second Lien Note Purchase Agreement” means that certain Note Purchase Agreement, dated as of April 17, 2023, by and among, inter alios, the Company, the purchasers party thereto, and Wilmington Savings Fund Society, FSB, as purchaser representative, as amended, restated, amended and restated, supplemented, extended, replaced, refinanced or otherwise modified from time to time; provided, that, where any term is defined herein by reference to the Second Lien Note Purchase Agreement “as in effect on the First Amendment Effective Date” or any such similar qualification, such reference shall be deemed to be a reference to the Second Lien Note Purchase Agreement as it existed on the First Amendment Effective Date and shall not, for the avoidance of doubt, give effect to any amendment to the Second Lien Note Purchase Agreement.

“Securities” means any stock, shares, units, partnership interests, voting trust certificates, certificates of interest or participation in any profit-sharing agreement or arrangement, options, warrants, bonds, debentures, notes, or other evidences of indebtedness, secured or unsecured, convertible, subordinated or otherwise, or in general any instruments commonly known as “securities” or any certificates of interest, shares or participations in temporary or interim certificates for the purchase or acquisition of, or any right to subscribe to, purchase or acquire, any of the foregoing; provided, that “Securities” shall not include any earn-out agreement or obligation or any employee bonus or other incentive compensation plan or agreement.

“Series A Preferred Stock” shall have the meaning assigned to such term in Section 1(a).

“Similar Business” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“Specified Preferred Equityholder” means (a) Knighthead Capital Management, LLC, together with its controlled Affiliates and funds managed or advised by it or any or its respective controlled Affiliates (other than any portfolio company), (b) Marathon Asset Management LP, together with its controlled Affiliates and funds managed or advised by it or any or its respective controlled Affiliates (other than any portfolio company), (c) each of Onex Credit Management LLC and Onex Credit Partners, LLC, together with its controlled Affiliates and funds managed or advised by it or any or its respective controlled Affiliates (other than any portfolio company) and (d) Caspian Capital L.P., together with its controlled Affiliates and funds managed or advised by it or any or its respective controlled Affiliates (other than any portfolio company).

“Stated Value” means, as of the relevant date and with respect to each share of Series A Preferred Stock, the sum of (a) $1,000 (adjusted as appropriate in the event of any stock or securities dividend, stock or securities split, stock or securities distribution, recapitalization or combination) plus (b) the aggregate Compounded Dividends with respect to such share as of such date.

“Subsidiary” means, with respect to any Person:

(a) any corporation, association, or other business entity (other than a partnership, joint venture, limited liability company or similar entity) of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time of determination owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof and

(b) any partnership, joint venture, limited liability company or similar entity of which (i) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of that Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, and (ii) such Person or any Subsidiary of such Person is a controlling general partner or otherwise controls such entity;

For the avoidance of doubt, any entity that is owned at a 50% or less level (as described above) shall not be a “Subsidiary” for any purpose under this First A&R Certificate of Designation, regardless of whether such entity is consolidated on the Company’s or any Subsidiary’s financial statements.

“Supermajority Holders” shall have the meaning assigned to such term in Section 7(a).

“Test Period” means, as of any date, (a) for purposes of determining actual compliance with the Credit Agreement, the period of four consecutive Fiscal Quarters then most recently ended for which financial statements under the Credit Agreement have been delivered (or are required to have been delivered) and (b) for any other purpose, the period of four consecutive Fiscal Quarters then most recently ended for which financial statements of the type described in the Credit Agreement, have been delivered (or are required to have been delivered) or, if earlier, are internally available; it being understood and agreed that prior to the first delivery (or required delivery) of financial statements of required pursuant to the Credit Agreement, “Test Period” means the period of four consecutive Fiscal Quarters most recently ended for which financial statements of the Company are available.

“Total Net Leverage Ratio” shall have the meaning assigned to such term in the Credit Agreement as in effect on the Initial Issue Date.

“Transaction Support Agreement” means the Transaction Support Agreement, dated as of March 15, 2023, by and among, inter alios, ATI Physical Therapy Inc., the Borrower, Holdings and the Consenting Stakeholders party thereto, as amended on April 15, 2023 and April 17, 2023, and as further amended, restated, amended and restated, supplemented or otherwise modified from time to time.

“Unrestricted Subsidiary” means any subsidiary of the Borrower that is listed on Schedule 5.10 of the Credit Agreement as in effect on the Initial Issue Date or designated by the Borrower as an Unrestricted Subsidiary after the Initial Issue Date pursuant to Section 5.10 of the Credit Agreement as in effect on the Initial Issue Date. Notwithstanding anything to the contrary contained herein, no APC Manager shall constitute an Unrestricted Subsidiary.

“U.S.” means the United States of America.

“Wholly Owned Subsidiary” of any Person means a Subsidiary of such Person, 100% of the outstanding Equity Interests of which (other than directors’ qualifying shares) shall at the time be owned by such Person or by one or more Wholly Owned Subsidiary of such Person.

13. Interpretation.

(a) Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference.

(b) The headings are for convenience only and shall not be given effect in interpreting this First A&R Certificate of Designation. References herein to any Section or Article shall be to a Section or Article hereof unless otherwise specifically provided.

(c) References herein to any law shall mean such law, including all rules and regulations promulgated under or implementing such law, as amended from time to time and any successor law unless otherwise specifically provided. Except as otherwise stated in this First A&R Certificate of Designation, references in this First A&R Certificate of Designation to any contract(s) or written agreement(s) shall mean such contract or written agreement as in effect on the First Amendment Effective Date, regardless of any subsequent replacement, refunding, refinancing, extension, renewal, restatement, amendment, supplement or modification thereof or thereto and regardless of whether the Issuer is, remains, was, or has ever been, a party thereto.

(d) The use of the term “pari passu” with respect to the Preferred Stock, shall mean pari passu by reference to the Liquidation Value of such Preferred Stock at the relevant time.

(e) The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this First A&R Certificate of Designation, refer to this First A&R Certificate of Designation as a whole and not to any particular provision of this First A&R Certificate of Designation.

(f) The use of the masculine, feminine or neuter gender or the singular or plural form of words shall not limit any provisions of this First A&R Certificate of Designation.

(g) The use herein of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter.

(h) The word “will” shall be construed to have the same meaning as the word “shall”. With respect to the determination of any period of time, “from” shall mean “from and including”. The word “or” shall not be exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”.

(i) The terms “lease” and “license” shall include “sub-lease” and “sub-license”, as applicable.

(j) All references to “$”, currency, monetary values and dollars set forth herein shall mean U.S. dollars.

(k) When the terms of this First A&R Certificate of Designation refer to a specific agreement or other document or a decision by any body or Person that determines the meaning or operation of a provision hereof, the secretary of the Company shall maintain a copy of such agreement, document or decision at the principal executive offices of the Company and a copy thereof shall be provided free of charge to any Holder who makes a request therefor.

(l) Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time; provided, that if the Company notifies the Holders that the Company requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Initial Issue Date in GAAP or in the application thereof on the operation of such provision, regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.

(m) Notwithstanding any other provision contained herein or in the definition of “Capital Lease,” only those leases (assuming for purposes hereof that such leases were then in existence) that would constitute Capital Leases in conformity with GAAP as in effect prior to giving effect to the adoption of ASU No. 2016-02 “Leases (Topic 842)” and ASU No. 2018-11 “Leases (Topic 842)” shall be considered Capital Leases hereunder, and all calculations and deliverables, as applicable, under this First A&R Certificate of Designation shall be made, prepared or available, as applicable, in accordance therewith.

(n) Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made, without giving effect to any election under FASB Accounting Standards Codification 805, 810 or 825 (or any other part of FASB Accounting Standards Codification having a similar result or effect), to value any Indebtedness at “fair value”.

***

This First Amended and Restated Certificate of Designation has been approved in accordance with the provisions of Section 242 of the Delaware General Corporation Law (including by a vote of the stockholders entitled to vote thereon, acting by written consent in lieu of a meeting pursuant to Section 228 of the Delaware General Corporation Law.)

[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]

IN WITNESS WHEREOF, the Company has caused this First A&R Certificate of Designation to be signed by a duly authorized officer this 15th day of June, 2023.

	ATI PHYSICAL THERAPY, INC.

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

[Signature Page to First Amended and Restated Series A Certificate of Designation]

EX-3.2 3 brhc20054312_ex3-2.htm EXHIBIT 3.2

Exhibit 3.2

CERTIFICATE OF DESIGNATION

SERIES B PREFERRED STOCK

ATI PHYSICAL THERAPY, INC.

FILED IN THE OFFICE OF THE SECRETARY OF STATE OF DELAWARE

ON JUNE 15, 2023

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

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

WHEREAS, on April 16, 2023, the Board of Directors approved and adopted the following certificate of designation (this “Certificate of Designation” or this “Certificate”) for purposes of issuing shares of Preferred Stock, with a par value of $0.0001 per share, designated as a series known as “Series B Preferred Stock”, with each such share having the designations, powers, preferences and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions, as set forth in this Certificate of Designation.

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

1. Designation. A total of 450,000 shares of Preferred Stock, with a par value of $0.0001 per share, shall be designated as a series known as “Series B Preferred Stock” (the “Series B Preferred Stock”), which Series B Preferred Stock will have the respective designations, powers, preferences and relative, participating, optional, special and other rights, and the qualifications, limitations and restrictions set forth in this Certificate of Designation. For the avoidance of doubt, the Company may issue fractional shares of Series B Preferred Stock, and a fractional share of Series B Preferred Stock shall have the corresponding fractional rights, obligations and liabilities of a whole share of Series B Preferred Stock; provided, that for purposes of Section 3, any such fractional share shall be rounded down to the nearest whole share of Series B Preferred Stock.

2. Ranking; Liquidation; No Other Economic Rights.

(a) With respect to (i) payment of dividends, (ii) distribution of assets and (iii) all other liquidation, winding up, dissolution, dividend and redemption rights, the Series B Preferred Stock shall rank junior to any existing or future secured or unsecured indebtedness and other liabilities (including trade payables) of the Company and junior in priority of payment to all Senior Stock (as defined below) in any redemption, liquidation, dissolution, winding up or distribution of the Company (collectively, “Senior Payment Obligations”), and senior to Common Stock. For purposes of this Certificate of Designation, “Senior Stock” shall mean any Capital Stock of the Company ranking senior (as to dividend rights, redemption rights, and upon liquidation, dissolution or winding up, as applicable) to the Series B Preferred Stock, including the shares of Preferred Stock designated as “Series A Senior Preferred Stock”.

(b) In the event of any voluntary or involuntary liquidation, dissolution or winding up of the Company, the holders of shares of Series B Preferred Stock then outstanding shall be entitled to be paid out of the assets of the Company available for distribution to its stockholders, after satisfying any Senior Payment Obligations and before any payment in respect of any Common Stock, an amount per share equal to $0.0001. If upon any such liquidation, dissolution or winding up of the Company, the assets of the Company available for distribution to its stockholders shall be insufficient to pay the holders of shares of Series B Preferred Stock the full amount to which they shall be entitled under this Section 2(b), the holders of shares of Series B Preferred Stock shall, in respect of their shares of Series B Preferred Stock, share ratably in any distribution of the assets available for distribution in proportion to the respective amounts which would otherwise be payable in respect of the shares held by them upon such distribution if all amounts payable on or with respect to such shares were paid in full.

(c) Except as expressly set forth in this Section 2 or in Section 4, the Series B Preferred Stock shall not have any (i) dividend, distribution, redemption or liquidation rights, (ii) right to receive any distribution of any of the Company’s assets, or (iii) rights in respect of the liquidation, winding up or dissolution of the Company.

3. Voting.

(a) Except as otherwise required by law or the Certificate of Incorporation or any Preferred Stock Designation (as defined in the Certificate of Incorporation), each share of Series B Preferred Stock shall entitle the Holder thereof to cast that number of votes as is equal to the number of votes that such Holder would be entitled to cast if such Holder was deemed to have converted such share of Series B Preferred Stock into Common Stock, on the terms and conditions set forth in Section 5, on the record date for determining the stockholders of the Company eligible to vote on such matter, on all matters on which stockholders of the Company generally are entitled to vote as specified in Section 3(b); provided, that a Holder will not be entitled to cast any votes in respect of any share of Series B Preferred Stock for which the corresponding Stapled Second Lien PIK Convertible Note has been repaid, repurchased, redeemed or converted as of the relevant record date for such matter.

(b) Except as otherwise required by law or the Certificate of Incorporation or any Preferred Stock Designation, at any annual or special meeting of the stockholders of the Company, holders of Series B Preferred Stock shall have the right to vote for the election of directors and on all other matters properly submitted to a vote of the holders of Common Stock. The holders of Series B Preferred Stock (on an as-converted basis) and the holders of Common Stock shall vote together as a single class on all such matters. Notwithstanding the foregoing, except as otherwise required by law or the Certificate of Incorporation or any Preferred Stock Designation, holders of Series B Preferred Stock shall not be entitled to vote on any amendment to the Certificate of Incorporation or any Preferred Stock Designation that relates solely to the terms of one or more outstanding series of Preferred Stock (other than the Series B Preferred Stock) if the holders of such affected series of Preferred Stock are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to the Certificate of Incorporation or the DGCL.

4. Dividend Rights. On each Dividend Payment Date, the Holder of each share of Series B Preferred Stock shall receive a dividend in kind, in the form of additional shares of Series B Preferred Stock as set forth in Section 11.02(c) in the Note Purchase Agreement.

5. Deemed Conversion. Solely for purposes of determining the number of votes each share of Series B Preferred Stock shall entitle the Holder thereof to cast for any matter on which, pursuant to Section 3, the Holders are entitled to vote, the Series B Preferred Stock shall be deemed to be convertible into Common Stock as follows:

(a) Conversion Ratio. Each share of Series B Preferred Stock shall be deemed to be convertible, at any time and from time to time, and without the payment of additional consideration by the applicable Holder, into such number of fully paid and non-assessable shares of Common Stock as is determined by dividing the Series B Original Issue Price (as defined below) by the Series B Conversion Price (as defined below) in effect at the time of such deemed conversion. The “Series B Original Issue Price” shall mean $1,000 per share of Series B Preferred Stock, subject to appropriate adjustment in the event of any stock split, combination or other similar recapitalization with respect to the Series B Preferred Stock. The “Series B Conversion Price” shall initially be equal to $12.87. Such initial Series B Conversion Price, and the rate at which shares of Series B Preferred Stock may be deemed converted into shares of Common Stock, shall be adjusted from time to time if any Conversion Adjustment Event occurs (with the Series B Conversion Price being adjusted in the same manner and on the same terms applicable to the corresponding adjustment to the Conversion Price (as defined in the Note Purchase Agreement), and with the applicable Conversion Terms being incorporated herein mutatis mutandis).

(b) Effect of Recapitalizations; Reclassifications and Changes of Common Stock. In the case of any Merger Event (as defined in the Note Purchase Agreement), the anti-dilution and other adjustments set forth in the Conversion Terms shall be applied with respect to the Series B Preferred Stock in a manner as nearly equivalent as is possible to the adjustments provided for in this Section 5; provided, however, that the Issuer shall not be permitted to effectuate, or otherwise become a party to, any Merger Event, if such Merger Event would cause any Second Lien PIK Convertible Notes then outstanding to become convertible into any shares of Capital Stock of any Person other than the Issuer, unless (x) the shares of Series B Preferred Stock then outstanding are converted into or exchanged for shares of Successor Preferred Stock (as defined below), and (y) such shares of Successor Preferred Stock have voting rights as nearly as equivalent as is possible to the Series B Preferred Stock. If, in the case of any Merger Event, the Reference Property (as defined in the Note Purchase Agreement) includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing corporation, as the case may be, then, in such Merger Event, such other Person shall agree to undertake the obligations of the Issuer in this Agreement and shall undertake such additional obligations to protect the interests of the holders of the Notes as the Issuer shall reasonably consider necessary by reason of the foregoing.

(c) No Actual Conversion. Notwithstanding anything to the contrary in this Certificate of Designation, shares of Series B Preferred Stock shall be deemed converted into Common Stock solely for the purposes expressly set forth herein, but in no event shall any shares of Series B Preferred Stock actually be converted into or exchanged for Common Stock.

6. Mandatory Forfeiture.

(a) At any time and from time to time, upon the occurrence of a Forfeiture Triggering Event, to the extent not prohibited by law, any applicable Forfeitable Shares shall be deemed to be immediately forfeited and cancelled for no consideration on the terms and subject to the conditions set forth in this Section 6 (a “Mandatory Forfeiture”) without any further action by the Company.

(b) Written notice of any Mandatory Forfeiture pursuant to this Section 6 shall be given by the Company within 15 Business Days following the applicable forfeiture date (each such date, a “Mandatory Forfeiture Date”), which notice shall indicate (1) the number of Forfeitable Shares that have been forfeited and cancelled and (2) the Mandatory Forfeiture Date. For the avoidance of doubt, shares of Series B Preferred Stock are not redeemable, forfeitable or cancellable (i) at the Holder’s election or (ii) at the Company’s election except, in the case of this clause (ii), pursuant to this Section 6.

7. Mandatory Transfers; Restrictions on Transfer.

(a) In connection with any assignment, sale, disposal or other transfer of a Stapled Second Lien PIK Convertible Note by a Holder to an Eligible Transferee, such Holder shall be deemed to have substantially concurrently assigned, sold, disposed of or transferred to such Eligible Transferee the corresponding shares of Series B Preferred Stock, and such Eligible Transferee shall thereafter be the Holder of such shares of Series B Preferred Stock and the corresponding Stapled Second Lien PIK Convertible Note(s).

(b) No Holder shall, directly or indirectly, assign, sell, offer to sell, pledge, mortgage, hypothecate, encumber, dispose of or otherwise consummate or permit any like transfer or encumbrance of any Series B Preferred Stock held by such Holder, in each case other than to an Eligible Transferee of such Holder and then only together with a proportional interest in the applicable Stapled Second Lien PIK Convertible Note.

8. Tax Treatment. The Holders and the Company agree that for U.S. federal (and applicable state and local) income tax purposes (a) the Series B Preferred Stock and Stapled Second Lien PIK Convertible Notes shall be treated as a single integrated instrument and (b) such single integrated instrument shall be treated as indebtedness of the Company (in each case, including as a result of the transfer restrictions provided in Section 7), and none of the Holders or the Company shall file any tax return or take any position contrary or inconsistent with such treatment described in clause (a) or (b) unless otherwise required by a “determination” within the meaning of Section 1313(a) of the Internal Revenue Code of 1986, as amended (or any analogous provision of applicable state or local income tax law).

9. Amendments and Waivers. So long as any shares of Series B Preferred Stock remain outstanding, and unless a greater percentage is required by law, the Issuer shall not, without the affirmative vote or written consent of the Majority Holders, voting separately as one class, amend, alter or change the rights, preferences or privileges of the shares of Series B Preferred Stock, or waive the compliance of any of the covenants included in this Certificate of Designation.

10. Cancellation; No Conversion Rights. No shares of Series B Preferred Stock acquired by the Company by reason of redemption, purchase or otherwise shall be reissued or held in treasury for reissuance, and the Company shall take all necessary action to cause such shares of Series B Preferred Stock immediately to be canceled, retired and eliminated from the shares of Series B Preferred Stock which the Company shall be authorized to issue. The Holders have no rights to convert any Series B Preferred Stock into any other Equity Interests of the Company.

11. Rights and Remedies of Holders.

(a) The various provisions set forth under this Certificate of Designation are for the benefit of the Holders and, subject to the terms and conditions hereof and applicable law, will be enforceable by them, including by one or more actions for specific performance.

(b) Except as expressly set forth herein, all remedies available under this Certificate of Designation, at law, in equity or otherwise, will be deemed cumulative and not alternative or exclusive of other remedies. The exercise by any Holder of a particular remedy will not preclude the exercise of any other remedy.

12. Definitions. As used in this Certificate of Designation, the following terms shall have the meanings specified below:

“Business Day” shall have the meaning assigned to such term in the Note Purchase Agreement.

“Capital Stock” means:

(1) in the case of a corporation, corporate stock;

(2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock;

(3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and

(4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

“Certificate of Designation” shall have the meaning assigned to such term in the recitals hereof.

“Certificate of Incorporation” shall have the meaning assigned to such term in the recitals hereof.

“Common Stock” means any shares of Class A common stock, with a par value of $0.0001 per share, of the Company.

“Company” shall have the meaning assigned to such term in the recitals hereof.

“Conversion Adjustment Events” means, collectively, the events specified in Section 10.04 of the Note Purchase Agreement (each of which, for the avoidance of doubt, is intended to result in an adjustment to the Series B Conversion Price hereunder which corresponds to the adjustment to the Conversion Price under the Note Purchase Agreement).

“Conversion Terms” means the terms, conditions and other provisions set forth in Article 10 of the Note Purchase Agreement.

“DGCL” shall have the meaning assigned to such term in the introductory paragraph hereof.

“Dividend Payment Date” shall mean, with respect to any share of Series B Preferred Stock, the Interest Payment Date associated with the corresponding Stapled Second Lien PIK Convertible Note.

“Eligible Transferee” shall have the meaning assigned to such term in the Note Purchase Agreement.

“Forfeitable Shares” shall mean any shares of Series B Preferred Stock that have become subject to a Forfeiture Triggering Event.

“Forfeiture Triggering Event” shall mean, with respect to any share of Series B Preferred Stock, each date, if any, on which the corresponding Stapled Second Lien PIK Convertible Note has been repaid, repurchased, redeemed or converted.

“Holder” means, as of the relevant date, any Person that is the holder of record of at least one share of Series B Preferred Stock, as of such date.

“Initial Issue Date” means June 15, 2023.

“Interest Payment Date” shall have the meaning assigned to such term in the Note Purchase Agreement.

“Majority Holders” means, as of any date of determination, the Holders holding a majority of the then-outstanding shares of Series B Preferred Stock.

“Mandatory Forfeiture” shall have the meaning assigned to such term in Section 6(a).

“Mandatory Forfeiture Date” shall have the meaning assigned to such term in Section 6(b).

“Note Purchase Agreement” means that certain Note Purchase Agreement, dated as of April 17, 2023, by and among the Company, ATI Holdings Acquisition, Inc., a Delaware corporation, Wilco Intermediate Holdings, Inc., a Delaware corporation, the Purchasers from time to time party thereto and Wilmington Savings Fund Society, FSB, as the purchaser representative and collateral agent for the Purchasers, as the same may be amended, modified, supplemented and/or restated from time to time.

“Preferred Stock” shall have the meaning assigned to such term in the recitals hereof.

“Purchasers” shall have the meaning assigned to such term in the Note Purchase Agreement.

“Second Lien PIK Convertible Notes” shall mean the subordinated second lien PIK convertible notes issued pursuant to the Note Purchase Agreement.

“Series B Preferred Stock” shall have the meaning assigned to such term in Section 1.

“Stapled Second Lien PIK Convertible Note” shall mean, with respect to any share of Series B Preferred Stock, a corresponding principal amount of Second Lien PIK Convertible Notes held by the Holder of such share, with 1 (one) share of Series B Preferred Stock corresponding to $1,000 principal amount of Second Lien PIK Convertible Notes.

“Successor Preferred Stock” shall mean, as applied to the Capital Stock of any Person, means Capital Stock of such Person of any class or classes, regardless of designation, that ranks prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, dissolution or winding up of such Person, to shares of Capital Stock of any other class of such Person.

“U.S.” means the United States of America.

13. Interpretation.

(a) Any of the terms defined herein may, unless the context otherwise requires, be used in the singular or the plural, depending on the reference.

(b) The headings are for convenience only and shall not be given effect in interpreting this Certificate of Designation. References herein to any Section shall be to a Section hereof unless otherwise specifically provided.

(c) References herein to any law shall mean such law, including all rules and regulations promulgated under or implementing such law, as amended from time to time and any successor law unless otherwise specifically provided. Except as otherwise stated in this Certificate of Designation, references in this Certificate of Designation to any contract(s) or written agreement(s) shall mean such contract or written agreement, regardless of any subsequent replacement, refunding, refinancing, extension, renewal, restatement, amendment, supplement or modification thereof or thereto and regardless of whether the Issuer is, remains, was, or has ever been, a party thereto.

(d) The words “hereof,” “herein” and “hereunder” and words of similar import, when used in this Certificate of Designation, refer to this Certificate of Designation as a whole and not to any particular provision of this Certificate of Designation.

(e) The use of the masculine, feminine or neuter gender or the singular or plural form of words shall not limit any provisions of this Certificate of Designation.

(f) The use herein of the word “include” or “including”, when following any general statement, term or matter, shall not be construed to limit such statement, term or matter to the specific items or matters set forth immediately following such word or to similar items or matters, whether or not non-limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto, but rather shall be deemed to refer to all other items or matters that fall within the broadest possible scope of such general statement, term or matter.

(g) The word “will” shall be construed to have the same meaning as the word “shall”. With respect to the determination of any period of time, “from” shall mean “from and including”. The word “or” shall not be exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”.

(h) The terms “lease” and “license” shall include “sub-lease” and “sub-license”, as applicable.

(i) All references to “$”, currency, monetary values and dollars set forth herein shall mean U.S. dollars.

(j) When the terms of this Certificate of Designation refer to a specific agreement or other document or a decision by any body or Person that determines the meaning or operation of a provision hereof, the secretary of the Company shall maintain a copy of such agreement, document or decision at the principal executive offices of the Company and a copy thereof shall be provided free of charge to any Holder who makes a request therefor.

[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]

IN WITNESS WHEREOF, the Company has caused this Certificate of Designation to be signed by a duly authorized officer this 15th day of June, 2023.

	ATI PHYSICAL THERAPY, INC.

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

[Signature Page to Series B Certificate of Designation]

EX-10.3 4 brhc20054312_ex10-3.htm EXHIBIT 10.3

Exhibit 10.3

Execution Version

CONSENT AGREEMENT TO AMENDMENT NO. 2 TO

CREDIT AGREEMENT

THIS CONSENT AGREEMENT, dated as of June 15, 2023 (this “Consent”), to Amendment No. 2 to Credit Agreement, dated as of April 17, 2023 (the “Second Amendment Agreement”), by and among ATI Holdings Acquisition, Inc., a Delaware corporation (the “Borrower”), Wilco Intermediate Holdings, Inc., a Delaware corporation (“Holdings”), each Subsidiary Guarantor (as defined in the Existing Credit Agreement referred to in the Second Amendment Agreement) party hereto (together with Holdings, the “Guarantors”), the Lenders (as defined in the Existing Credit Agreement) executing this Consent as a “Lender” on the signature pages hereto (the “Consenting Lenders”), HPS Investment Partners, LLC (“HPS”), as Lender Representative (as defined in the Existing Credit Agreement) (the “Lender Representative”), and Barclays Bank PLC (“Barclays”), as Administrative Agent (as defined in the Existing Credit Agreement) (the “Administrative Agent”).

W I T N E S S E T H:

WHEREAS, certain Crossholder Lenders (as defined in the Second Amendment Agreement) have agreed to invest the proceeds of the interest payment made on their respective Specified Existing Term Loans on May 31, 2023 in additional Second Lien PIK Notes to be issued by the Borrower on the Second Amendment Effective Date;

WHEREAS, in connection therewith, Holdings, Borrower, the Second Lien Purchaser Representative (as defined in the Second Amendment Agreement) and the Purchasers (as defined in the Amended Second Lien Note Purchase Agreement referred to below) have agreed to amend the Second Lien Note Purchase Agreement, dated April 17, 2023 (the “Existing Second Lien Note Purchase Agreement”) pursuant to that certain First Amendment thereto dated as of June 15, 2023 (the “First Amendment to Second Lien Note Purchase Amendment”), by and among Holdings, the Borrower, the Second Lien Purchaser Representative and the Crossholder Lenders and Consenting Preferred Equityholders (as defined in the Second Amendment Agreement) party thereto as Purchasers (the Existing Second Lien Note Purchase Agreement, as amended by the First Amendment to Second Lien Note Purchase Amendment, the “Amended Second Lien Note Purchase Agreement”) to provide for the issuance of additional Second Lien PIK Notes thereunder in the aggregate amount of $3,243,302.02 (the “Additional Second Lien PIK Notes”) thereunder on the Second Amendment Effective Date;

WHEREAS, the Borrower has requested an amendment to the Second Amendment Agreement to replace the Amended Credit Agreement attached as Exhibit A thereto with the Revised Amended Credit Agreement (as defined below) in order to permit the issuance of the Additional Second Lien PIK Notes; and

WHEREAS, the Borrower, the Guarantors, the Lender Representative, the Administrative Agent and the Consenting Lenders constituting the Required Lenders and the Required Revolving Lenders desire to memorialize the terms of this Consent in accordance with Section 9.02 of the Existing Credit Agreement.

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and subject to the conditions set forth herein, the parties hereto hereby agree as follows:

SECTION 1. Defined Terms. Capitalized terms used but not defined herein shall have the meanings assigned to such terms in the Second Amendment Agreement.

SECTION 2. Amendments. The Second Amendment Agreement is hereby amended as follows:

(a) Section 7(b) of the Second Amendment Agreement is hereby amended and restated in its entirety to read as follows:

(b) Initial Budget. The Administrative Agent and the Lender Representative shall have received an initial budget for the Borrower in substantially the form agreed by the Borrower, the Lender Representative and Barclays, as a Revolving Lender, prior to the date hereof; provided, that, it is understood and agreed that such initial budget shall not be required to include a 13-week statement of anticipated cash receipts and disbursements.

(b) The Amended Credit Agreement attached as Exhibit A to the Second Amendment Agreement is hereby amended as follows:

(i) Section 1.01 of the Amended Credit Agreement is hereby amended add the following new definitions in the alphabetically appropriate order:

“First Amendment to Second Lien Note Purchase Agreement” has the meaning assigned to such term in the definition of Second Lien Note Purchase Agreement.

“Specified Crossholder Lenders” means Lenders affiliated with, managed or advised by Knighthead Capital Management, LLC and Marathon Asset Management LP, respectively.

“Subsequent Crossholder Lender Term Loan Exchange and Cancellation” has the meaning assigned to such term in Section 2.01(a).

“Subsequent Specified Existing Term Loans” has the meaning assigned to such term in Section 2.01(a).

(ii) Section 1.01 of the Amended Credit Agreement is hereby amended to restate the definitions of “Cash Flow Forecast” and “Second Lien Note Purchase Agreement”, respectively, in their entirety as follows:

“Cash Flow Forecast” means the 13-week cash flow forecast delivered pursuant to Section 8(a) of the Second Amendment and Section 5.01(j).

“Second Lien Note Purchase Agreement” means the Second Lien Note Purchase Agreement dated as of April 17, 2023 among Parent, as issuer, Intermediate Parent, Holdings, the Borrower, the Second Lien Noteholders and the Second Lien Agent, as amended by the First Amendment to Second Lien Note Purchase Agreement dated as of June 15, 2023 (the “First Amendment to Second Lien Note Purchase Agreement”), and as further amended, restated, supplemented and otherwise modified from time to time in a manner not prohibited by this Agreement and the Second Lien Intercreditor and Subordination Agreement.

(iii) Section 2.01 of the Amended Credit Agreement is hereby amended as follows:

(A)

The second paragraph thereto is hereby restated in its entirety as follows:

“On the Second Amendment Effective Date, an aggregate principal amount of $100,000,000 of Term Loans (the “Specified Existing Term Loans”) held by Crossholder Lenders shall be purchased by Parent, which Specified Term Loans shall be (A) immediately contributed by Parent to Intermediate Parent, (B) immediately thereafter contributed by Intermediate Parent to Holdings, and (C) immediately thereafter contributed by Holdings to the Borrower, and immediately thereafter the Specified Existing Term Loans shall be automatically and immediately cancelled (without the need for any action by any Person) pursuant to the Crossholder Lender Term Loan Exchange and Cancellation.”

(B)

A third paragraph thereto is hereby added as follows:

“After the Second Amendment Effective Date, it is anticipated that an additional aggregate principal amount not exceeding $650,000 of Term Loans (the “Subsequent Specified Existing Term Loans”) held by the Specified Crossholder Lenders may be purchased by Parent, and upon such purchase the Subsequent Specified Existing Term Loans will be (A) immediately contributed by Parent to Intermediate Parent, (B) immediately thereafter contributed by Intermediate Parent to Holdings, and (C) immediately thereafter contributed by Holdings to the Borrower, and immediately thereafter the Subsequent Specified Existing Term Loans shall be automatically and immediately cancelled (without the need for any action by any Person) (the foregoing transactions with respect to the Subsequent Specified Existing Term Loans, the “Subsequent Crossholder Lender Term Loan Exchange and Cancellation”).

(iv) The second to last paragraph of Section 5.01 of the Amended Credit Agreement is hereby amended by modifying the reference therein to Section 5.01(h) to Section 5.01(l).

(v) Section 5.01(j) of the Amended Credit Agreement is hereby restated in its entirety as follows:

“(j) Cash Flow Forecasts. Not later than the Thursday of the last calendar week of each calendar month during the Cash Flow Reporting Period, a rolling 13 week cash flow projection of the Borrower and its subsidiaries on a consolidated basis, each substantially in a form consistent with the Cash Flow Forecast delivered under Section 8(a) of the Second Amendment or otherwise in form and detail reasonably satisfactory to the Administrative Agent and the Lender Representative, together with a variance report showing on a line item basis the dollar variance of actual cash disbursements and cash receipts versus the Cash Flow Forecast that was most recently provided; it being understood and agreed that (1) the requirements set forth in this clause (j) shall not apply if the delivery date therefor does not occur during a Cash Flow Reporting Period and (2) for the avoidance of doubt, the determination of whether a Default or Event of Default has occurred under Section 6.15 shall not be based solely on the information contained in any Cash Flow Forecast delivered pursuant to this Section 5.01(j);”

(v) Section 6.01(w) of the Amended Credit Agreement is hereby restated in its entirety as follows:

“(w) (A) Indebtedness of the Loan Parties under the Second Lien PIK Notes and the Second Lien Note Documents and (B) subordinated Indebtedness of the Loan Parties that is either (x) secured by a Lien on the Collateral that is junior to the Lien on the Collateral securing the Secured Obligations or (y) unsecured; provided that (i) the aggregate outstanding principal amount of all Indebtedness permitted under this Section 6.01(w) shall not exceed the sum of (1) the aggregate principal amount of the Second Lien PIK Notes issued on the Second Amendment Effective Date, which amount under this clause (1) shall not exceed $100,000,000, plus (2) the aggregate principal amount of Second Lien PIK Notes consisting of “First Amendment Notes” issued on the Second Amendment Effective Date, which amount under this clause (2) shall not exceed $3,243,302.02, plus (3) the aggregate principal amount of the Second Lien PIK Notes issued after the Second Amendment Effective Date in connection with the Subsequent Crossholder Lender Term Loan Exchange and Cancellation, which amount under this clause (3) shall not exceed $650,000, plus (4) the aggregate principal amount of the Second Lien PIK Notes issued under Section 2.03 of the Second Lien Note Purchase Agreement after the Second Amendment Effective Date, which amount under this clause (4) shall not exceed $25,000,000, plus (5) $150,000,000 of additional Indebtedness issued after the Second Amendment Effective Date (which, for the avoidance of doubt, may be in the form of additional Second Lien PIK Notes) plus (6) the amount of interest on the Indebtedness described in the foregoing clauses (1) through (5) that is paid in kind; (ii) the issuer of the Second Lien PIK Notes and other Indebtedness permitted under this Section 6.01(w) shall be the Parent; (iii) such Indebtedness shall not contain any amortization or require any payments in cash prior to the date that is at least 181 days after the Initial Term Loan Maturity Date (other the payments contemplated by clauses (i) and (ii) of Section 6.04(c)); (iv) such Indebtedness shall not have a final maturity date prior to the date that is at least 181 days after the Initial Term Loan Maturity Date; (v) the obligors on such Indebtedness shall be Loan Parties or Parent Loan Guarantors; (vi) the proceeds of Indebtedness under this Section 6.01(w) shall be used solely for the general corporate purposes of the Borrower and its Restricted Subsidiaries (other than for making any Restricted Payment, any Restricted Debt Payment, or any payment to any Affiliate of the Borrower (other than payments solely among the Borrower and its Restricted Subsidiaries and, if applicable, Affiliated Practices) which are not permitted use of proceeds of such Indebtedness); (vii) in the case of additional Second Lien PIK Notes issued after the Second Amendment Effective Date or Indebtedness incurred under clause (B), the terms of such Indebtedness must be substantially consistent with the Second Lien Note Purchase Agreement or otherwise reasonably acceptable to the Lender Representative and the Administrative Agent, other than with respect to (A) conversion mechanics of such Indebtedness into Capital Stock of Parent or any direct or indirect parent company thereof, (B) interest and/or fees to the extent payable solely in kind by increasing the aggregate principal amount of such Indebtedness and not in cash and (C) conditions precedent to borrowing thereunder; and (viii) the Second Lien PIK Notes and all other Indebtedness permitted under this Section 6.01(w) shall be subordinated in right of payment to the Obligations and, if secured, shall be secured solely on Collateral and subordinated in right of Lien priority to the Liens securing the Obligations, in each case, under and subject to the Second Lien Intercreditor and Subordination Agreement (or, in the case of such other Indebtedness incurred under clause (B), another Intercreditor Agreement under clause (i) of the definition thereof);”

(vi) The second to last paragraph of Section 9.05 of the Amended Credit Agreement is hereby restated in its entirety as follows:

“Notwithstanding the foregoing or anything to the contrary contained herein, (i) the Crossholder Lender Term Loan Exchange and Cancellation may be consummated on the Second Amendment Effective Date and (ii) the Subsequent Crossholder Lender Term Loan Exchange and Cancellation may be consummated in accordance with Section 2.01(a) after the Second Amendment Effective Date.”

(c) In furtherance of the foregoing amendments to the Amended Credit Agreement set forth in Section 2(b), the Second Amendment Agreement is hereby amended to replace the document set forth on Exhibit A thereto with the document set forth on Exhibit A hereto (the “Revised Amended Credit Agreement”).

(d) For all purposes of the Second Amendment Agreement, (i) references to the “amendments to the Existing Credit Agreement” and “Amended Credit Agreement” shall be deemed to refer to the Revised Amended Credit Agreement and (ii) references to the “Second Lien Note Purchase Agreement” shall be deemed to refer to the Amended Second Lien Note Purchase Agreement. On the Second Amendment Effective Date, subject to the satisfaction of the conditions to effectiveness specified in Section 7 of the Second Amendment Agreement (as amended hereby), each party hereto hereby consents to (i) the amendment of the Existing Credit Agreement as set forth in the Revised Amended Credit Agreement and (ii) the amendments to the Second Amendment Agreement as set forth in this Section 2.

SECTION 3. Effects on Loan Documents.

(a) On and after the Second Amendment Effective Date, each reference in any Loan Document to “the Credit Agreement” shall mean and be a reference to the Revised Amended Credit Agreement and each reference in the Existing Credit Agreement to “this Agreement”, “hereunder”, “hereof” or words of like import shall mean and be a reference to the Revised Amended Credit Agreement.

(b) Except as specifically amended hereby, all Loan Documents (including the Loan Guaranties and all Collateral Documents) and the obligations of the Loan Parties under the Loan Documents shall continue to be in full force and effect and are hereby in all respects ratified and confirmed and shall not be affected by this Consent. Each Loan Party hereby acknowledges and agrees that, after giving effect to this Consent, all of its respective obligations, guarantees, pledges, grants of Liens, liabilities and other agreements or commitments under the Loan Documents to which it is a party, as such obligations, guarantees, pledges, grants of Liens, liabilities and other agreements or commitments are reaffirmed, and remain in full force and effect.

(c) The Borrower and the other parties hereto acknowledge and agree that, on and after the Second Amendment Effective Date, this Consent shall constitute a Loan Document for all purposes of the Revised Amended Credit Agreement.

SECTION 4. APPLICABLE LAW. THIS CONSENT (OTHER THAN AS EXPRESSLY SET FORTH IN ANY OTHER LOAN DOCUMENT) AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR RELATED TO THIS CONSENT (OTHER THAN AS EXPRESSLY SET FORTH IN ANY OTHER LOAN DOCUMENT), WHETHER IN TORT, CONTRACT (AT LAW OR IN EQUITY) OR OTHERWISE, SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. Sections 9.10(b), 9.10(c), 9.10(d) and 9.11 of the Revised Amended Credit Agreement are incorporated herein by reference, mutatis mutandis.

SECTION 5. Miscellaneous.

(a) This Consent shall be binding upon and inure to the benefit of the Loan Parties and their respective successors and permitted assigns, and upon the Administrative Agent and the Lenders and their respective successors and permitted assigns.

(b) To the extent permitted by applicable Requirements of Law, any provision of this Consent held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction.

(c) This Consent may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of an executed counterpart of a signature page to this Consent by facsimile or by email as a “.pdf” or “.tif” attachment shall be effective as delivery of a manually executed counterpart of this Consent. It is understood and agreed that, subject to any Requirement of Law, the words “execution”, “signed”, “signature”, “delivery” and words of like import in or relating to any Loan Document shall be deemed to include any Electronic Signature, delivery or the keeping of any record in electronic form, each of which shall have the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar state laws based on the Uniform Electronic Transactions Act.

(d) The Consenting Lenders constituting the Required Lenders and the Required Revolving Lenders, hereby direct the Administrative Agent to execute this Consent. In reliance on the direction by the Consenting Lenders constituting the Required Lenders and the Required Revolving Lenders, and the provisions of Articles 8 and 9 of the Credit Agreement, the Administrative Agent has executed this Consent.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Consent as of the date first above written.

	WILCO INTERMEDIATE HOLDING, INC., as Holdings

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

	ATI HOLDINGS ACQUISITION, INC., as the Borrower

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