Exhibit 10.27


 


INTERCREDITOR AGREEMENT


 


INTERCREDITOR AGREEMENT (as amended, restated,
supplemented or modified from time to time, and together with each
Intercreditor Agreement Joinder, this “Agreement”) dated as of May 13,
2010, by and among the First Lien Agent (as defined below), Wilmington Trust
FSB, in its capacity as Trustee and as Second Lien Agent (each as defined
below) and each other First Lien Series Representative and Second Lien Series Representative
(each as defined below) that becomes a party to this Agreement pursuant to an
Intercreditor Agreement Joinder.


 


RECITALS:


 


WHEREAS, Oncure Medical Corp., a Delaware corporation (“Oncure”), the other borrowers named therein
(together with their successors and assigns, including any receiver, trustee or
debtor-in-possession, a “Borrower,”
and collectively, the “Borrowers”),
OnCure Holdings, Inc., a Delaware corporation (together with its
successors and assigns, including any receiver, trustee or
debtor-in-possession, “Holdings”),
the other Loan Parties (as defined therein), the Lenders (as defined therein)
and General Electric Capital Corporation, as agent, are parties to a Credit
Agreement dated as of May 13, 2010 (as amended, restated, supplemented or
otherwise modified from time to time, the “Initial
First Lien Loan Agreement”), pursuant to which such Lenders and L/C
Issuer (as defined therein) have made and will from time to time make loans and
provide other financial accommodations to the Borrowers;


 


WHEREAS, Holdings, certain of its subsidiaries, and
Wilmington Trust FSB (together with any successor trustee thereunder, the “Trustee”), as
trustee for the Holders (as defined in the Indenture) (together with their
successors and assigns, the “Note Holders”) are parties to an indenture, dated as of May 13,
2010 (as amended, restated, supplemented or otherwise modified from time to
time, as more specifically defined below, the “Indenture”), pursuant to which
Holdings will issue, and each of the other Obligors (as hereinafter defined)
will guarantee, $210,000,000 in aggregate original principal amount of Holdings’
113⁄4% senior secured notes to the Note Holders;


 


WHEREAS, Holdings, the Borrowers and the other Obligors (as
defined below) have granted to the First Lien Agent, for the benefit of the
First Lien Creditors (as defined below), a Lien (as defined below) on
substantially all of their assets and properties, all as more particularly
described in the First Lien Documents (as defined below);


 


WHEREAS, Holdings, the Borrowers and the other Obligors
have granted to the Second Lien Agent, for the benefit of the Second Lien
Creditors (as defined below), a Lien on substantially all of their assets and
properties, all as more particularly described in the Second Lien Documents (as
defined below);


 


WHEREAS, the Second Lien Agent, on behalf of the Second
Lien Creditors, and the First Lien Agent, on behalf of the First Lien
Creditors, wish to set forth their agreement as to certain of their respective
rights and obligations with respect to the assets and properties of Holdings,
the Borrowers and the other Obligors and their understanding relative to their
respective positions in certain assets and properties of Holdings, the
Borrowers and the other Obligors; and


 

















 


WHEREAS, the parties hereto desire to provide that certain
future Secured Creditors of Holdings, the Borrowers and any other Obligors may
become party to, and have their respective Liens governed by, the provisions of
this Agreement in accordance with all applicable Documents, subject to the
terms and provisions hereof.


 


NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto agree as follows:


 


Section 1.               Definitions.


 


1.1           General Terms.  As used in this Agreement, the following
terms shall have the respective meanings indicated below, such meanings to be
applicable equally to both the singular and the plural forms of the terms
defined:


 


“Additional Secured
Obligations” has the meaning set forth in Section 2.14.


 


“Agent” means the First Lien Agent or the Second Lien Agent,
as applicable.


 


“Agent’s Notice” shall have the meaning set forth in Section 5.1.


 


“Agreement” shall have the meaning set forth in the preamble
hereof.


 


“Bankruptcy Code” means the provisions of Title 11 of
the United States Code, 11 U.S.C. §§101 et seq.


 


“Bankruptcy Law” means the Bankruptcy Code and any other
federal, state or foreign bankruptcy, insolvency, receivership or similar law.


 


“Borrower” and “Borrowers”
shall have the meaning set forth in the recitals hereof.


 


“Business Day” means any day of the year that is not a
Saturday, a Sunday or a day on which banks are required or authorized to close
in Irvine, California, Englewood, Colorado or New York City.


 


“Class”  means
(i) in the case Second Lien Obligations, all Series of Second Lien
Obligations, taken together, and (ii) in the case of First Lien
Obligations, all Series of First Lien Obligations, taken together.


 


“Collateral” means all assets and properties of any kind
whatsoever, real or personal, tangible or intangible and wherever located, of
any Obligor, whether now owned or hereafter acquired, upon which a Lien
(including, without limitation, any Liens granted in any Insolvency Proceeding)
is now or hereafter granted or purported to be granted by such Obligor in favor
of a Secured Creditor, as security for all or any part of the Obligations.


 


“Credit Facilities”  means  (i) 
any credit facility established under the First Lien Loan Agreement and
(ii) any other debt facilities or commercial paper facilities permitted to
be established pursuant to the Documents and this Agreement, in each case, with
banks or other institutional lenders providing for revolving credit loans, term
loans, receivables financing


 


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(including
through the sale of receivables to such lenders or to special purpose entities
formed to borrow from such lenders against such receivables) or letters of
credit, in each case, as amended, restated, modified, renewed, refunded,
replaced (whether upon or after termination or otherwise) or Refinanced
(including by means of sales of debt securities to institutional investors) in
whole or in part from time to time.


 


“Debt Action” means (a) the filing of a lawsuit by any
Secured Creditor solely to collect the Obligations owed to such Secured
Creditor and not to exercise their secured creditor remedies in respect of the
Collateral (it being understood and agreed that the taking of any action to
enforce or execute a judgment on Collateral through attachment, levy, garnishment
or similar action is an Enforcement Action and not a Debt Action), (b) the
demand by any Secured Creditor for accelerated payment of any and all of the
Obligations owed to such Secured Creditor, (c) the filing of any notice of
claim and the voting of any such claim in any Insolvency Proceeding to the
extent consistent with the terms of this Agreement involving an Obligor,
(d) the filing of any motion in any Insolvency Proceeding permitted under Section 6
or (e) the filing of any defensive pleading in any Insolvency Proceeding
consistent with the terms of this Agreement.


 


“Designated Permitted Second Lien Disposition” shall have the
meaning set forth in Section 2.10(a).


 


“DIP Financing” shall have the meaning set forth in Section 6.2.


 


“DIP Liens shall have the meaning set forth in Section 6.2.


 


“Disposition” means any sale, lease, exchange, transfer or
other disposition, and “Dispose” and “Disposed of” shall have correlative meanings.


 


“Distribution” means, with respect to any indebtedness or
obligation, (a) any payment or distribution by any Person of cash,
securities or other property, by setoff or otherwise, on account of such
indebtedness or obligation or (b) any redemption, purchase or other
acquisition of such indebtedness or obligation by any Person.


 


“Documents” means the First Lien Documents and the Second
Lien Documents, or any of them.


 


“Enforcement Action” means (a) any action by any Secured
Creditor to foreclose on the Lien of such Person in any Collateral,
(b) any action by any Secured Creditor to take possession of, or sell or
otherwise realize upon, or to exercise any other rights or remedies with
respect to, any Collateral, including any Disposition after the occurrence of
an Event of Default of any Collateral by an Obligor with the consent of, or at
the direction of, a Secured Creditor, (c) the taking of any other actions
by a Secured Creditor against any Collateral, including the taking of control
or possession of, or the exercise of any right of setoff with respect to, any
Collateral and/or (d) the commencement by any Secured Creditor of any
legal proceedings or actions against or with respect to any Obligor or any of
such Obligor’s property or assets or any Collateral to facilitate any of the
actions described in clauses (a), (b) and (c) above, including
the commencement of any Insolvency Proceeding; provided that this
definition shall not include any Debt Action.


 


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“Event of Default” means each “Event of Default” or similar
term, as such term is defined in any First Lien Document or any Second Lien
Document.


 


“Excluded First Lien Obligations” means,
collectively at any time of calculation, (a) the aggregate outstanding
principal amount of First Lien Obligations and outstanding amount of First Lien
Letter of Credit Obligations that exceed the Maximum First Lien Principal
Amount at such time and (b) any interest and letter of credit fees payable
on account of the excess amounts described in clause (a).


 


“Excluded Second Lien Obligations” means, collectively
at any time of calculation, (a) the aggregate outstanding principal amount
of Second Lien Obligations that exceed the Maximum Second Lien Principal Amount
at such time and (b) any interest payable on account of the excess amounts
described in clause (a).


 


“Final Order” means an order of the Bankruptcy Court or any
other court of competent jurisdiction as to which the time to appeal, petition
for certiorari, or move for reargument or
rehearing has expired and as to which no appeal, petition for certiorari, or other proceedings for reargument or rehearing
shall then be pending or as to which
any right to appeal, petition for certiorari,
reargue, or rehear shall have been waived in writing in form and substance
satisfactory to the First Lien Agent, or, in the event that an appeal,
writ of certiorari, or reargument or rehearing thereof has been filed or
sought, such order of the Bankruptcy Court or other court of competent
jurisdiction shall have been affirmed by the highest court to which such order was
appealed, or from which certiorari, reargument or rehearing was sought, and the
time to take any further appeal, petition for certiorari or move for reargument
or rehearing shall have expired; provided that the possibility that a
motion under Rule 59 or Rule 60 of the Federal Rules of Civil
Procedure or any analogous rule under the Federal Rules of Bankruptcy
Procedure or applicable state court rules of civil procedure, may be filed
with respect to such order shall not cause such order not to be a Final Order.


 


“First Lien”
means any Lien granted pursuant to any First Lien Document to any First Lien Series Representative,
at any time, upon any property of any Obligor to secure First Lien Obligations.


 


“First Lien Agent” means General Electric Capital Corporation
in its capacity as collateral agent for the First Lien Creditors under the
First Lien Loan Agreement and related First Lien Documents, and its successors
and assigns in such capacity (including one or more other agents or similar
contractual representatives for one or more lenders that at any time succeeds
to or refinances, replaces or substitutes for any or all of the related First
Lien Obligations at any time and from time to time) and any other Person
designated as a collateral agent with respect to any other Series of First
Lien Obligations; provided that, until the First Lien Obligations
arising under or in connection with the First Lien Loan Agreement have been
Paid in Full, General Electric Capital Corporation and its successors, each in
its capacity as collateral agent under the First Lien Loan Agreement and
related First Lien Documents shall be the sole authorized Person to act as the
First Lien Agent with respect to the First Lien Obligations under the First
Lien Loan Agreement and each other Series of First Lien Obligations unless
otherwise determined by the then First Lien Agent and the Requisite First Lien
Creditors at the time such other Series of First Lien Obligations are
incurred (such determination to be evidenced in the


 


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Intercreditor
Agreement Joinder executed and delivered in connection with the issuance of
such Series of First Lien Obligations). 
When the First Lien Obligations under the First Lien Loan Agreement have
been Paid in Full, the First Lien Agent shall be the First Lien Series Representative
with respect to any other Series of First Lien Obligations or, if there is
more than one such First Lien Series Representative, the First Lien Agent
shall be any such First Lien Series Representative that is designated by
the Requisite First Lien Creditors as the First Lien Agent by written notice to
the Second Lien Agent and Borrowers in accordance with this Agreement.  At no time shall there be more than one First
Lien Agent.


 


“First Lien Avoidance” shall have the meaning set forth in Section 6.4.


 


“First Lien Creditors” means the First Lien Agent, each other
First Lien Series Representative, the First Lien Lenders and the other
Persons from time to time holding First Lien Obligations.


 


“First Lien Deficiency” means any portion of the First Lien
Obligations consisting of an allowed unsecured claim under Section 506(a) of
the Bankruptcy Code (or any similar provision under any other Bankruptcy Law)
as determined by a Final Order.


 


“First Lien Documents” means (a) the First Lien Loan
Agreement, all Loan Documents (as such term is defined in the First Lien Loan
Agreement) and all other agreements, documents and instruments at any time
executed and/or delivered by any Obligor or any other Person with, to or in
favor of the First Lien Agent or any First Lien Creditor in connection
therewith or related thereto, and (b) the agreements, documents and
instruments evidencing or related to any other Credit Facility pursuant to
which any First Lien Obligations are incurred, in each case (each of clauses (a) and
(b)), including such documents evidencing successive Refinancings of the
related First Lien Obligations, in each case, as amended, amended and restated,
supplemented, modified, replaced, substituted or renewed from time to time.


 


“First Lien Lenders” shall mean all Lenders and L/C Issuer
(each as defined in First Lien Loan Agreement), and other Persons from time to
time a party to First Lien Documents as lenders or issuers of letters of credit.


 


“First Lien Letter of Credit Obligations” means all
outstanding obligations incurred by or owing to the First Lien Creditors,
whether direct or indirect, contingent or otherwise, due or not due, in
connection with the issuance of letters of credit by a First Lien Creditor or
another issuer pursuant to the First Lien Documents or the purchase of a
participation with respect to any letter of credit, including any unpaid
reimbursement obligations in respect thereof. 
The amount of such First Lien Letter of Credit Obligations shall equal
the maximum amount that may be payable at such time or at any time thereafter
by or to the First Lien Creditors thereupon or pursuant thereto.


 


“First Lien Loan Agreement” means (a) the Initial First
Lien Loan Agreement and (b) each loan or credit agreement evidencing any
initial or subsequent replacement, substitution, renewal, or Refinancing of the
Obligations under the Initial First Lien Loan Agreement, in each case as the
same may from time to time be amended, restated, supplemented, modified,
replaced, substituted, renewed or Refinanced.


 


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“First Lien Loans” means any loans or advances outstanding
under the First Lien Documents.


 


“First Lien Obligations” means (a) all obligations,
liabilities and indebtedness of every kind, nature and description owing by one
or more of the Obligors to one or more of the First Lien Creditors evidenced by
or arising under one or more of the First Lien Loan Agreement or First Lien
Documents relating thereto (including any First Lien Loans, First Lien Letter
of Credit Obligations and Hedging Obligations thereunder), and (b) all
obligations, liabilities and indebtedness of every kind, nature and description
owing by one or more of the Obligors to one or more of the First Lien Creditors
arising under any other Credit Facility that is secured equally and ratably
with the First Lien Loan Agreement by a First Lien that was permitted to be
incurred and so secured pursuant to Section 2.14, in each case (in
the case of clauses (a) and (b)), whether direct or indirect, absolute or
contingent, joint or several, due or not due, primary or secondary, liquidated
or unliquidated, including principal, interest, charges, fees, costs,
indemnities and reasonable expenses, however evidenced, and whether as
principal, surety, endorser, guarantor or otherwise, whether now existing or
hereafter arising, whether arising before, during or after the initial or any
renewal term of the First Lien Loan Agreement or other Series of First
Lien Obligations and whether arising before, during or after the commencement
of any Insolvency Proceeding with respect to one or more of the Obligors (and
including the payment of any principal, interest, fees, cost, expenses and
other amounts (including default rate interest) which would accrue and become
due but for the commencement of such Insolvency Proceeding whether or not such
amounts are allowed or allowable in whole or in part in any such Insolvency
Proceeding).  As used in this Agreement,
the phrase “outstanding principal amount of First Lien Obligations” or words of
like import means the principal amount of First Lien Loans and does not include
commitments to make First Lien Loans.


 


“First Lien Secured Claims” means any portion of the First
Lien Obligations not constituting a First Lien Deficiency.


 


“First Lien Series Representative” means (a) in
the case of the First Lien Loan Agreement, the First Lien Agent; and (b) in the case of any other
Series of First Lien Obligations, the trustee, agent or representative of
the holders of such Series of First Lien Obligations who either maintains
the transfer register for such Series of First Lien Obligations and or is
appointed as a representative of the First Lien Obligations (for purposes related
to the administration of the applicable First Lien Documents) pursuant to a
credit agreement or other agreement governing such Series of First Lien
Obligations, and who has executed an Intercreditor Agreement Joinder.


 


“First Lien Termination Date” means the date on which all
First Lien Obligations have been Paid in Full.


 


“Hedging Obligations” means all obligations of any Obligor
under and in respect of any Secured Hedging Agreement (or any similar or
equivalent term) under and as defined in the First Lien Loan Agreement or other
Credit Facility.


 


“Holdings” has the meaning set forth in the
recitals hereof.


 


6

















 


“Indebtedness” means and includes all obligations that
constitute “Indebtedness” as defined in the Indenture as in effect on the date
of this Agreement, it being understood and agreed that the term “Indebtedness”
and calculations of the amount of Indebtedness or amount of Indebtedness that
may be incurred shall not include unused commitments to provide Indebtedness.


 


“Indenture” has the meaning set forth in the
recitals hereto and shall include each note or indenture evidencing any
replacement, substitution, renewal, or Refinancing of the Second Lien
Obligations under the Indenture.


 


“Initial First Lien Loan Agreement” shall have the meaning
set forth in the recitals hereto.


 


“Insolvency Proceeding” means, as to any Obligor, any of the
following:  (a) any case or
proceeding with respect to such Person under the Bankruptcy Code or any other
federal or state bankruptcy, insolvency, reorganization or other law affecting
creditors’ rights or any other or similar proceedings seeking any stay,
reorganization, arrangement, composition or readjustment of the obligations and
indebtedness of such Obligor, (b) any proceeding seeking the appointment
of any trustee, receiver, liquidator, custodian or other insolvency official
with similar powers with respect to such Obligor or any of its assets,
(c) any proceeding for liquidation, dissolution or other winding up of the
business of such Obligor or (d) any assignment for the benefit of
creditors or any marshalling of assets of such Obligor.


 


“Intercreditor Agreement
Joinder” means an agreement substantially in the form of Exhibit A
or with such changes thereto as may be required by the Agent for the Additional
Secured Obligations to which such agreement relates.


 


“Junior Adequate Protection Liens” shall have the meaning set
forth in Section 6.2(b).


 


“Lien” means any mortgage, deed of trust, pledge,
hypothecation, assignment, charge, deposit arrangement, encumbrance, easement,
lien (statutory or otherwise), security interest or other security arrangement
and any other preference, priority or preferential arrangement of any kind or
nature whatsoever, including any conditional sale contract or other title
retention arrangement, the interest of a lessor under a capital lease and any
synthetic or other financing lease having substantially the same economic
effect as any of the foregoing.


 


“Maximum First Lien Principal Amount” means, as of any date
of determination, an amount equal to (a) the amount of Indebtedness that
can be incurred by the Borrowers at such time within the limits of clause “(1)”
of the definition of “Permitted Debt” (under and as such term is defined in the
Indenture as of the date hereof or as amended with the written consent of the
Requisite First Lien Creditors); provided that, in calculating such
amount, any Indebtedness not constituting First Lien Obligations shall be
excluded, plus (b) $5,000,000 plus (c) solely as a component
of a DIP Financing, $10,000,000, plus
(d) Hedging Obligations, cash management, interest, fees, costs, expenses,
indemnities and other amounts payable pursuant to the terms of the First Lien
Documents (other than Excluded First Lien Obligations), whether or not the same
are added to the principal amount of the First Lien Obligations and including
the same as would accrue and become due but for the commencement of an
Insolvency Proceeding, whether or not


 


7

















 


such
amounts are allowed or allowable in whole or in part in any such Insolvency
Proceeding.  Each advance of a loan and
each issuance of a letter of credit under the First Lien Documents shall be
deemed to be within the limits of clause (a) of this definition if the
First Lien Series Representative with respect to such First Lien Documents
receives a borrowing request or letter of credit request with respect to such
loan or letter of credit containing a certification from an Obligor that, after
giving effect to such loan or letter of credit, the aggregate outstanding
principal amount of the First Lien Obligations and First Lien Letter of Credit
Obligations does not exceed the limits of such clause (a) (or words of
like import) and such First Lien Series Representative and First Lien
Agent shall be conclusively entitled to rely on such certification.


 


“Maximum Second Lien Principal Amount” means as of any date
of determination, an amount equal to (a) $210,000,000 minus
(b) the sum of all principal payments of term loans constituting Second
Lien Obligations (including voluntary and mandatory prepayments) after the date
hereof, plus (c) interest, fees,
costs, expenses, indemnities and other amounts payable pursuant to the terms of
the Second Lien Documents (other than Excluded Second Lien Obligations),
whether or not the same are added to the principal amount of the Second Lien
Obligations and including the same as would accrue and become due but for the
commencement of an Insolvency Proceeding, whether or not such amounts are
allowed or allowable in whole or in part in any such Insolvency Proceeding);
provided that, the Maximum Second Lien Principal Amount may be increased with
the prior written consent of First Lien Agent.


 


“New First Lien Agent” shall have the meaning set forth in Section 4.5(a).


 


“New First Lien Documents” shall have the meaning set forth
in Section 4.5(a).


 


“New First Lien Obligations” shall have the meaning set forth
in Section 4.5(a).


 


“New Second Lien Agent” shall have the meaning set forth in Section 4.5(b).


 


“New Second Lien Documents” shall have the meaning set forth
in Section 4.5(b).


 


“New Second Lien Obligations” shall have the meaning set
forth in Section 4.5(b).


 


“Notes” shall
mean Holdings’ 113⁄4% senior secured promissory notes due May 15, 2017,
issued pursuant to the Indenture in the original aggregate principal amount of
$210,000,000, together with all amendments, modifications, replacements and
substitutions thereof made or issued in accordance with the Indenture.


 


“Note Holders” shall have the meaning set
forth in the recitals hereto and shall include all “Holders” (as such term is
defined in the Indenture as in effect on the date hereof) of the Notes from
time to time issued under the Indenture.


 


“Obligations” means the First Lien Obligations and the Second
Lien Obligations, or any of them.


 


“Obligor” means Holdings, each Borrower and each other Person
liable on or in respect of the Obligations or that has granted a Lien on any
property or assets as Collateral, together with


 


8

















 


such
Person’s successors and assigns, including a receiver, trustee or
debtor-in-possession on behalf of such Person.


 


“Paid in Full” or “Payment in Full”
means, with respect to any Obligations, that: 
(a) all of such Obligations (other than contingent indemnification
obligations for which no underlying claim has been asserted) have been
indefeasibly paid, performed or discharged in full (with all such Obligations
consisting of monetary or payment obligations having been paid in full in
cash), (b) no Person has any further right to obtain any loans, letters of
credit, bankers’ acceptances, or other extensions of credit under the documents
relating to such Obligations and (c) any and all letters of credit,
bankers’ acceptances or similar instruments issued under such documents have
been cancelled and returned (or backed by stand-by guarantees or cash
collateralized) in accordance with the terms of such documents.


 


“Permitted Collateral Sale” means any Disposition of
Collateral so long as such Disposition is permitted under the First Lien Loan
Agreement and Indenture as in effect on the date hereof.  The term Permitted Collateral Sale shall not
include any Disposition occurring or effected under any circumstance or
condition described in the definition of “Release Event.”


 


“Permitted Second Lien Disposition” shall mean a Disposition
(excluding any collection of any Collateral consisting of an obligation) of any
Collateral in connection with an Enforcement Action by any Second Lien
Creditors after the expiration of the Standstill Period and subject to the
terms of Section 3.1 of this Agreement which Disposition is
commercially reasonable in all respects and undertaken on an arm’s length
basis.


 


“Person” means an individual, partnership, corporation
(including a business trust and a public benefit corporation), joint stock
company, estate, association, firm, enterprise, trust, limited liability
company, unincorporated association, joint venture, governmental authority or
any other entity or regulatory body.


 


“Purchase Notice” shall have the meaning set forth in Section 5.1.


 


“Purchase Option Event” shall have the
meaning set forth in Section 5.1.


 


“Purchase Option Period” shall have the
meaning set forth in Section 5.1.


 


“Refinance”, “Refinancings”
and “Refinanced” means, in respect of any
Obligations, to issue other indebtedness in exchange or replacement for such
Obligations, in whole or in part.


 


“Release Documents” shall have the meaning set forth in Section 2.5.


 


“Release Event” means the taking of any Enforcement Action by
the First Lien Creditors against all or any portion of the Collateral
(including a Disposition conducted by any Obligor with the consent of the First
Lien Agent) or, after the occurrence and during the continuance of an
Insolvency Proceeding by or against any Obligor, the entry of an order of the
Bankruptcy Court pursuant to Section 363 of the Bankruptcy Code
authorizing the sale of all or any portion of the Collateral.


 


9














 


“Requisite First Lien Creditors” means (a) the “Required
Lenders” as defined in the First Lien Loan Agreement (or similar term in any
subsequent First Lien Loan Agreement) and (b) the holders of more than 50%
of the sum of: (i) the aggregate outstanding principal amount of First
Lien Obligations (other than First Lien Obligations outstanding under the First
Lien Loan Agreement referred to in clause (a) above) (including
outstanding letters of credit whether or not then available or drawn); and (ii) the
aggregate unfunded commitments to extend credit which, when funded, would
constitute First Lien Obligations (other than First Lien Obligations
outstanding under the First Lien Loan Agreement referred to in clause (a) above).


 


“Requisite Second Lien Creditors” means (a) Note Holders
holding the percentage of the outstanding Notes required to take such action in
accordance with the terms of the Indenture and (b) holders of each other Series of
Second Lien Obligations holding the percentage of the outstanding Second Lien
Obligations of such Series of Second Lien Obligations required to take
such action in accordance with the Second Lien Documents creating such Series of
Second Lien Obligations.


 


“Second Lien”
means any Lien granted pursuant to any Second Lien Document to any Second Lien
Agent, at any time, upon any property of any Obligor to secure Second Lien
Obligations.


 


“Second Lien Acceleration” means an acceleration of the
Second Lien Obligations following a default or event of default under the
Second Lien Documents.


 


“Second Lien Acceleration Notice” means with respect to any
Second Lien Acceleration, a written notice from the Second Lien Agent to the
First Lien Agent, with a copy to the Obligors, indicating that such Second Lien
Acceleration has occurred, describing the related default or event of default
in reasonable detail.


 


“Second Lien Agent” means Wilmington Trust FSB in its
capacity as collateral agent under the Second Lien Documents, together with its
successors thereunder and any other Person designated as a collateral agent
with respect to any other Series of Second Lien Obligations; provided that, until such time
that the Second Lien Obligations under the Indenture and the Notes have been
discharged or Paid in Full, the Second Lien Agent and its successors as
collateral agent under the Indenture shall be the sole authorized Person to act
as the Second Lien Agent with respect to the Second Lien Obligations.  When the Second Lien Obligations under the
Indenture and the Notes are discharged or Paid in Full, the Second Lien Agent
shall be the Second Lien Series Representative with respect to any other Series of
Second Lien Obligations or, if there is more than one such Second Lien Series Representative,
the Second Lien Agent shall be any such Second Lien Series Representative
that is designated by the Requisite Second Lien Creditors (without giving
effect to clause (a) of such definition) as the Second Lien Agent by
written notice to the First Lien Agent and Borrowers in accordance with this
Agreement.  At no time shall there be
more than one Second Lien Agent.


 


“Second Lien Bankruptcy Payments” has the
meaning set forth in Section 6.2(b).


 


10

















 


“Second Lien Creditors” means the Second Lien Agent, the Trustee,
each other Second Lien Series Representative, the Note Holders and each
other Person to whom Second Lien Obligations are owed.


 


“Second Lien Deficiency” means any portion of the Second Lien
Obligations consisting of an allowed unsecured claim under Section 506(a) of
the Bankruptcy Code (or any similar provision under any other Bankruptcy Law)
as determined by a Final Order.


 


“Second Lien Disposition Notice” shall have the meaning set
forth in Section 2.10(a).


 


“Second Lien Documents” means (a) the Indenture and
Notes and all other agreements, documents and instruments at any time executed
and/or delivered by any Obligor or any other Person with, to or in favor of the
Second Lien Agent or any Second Lien Creditor in connection therewith or
related thereto, and (b) the agreements, documents and instruments
evidencing or related to any other Series of Second Lien Obligations, in
each case (each of clauses (a) and (b)), including such documents
evidencing successive Refinancings of the related Second Lien Obligations, in
each case, as amended, amended and restated, supplemented, modified, replaced,
substituted or renewed from time to time.


 


“Second Lien Loans” means any loans or advances outstanding
under the Second Lien Documents.


 


“Second Lien Obligations” means (a) all obligations,
liabilities and indebtedness of every kind, nature and description owing by one
or more Obligors to one or more of the Second Lien Creditors evidenced by or
arising under the Indenture or Second Lien Documents relating thereto (including
the Notes and Second Lien Loans), and (b) all obligations, liabilities and
indebtedness of every kind, nature and description owing by one or more
Obligors to one or more of the Second Lien Creditors that is secured equally
and ratably with the Notes by a Second Lien that was permitted to be incurred
and so secured under Section 2.14, in each case (in the case of
clauses (a) and (b)), whether direct or indirect, absolute or contingent,
joint or several, due or not due, primary or secondary, liquidated or
unliquidated, including principal, interest, charges, fees, costs, indemnities
and reasonable expenses, however evidenced, whether as principal, surety,
endorser, guarantor or otherwise, whether now existing or hereafter arising,
whether arising before, during or after the initial or any renewal term of the
Indenture and whether arising before, during or after the commencement of any
Insolvency Proceeding with respect to any Obligor (and including the payment of
interest which would accrue and become due but for the commencement of such
Insolvency Proceeding, whether or not such interest is allowed or allowable in
whole or in part in any such Insolvency Proceeding).


 


“Second Lien Series Representative”
means: (a) in the case of the Notes, the Trustee; and (b) in the case
of any other Series of Second Lien Obligations, the trustee, agent or
representative of the holders of such Series of Second Lien Obligations
who (x) either (i) maintains the transfer register for such
Series of Second Lien Obligations or (ii) is appointed as a Second
Lien Series Representative (for purposes related to the administration of
the security documents) pursuant to the applicable indenture, credit agreement
or other agreement governing such Series of Second Lien Obligations, together
with its successors in such capacity and (y) has become a party to this
Agreement by executing an Intercreditor Agreement Joinder.


 


11

















 


“Second Lien Secured Claims” means any portion of the Second
Lien Obligations not constituting a Second Lien Deficiency.


 


“Secured Claims” means the First Lien Secured Claims and/or
the Second Lien Secured Claims as the context may require.


 


“Secured Creditors” means the First Lien Creditors and the
Second Lien Creditors, or any of them.


 


“Senior Adequate Protection Liens” shall have the meaning set
forth in Section 6.2(a).


 


“Series of First Lien Obligations”  means, severally, the Credit Facility
established by the First Lien Loan Agreement and each other Credit Facility
pursuant to which any Borrower incurs First
Lien Obligations.


 


“Series of Second Lien Obligations” means, severally,
the Notes and each other issue or series of Second Lien Obligations issued under a set of Second Lien
Documents.


 


“Series of Secured Obligations”  means each Series of First Lien Obligations and each
Series of Second Lien Obligations.


 


“Series Representative”
means each First Lien Series Representative and each Second Lien Series Representative.


 


“Standstill Period” means the period commencing on the date
of a Second Lien Acceleration and ending upon the date which is the earlier of
(a) 135 days after the First Lien Agent has received a Second Lien
Acceleration Notice with respect to such Second Lien Acceleration and
(b) the date on which the First Lien Obligations (other than the Excluded
First Lien Obligations) have been Paid in Full; provided that in the
event that as of any day during such 135 days, no Second Lien Acceleration is
continuing, then the Standstill Period shall be deemed not to have commenced.


 


“Trustee” shall have the meaning set forth
in the recitals hereto.


 


“UCC” means the Uniform Commercial Code of any applicable
jurisdiction and, if the applicable jurisdiction shall not have any Uniform
Commercial Code, the Uniform Commercial Code as in effect in the State of New
York.


 


“UCC Notice” shall have the meaning set forth in Section 3.1.


 


1.2           Certain Matters of
Construction.  The words “hereof”,
“herein” and “hereunder” and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement and section references are to this Agreement
unless otherwise specified.  For purposes
of this Agreement, the following additional rules of construction shall
apply:  (a) wherever from the
context it appears appropriate, each term stated in either the singular or
plural shall include the singular and the plural, and pronouns stated in the
masculine, feminine or neuter gender shall include the masculine, the feminine and
the neuter, (b) the term “including” shall not be limiting or exclusive,
unless specifically


 


12

















 


indicated to the contrary, (c) all references
to statutes and related regulations shall include any amendments of same and
any successor statutes and regulations and (d) unless otherwise specified,
all references to any instruments or agreements, including references to any of
this Agreement and the Documents, shall include any and all modifications or amendments
thereto and any and all extensions or renewals thereof, in each case, made in
accordance with the terms hereof.  As
used in this Agreement, the term “writing” and variations thereof include
anything reduced to a tangible form, including a printed or handwritten
document, and e-mail, facsimile or other electronic record, and the term “signed”
and variations thereof shall include a handwritten signature and facsimile
signature.


 


Section 2.               Security Interests; Priorities.


 


2.1           Priorities.  Each Secured Creditor hereby acknowledges
that other Secured Creditors have been granted Liens upon the Collateral to
secure their respective Obligations.  The
Liens of the First Lien Agent on the Collateral are and shall be senior and
prior in right to the Liens of the Second Lien Agent on the Collateral, and
such Liens of the Second Lien Agent on the Collateral are and shall be junior
and subordinate to the Liens of the First Lien Agent.  The priorities of the Liens provided in this Section 2.1
shall not be altered or otherwise affected by any amendment, modification,
supplement, extension, renewal, restatement, replacement or Refinancing of any
of the Obligations, nor by any action or inaction which any of the Secured
Creditors may take or fail to take in respect of the Collateral.


 


2.2           No Alteration of Priority.  The priorities set forth in this Agreement
are applicable irrespective of the order or time of attachment, or the order,
time or manner of perfection, or the order or time of filing or recordation of
any document or instrument, or other method of perfecting a Lien in favor of
each Secured Creditor in any Collateral, and notwithstanding any conflicting
terms or conditions which may be contained in any of the Documents.


 


2.3           Perfection; Contesting Liens.  No Secured Creditor shall be responsible for
perfecting and maintaining the perfection of any other Secured Creditor’s Lien
in the Collateral in which such Secured Creditor has been granted a Lien.  The foregoing provisions of this Agreement
are intended solely to govern the respective Lien priorities as among the
Secured Creditors and shall not impose on any Secured Creditor any obligations
in respect of the Disposition of proceeds of any Collateral that would conflict
with prior perfected claims therein in favor of any other Person or any order
or decree of any court or governmental authority or any applicable law.  Each Secured Creditor agrees that it will not
institute or join in any contest of the validity, perfection, priority or
enforceability of the Liens of any other Secured Creditor in the Collateral or
the enforceability of the First Lien Obligations or the Second Lien
Obligations; provided that nothing in this Agreement shall be construed
to prevent or impair the rights of the First Lien Agent or the Second Lien
Agent to enforce this Agreement, including the provisions hereof relating to
Lien priority.


 


2.4           Proceeds of Collateral.  Any Collateral or proceeds thereof received
by any Second Lien Creditor including, without limitation, any such Collateral
constituting proceeds, or any payment or Distribution, that may be received by
any Second Lien Creditor (a) in connection with the exercise of any right
or remedy (including any right of setoff) with respect to the Collateral,
(b) in connection with any insurance policy claim or any condemnation
award (or


 


13

















 


deed in lieu of condemnation), (c) from the
collection or other Disposition of, or realization on, the Collateral, whether
or not pursuant to an Insolvency Proceeding or (d) in violation of this
Agreement, shall be segregated and held in trust and promptly paid over to the
First Lien Agent, for the benefit of the First Lien Creditors, in the same form
as received, with any necessary endorsements, but without recourse,
representation or warranty, and each Second Lien Creditor hereby authorizes the
First Lien Agent to make any such endorsements as agent for the Second Lien
Agent (which authorization, being coupled with an interest, is irrevocable).  All Collateral and proceeds thereof received
by any First Lien Creditor prior to the First Lien Termination Date shall be
applied as follows: first, to the First Lien Creditors for application
to the First Lien Obligations (other than Excluded First Lien Obligations) in
accordance with the First Lien Documents; second, to the Second Lien
Creditors for application to the Second Lien Obligations (other than Excluded
Second Lien Obligations) in accordance with the Second Lien Documents; third,
to the First Lien Creditors for application to the Excluded First Lien
Obligations in accordance with the First Lien Documents; fourth, to the
Second Lien Creditors for application to the Excluded Second Lien Obligations
in accordance with the Second Lien Documents; and fifth, to the relevant
Obligor or as otherwise required by law or court order.  All cash proceeds applied to First Lien
Obligations may be applied, reversed and reapplied, in whole or in part, as
provided in the First Lien Documents; provided, however, all cash
proceeds received by First Lien Agent in connection with any Enforcement Action
by any First Lien Creditor (other than Proceeds of accounts receivable and
inventory) shall be applied to permanently reduce the First Lien Obligations.


 


2.5           Release of Collateral Upon
Permitted Collateral Sale.  The
Second Lien Agent, on behalf of the Second Lien Creditors, shall at any time in
connection with any Permitted Collateral Sale: 
(a) upon the written request of the First Lien Agent with respect
to the Collateral subject to such Permitted Collateral Sale and at Holdings’
expense, release or otherwise terminate its Liens on such Collateral (and/or,
in the case of a Permitted Collateral Sale consisting of the sale or
disposition of all or substantially all of the equity interests of any
Guarantor, release such Guarantor from its obligations under the relevant
Documents), (b) promptly deliver such terminations of financing
statements, partial lien releases, mortgage satisfactions and discharges,
endorsements, assignments or other instruments of transfer, termination or
release (collectively, “Release Documents”)
and take such further actions as the First Lien Agent shall reasonably require
in order to release and/or terminate such Second Lien Agent’s Liens on the
Collateral (or release such Guarantor) subject to such Permitted Collateral
Sale; provided that if the closing of the Disposition of the Collateral
is not consummated within 60 days from the proposed closing date or any
agreement governing such Permitted Collateral Sale is terminated by any of the
parties thereto, the First Lien Agent shall promptly return all Release
Documents to the Second Lien Agent and (c) be deemed to have consented
under the Second Lien Documents to such Permitted Collateral Sale free and clear
of the Second Lien Agent’s security interest (it being understood that the
Second Lien Agent shall still, subject to the terms of this Agreement, have a
security interest with respect to the proceeds of such Collateral) and to have
waived the provisions of the Second Lien Documents to the extent necessary to
permit such transaction.  If, in
connection with a Permitted Collateral Sale, First Lien Agent intends to file a
termination statement that has the effect of terminating any financing
statement which has been filed by Second Lien Agent (and which is not part of
the Release Documents), First Lien Agent will provide Second Lien Agent at
least 2 Business Days notice of the filing of such termination statement.


 


14

















 


2.6           Release of Collateral Upon
Release Event.  The Second
Lien Agent, on behalf of the Second Lien Creditors, shall, at any time in
connection with a Release Event with respect to any Collateral:  (a) upon the written request of the
First Lien Agent with respect to the Collateral subject to such Release Event
(which request will specify the principal proposed terms of the sale and the
type and amount of consideration expected to be received in connection
therewith), release or otherwise terminate its Liens on such Collateral
(and/or, in the case of a Disposition consisting of the sale or disposition of
all or substantially all of the equity interests of any Guarantor, release such
Guarantor from its obligations under the relevant Documents), to the extent the
Disposition of such Collateral is either by (i) the First Lien Agent or
its agents or representatives or (ii) any Obligor with the consent of the
First Lien Creditors, (b) be deemed to have consented under the Second
Lien Documents to such Disposition free and clear of the Second Lien Agent’s
Liens (it being understood that the Second Lien Agent shall still, subject to
the terms of this Agreement, have a security interest with respect to the
proceeds of such Collateral) and to have waived the provisions of the Second
Lien Documents to the extent necessary to permit such transaction and
(c) at Holdings’ expense deliver such Release Documents and take such
further actions as First Lien Agent may reasonably require in connection
therewith; provided that, (i) such release by the Second Lien
Creditors shall not extend to or otherwise affect any of the rights of the
Second Lien Creditors to the proceeds from any such Disposition of Collateral,
(ii) the First Lien Creditors shall promptly apply such proceeds to permanently
pay the First Lien Obligations (other than the Excluded First Lien Obligations)
until the same have been Paid in Full, (iii) after such application, any
excess proceeds from such Disposition shall be applied in accordance with the
provisions of Section 2.4 hereof and (iv) no such release
and/or authorization documents shall be delivered (A) to any Obligor or
(B) more than 2 Business Days prior to the date of the closing of the
Disposition of such Collateral; provided  further that if the
closing of the Disposition of the Collateral subject to such Release Event is
not consummated within 60 days of the proposed date of closing or any agreement
governing such Disposition is terminated, the First Lien Agent shall promptly
return all Release Documents to the Second Lien Agent.  If, in connection with a Release Event, First
Lien Agent intends to file a termination statement that has the effect of
terminating any financing statement which has been filed by Second Lien Agent
(and which is not part of the Release Documents), First Lien Agent will provide
Second Lien Agent at least 2 Business Days notice of the filing of such
termination statement.


 


2.7           Power of Attorney.  The Second Lien Agent, on behalf of each
Second Lien Creditor, hereby irrevocably constitutes and appoints the First
Lien Agent and any officer of the First Lien Agent, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Second Lien Agent and each other
Second Lien Series Representative and in the name of the Second Lien
Agent, each other Second Lien Series Representative or in the First Lien
Agent’s own name, from time to time in the First Lien Agent’s discretion, for
the purpose of carrying out the terms of Sections 2.5 and 2.6
hereof, to take any and all appropriate action and to execute any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of such Sections, including any Release Documents, and, in addition,
to take any and all other appropriate and commercially reasonable action for
the purpose of carrying out the terms of such Sections, such power of attorney
being coupled with an interest and irrevocable until the First Lien Termination
Date.  The Second Lien Agent, on behalf
of each other Second Lien Creditor, hereby ratifies all that said attorneys
shall lawfully do or cause to be done pursuant to the power of attorney granted
in


 


15

















 


this Section 2.7.  No Person to whom this power of attorney is
presented, as authority for the First Lien Agent to take any action or actions
contemplated hereby, shall be required to inquire into or seek confirmation
from any Second Lien Creditor as to the authority of the First Lien Agent to
take any action described herein, or as to the existence of or fulfillment of
any condition to this power of attorney, which is intended to grant to the
First Lien Agent the authority to take and perform the actions contemplated
herein.  The Second Lien Agent, on behalf
of each Second Lien Creditor, irrevocably waives any right to commence any suit
or action, in law or equity, against any Person which acts in reliance upon or
acknowledges the authority granted under this power of attorney.


 


2.8           Waiver.  Each of the First Lien Agent, on behalf of
each of the First Lien Creditors, and the Second Lien Agent, on behalf of each
of the Second Lien Creditors, (a) waives any and all notice of the
creation, renewal, extension or accrual of any of the Obligations under the
Documents and notice of or proof of reliance by the Secured Creditors upon this
Agreement and protest, demand for payment or notice except to the extent
otherwise specified herein and (b) acknowledges and agrees that the other
Secured Creditors have relied upon the Lien priority and other provisions
hereof in entering into the Documents and in making funds available to the
Borrowers thereunder.


 


2.9           Notice of Interest In
Collateral.  This
Agreement is intended, in part, to constitute an authenticated notification of
a claim by each Secured Creditor to the other Secured Creditors of an interest
in the Collateral in accordance with the provisions of Sections 9-611 and
9-621 of the UCC.


 


2.10         Permitted Second Lien
Dispositions.  (a)  If,
after the expiration of the Standstill Period and subject to Section 3.1
of this Agreement, the Second Lien Agent seeks to consummate any Permitted
Second Lien Disposition in connection with any Enforcement Action that is
permitted hereunder, the Second Lien Agent shall provide written notice to the
First Lien Agent of its election to consummate such a Permitted Second Lien
Disposition, which will specify the principal proposed terms of the sale,
identity of the expected purchasers (if known) and the type and amount of
consideration expected to be received in connection therewith (a “Second Lien Disposition Notice”).  Within 10 Business Days of its receipt of a
Second Lien Disposition Notice, the First Lien Agent shall provide written
notice to the Second Lien Agent whether the First Lien Agent (i) will
release its Liens on the Collateral that is the subject of such Permitted
Second Lien Disposition or (ii) intends to commence an Enforcement Action
with respect to all or any portion of the Collateral.  If the First Lien Agent notifies the Second
Lien Agent that it has elected not to release its Lien on the Collateral that
is the subject of such Permitted Second Lien Disposition and that it does not
intend to commence an Enforcement Action (a “Designated
Permitted Second Lien Disposition”) then, the provisions of any
other section of this Agreement to the contrary notwithstanding, the
proceeds of such Designated Permitted Second Lien Disposition shall be applied
to the Second Lien Obligations, until paid in full; provided that the
First Lien Creditors shall be deemed to have waived the provisions of the First
Lien Documents to the extent necessary to permit such Designated Permitted
Second Lien Disposition.


 


(b)           In the case of any other
Permitted Second Lien Disposition as to which the First Lien Agent has not
notified the Second Lien Agent that the First Lien Agent intends to


 


16

















 


commence an Enforcement Action with respect to all
or any part of the Collateral (and as to which the First Lien Agent does not
thereafter commence any such Enforcement Action), the First Lien Agent and the
First Lien Lenders shall (i) upon the written request of the Second Lien
Agent with respect to the Collateral subject to any Permitted Second Lien
Disposition, and concurrent with such Permitted Second Lien Disposition,
release or otherwise terminate its Liens on such Collateral, (ii) be
deemed to have consented under the First Lien Documents to such Disposition
free and clear of the First Lien Creditors’ Liens (it being understood that the
First Lien Creditors shall still, but subject to this Agreement, have a
security interest with respect to the proceeds of such Collateral) and to have
waived the provisions of the First Lien Documents to the extent necessary to
permit such transaction) and (iii) deliver such Release Documents and take
such further actions as the Second Lien Agent may reasonably require in
connection therewith; provided, however, that subject to and in
accordance with Section 2.4 hereof, the Second Lien Agent shall
cause to be paid and/or delivered directly to the First Lien Agent all proceeds
of any Permitted Second Lien Disposition (other than a Designated Permitted
Second Lien Disposition, which shall be applied as provided in clause (a) above)
for application in accordance with Section 2.4.


 


(c)           Notwithstanding anything to
the contrary contained herein, no such Release Documents shall be required to
be delivered (i) to any Obligor or (ii) more than 2 Business Days prior
to the date of the closing of the Permitted Second Lien Disposition; and provided,
further, that if the closing of the Disposition of the Collateral
subject to such Permitted Second Lien Disposition is not consummated within 60
Business Days of the proposed closing date or the Second Lien Creditors or
relevant purchasers cease to diligently pursue consummation of the Permitted
Second Lien Disposition, the Second Lien Agent shall promptly return all such
Release Documents to the First Lien Agent.


 


2.11         New Liens.   So long as the First Lien Obligations have
not been Paid in Full, the parties hereto agree that no additional Liens shall
be granted or permitted on any asset of any Obligor to secure (a) any
Second Lien Obligations unless, subject to the terms of this Agreement,
immediately after giving effect to such grant or concurrently therewith, a
senior and prior Lien shall be granted on such asset to secure the First Lien
Obligations and (b) any First Lien Obligations unless, subject to the
terms of this Agreement, immediately after giving effect to such grant or
concurrently therewith, a junior and subordinate Lien shall be granted on such
asset to secure the Second Lien Obligations. 
To the extent that the foregoing provisions are not complied with for
any reason, without limiting any other rights and remedies available to the
Secured Creditors, the parties hereto agree that any amounts received by or
distributed to any of them pursuant to or as a result of Liens granted in
contravention of this Section 2.11 shall be subject to the terms of
this Agreement.


 


2.12         Similar Liens and Agreements.  The parties hereto acknowledge and agree that
it is their intention that the Collateral securing the First Lien Obligations
and the Collateral securing the Second Lien Obligations as of the date hereof
be identical in all material respects. 
In furtherance of the foregoing, the parties hereto agree:


 


(a)           to cooperate in good faith
in order to determine, upon any written request by the First Lien Agent or the
Second Lien Agent, the specific assets included in the Collateral


 


17

















 


securing their respective Obligations, the steps
taken to perfect the Liens thereon and the identity of the respective parties
obligated under any Document; and


 


(b)           any Lien obtained by any
Secured Creditor in respect of any judgment obtained in respect of any
Obligations shall be subject in all respects to the terms of this Agreement.


 


2.13         Representations
and Warranties of Each Agent. 
The First Lien Agent represents and warrants to the other parties hereto that
it has been authorized by the Lenders under and as defined in the First Lien
Loan Agreement to enter into this Agreement, and the Second Lien Agent
represents and warrants to the other parties hereto that it has been authorized
pursuant to the Indenture to enter into this Agreement.


 


2.14         Additional Secured
Obligations.


 


(a)           Any Obligor may designate
additional Indebtedness as “First Lien Obligations” or “Second Lien Obligations”
to the extent such Indebtedness is incurred by such Obligor after the date of
this Agreement in accordance with the terms of all applicable Documents
(including in any event, the First Lien Documents and Second Lien Documents)
and this Agreement.  No Series of
Secured Obligations may be designated as both Second Lien Obligations and First Lien Obligations.  It is understood and agreed that nothing in
this Section 2.14 is intended to alter the priorities among Secured
Creditors belonging to different Classes as provided in Section 2.1.


 


(b)           Any Obligor may effect such
designation by delivering to each Agent and each other Series Representative
at least 10 Business Days on or before the date on which such additional
Indebtedness is incurred each of the following:


 


(i)            an Officer’s Certificate
stating that any one or more of the Obligors intends to incur additional
Secured Claims (“Additional
Secured Obligations”) which will either be (x) First Lien Obligations permitted by each
applicable Document (including in any event, the First Lien Loan Agreement) to
be secured by a First Lien equally and ratably (or as otherwise may be agreed
by the relevant holders of the First Lien Obligations) with all previously
existing and future First Lien Obligations or (y) Second Lien Obligations
permitted by each applicable Document (including in any event the Indenture) to
be secured with a Second Lien equally and ratably (or as otherwise may be
agreed by the relevant holders of the Second Lien Obligations) with all
previously existing and future Second Lien Obligations, provided, that
nothing contained in this Section 2.14 shall permit the incurrence
of (A) Additional Secured Obligations that are First Lien Obligations
where the incurrence thereof could cause or cause an increase in the Excluded
First Lien Obligations; or (B) Additional
Secured Obligations that are Second Lien Obligations where the incurrence
thereof would cause or cause an increase in Excluded Second Lien Obligations;
the Officer’s Certificate shall attach copies of the material Documents
relating to the proposed additional Indebtedness and a pro forma calculation of
the Maximum First Lien Principal Amount or Maximum Second Lien Principal Amount
after giving effect to the


 


18

















 


maximum
amount of the proposed additional Indebtedness in sufficient detail to
demonstrate compliance with this Agreement and the other Documents;


 


(ii)           an Officer’s Certificate
stating that the applicable Obligors have duly authorized, executed (if applicable)
and recorded (or caused to be recorded) in each appropriate governmental office
all relevant filings and recordations to ensure that the Additional Secured Obligations are
secured by the Collateral in accordance with the First Lien Documents or the
Second Lien Documents, as applicable, creating such Additional Secured Obligations; and


 


(iii)          a written notice specifying
the name and address of the Series Representative for such series of Additional Secured Obligations for
purposes of Section 7.3.


 


(c)           Notwithstanding the
foregoing, nothing in this Agreement will be construed to allow any Obligor to
incur (a) additional Indebtedness unless such Indebtedness is expressly
permitted by the terms of all applicable Documents or (b) any Indebtedness
secured by Liens that are senior to the Liens securing the Second Lien
Obligations and junior to the Liens securing the First Lien Obligations.


 


(d)           A person to be designated as
a Series Representative for Additional Secured Obligations with respect to
any Series of Secured Obligations hereunder must, prior to the
effectiveness of such designation, sign an Intercreditor Agreement
Joinder.  Upon receipt of a fully
executed Intercreditor Agreement Joinder, together with the documents required
under this Section 2.14, each Agent shall acknowledge and accept
the Intercreditor Agreement Joinder.


 


(e)           Each of the parties hereto
(whether existing as of the date hereof or added hereto in accordance with the
provisions of this Section 2.14, and including each Agent and Series Representative
and by authorizing its Series Representative to execute and deliver an
Intercreditor Agreement Joinder, each holder of Obligations in respect of
Additional Secured Obligations) hereby agrees for the benefit of each of the
other parties hereto from time to time that, without limiting the right of any
holder of Obligations to waive or subordinate any lien sharing right to which
it is otherwise entitled (pursuant to a waiver or subordination agreement
expressly set forth in a written agreement enforceable against such holder), (i) Collateral
shall be shared equally and ratably within each Class (or on such other
basis as may be agreed by the relevant holders of such Class) and (ii) the
payment and satisfaction of all of the Obligations within each Class will
be secured equally and ratably by the Liens established for the benefit of the
Secured Creditors belonging to such Class (or on such other basis as may
be agreed by the relevant holders of such Class).


 


Section 3.               Enforcement of Security.


 


3.1           Management of Collateral.  Subject to the other terms and conditions of
this Agreement, the First Lien Creditors shall have the exclusive right to
manage, perform and enforce the terms of the First Lien Documents with respect
to the Collateral, to exercise and enforce all privileges and rights thereunder
according to their sole discretion and the exercise of their sole business
judgment, including the exclusive right to take or retake control or possession


 


19














 


of the Collateral and to hold, prepare for sale,
process, Dispose of, or liquidate the Collateral and to incur expenses in
connection with such Disposition and to exercise all the rights and remedies of
a secured lender under the UCC of any applicable jurisdiction.  In conducting any public or private sale
under the UCC, the First Lien Agent shall give the Second Lien Agent such
notice (a “UCC Notice”) of such
sale as may be required by the applicable UCC; provided, however,
that 10 days’ notice shall be deemed to be commercially reasonable notice.  Except as specifically provided in this Section 3.1
or 3.3 below, notwithstanding any rights or remedies available to a
Second Lien Creditor under any of the Second Lien Documents, applicable law or
otherwise, no Second Lien Creditor shall, directly or indirectly, take any
Enforcement Action; provided  that, subject at all times to the
provisions of Section 2, upon the expiration of the applicable
Standstill Period, the Second Lien Creditors may take any Enforcement Action
(provided that they give the First Lien Agent at least 5 Business Days written
notice prior to taking such Enforcement Action, which notice may be given
during the Standstill Period); provided, however, that
notwithstanding the expiration of the Standstill Period or anything herein to
the contrary, in no event shall any Second Lien Creditor exercise or continue
to exercise any such rights or remedies, or commence or petition for any such
action or proceeding (including any foreclosure action or proceeding or any
Insolvency Proceeding) if: (a) the First Lien Agent has notified the
Second Lien Agent or the Second Lien Agent otherwise has actual knowledge that
the First Lien Agent or any other First Lien Creditor shall have commenced and
is pursuing with reasonable diligence the enforcement or exercise of any rights
or remedies with respect to all or substantially all of the Collateral or any
such action or proceeding (including, without limitation, any of the following
(if undertaken and pursued to consummate a Disposition of such Collateral
within a commercially reasonable time): the solicitation of bids from third
parties to conduct the liquidation of all or any material portion of the
Collateral, the engagement or retention of sales brokers, marketing agents,
investment bankers, accountants, auctioneers or other third parties for the
purpose of valuing, marketing, promoting or selling all or any material portion
of the Collateral, the notification of account debtors to make payments to the
First Lien Agent or its agents, the initiation of any action to take possession
of all or any material portion of the Collateral or the commencement of any
legal proceedings or actions against or with respect to the foreclosure and
sale of all or any material portion of the Collateral), or diligently
attempting in good faith to vacate any stay prohibiting an Enforcement Action
with respect to all or any material portion of the Collateral or diligently
attempting in good faith to vacate any stay prohibiting an Enforcement Action;
or (b) except as permitted by Section 6, an Insolvency
Proceeding has commenced.


 


3.2           Notices of Default.  Each Agent shall give to the other Agent
concurrently with the giving thereof to any Obligor (a) a copy of any
written notice by any Secured Creditor of an Event of Default under any of its
Documents or a written notice of demand for payment from any Obligor and
(b) a copy of any written notice sent by such Secured Creditor to any
Obligor stating such Secured Creditor’s intention to exercise any material
enforcement rights or remedies against such Obligor, including written notice
pertaining to any foreclosure on all or any material part of the Collateral or
other judicial or non-judicial remedy in respect thereof, and any legal process
served or filed in connection therewith; provided that the failure of
any Agent to give such required notice shall not result in any liability to
such Agent or affect the enforceability of any provision of this Agreement,
including the relative priorities of the Liens of the Secured Creditors as
provided herein, and shall not affect the validity or effectiveness of any such
notice as against any Obligor.  Each
Agent will provide such information as it may have to the other 


 


20

















 


Agent as the other may from time to time reasonably
request in writing concerning the status of the exercise of any Enforcement
Action and each Agent shall be available on a reasonable basis during normal
business hours to review with the other Agent alternatives available in
exercising such rights, including, but not limited to, advising each other of
any offers which may be made from time to time by prospective purchasers of the
Collateral; provided that (i) the failure of any party to do any of
the foregoing shall not affect the relative priorities of the Agent’s
respective Liens as provided herein or the validity or effectiveness of any
notices or demands as against any Borrower or any Obligor and (ii) in no
event will the First Lien Agent or any First Lien Creditor have any obligation
to obtain the consent of any Second Lien Creditor with respect to any actions
taken or contemplated to be taken (or not taken) with respect to any
Enforcement Action.  Each Obligor, by its
acknowledgment hereto, hereby consents and agrees to each Secured Creditor
providing any such information to the other Secured Creditors and to such
actions by the Secured Creditors and waives any rights or claims against any
Secured Creditors arising as a result of such information or actions; provided
that any information provided to any Secured Creditor pursuant to this Section 3.2
shall be subject to any other confidentiality provisions in the Documents to
which such Secured Creditor is a party.


 


3.3           Permitted Actions.  Section 3.1 shall not be
construed to limit or impair in any way the right of:  (a) any Secured Creditor to bid for or
purchase Collateral, in each case for cash, at any private or judicial
foreclosure upon such Collateral initiated by any Secured Creditor,
(b) any Secured Creditor to join (but not control) any foreclosure or
other judicial lien enforcement proceeding with respect to the Collateral
initiated by another Secured Creditor for the sole purpose of protecting such
Secured Creditor’s Lien on the Collateral, so long as it does not delay or
interfere with the exercise by such other Secured Creditor of its rights under
this Agreement, the Documents and under applicable law, (c) the Second
Lien Creditors to receive any proceeds of Collateral after the First Lien
Obligations (other than Excluded First Lien Obligations) have been Paid in Full
and then consistent with Section 2.4, and (d) any Second Lien
Creditor to (i) take any action not adverse to the prior Liens on the
Collateral securing the First Lien Obligations or the rights of any First Lien
Creditor to exercise remedies in respect of such Liens in order to preserve or
protect its Lien on Collateral, (ii) filing any necessary responsive or
defensive pleading consistent with this Agreement in opposition to any motion,
claim, adversary proceeding or other pleadings made by any Person objecting to
or otherwise seeking the disallowance of the claims of the Second Lien
Creditors, (iii) filing any pleadings, objections, motions or agreements
which assert rights or interests available to unsecured creditors of the
Obligors arising under the Bankruptcy Code or other applicable law, in each
case, in accordance with the terms of this Agreement, (iv) filing any
proof of claim and other filings and making arguments and motions that are, in
each case, in accordance with the terms of this Agreement, and (v) the
taking of a Debt Action.  Any proceeds of
Collateral received in connection with any such Enforcement Action shall be
applied in accordance with Section 2.4 of this Agreement.


 


3.4           Collateral In Possession.


 


(a)           In the event that the First
Lien Agent takes possession of or has “control” (as such term is used in the
UCC as in effect in each applicable jurisdiction) over any Collateral for
purposes of perfecting its Lien therein, the First Lien Agent shall be deemed
to be holding such Collateral as representative for the Secured Creditors,
including the Second Lien Creditors, 


 


21

















 


solely for purposes of perfection of its Lien under
the UCC; provided that the First Lien Agent shall not have any duty or
liability to protect or preserve any rights pertaining to any of the Collateral
for the Second Lien Creditors.  Promptly
following the First Lien Termination Date, the First Lien Agent shall deliver
the remainder of the Collateral, if any, in its possession to the designee of
the Second Lien Agent (except as may otherwise be required by applicable law or
court order).


 


(b)           In the event that any Second
Lien Creditor takes possession of or has “control” (as such term is used in the
UCC as in effect in each applicable jurisdiction) over any Collateral for
purposes of perfecting its Lien therein, such Second Lien Creditor shall be
deemed to be holding such Collateral as representative for the Secured
Creditors, including the First Lien Creditors, solely for purposes of
perfection of its Lien under the UCC; provided that such Second Lien
Creditor shall not have any duty or liability to protect or preserve any rights
pertaining to any of the Collateral for the First Lien Creditors.


 


(c)           It is understood and agreed
that this Section 3.4 is intended solely to assure continuous
perfection of the Liens granted under the applicable Documents, and nothing in
this Section 3.4 shall be deemed or construed as altering the
priorities or obligations set forth elsewhere in this Agreement.  The duties of each party under this Section 3.4
shall be mechanical and administrative in nature, and no party shall have, or
be deemed to have, by reason of this Agreement or otherwise a fiduciary
relationship in respect of the other party.


 


3.5           Waiver of Marshalling and
Similar Rights.  Each
Secured Creditor, to the fullest extent permitted by applicable law, waives as
to each other Secured Creditor any requirement regarding, and agrees not to
demand, request, plead or otherwise claim the benefit of, any marshalling,
appraisement, valuation or other similar right that may otherwise be available
under applicable law.


 


3.6           Insurance and Condemnation
Awards.  So long as the First Lien
Termination Date has not occurred, the First Lien Agent shall have the
exclusive right, subject to the rights of the Obligors under the First Lien
Documents, to settle and adjust claims in respect of Collateral under policies
of insurance and to approve any award granted in any condemnation or similar
proceeding, or any deed in lieu of condemnation, in respect of the
Collateral.  After the occurrence of the
First Lien Termination Date, the Second Lien Agent shall have the exclusive
right, subject to the rights of the Obligors under the Second Lien Documents,
to settle and adjust claims in respect of Collateral under policies of
insurance and to approve any award granted in condemnation or similar
proceeding, or any deed in lieu of condemnation, in respect of the Collateral.


 


Section 4.               Covenants


 


4.1           Amendment of First Lien
Documents.  The First
Lien Creditors under the First Lien Loan Agreement may at any time and from
time to time and without consent of or notice to any Second Lien Creditor,
without incurring any liability to any Second Lien Creditor and without
impairing or releasing any rights or obligations hereunder or otherwise, amend,
restate, supplement, modify, substitute, renew or replace any or all of the
First Lien Loan Agreement and related First Lien Documents; provided, however,
that without the consent of the Requisite 


 


22

















 


Second Lien Creditors, such First Lien Creditors
shall not amend, restate, supplement, modify substitute, renew or replace any
or all of the First Lien Loan Agreement or related First Lien Documents to
(a) directly increase the interest rates on the First Lien Obligations
arising thereunder to an amount greater than 3.0% per annum above rates as are in effect on the date hereof
(excluding, without limitation, fluctuations in underlying rate indices and
imposition of a default rate of 2% per annum), (b) change the final
maturity date of the First Lien Obligations arising thereunder to a date later
than November 13 2015, (c) increase the principal amount of the First
Lien Obligations arising thereunder which when taken together with the
aggregate principal amount of the other First Lien Obligations would exceed the
Maximum First Lien Principal Amount as of the date of such increase (other than
as a result of the capitalization of accrued interest, expenses or fees), or (d) modify
or add any covenant or Event of Default under the First Lien Documents which
directly restricts one or more Obligors from making payments under the Second
Lien Documents which would otherwise be permitted under the First Lien
Documents as in effect on the date hereof. 
Without the consent of the Requisite Second Lien Creditors, the First
Lien Creditors a party to the First Lien Document related to any other Series of
First Lien Obligations (i.e., other than the Series of First Lien
Obligations under the First Lien Loan Agreement and related First Lien
Documents) shall not agree to any amendment, restatement, modification, supplement,
substitution, renewal or replacement of or to any or all of the First Lien
Documents related to such other Series of First Lien Obligations in any
manner that would be prohibited by the other Documents.


 


4.2           Amendments to Second Lien
Documents.  Until the
First Lien Termination Date has occurred, and notwithstanding anything to the
contrary contained in the Second Lien Documents, the Second Lien Creditors
shall not, without the prior written consent of the First Lien Agent, agree to
any amendment, restatement, modification, supplement, substitution, renewal or
replacement of or to any or all of the Indenture or related Second Lien
Documents that (a) would directly or indirectly result in an increase in
the interest rates in respect of the Second Lien Obligations arising thereunder
(excluding, without limitation, fluctuations in underlying rate indices and
imposition of a default rate of 2% per annum) by more than 3.0% per annum, (b) shorten the
maturity or weighted average life to maturity of the Second Lien Obligations
arising thereunder or require that any payment on the Second Lien Obligations
arising thereunder be made earlier than the date originally scheduled for such
payment or that any commitment expire any earlier than the date originally scheduled
therefor, (c) add or modify in a manner adverse to any Obligor or any
First Lien Creditor any covenant, agreement or event of default under such
Second Lien Documents or (d) increase the principal amount of the Second
Lien Obligations arising thereunder. 
Notwithstanding the foregoing, in the event of an amendment or
modification of an affirmative covenant, negative covenant or financial
covenant contained in the First Lien Loan Agreement, the Indenture or other
applicable related Second Lien Document may, at the election of the Second Lien
Creditors, be amended in a manner that is substantively identical to the
corresponding amendment to comparable provisions of the First Lien Loan
Agreement and that maintains an equivalent proportionate difference between
dollar amounts or ratios, as the case may be, in the relevant provisions of the
Indenture or other applicable related Second Lien Document and those in the
corresponding provisions in the First Lien Loan Agreement, to the extent of
such proportionate difference between such Documents as in effect on the date
hereof.  Until the First Lien Termination
Date has occurred, and notwithstanding anything to the contrary contained in
the Second Lien Documents, the Second Lien Creditors a party to the Second Lien
Documents related to any other Series of Second Lien 


 


23

















 


Obligations (i.e., other than the Series of
Second Lien Obligations under the Indenture and related Second Lien Documents)
shall not, without the prior written consent of the First Lien Agent, agree to
any amendment, restatement, modification, supplement, substitution, renewal or
replacement of or to any or all of the Second Lien Documents related to such
other Series of Second Lien Obligations in any manner that would be
prohibited by the other Documents.


 


4.3           Enforcement Actions by
Second Lien Creditors; Prepayments.


 


(a)           The Second Lien Creditors
shall give the First Lien Agent at least 5 Business Days’ written notice prior
to taking any Enforcement Action, which notice may be given during the pendency
of any Standstill Period.


 


(b)           Except as otherwise
permitted by the First Lien Loan Agreement (as in effect on the date hereof),  without the prior written consent of the First Lien Agent,
no Second Lien Creditor will take, demand or receive from any Obligor any
prepayment of principal (whether optional, voluntary, mandatory or otherwise or
by redemption, defeasance or other payment or distribution) with respect to any
Second Lien Obligations.


 


4.4           Effect of Refinancing.


 


(a)           If the Payment in Full of
any Series of First Lien Obligations is being effected through a
Refinancing; provided that, the First Lien Series Representative of such Series of
First Lien Obligations gives a written notice of such Refinancing to the Agents
at least 5 Business Days prior to such Refinancing, then (A) the First
Lien Obligations being Refinanced shall not be deemed Paid in Full for any
purposes of this Agreement, (B) the indebtedness under such Refinancing
and all other obligations under the new First Lien Documents (the “New First Lien Documents”) evidencing such
indebtedness (the “New First Lien Obligations”)
shall be treated as First Lien Obligations for all purposes of this Agreement,
(C) the New First Lien Documents shall be treated as the First Lien
Documents, (D) (x) in the case of a Refinancing of all First Lien
Obligations, all First Lien Obligations under the First Lien Loan Agreement and
related First Lien Documents or other Series of First Lien Obligations in
respect of which the Series Representative is the First Lien Agent
hereunder, the agent under the New First Lien Documents (the “New First Lien Agent”) shall be deemed to
be the First Lien Agent for all purposes of this Agreement, and (y) in the
case of a Refinancing of any other Series of First Lien Obligations, the
agent under the New First Lien Documents shall be deemed to be the new Series Representative
for such Series of First Lien Obligations and shall execute an
Intercreditor Joinder Agreement.  Upon receipt
of a notice of Refinancing under the preceding sentence, which notice shall
include the identity of any New First Lien Agent, the Second Lien Agent and
each other Series Representatives shall, at Holdings’ expense, promptly
enter into such documents and agreements (including amendments or supplements
to this Agreement) as the New First Lien Agent may reasonably request in order
to provide to the New First Lien Agent the rights and powers set forth herein.


 


(b)           If the Payment in Full of
any Series of the Second Lien Obligations is being effected through a
Refinancing; provided that, the Second Lien Series Representative
of such Series of Second Lien Obligations gives a written notice of such
Refinancing to the Agents at least 5 Business Days prior to such Refinancing,
then (A) the Second Lien Obligations being 


 


24

















 


Refinanced shall not be deemed Paid in Full for any
purposes of this Agreement, (B) the indebtedness under such Refinancing
and all other obligations under the new Second Lien Documents (the “New Second Lien Documents”) evidencing such
indebtedness (the “New Second Lien
Obligations”) shall be treated as Second Lien Obligations for all
purposes of this Agreement, (C) the New Second Lien Documents shall be
treated as the Second Lien Documents, (D) (x) in the case of a
Refinancing of all Second Lien Obligations, all Second Lien Obligations under
the Indenture and related Second Lien Documents or other Series of Second
Lien Obligations in respect of which the Series Representative is the
Second Lien Agent hereunder, the agent under the New Second Lien Documents (the
“New Second Lien Agent”) shall be
deemed to be the Second Lien Agent for all purposes of this Agreement, and (y) in
the case of a Refinancing of any other Series of Second Lien Obligations,
the agent under the New Second Lien Documents shall be deemed to be the new Series Representative
for such Series of Second Lien Obligations and shall execute an
Intercreditor Joinder Agreement.  Upon receipt
of a notice of Refinancing under the preceding sentence, which notice shall
include the identity of any New Second Lien Agent, the First Lien Agent and
each other Series Representatives shall, at Holdings’ expense, promptly
enter into such documents and agreements (including amendments or supplements
to this Agreement) as the New Second Lien Agent may reasonably request in order
to provide to the New Second Lien Agent the rights and powers set forth herein.


 


(c)           By their acknowledgement
hereto, Obligors agree to cause the agreement, document or instrument pursuant
to which any New First Lien Agent or any New Second Lien Agent is appointed to
provide that the New First Lien Agent or New Second Lien Agent, as applicable,
agrees to be bound by the terms of this Agreement.


 


Section 5.               Second Lien Creditors Purchase Option.


 


5.1           Purchase Notice.  Upon the Second Lien Agent’s receipt of a
written notice from the First Lien Agent (the “Agent’s Notice”) that (a) the First Lien Agent has
accelerated the First Lien Obligations, (b) an Event of Default has
occurred arising out of the failure to pay principal, interest or fees due on
the First Lien Obligations and such Event of Default has not been cured or
waived within 10 Business Days after the occurrence thereof, (c) any other
Event of Default has occurred under the First Lien Documents and such Event of
Default has not been cured or waived within 60 days after the occurrence
thereof, or (d) an Insolvency Proceeding has commenced (each, a “Purchase Option Event”), the Second Lien
Creditors shall have the option, but not the obligation, to purchase all, but
not less than all, of the First Lien Obligations owing to the First Lien
Creditors from the First Lien Creditors, and assume all, but not less than all,
of the then existing funding commitments under the First Lien Documents by
giving a written notice (the “Purchase Notice”)
to the First Lien Agent no later than the 10th Business Day after receipt by
the Second Lien Agent of the Agent’s Notice (the “Purchase Option Period”). 
In the event that a Purchase Option Event occurs but First Lien Agent
fails to provide an Agent’s Notice, the purchasing Second Lien Creditors may
issue a Purchase Notice without waiting for such Agent’s Notice to be given at
any time prior to the end of the Purchase Option Period.  A Purchase Notice once delivered shall be
irrevocable.


 


5.2           Purchase Option Closing.  On the date specified by the purchasing
Second Lien Creditors in the Purchase Notice (which shall not be less than 3
Business Days nor more than 10 Business Days, after the receipt by the First
Lien Agent of the Purchase Notice), the First Lien 


 


25

















 


Creditors shall sell to the purchasing Second Lien
Creditors, and the purchasing Second Lien Creditors shall purchase from the
First Lien Creditors, all, but not less than all, of the First Lien
Obligations, and the First Lien Creditors shall assign to the purchasing Second
Lien Creditors, and the purchasing Second Lien Creditors shall assume from the
First Lien Creditors all, but not less than all, of the then existing funding
commitments under the First Lien Documents.


 


5.3           Purchase Price.  Such purchase and sale shall be made by
execution and delivery by the applicable Secured Creditors of an Assignment
Agreement in the form attached to the First Lien Loan Agreement.  Upon the date of such purchase and sale, the
purchasing Second Lien Creditors shall (a) pay to the First Lien Agent for
the benefit of the First Lien Creditors as the purchase price therefor the sum
of the full amount of all the First Lien Obligations then outstanding and
unpaid (including principal, interest, fees, indemnities and expenses,
including reasonable attorneys’ fees and legal expenses), (b) furnish cash
collateral to the First Lien Agent with respect to the outstanding First Lien
Letter of Credit Obligations in such amounts as are required under the First
Lien Loan Agreement and (c) agree to reimburse the First Lien Creditors
for any loss, cost, damage or expense (including reasonable attorneys’ fees and
legal expenses) in connection with any commissions, fees, costs or expenses
related to any issued and outstanding First Lien Letter of Credit Obligations
as described above and any checks or other payments provisionally credited to
the First Lien Obligations, and/or as to which the First Lien Creditors have
not yet received final payment.  Such
purchase price and cash collateral shall be remitted by wire transfer of
immediately available funds to such bank account of the First Lien Agent in New
York, New York, as the First Lien Agent may designate in writing to the
purchasing Second Lien Creditors for such purpose.  Interest shall be calculated to but excluding
the Business Day on which such purchase and sale shall occur if the amounts so
paid by the purchasing Second Lien Creditors to the bank account designated by
the First Lien Agent are received in such bank account prior to 1:00 p.m.,
New York City time and interest shall be calculated to and including such Business
Day if the amounts so paid by the purchasing Second Lien Creditors to the bank
account designated by the First Lien Agent are received in such bank account
later than 1:00 p.m., New York City time.


 


5.4           Nature of Sale.  Such purchase and sale shall be expressly
made without representation or warranty of any kind by the First Lien Creditors
as to the First Lien Obligations or otherwise and without recourse to the First
Lien Creditors, except for representations and warranties as to the following:  (a) the amount of the First Lien
Obligations being purchased (including as to the principal of and accrued and
unpaid interest on such First Lien Obligations, fees and expenses thereof),
(b) that the First Lien Creditors own the First Lien Obligations free and
clear of any Liens and (c) each First Lien Creditor has the full right and
power to assign its First Lien Obligations and such assignment has been duly
authorized by all necessary corporate action by such First Lien Creditor.


 


5.5           Enforcement after Purchase
Notice.  The First Lien Creditors shall
not complete any Enforcement Action (other than the exercise of control over
any Obligor’s deposit or securities accounts), as long as the purchase and sale
of the First Lien Obligations provided for in this Section 5 shall
have closed within 10 Business Days after First Lien Agent’s receipt of the
Purchase Notice given within the time required in Section 5.1 and
the First Lien Creditors shall have received Payment in Full of the First Lien
Obligations as provided for in Section 5.3 within such 10 Business
Day period.


 


26

















 


Section 6.               Bankruptcy Matters.


 


6.1           Bankruptcy.  This Agreement shall be applicable both
before and after the filing of any petition by or against any Obligor under the
Bankruptcy Code or any other Insolvency Proceeding and all converted or
succeeding cases in respect thereof, and all references herein to any Obligor
shall be deemed to apply to the trustee for such Obligor and such Obligor as a
debtor-in-possession.  The relative
rights of the First Lien Creditors and the Second Lien Creditors in respect of
any Collateral or proceeds thereof shall continue after the filing of such
petition on the same basis as prior to the date of such filing, subject to any
court order approving the financing of, or use of cash collateral by, any
Obligor.  This Agreement shall constitute
a “subordination agreement” for the purposes of Section 510(a) of the
Bankruptcy Code and shall be enforceable in any Insolvency Proceeding in
accordance with its terms.


 


6.2           Post Petition Financing;
Adequate Protection.


 


(a)           If any Obligor or Obligors
shall become subject to Insolvency Proceedings and such Obligor or Obligors as
debtor(s)-in-possession (or a trustee appointed on behalf of such Obligor or
Obligors) shall move for either approval of financing (“DIP Financing”) to be provided by one or
more of the First Lien Creditors (or to be provided by any other person or
group of persons with the consent of the First Lien Agent) under Section 364
of the Bankruptcy Code or the use of cash collateral with the consent of the
First Lien Creditors under Section 363 of the Bankruptcy Code, then
subject to Section 6.2(b), the Second Lien Creditors agree as
follows:  (i) adequate notice to
Second Lien Creditors for such DIP Financing or use of cash collateral shall be
deemed to have been given to the Second Lien Creditors if the Second Lien Agent
receives written notice in advance of the hearing to approve such DIP Financing
or use of cash collateral on an interim basis and at least 5 Business Days in
advance of the hearing to approve such DIP Financing or use of cash collateral
on a final basis, (ii) such DIP Financing (and any First Lien Obligations
which arose prior to the Insolvency Proceeding) may be secured by Liens on all
or a part of the assets of the Obligors which shall be superior in priority to
the Liens on the assets of the Obligors held by any other Person, (iii) so long as the aggregate principal amount of
loans and letter of credit accommodations outstanding under any such DIP
Financing, together with the outstanding principal amount of the pre-petition
First Lien Obligations, does not exceed the Maximum First Lien Principal
Amount, the Second Lien Creditors will not request or accept adequate
protection or any other relief in connection with the use of such cash
collateral or such DIP Financing except as set forth in Section 6.2(b) below,
(iv) the Second Lien Creditors will subordinate (and will be deemed
hereunder to have subordinated) the Second Priority Liens (A) to the Liens
securing such DIP Financing (the “DIP Liens”)
on the same terms (but on a basis junior to the Liens of the First Lien
Creditors) as the Liens of the First Lien Creditors are subordinated thereto
(and such subordination will not alter in any manner the terms of this
Agreement), (B) to any “replacement Liens” granted to the First Lien
Creditors as adequate protection of their interests in the Collateral (the “Senior Adequate Protection Liens”) and
(C) to any “carve-out” agreed to by the First Lien Agent or the other
First Lien Creditors and (v) subject to Section 6.2(b) below,
the Second Lien Creditors shall not contest or oppose in any manner any
adequate protection provided to the First Lien Creditors as adequate protection
of their interests in the Collateral, any DIP Financing or any cash collateral
use and shall be deemed to have waived any objections to such adequate
protection, DIP Financing or cash collateral use, including, without
limitation, any objection alleging Obligors’


 


27

















 


failure to provide “adequate protection” of the
interests of the Second Lien Creditors in the Collateral.


 


(b)           Adequate Protection.  Notwithstanding the foregoing provisions in
this Section 6.2, in any Insolvency Proceeding, if the First Lien
Creditors (or any subset thereof) are granted adequate protection in the form
of Senior Adequate Protection Liens, the Second Lien Creditors may seek (and
the First Lien Creditors may not oppose) adequate protection of their interests
in the Collateral in the form of (i) a replacement Lien on the additional
collateral subject to the Senior Adequate Protection Liens (the “Junior Adequate Protection Liens”), which
Junior Adequate Protection Liens, if granted, will be subordinate to all Liens
securing the First Lien Obligations (including, without limitation, the Senior
Adequate Protection Liens and any “carve-out” agreed to by the First Lien Agent
or the other First Lien Creditors) and any Liens securing debtor-in-possession
financing (whether or not constituting DIP Financing) on the same basis as the
other Liens securing the Second Lien Obligations are so subordinated under this
Agreement (provided that any failure of the Second Lien Creditors to obtain
such Junior Adequate Protection Liens shall not impair or otherwise affect the
agreements, undertakings and consents of the Second Lien Creditors pursuant to Section 6.2(a))
and (ii) superpriority claims under Section 507(b) of the
Bankruptcy Code junior in all respects to the superpriority claims granted
under Section 507(b) of the Bankruptcy Code to the First Lien
Creditors on account of any of the First Lien Obligations or granted under
Section 364(c)(1) of the Bankruptcy Code with respect to any debtor-in-possession
financing (whether or not constituting DIP Financing) or use of cash
collateral; provided that the inability of the Second Lien Creditors to
receive a Lien on actions under Chapter 5 of the Bankruptcy Code or
proceeds thereof shall not affect the agreements and waivers set forth in this Section 6.2;
and provided, further, that the Second Lien Agent shall have
irrevocably agreed, pursuant to Section 1129(a)(9) of the Bankruptcy
Code, on behalf of itself and the Second Lien Creditors, in any stipulation
and/or order granting such adequate protection, that any such junior
superpriority claims may be paid under any plan of reorganization in any
combination of cash, debt, equity or other property having a value on the
effective date of such plan equal to the allowed amount of such junior
superpriority claims.  The Second Lien
Creditors may seek post-petition interest or other adequate protection payments
in cash (“Second Lien Bankruptcy Payments”)
in any Insolvency Proceeding so long as the aggregate amount of such Second
Lien Bankruptcy Payments does not exceed an amount equal to post-petition
interest accruing at the non-default rate with respect to the Second Lien
Obligations and First Lien Creditors are receiving payment of all post-petition
interest accruing with respect to First Lien Obligations, and the First Lien
Creditors may oppose such motions.  If
Second Lien Creditors receive Second Lien Bankruptcy Payments and the First
Lien Obligations (other than the Excluded First Lien Obligations) are not Paid
in Full upon the effective date of the plan of reorganization, or conclusion of
such Insolvency Proceeding, then the Second Lien Creditors shall pay over to
the First Lien Creditors an amount equal to the lesser of (i) the Second
Lien Bankruptcy Payments and (ii) the amount of the shortfall in Payment
in Full of the First Lien Obligations (excluding the Excluded First Lien
Obligations).


 


6.3           Sale of Collateral; Waivers.  The Second Lien Creditors agree that they
will not object to or oppose a Disposition of any Collateral securing the First
Lien Obligations (or any portion thereof) free and clear of Liens or other
claims under Section 363 of the Bankruptcy Code or any other provision of
the Bankruptcy Code, if the First Lien Creditors have consented to such or
Disposition of such assets, as long as all proceeds of such Disposition
received by the 


 


28

















 


First Lien Creditors on account of the First Lien
Obligations will be applied to the First Lien Obligations to permanently reduce
the Maximum First Lien Principal Amount; provided that the Second Lien
Agent, on behalf of itself and the other Second Lien Creditors, may raise any
objections to any such Disposition of such Collateral that could be raised by
any creditor of the Obligors whose claims were not secured by any Liens on such
Collateral, provided such objections are not inconsistent with any other term
or provision of this Agreement and are not based on the status of the Second
Lien Agent or the Second Lien Creditors as secured creditors (without limiting
the foregoing, neither the Second Lien Agent nor the Second Lien Creditors may
raise any objections based on rights afforded by Sections 363(e) and
(f) of the Bankruptcy Code to secured creditors (or by any comparable
provision of any Bankruptcy Law)) with respect to the Liens granted to the
Second Lien Agent.  The Second Lien Agent
and the Second Lien Creditors waive any claim they may now or hereafter have
arising out of the First Lien Creditors’ election in any proceeding instituted
under Chapter 11 of the Bankruptcy Code of the application of
Section 1111(b)(2) of the Bankruptcy Code.  The Second Lien Agent and the Second Lien
Creditors agree not to initiate or prosecute or join with any other Person to
initiate or prosecute any claim, action or other proceeding
(i) challenging the enforceability of the First Lien Creditors’ claims as
fully secured claims with respect to all or part of the First Lien Obligations
or for allowance of any First Lien Obligations (including those consisting of
post-petition interest, fees or expenses) or opposing any action by the First
Lien Agent or the First Lien Creditors to enforce their rights or remedies
arising under the First Lien Documents in a manner which is not prohibited by
the terms of this Agreement, (ii) challenging the enforceability,
validity, priority or perfected status of any Liens on assets securing the
First Lien Obligations under the First Lien Documents, (iii) asserting any
claims which the Obligors may hold with respect to the First Lien Creditors,
(iv) seeking to lift the automatic stay to the extent that such action is
opposed by the First Lien Agent, except, if the First Lien Agent, on behalf of
itself and the First Lien Creditors, seeks relief from the automatic stay to
exercise its rights against the Collateral under and in accordance with this
Agreement, then the Second Lien Agent, on behalf of itself and the Second Lien
Creditors, may seek limited relief from the automatic stay to preserve its
right to receive proceeds of Collateral payable to it and the Second Lien
Creditors under and in accordance with this Agreement including, without
limitation, Section 2.4 of this Agreement, or (v) opposing a
motion by the First Lien Agent to lift the automatic stay.  The First Lien Creditors agree not to
initiate or prosecute or join with any person to initiate or prosecute any
claim, action or other proceeding challenging the enforceability, validity,
priority or perfected status of any Liens on assets securing the Second Lien
Obligations under the Second Lien Documents.


 


6.4           Invalidated Payments.  To the extent that the First Lien Creditors
receive payments on the First Lien Obligations or proceeds of Collateral for
application to the First Lien Obligations which are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any Bankruptcy Law,
common law, equitable cause or otherwise (and whether as a result of any
demand, settlement, litigation or otherwise) (each a “First Lien Avoidance”), then to the extent
of such payment or proceeds received, such Obligations, or part thereof,
intended to be satisfied by such payment or proceeds shall be revived and
continue in full force and effect as if such payments or proceeds had not been
received by the First Lien Creditors, and this Agreement, if theretofore
terminated, shall be reinstated in full force and effect as of the date of such
First Lien Avoidance, and such prior termination shall not diminish, release,
discharge, impair or otherwise affect the


 


29














 


Lien priorities and the relative rights and
obligations of the First Lien Creditors and the Second Lien Creditors provided
for herein with respect to any event occurring on or after the date of such
First Lien Avoidance.  The Second Lien
Creditors agree that none of them shall be entitled to benefit from any First
Lien Avoidance, whether by preference or otherwise, it being understood and
agreed that the benefit of such First Lien Avoidance otherwise allocable to
them shall instead be allocated and turned over for application in accordance
with the priorities set forth in this Agreement.


 


6.5           Payments.  In
the event of any Insolvency Proceeding involving one or more Obligors, all
proceeds of Collateral (including, without limitation, any Distribution which would
otherwise, but for the terms hereof, be payable or deliverable in respect of
the Second Lien Secured Claim) shall be paid or delivered directly to First
Lien Agent (to be held and/or applied by First Lien Agent in accordance with
the terms of the First Lien Documents) until all First Lien Obligations are
Paid in Full (other than the Excluded First Lien Obligations) before any of the
same shall be made to one or more of the Second Lien Creditors on account of
any Second Lien Secured Claim, and each Second Lien Creditor irrevocably
authorizes, empowers and directs any debtor, debtor in possession, receiver,
trustee, liquidator, custodian, conservator or other Person having authority,
to pay or otherwise deliver all such Distributions in respect of any Second
Lien Secured Claim to the First Lien Agent; provided that the foregoing
provision shall not apply to Distributions made in respect of the Second Lien
Secured Claim pursuant to a plan of reorganization under the Bankruptcy Code
with respect to such Obligors which has received the affirmative vote of all
classes composed of the First Lien Creditors’ claims and which has been
confirmed pursuant to a Final Order. 
Each Second Lien Creditor also irrevocably authorizes and empowers the
First Lien Agent, in the name of each Second Lien Creditor, to demand, sue for,
collect and receive any and all such Distributions in respect of any Second
Lien Secured Claim to which the First Lien Creditors are entitled
hereunder.  In the event of any
Distribution received by the Second Lien Creditors in respect of any Second
Lien Deficiency, the Second Lien Creditors shall be entitled to retain such
Distribution to the extent the same have been paid pursuant to a plan of
reorganization which is confirmed pursuant to a Final Order regardless of
whether such plan of reorganization has received the affirmative vote of all
classes composed of the First Lien Creditors’ claims.


 


6.6           Separate Grants of Security and Separate Classification.  Each Second Lien Creditor acknowledges and agrees
that (a) the grants of Liens pursuant to the First Lien Documents and the
Second Lien Documents constitute two separate and distinct grants of Liens and
(b) because of their differing rights in the Collateral, the Second Lien
Secured Claims are fundamentally different from the First Lien Secured Claims
and must be separately classified in any plan of reorganization proposed or
adopted in an Insolvency Proceeding. 
Each of the First Lien Creditors and Second Lien Creditors agree that,
without the written consent of the other, they shall not seek to vote with the
other as a single class in connection with any plan of reorganization or
otherwise be treated as the same class of creditors in any Insolvency
Proceeding and shall not oppose any pleading or motion by the other for the
First Lien Creditors and the Second Lien Creditors to be treated as separate
classes of creditors.  Notwithstanding
the foregoing, if it is held that the Secured Claims of the First Lien Creditors
and the Second Lien Creditors in respect of the Collateral constitute only one
secured claim (rather than separate classes of senior and junior secured
claims), then the Second Lien Creditors hereby acknowledge and agree that all
distributions shall be made as if there were separate classes of senior and
junior 


 


30

















 


secured claims against the Obligors in respect of
the Collateral, with the effect being that, to the extent that the aggregate
value of the Collateral exceeds the amount of the First Lien Obligations, the
First Lien Creditors shall be entitled to receive, in addition to amounts
distributed to them in respect of principal, pre-petition interest and other
claims, all amounts owing in respect of post-petition interest, and fees, costs
and charges incurred subsequent to the commencement of the applicable
Insolvency Proceeding before any distribution is made in respect of any of the
claims held by the Second Lien Creditors. 
The Second Lien Creditors hereby acknowledge and agree to turn over to
the First Lien Creditors amounts otherwise received or receivable by them to
the extent necessary to effectuate the intent of the preceding sentence, even
if such turnover has the effect of reducing the claim or recovery of the Second
Lien Creditors.


 


6.7           Rights as Unsecured Lenders.  In any Insolvency Proceeding, to the extent
not prohibited by this Agreement, the Second Lien Creditors may take any
action, file any pleading, appear in any proceeding and exercise rights and
remedies whether as unsecured lenders or otherwise.  In any Insolvency Proceeding, to the extent
not prohibited by this Agreement, the First Lien Creditors may take any action,
file any pleading, appear in any proceeding and exercise rights and remedies
whether as unsecured lenders or otherwise. 
The Second Lien Creditors may vote on any plan of reorganization
(including, without limitation, the right to vote to accept or reject any plan
of partial or complete liquidation, reorganization, arrangement, composition or
extension) to the extent not inconsistent with the terms of this Agreement
(including, without limitation, Section 2.4).


 


Section 7.               Miscellaneous.


 


7.1           Termination. 
Subject to Section 5.5, this Agreement shall terminate and
be of no further force and effect upon the first to occur of the Payment in
Full of (a) the First Lien Obligations or (b) the Second Lien
Obligations.


 


7.2           Successors and Assigns; No Third Party Beneficiaries.


 


(a)           This Agreement shall be binding upon each Secured Creditor
and its respective successors and assigns and shall inure to the benefit of
each Secured Creditor and its respective successors, participants and
assigns.  No other Person shall have or
be entitled to assert rights or benefits hereunder.


 


(b)           Each Secured Creditor reserves the right to grant
participations in, or otherwise sell, assign, transfer or negotiate all or any
part of, or any interest in, their respective Obligations; provided that
(i) no Secured Creditor shall be obligated to give any notices to or
otherwise in any manner deal directly with any participant in the Obligations
and no participant shall be entitled to any rights or benefits under this
Agreement, except through the Secured Creditor with which it is a participant
and (ii) as between any Secured Creditor and the Obligors, any such sale,
assignment, transfer or negotiation shall be subject to any applicable
restrictions in the relevant Document to which such Secured Creditor is a
party.


 


(c)           In connection with any participation or other transfer or
assignment, a Secured Creditor (i) may, subject to its respective
Documents, disclose to such assignee, participant or other transferee or
assignee all documents and information which such Secured 


 


31

















 


Creditor now or hereafter may have relating to any
Obligor or the Collateral (and any documents and/or information so disclosed
shall be subject to any other applicable confidentiality provisions in the
Documents to which such Secured Creditor is a party) and (ii) shall disclose
to such participant or other transferee or assignee the existence and terms and
conditions of this Agreement.


 


7.3           Notices.  All
notices and other communications provided for hereunder shall be in writing and
shall be mailed, sent by overnight courier, telecopied or delivered, as
follows:


 


(a)           if to First Lien Agent, to it at the following address:


 


General
Electric Capital Corporation


2
Bethesda Metro Center


Suite 600


Bethesda,
MD 20814


Attention:
Portfolio Management Group


Fax:
(301) 664-9890


 


With
copies to:


 


General
Electric Capital Corporation


2
Bethesda Metro Center


Suite 600


Bethesda,
MD 20814


Attention:  Maryanne Courtney, Internal Counsel


Fax:
(866) 358-1754


 


and


 


Vedder
Price PC


222
North LaSalle Street


Chicago, Illinois
60601


Attention:  Thomas E. Schnur


Fax:
(312) 609-5005


 


(b)           if to Second Lien Agent, to it at the following address:


 


Wilmington
Trust FSB,


246
Goose Lane, Suite 105

Guilford, Connecticut 06437

Attention: Joseph P. O’Donnell

Fax: (203)453-1183


 


(c)           If to any Obligor, to it at the
following address:


 


Oncure
Medical Corp.

188 Inverness Drive West, Suite 650

Englewood, Colorado 80112 

Attention:  Chief Executive Officer

Fax:  (303) 643-6560


 


32

















 


with
copy to:


 


Oncure
Medical Corp.

18100 Von Karman Avenue, Suite 450

Irvine, California 92612

Attention: General Counsel

Fax:  (949) 863-8835


 


or,
as to each party, at such other address as shall be designated by such party in
a written notice to the other parties complying as to delivery with the terms
of this Section 7.3.  All
such notices and other communications shall be effective (i) if sent by
registered mail, return receipt requested, when received or 3 Business Days
after mailing, whichever first occurs, (ii) if telecopied, when transmitted
and a confirmation is received, provided the same is on a Business Day
and, if not, on the next Business Day or (iii) if delivered by messenger
or overnight courier, upon delivery, provided the same is on a Business
Day and, if not, on the next Business Day.


 


7.4           Counterparts. 
This Agreement may be executed by the parties hereto in several
counterparts, and each such counterpart shall be deemed to be an original and
all of which shall constitute together but one and the same agreement.


 


7.5           GOVERNING LAW; CONSENT TO JURISDICTION AND VENUE.  THIS AGREEMENT AND THE OBLIGATIONS ARISING
HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN
SUCH STATE AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA, WITHOUT
REGARD TO CHOICE OF LAW RULES TO THE EXTENT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. 
EACH OF THE PARTIES HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN NEW YORK, NEW YORK SHALL HAVE JURISDICTION TO HEAR
AND DETERMINE ANY CLAIMS OR DISPUTES AMONG THE PARTIES HERETO PERTAINING TO
THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED
THAT THE PARTIES HERETO ACKNOWLEDGE THAT ANY APPEALS FROM THOSE COURTS
MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF NEW YORK, NEW
YORK.  EACH OF THE PARTIES HERETO
EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR
SUIT COMMENCED IN ANY SUCH COURT, AND EACH OF THE PARTIES HERETO HEREBY WAIVES
ANY OBJECTION WHICH IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER
VENUE OR FORUM NON CONVENIENS.


 


7.6           MUTUAL WAIVER OF JURY TRIAL.  THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT OR OTHERWISE, BETWEEN THE PARTIES ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTIONS RELATED
THERETO.


 


33

















 


7.7           Amendments. 
No amendment or waiver of any provision of this Agreement, and no
consent to any departure by any Person from the terms hereof, shall in any
event be effective unless it is in writing and signed by the Second Lien Agent,
with the consent of the Requisite Second Lien Creditors, and the First Lien
Agent, with the consent of the Requisite First Lien Creditors; provided
that, without the written consent of the Obligors, no amendment, waiver or
consent will be effective if (1) it affects any Obligor’s direct
obligations hereunder or (2) the effect of such amendment is to reduce the
Maximum First Lien Principal Amount or Maximum Second Lien Principal Amount to
an amount less than the amount determined under the definition thereof as
originally in effect.  The First Lien
Agent and Second Lien Agent shall sign amendments and waivers of the provisions,
and consent for the departure by any Person from the terms, of this Agreement
at the direction or with the consent of the Requisite First Lien Creditors or
the Requisite Second Lien Creditors, respectively.  In making any determination as to whether the
direction or consent of the Requisite First Lien Creditors or the Requisite
Second Lien Creditors has been obtained for any purpose of this Agreement, the
First Lien Agent and the Second Lien Agent may conclusively rely on a
certificate of each First Lien Series Representative and Second Lien Series Representative,
as applicable.  Except as provided in the
first sentence of this Section 7.7, in no event shall the consent
of any Obligor be required in connection with any amendment or waiver of any
provision, or any consent for departure from the terms, of this Agreement.


 


7.8           No Waiver. 
No failure or delay on the part of any Secured Creditor in exercising
any power or right under this Agreement shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power or right preclude any
other or further exercise thereof or the exercise of any other power or right.


 


7.9           Severability. 
Any provision of this Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of
such provisions in any other jurisdiction.


 


7.10         Further Assurances. 
Each party hereto agrees to cooperate fully with each other party hereto
to effectuate the intent and provisions of this Agreement and, from time to
time, to execute and deliver any and all other agreements, documents or
instruments, and to take such other actions, as may be reasonably necessary or
desirable to effectuate the intent and provisions of this Agreement.


 


7.11         Headings.  The
section headings contained in this Agreement are and shall be without
meaning or content whatsoever and are not part of this Agreement.


 


7.12         Lien Priority Provisions.  This Agreement and the rights and benefits
hereunder shall inure solely to the benefit of the First Lien Agent, the First
Lien Creditors, the Second Lien Agent, and the Second Lien Creditors and their
respective successors and permitted assigns and no other Person (including the
Obligors or any trustee, receiver, debtor in possession or bankruptcy estate in
a bankruptcy or like proceeding) shall have or be entitled to assert rights or
benefits hereunder.  Nothing contained in
this Agreement is intended to or shall impair the obligation of any Obligor to
pay the Obligations as and when the same shall become due and payable in
accordance with their respective terms, or to affect the relative rights of the
lenders of 


 


34

















 


any Obligor, other than the First Lien Agent, the
First Lien Creditors, the Second Lien Agent, and the Second Lien Creditors as
between themselves.


 


7.13         Credit Analysis. 
No Secured Creditor shall be responsible for keeping any other Secured
Creditor informed of (a) the financial condition of the Obligors and all
other all endorsers, obligors and/or guarantors of the  Obligations and (b) all other
circumstances bearing upon the risk of nonpayment of the Obligations.  No Secured Creditor shall have any duty to
advise any other Secured Creditor of information known to it regarding such
condition or any such other circumstances. 
No Secured Creditor assumes any liability to any other Secured Creditor
or to any other Person with respect to: 
(i) the financial or other condition of Obligors under any
instruments of guarantee with respect to the Obligations, (ii) the
enforceability, validity, value or collectibility of the Obligations, any
Collateral therefor or any guarantee or security which may have been granted in
connection with any of the Obligations or (iii) any Obligor’s title or
right to transfer any Collateral or security.


 


7.14         Waiver of Claims. 
To the maximum extent permitted by law, each party hereto waives any
claim it might have against any Secured Creditor with respect to, or arising
out of, any action or failure to act or any error of judgment or negligence,
mistake or oversight whatsoever on the part of any other party hereto or their
respective directors, officers, employees or agents with respect to any
exercise of rights or remedies under the Documents or any transaction relating
to the Collateral in accordance with this Agreement.  None of the Secured Creditors, nor any of
their respective directors, officers, employees or agents shall be liable for
failure to demand, collect or realize upon any of the Collateral or for any
delay in doing so or, except as specifically provided herein, shall be under
any obligation to Dispose of any Collateral upon the request of any Obligor or
any Secured Creditor or any other Person or to take any other action whatsoever
with regard to the Collateral or any part thereof.


 


7.15         Conflicts.  In
the event of any conflict between the provisions of this Agreement and the
provisions of the Documents, the provisions of this Agreement shall govern.


 


7.16         Specific Performance. 
Each of First Lien Agent and Second Lien Agent may demand specific
performance of this Agreement and, on behalf of itself and the respective other
Secured Creditors, hereby irrevocably waives any defense based on the adequacy
of a remedy at law and any other defense that might be asserted to bar the
remedy of specific performance in any action which may be brought by the
respective Secured Creditors.


 


7.17         Provisions Solely to Define Relative Rights.  The provisions of this Agreement are and are
intended solely for the purpose of defining the relative rights of the Secured
Creditors.  None of the Obligors or any
other creditor thereof shall have any rights hereunder, and none of the
Obligors may rely on the terms hereof. 
Nothing in this Agreement is intended to or shall impair the obligations
of Obligors, which are absolute and unconditional, to pay the First Lien
Obligations and the Second Lien Obligations as and when the same shall become
due and payable in accordance with their terms


 


7.18         Subrogation. 
The Second Lien Agent and the other Second Lien Creditors hereby agree
that until the First Lien Termination Date has occurred they will not assert
any rights of subrogation it or they may acquire as a result of any payment
hereunder; provided that as 


 


35

















 


between the Obligors, on the one hand, and the
Second Lien Creditors, on the other hand, any such payment that is paid over to
the First Lien Agent pursuant to this Agreement shall be deemed not to reduce
any of the Second Lien Obligation.


 


7.19         Entire Agreement. 
This Agreement and the Documents embody the entire agreement of the
Obligors, the First Lien Agent, the First Lien Creditors, the Second Lien Agent
and the Second Lien Creditors with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings relating to the
subject matter hereof and thereof and any draft agreements, negotiations and/or
discussions involving any Obligor and any of the First Lien Agent, the First
Lien Creditors, the Second Lien Agent and the Second Lien Creditors relating to
the subject matter hereof.


 


[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]


 


36

















 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement to be executed by their respective officers thereunto
duly authorized as of the day and year first above written.


 


	
  FIRST
  LIEN AGENT:

  	
  GENERAL
  ELECTRIC CAPITAL CORPORATION, as First Lien Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Brent Shepherd

  
	
   

  	
   

  	
  Brent
  Shepherd

  
	
   

  	
   

  	
  Duly
  Authorized Signatory

  



 

















 


	
  SECOND
  LIEN AGENT:

  	
  WILMINGTON TRUST FSB, as Trustee and Second
  Lien Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Joseph P. O’Donnell

  
	
   

  	
  Name:
  

  	
  Joseph
  P. O’Donnell

  
	
   

  	
  Title:
  

  	
  Vice
  President

  



 

















 


Each
of the undersigned hereby acknowledges and agrees to the foregoing terms and
provisions.


 


	
  BORROWERS:

  	
  ONCURE MEDICAL CORP., a Delaware corporation

  
	
   

  	
  FOUNTAIN VALLEY & ANAHEIM RADIATION ONCOLOGY
  CENTERS, INC., a California corporation

  
	
   

  	
  FROG ONCURE SOUTHSIDE, L.L.C., a Florida
  limited liability company

  
	
   

  	
  JAXPET, LLC, a Florida limited
  liability company

  
	
   

  	
  JAXPET/POSITECH, L.L.C.,

  
	
   

  	
  a
  Florida limited liability company

  
	
   

  	
  MANATEE RADIATION ONCOLOGY, INC., a Florida
  corporation

  
	
   

  	
  MICA FLO II, INC., a Delaware corporation

  
	
   

  	
  MISSION VIEJO RADIATION ONCOLOGY MEDICAL GROUP, INC., a
  California corporation

  
	
   

  	
  POINTE WEST ONCOLOGY, LLC,

  
	
   

  	
  a
  Delaware limited liability company

  
	
   

  	
  RADIATION ONCOLOGY SERVICES, LLC, a California
  limited liability company

  
	
   

  	
  U.S. CANCER CARE, INC.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
  USCC ACQUISITION CORP.,

  
	
   

  	
  a
  Delaware corporation

  
	
   

  	
  USCC FLORIDA ACQUISITION CORP., a Delaware
  corporation

  
	
   

  	
  USCC HEALTHCARE MANAGEMENT CORP., a
  California corporation

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/
  L. Duane Choate

  
	
   

  	
   

  	
   

  	
  L. Duane Choate

  
	
   

  	
   

  	
   

  	
  As President and Chief Executive Officer of each of the
  above entities and in such capacity, intending by this signature to legally
  bind each of the above entities

  



 














 


	
  BORROWERS:

  	
  SARASOTA RADIATION & MEDICAL ONCOLOGY
  CENTER, INC., a Florida corporation

  
	
   

  	
  VENICE ONCOLOGY CENTER, INC., a Florida
  corporation

  
	
   

  	
  ENGLEWOOD ONCOLOGY, INC., a Florida
  corporation

  
	
   

  	
  CHARLOTTE COMMUNITY RADIATION ONCOLOGY, INC., a Florida
  corporation

  
	
   

  	
  INTERHEALTH FACILITY TRANSPORT, INC., a Florida
  corporation

  
	
   

  	
  SARASOTA COUNTY ONCOLOGY, INC., a Florida
  corporation

  
	
   

  	
  COASTAL ONCOLOGY, INC., a California
  corporation

  
	
   

  	
  SANTA CRUZ RADIATION ONCOLOGY MANAGEMENT CORP., a California
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  By

  	
  /s/
  L. Duane Choate

  
	
   

  	
   

  	
   

  	
  L. Duane Choate

  
	
   

  	
   

  	
   

  	
  As President and Chief Executive Officer of each of the
  above entities and in such capacity, intending by this signature to legally
  bind each of the above entities

  



 

















 


	
  OBLIGORS:

  	
  ONCURE HOLDINGS, INC., a Delaware corporation, as
  Holdings

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  L. Duane Choate

  
	
   

  	
   

  	
  L. Duane Choate

  
	
   

  	
   

  	
  President
  and Chief Executive Officer

  



 

















 


EXHIBIT A

to Intercreditor Agreement


 


[FORM OF]

INTERCREDITOR AGREEMENT JOINDER


 


The
undersigned,
[                                      ],
a
[                                      ],
hereby agrees to become party as [First] [Second] Lien Series Representative
under the Intercreditor Agreement dated as of May 13, 2010 (as amended,
restated or otherwise modified from time to time, the “Intercreditor Agreement”; unless otherwise
defined herein, each capitalized term used herein shall the meaning assigned to
such term in the Intercreditor Agreement), among Oncure Medical Corp., a
Delaware corporation (“Oncure”),
the other Obligors from time to time party thereto, General Electric Capital
Corporation, as the initial First Lien Agent and Trustee, as initial Second
Lien Agent, for all purposes thereof on the terms set forth therein, and to be
bound by the terms of the Intercreditor Agreement as fully as if the
undersigned had executed and delivered the Intercreditor Agreement as of the
date thereof.


 


The
undersigned further agrees:


 


(a)           each Series of [First][Second] Lien Obligations will
be and are secured equally and ratably by all [First][Second] Liens at any time
granted by any Obligor to secure any Obligations in accordance with Section 2.14
of the Intercreditor Agreement in respect of a Series of [First][Second]
Lien Obligations, whether or not upon property otherwise constituting collateral
for a Series of [First][Second] Lien Obligations, and that all such
[First][Second] Liens will be enforceable by the [First][Second] Lien Agent for
the benefit of all holders of [First][Second] Lien Obligations;


 


(b)           the [First] [Second] Lien Creditors under the Credit
Facility for which the undersigned is the [First] [Second] Series Representative
(hereinafter, excluding the [First] [Second] Lien Agent in its capacity as
such, the “Related  Series Creditors”) have authorized the
undersigned to act on their behalf and to enter into this Agreement and any
separate intercreditor agreement to which the undersigned has or will become a
party and are bound by the provisions of the Intercreditor Agreement, including
the provisions relating to the ranking of [First][Second] Liens;


 


(c)           the undersigned will not (i) hold any Collateral in
its possession (except through the [First][Second] Lien Agent as provided in
the Intercreditor Agreement), (ii) seek to have its name indicated as a
lienholder on any certificate of title (unless the undersigned is or becomes
the [First][Second] Lien Agent) and (iii) take  any Enforcement Action except with the
consent and at the direction of [First][Second] Lien Agent;


 


(d)           the undersigned  further irrevocably consents to the
[First][Second] Lien Agent exercise of its powers and performance of its duties
under the Intercreditor Agreement and, as they relate to the Collateral and its
powers and obligations under the Intercreditor Agreement, the other
[First][Second] Lien Documents, and all powers incidental thereto; and/or the
undersigned  certifies that it has entered into a separate intercreditor
agreement with the [First][Second] Lien Agent governing the relative rights of
the holders of each Series of [First][Second] Lien Obligations in respect
of the [First][Second] Lien Collateral;


 

















 


(e)           notwithstanding
the use of the defined term “[First] [Second] Lien Agent,” it is expressly
understood and agreed that the [First] [Second] Lien Agent shall not have any
fiduciary responsibilities to any Related Series Creditor by reason of the
Intercreditor Agreement and that the [First] [Second] Lien Agent is merely
acting as the representative of the Related Series Creditors with only
those duties as are expressly set forth in the Intercreditor Agreement, and the
undersigned, on behalf of each of the Related Series Creditors, agrees to
assert no claim against the [First] [Second] Lien Agent on any agency theory or
any other theory of liability for breach of fiduciary duty, all of which claims
the undersigned, on behalf of each of the Related Series Creditors,
waives;


 


(f)            the [First]
[Second] Lien Agent shall have no implied duties to the Related Series Creditors,
or any obligation to the Related Series Creditors to take any action under
the Intercreditor Agreement or under any of the [First] [Second] Lien
Documents, except any action specifically required by the Intercreditor
Agreement to be taken by the [First] [Second] Lien Agent or directed by the
Requisite [First] [Second] Lien Creditors in accordance with the terms of the
Intercreditor Agreement;


 


(g)           the [First]
[Second] Lien Agent shall not be obligated to take any such action
(i) which is in conflict with any provisions of applicable law or of the
Intercreditor Agreement or any [First] [Second] Lien Document or (ii) with
respect to which the [First] [Second] Lien Agent, in its opinion, shall not
have been provided adequate security and indemnity against the costs, expenses
and liabilities that may be incurred by it as a result of compliance with such
direction, and under no circumstances shall the [First] [Second] Lien Agent be
liable for following the written direction of the Requisite [First] [Second]
Lien Creditors;


 


(h)           the undersigned,
on behalf of each of the Related Series Creditors, hereby agrees, promptly
upon request by the [First] [Second] Lien Agent, to provide to the [First]
[Second] Lien Agent in writing such information regarding the Obligations held
by such Related Series Creditor as may be reasonably required by the
[First] [Second] Lien Agent, and the undersigned, on behalf of each of the
Related Series Creditors, shall notify the [First] [Second] Lien Agent in
writing promptly following the repayment in full of all Obligations owing to
such Related Series Creditors;


 


(i)            the [First]
[Second] Lien Agent may execute any of its duties as the [First] [Second] Lien
Agent under the Intercreditor Agreement and under any [First] [Second] Lien
Document by or through employees, agents, and attorneys-in-fact and shall be
entitled to rely on advice of counsel concerning any and all matters pertaining
to the [First] [Second] Lien Agent’s powers and duties under the Intercreditor
Agreement or under any [First] [Second] Lien Documents;


 


(j)            the [First]
[Second] Lien Agent shall be entitled to rely upon any notice, consent,
certificate, affidavit, letter, telegram, statement, paper or document believed
by it to be genuine and correct and to have been signed or sent by the proper
person or persons, and, in respect of legal matters, upon the opinion of
counsel selected by the [First] [Second] Lien Agent, which may be employees of
the [First] [Second] Lien Agent;


 

















 


(k)           neither the
[First] [Second] Lien Agent nor any of its directors, officers, affiliates,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into, or verify (i) any statement, warranty or representation made
by any Obligor or other Person in connection with any [First] [Second] Lien
Document; (ii) the performance or observance of any of the covenants or
agreements of any Obligor or other Person under any [First] [Second] Lien
Document; (iii) the satisfaction or observance of any condition or
covenant specified in any of the [First] [Second] Lien Documents; (iv) the
existence or possible existence of any default or event of default under the
[First] [Second] Lien Documents; (v) the validity, enforceability,
effectiveness or genuineness of any [First] [Second] Lien Document or any other
instrument or writing furnished in connection herewith; (vi) the validity,
perfection or priority of any Lien created under any [First] [Second] Lien
Document; or (vii) the financial condition of any Obligor or other Person;
and


 


(l)            the undersigned,
on behalf of each Related Series Creditors, agrees to reimburse and indemnify
the [First] [Second] Lien Agent ratably in proportion to their respective pro
rata shares of the [First ] [Second] Lien Obligations as of the date of any
demand by the [First] [Second] Lien Agent with respect thereto (i) for any
amounts not reimbursed by any Obligor under the [First] [Second] Lien
Documents, (ii) for any other expenses incurred by the [First] [Second]
Lien Agent, on behalf of the [First] [Second] Lien Creditors, in connection
with the preservation or protection of the Collateral or the validity,
perfection or priority of the [First] [Second] Lien Agent’s interest therein or
the enforcement of the [First] [Second] Lien Documents and (iii) for any
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever which
may be imposed on, incurred by or asserted against the [First] [Second] Lien
Agent in any way relating to or arising out of the Intercreditor Agreement, any
[First] [Second] Lien Documents or any other document delivered in connection
therewith or the transactions contemplated thereby, or the enforcement of any
of the terms thereof or of any such other documents, provided that no
Related Series Creditor shall be liable for any of the foregoing to the
extent any of the foregoing is found in a final nonappealable judgment by a
court of competent jurisdiction to have arisen solely from the gross negligence
or willful misconduct of the [First] [Second] Lien Agent.  The agreements in this clause (l) shall
survive the repayment of the Obligations and the termination of the other
provisions of the Intercreditor Agreement.


 


Notices
and other communications provided for in the Intercreditor Agreement shall be
delivered by hand or by nationally recognized overnight courier service, mailed
by certified or registered mail or sent by fax to the undersigned as follows:


 


[Address
and Fax Number of undersigned].


 


IN
WITNESS WHEREOF, the parties hereto have caused this Intercreditor Agreement
Joinder to be executed by their respective officers or representatives as of
                                     ,
20      .


 


 


	
  Undersigned:

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 

















 


For
purposes of Section 2.14 of the


Intercreditor
Agreement, the [First Lien Agent][Second Lien Agent] hereby


acknowledges
and accepts this Intercreditor Agreement Joinder.


 


[First
Lien Agent][Second Lien Agent]


 


	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


S-3