Form of Subordination Agreement
Culver City, California
This Subordination Agreement (this Agreement), dated [_], 2021, is made between NantHealth, Inc. (formerly Nant Health, LLC), a Delaware corporation, with offices at 9920 Jefferson Boulevard, Culver City, California 90232 (the Company), NaviNet, Inc., a Delaware corporation (the Subsidiary Guarantor) and [_____] (together with any transferee of the New Notes held by [_____], the Holder).
WHEREAS, the Company previously issued Convertible Senior Notes due 2021 (the Existing Notes) pursuant to the Indenture, dated on or about December 21, 2016, between the Company and U.S. Bank National Association (the Existing Notes Indenture).
WHEREAS, the Company wishes to issue Convertible Senior Notes due 2026 to certain investors, including Holder, pursuant to the Indenture, dated on or about April 27, 2021 (the New Notes Indenture), by and among the Company, NaviNet, Inc. and U.S. Bank National Association (such notes issued to Holder, the New Notes).
NOW, THEREFORE, for good and valuable consideration, the Company and Holder do hereby agree as follows:
(a) Agreement of Subordination. The Company, the Subsidiary Guarantor and Holder each covenant and agree that the New Notes shall be issued subject to the provisions of this Section 1; and each holder of the New Notes, whether upon original issue or upon transfer, assignment or exchange thereof, accepts and agrees to be bound by such provisions. The payment of the principal of, premium, if any, or interest on the New Notes shall, to the extent and in the manner hereinafter set forth, be subordinated and subject in right of payment to the prior payment in full of all Senior Debt (as defined below), whether outstanding at the date of this Agreement or thereafter incurred. For purposes of this Agreement, Senior Debt shall mean the principal of, premium, if any, interest (including all interest accruing subsequent to the commencement of any bankruptcy or similar proceeding, whether or not a claim for post-petition interest is allowable as a claim in any such proceeding), and all fees, costs, expenses and other amounts accrued or due on or in connection with the Existing Notes whether outstanding on the date of this Agreement or thereafter created, incurred, assumed, guaranteed or in effect guaranteed by the Company (including all deferrals, renewals, extensions or refundings of, or amendments, modifications or supplements to, the foregoing).
(b) Payments to Holders.
(i) No payment shall be made with respect to the principal of, or premium, if any, or interest on the New Notes if (A) a default in the payment of principal, premium, if any, interest or other obligations due on any Senior Debt occurs and is continuing (or, in the case of Senior Debt for which there is a period of grace, in the event of such a default that continues beyond the period of grace, if any, specified in the instrument evidencing such Senior Debt) (including a default set forth in Sections 6.01(a), 6.01(b) or 6.01(c) of the indenture pursuant to which the Senior Debt was issued) (a Payment Default), unless and until such default shall have been cured or waived or the obligations in respect of the Senior Debt are paid in full in cash or other payment satisfactory to the holders of Senior Debt or (B) the Companys receipt of a Payment Blockage Notice (as defined in the Existing Notes Indenture) (a Non-Payment Default).