Exhibit 10.25


 


$40,000,000


 


CREDIT AGREEMENT


 


Dated as of May 13, 2010


 


among


 


ONCURE MEDICAL CORP., FOUNTAIN VALLEY & ANAHEIM RADIATION
ONCOLOGY CENTERS, INC., FROG ONCURE SOUTHSIDE, L.L.C., JAXPET, LLC,
JAXPET/POSITECH, L.L.C., MANATEE RADIATION ONCOLOGY, INC., MICA
FLO II, INC., MISSION VIEJO RADIATION ONCOLOGY MEDICAL GROUP, INC.,
POINTE WEST ONCOLOGY, LLC, RADIATION ONCOLOGY CENTER, LLC, U.S. CANCER CARE, INC.,
USCC ACQUISITION CORP., USCC FLORIDA ACQUISITION CORP., USCC HEALTHCARE
MANAGEMENT CORP., SARASOTA RADIATION & MEDICAL ONCOLOGY CENTER, INC.,
VENICE ONCOLOGY CENTER, INC., ENGLEWOOD ONCOLOGY, INC., CHARLOTTE
COMMUNITY RADIATION ONCOLOGY, INC., INTERHEALTH FACILITY TRANSPORT, INC.,
SARASOTA COUNTY ONCOLOGY, INC., COASTAL ONCOLOGY, INC., AND SANTA CRUZ
RADIATION ONCOLOGY MANAGEMENT CORP., INDIVIDUALLY AND COLLECTIVELY, THE
BORROWER


 


ONCURE HOLDINGS, INC., AS ONE OF THE GUARANTORS


 


THE LENDERS AND L/C ISSUERS PARTY HERETO


 


and


 


GENERAL ELECTRIC CAPITAL CORPORATION,

AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT


 





 


GE CAPITAL MARKETS, INC.,

AS SOLE LEAD ARRANGER AND BOOKRUNNER


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 1

  	
  DEFINITIONS, INTERPRETATION
  AND ACCOUNTING TERMS

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 1.1

  	
   

  	
  Defined
  Terms

  	
  1

  
	
  Section 1.2

  	
   

  	
  UCC
  Terms

  	
  34

  
	
  Section 1.3

  	
   

  	
  Accounting
  Terms and Principles

  	
  34

  
	
  Section 1.4

  	
   

  	
  Payments

  	
  34

  
	
  Section 1.5

  	
   

  	
  Interpretation

  	
  34

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

  	
  THE
  FACILITIES

  	
  35

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.1

  	
   

  	
  The
  Commitments

  	
  35

  
	
  Section 2.2

  	
   

  	
  Borrowing
  Procedures

  	
  36

  
	
  Section 2.3

  	
   

  	
  Swing
  Loans

  	
  38

  
	
  Section 2.4

  	
   

  	
  Letters
  of Credit

  	
  40

  
	
  Section 2.5

  	
   

  	
  Reduction
  and Termination of the Commitments

  	
  43

  
	
  Section 2.6

  	
   

  	
  Repayment
  of Loans

  	
  43

  
	
  Section 2.7

  	
   

  	
  Optional
  Prepayments

  	
  43

  
	
  Section 2.8

  	
   

  	
  Mandatory
  Prepayments

  	
  43

  
	
  Section 2.9

  	
   

  	
  Interest

  	
  44

  
	
  Section 2.10

  	
   

  	
  Conversion
  and Continuation Options

  	
  45

  
	
  Section 2.11

  	
   

  	
  Fees

  	
  45

  
	
  Section 2.12

  	
   

  	
  Application
  of Payments

  	
  46

  
	
  Section 2.13

  	
   

  	
  Payments
  and Computations

  	
  47

  
	
  Section 2.14

  	
   

  	
  Evidence
  of Debt

  	
  48

  
	
  Section 2.15

  	
   

  	
  Suspension
  of Eurodollar Rate Option

  	
  50

  
	
  Section 2.16

  	
   

  	
  Breakage
  Costs; Increased Costs; Capital Requirements

  	
  51

  
	
  Section 2.17

  	
   

  	
  Taxes

  	
  52

  
	
  Section 2.18

  	
   

  	
  Substitution
  of Lenders

  	
  55

  
	
  Section 2.19

  	
   

  	
  Appointment
  of Borrower Representative

  	
  57

  
	
  Section 2.20

  	
   

  	
  Joint
  and Several Liability

  	
  57

  
	
  Section 2.21

  	
   

  	
  Revolving
  Credit Commitment Increase

  	
  61

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  	
  CONDITIONS
  TO LOANS AND LETTERS OF CREDIT

  	
  63

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.1

  	
   

  	
  Conditions
  Precedent to Initial Loans and Letters of Credit

  	
  63

  
	
  Section 3.2

  	
   

  	
  Conditions
  Precedent to Each Loan and Letter of Credit

  	
  66

  
	
  Section 3.3

  	
   

  	
  Determinations
  of Initial Borrowing Conditions

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
  67

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.1

  	
   

  	
  Corporate
  Existence; Compliance with Law

  	
  67

  
	
  Section 4.2

  	
   

  	
  Loan
  and Related Documents

  	
  68

  
	
  Section 4.3

  	
   

  	
  Ownership
  of Group Members

  	
  69

  



 


i

















 


TABLE OF CONTENTS

(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.4

  	
   

  	
  Financial
  Statements

  	
  69

  
	
  Section 4.5

  	
   

  	
  Material
  Adverse Effect

  	
  70

  
	
  Section 4.6

  	
   

  	
  Solvency

  	
  70

  
	
  Section 4.7

  	
   

  	
  Litigation

  	
  70

  
	
  Section 4.8

  	
   

  	
  Taxes

  	
  70

  
	
  Section 4.9

  	
   

  	
  Margin
  Regulations

  	
  71

  
	
  Section 4.10

  	
   

  	
  No
  Burdensome Obligations; No Defaults

  	
  71

  
	
  Section 4.11

  	
   

  	
  Investment
  Company Act; Public Utility Holding Company Act

  	
  71

  
	
  Section 4.12

  	
   

  	
  Labor
  Matters

  	
  71

  
	
  Section 4.13

  	
   

  	
  ERISA

  	
  71

  
	
  Section 4.14

  	
   

  	
  Environmental
  Matters

  	
  72

  
	
  Section 4.15

  	
   

  	
  Intellectual
  Property

  	
  72

  
	
  Section 4.16

  	
   

  	
  Title;
  Real Property

  	
  73

  
	
  Section 4.17

  	
   

  	
  Full
  Disclosure

  	
  73

  
	
  Section 4.18

  	
   

  	
  Patriot
  Act

  	
  73

  
	
  Section 4.19

  	
   

  	
  Management
  Services Agreements

  	
  74

  
	
  Section 4.20

  	
   

  	
  Insurance

  	
  74

  
	
  Section 4.21

  	
   

  	
  Representations
  and Warranties Pertaining to Licensed Locations

  	
  74

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 5

  	
  FINANCIAL
  COVENANTS

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.1

  	
   

  	
  Maximum
  First Lien Leverage Ratio

  	
  75

  
	
  Section 5.2

  	
   

  	
  Reserved

  	
  75

  
	
  Section 5.3

  	
   

  	
  Minimum
  Consolidated Fixed Charge Coverage Ratio

  	
  75

  
	
  Section 5.4

  	
   

  	
  Reserved

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  	
  REPORTING
  COVENANTS

  	
  75

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.1

  	
   

  	
  Financial
  Statements

  	
  75

  
	
  Section 6.2

  	
   

  	
  Other
  Events

  	
  77

  
	
  Section 6.3

  	
   

  	
  Copies
  of Notices and Reports

  	
  78

  
	
  Section 6.4

  	
   

  	
  Taxes

  	
  78

  
	
  Section 6.5

  	
   

  	
  Labor
  Matters

  	
  78

  
	
  Section 6.6

  	
   

  	
  ERISA
  Matters

  	
  78

  
	
  Section 6.7

  	
   

  	
  Reserved

  	
  79

  
	
  Section 6.8

  	
   

  	
  Other
  Information

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7

  	
  AFFIRMATIVE
  COVENANTS

  	
  79

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.1

  	
   

  	
  Maintenance
  of Corporate Existence

  	
  79

  



 


ii

















 


TABLE OF CONTENTS

(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.2

  	
   

  	
  Compliance
  with Laws, Etc.

  	
  79

  
	
  Section 7.3

  	
   

  	
  Payment
  of Obligations

  	
  79

  
	
  Section 7.4

  	
   

  	
  Maintenance
  of Property

  	
  79

  
	
  Section 7.5

  	
   

  	
  Maintenance
  of Insurance

  	
  80

  
	
  Section 7.6

  	
   

  	
  Keeping
  of Books

  	
  80

  
	
  Section 7.7

  	
   

  	
  Access
  to Books and Property

  	
  80

  
	
  Section 7.8

  	
   

  	
  Environmental

  	
  81

  
	
  Section 7.9

  	
   

  	
  Use
  of Proceeds

  	
  81

  
	
  Section 7.10

  	
   

  	
  Additional
  Collateral and Guaranties

  	
  81

  
	
  Section 7.11

  	
   

  	
  Deposit
  Accounts; Securities Accounts and Cash Collateral Accounts

  	
  82

  
	
  Section 7.12

  	
   

  	
  Covenants
  Pertaining to Licensed Locations

  	
  83

  
	
  Section 7.13

  	
   

  	
  Post-Closing
  Deliveries

  	
  83

  
	
  Section 7.14

  	
   

  	
  Management
  Services Agreements

  	
  84

  
	
  Section 7.15

  	
   

  	
  Reimbursement
  Reduction

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8

  	
  NEGATIVE
  COVENANTS

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.1

  	
   

  	
  Indebtedness

  	
  85

  
	
  Section 8.2

  	
   

  	
  Liens

  	
  86

  
	
  Section 8.3

  	
   

  	
  Investments

  	
  87

  
	
  Section 8.4

  	
   

  	
  Asset
  Sales

  	
  89

  
	
  Section 8.5

  	
   

  	
  Restricted
  Payments

  	
  89

  
	
  Section 8.6

  	
   

  	
  Prepayment
  of Indebtedness

  	
  90

  
	
  Section 8.7

  	
   

  	
  Fundamental
  Changes

  	
  91

  
	
  Section 8.8

  	
   

  	
  Change
  in Nature of Business

  	
  92

  
	
  Section 8.9

  	
   

  	
  Transactions
  with Affiliates

  	
  92

  
	
  Section 8.10

  	
   

  	
  Third-Party
  Restrictions on Indebtedness, Liens, Investments or Restricted Payments

  	
  93

  
	
  Section 8.11

  	
   

  	
  Modification
  of Certain Documents

  	
  93

  
	
  Section 8.12

  	
   

  	
  Accounting
  Changes; Fiscal Year

  	
  94

  
	
  Section 8.13

  	
   

  	
  Margin
  Regulations

  	
  95

  
	
  Section 8.14

  	
   

  	
  Compliance
  with ERISA

  	
  95

  
	
  Section 8.15

  	
   

  	
  Restricted
  Payments

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 9

  	
  EVENTS
  OF DEFAULT

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.1

  	
   

  	
  Definition

  	
  95

  
	
  Section 9.2

  	
   

  	
  Remedies

  	
  97

  
	
  Section 9.3

  	
   

  	
  Actions
  in Respect of Letters of Credit

  	
  98

  



 


iii

















 


TABLE OF CONTENTS

(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10

  	
  THE
  ADMINISTRATIVE AGENT

  	
  98

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.1

  	
   

  	
  Appointment
  and Duties

  	
  98

  
	
  Section 10.2

  	
   

  	
  Binding
  Effect

  	
  99

  
	
  Section 10.3

  	
   

  	
  Use
  of Discretion

  	
  99

  
	
  Section 10.4

  	
   

  	
  Delegation
  of Rights and Duties

  	
  99

  
	
  Section 10.5

  	
   

  	
  Reliance
  and Liability

  	
  100

  
	
  Section 10.6

  	
   

  	
  Administrative
  Agent Individually

  	
  101

  
	
  Section 10.7

  	
   

  	
  Lender
  Credit Decision

  	
  101

  
	
  Section 10.8

  	
   

  	
  Expenses;
  Indemnities

  	
  101

  
	
  Section 10.9

  	
   

  	
  Resignation
  of Administrative Agent or L/C Issuer

  	
  102

  
	
  Section 10.10

  	
   

  	
  Release
  of Collateral or Guarantors

  	
  103

  
	
  Section 10.11

  	
   

  	
  Additional
  Secured Parties

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 11

  	
  MISCELLANEOUS

  	
  104

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 11.1

  	
   

  	
  Amendments,
  Waivers, Etc.

  	
  104

  
	
  Section 11.2

  	
   

  	
  Assignments
  and Participations; Binding Effect

  	
  106

  
	
  Section 11.3

  	
   

  	
  Costs
  and Expenses

  	
  109

  
	
  Section 11.4

  	
   

  	
  Indemnities

  	
  109

  
	
  Section 11.5

  	
   

  	
  Survival

  	
  110

  
	
  Section 11.6

  	
   

  	
  Limitation
  of Liability for Certain Damages

  	
  111

  
	
  Section 11.7

  	
   

  	
  Lender-Creditor
  Relationship

  	
  111

  
	
  Section 11.8

  	
   

  	
  Right
  of Setoff

  	
  111

  
	
  Section 11.9

  	
   

  	
  Sharing
  of Payments, Etc.

  	
  111

  
	
  Section 11.10

  	
   

  	
  Marshaling;
  Payments Set Aside

  	
  112

  
	
  Section 11.11

  	
   

  	
  Notices

  	
  112

  
	
  Section 11.12

  	
   

  	
  Electronic
  Transmissions

  	
  113

  
	
  Section 11.13

  	
   

  	
  Governing
  Law

  	
  114

  
	
  Section 11.14

  	
   

  	
  Jurisdiction

  	
  114

  
	
  Section 11.15

  	
   

  	
  Waiver
  of Jury Trial

  	
  115

  
	
  Section 11.16

  	
   

  	
  Severability

  	
  115

  
	
  Section 11.17

  	
   

  	
  Execution
  in Counterparts

  	
  115

  
	
  Section 11.18

  	
   

  	
  Entire
  Agreement

  	
  115

  
	
  Section 11.19

  	
   

  	
  Use
  of Name

  	
  115

  
	
  Section 11.20

  	
   

  	
  Non-Public
  Information; Confidentiality

  	
  116

  
	
  Section 11.21

  	
   

  	
  Patriot
  Act Notice

  	
  116

  



 


iv

















 


THIS
CREDIT AGREEMENT, DATED AS OF MAY 13, 2010, IS ENTERED INTO AMONG
ONCURE MEDICAL CORP., A DELAWARE CORPORATION (“ONCURE”), FOUNTAIN
VALLEY & ANAHEIM RADIATION ONCOLOGY CENTERS, INC., A CALIFORNIA
CORPORATION (“F & A”), FROG ONCURE SOUTHSIDE, L.L.C., A FLORIDA
LIMITED LIABILITY COMPANY (“FROG”), JAXPET, LLC, A FLORIDA LIMITED
LIABILITY COMPANY,  (“JAXPET”),
JAXPET/POSITECH, L.L.C., A FLORIDA LIMITED LIABILITY COMPANY (“POSITECH”),
MANATEE RADIATION ONCOLOGY, INC., A FLORIDA CORPORATION (“MANATEE”),
MICA FLO II, INC., A DELAWARE CORPORATION (“MICA FLO”),
MISSION VIEJO RADIATION ONCOLOGY MEDICAL GROUP, INC., A CALIFORNIA
CORPORATION (“MISSION VIEJO”), POINTE WEST ONCOLOGY, LLC, A DELAWARE
LIMITED LIABILITY COMPANY (“POINTE WEST”), RADIATION ONCOLOGY CENTER,
LLC, A CALIFORNIA LIMITED LIABILITY COMPANY (“RADIATION ONCOLOGY”), U.S.
CANCER CARE, INC., A DELAWARE CORPORATION (“US CANCER CARE”), USCC
ACQUISITION CORP., A DELAWARE CORPORATION (“USCC ACQUISITION”), USCC
FLORIDA ACQUISITION CORP., A DELAWARE CORPORATION (“USCC FLORIDA”), USCC
HEALTHCARE MANAGEMENT CORP., A CALIFORNIA CORPORATION (“USCC HEALTHCARE”),
SARASOTA RADIATION & MEDICAL ONCOLOGY CENTER, INC., A FLORIDA
CORPORATION (“SARASOTA”), VENICE ONCOLOGY CENTER, INC., A FLORIDA
CORPORATION (“VENICE”), ENGLEWOOD ONCOLOGY, INC., A FLORIDA
CORPORATION (“ENGLEWOOD”), CHARLOTTE COMMUNITY RADIATION ONCOLOGY, INC.,
A FLORIDA CORPORATION (“CHARLOTTE”), INTERHEALTH FACILITY TRANSPORT, INC.,
A FLORIDA CORPORATION (“INTERHEALTH”), SARASOTA COUNTY ONCOLOGY, INC.,
A FLORIDA CORPORATION (“COUNTY”), COASTAL ONCOLOGY, INC., A
CALIFORNIA CORPORATION (“COASTAL”), AND SANTA CRUZ RADIATION ONCOLOGY
MANAGEMENT CORP., A CALIFORNIA CORPORATION (“SCROM”), (INDIVIDUALLY AND
COLLECTIVELY, THE “BORROWER”), ONCURE HOLDINGS, INC., A DELAWARE
CORPORATION (“HOLDINGS”), THE LENDERS (AS DEFINED BELOW), THE L/C
ISSUERS (AS DEFINED BELOW) AND GENERAL ELECTRIC CAPITAL CORPORATION (“GE
CAPITAL”), AS ADMINISTRATIVE AGENT AND COLLATERAL AGENT FOR THE LENDERS AND
THE L/C ISSUERS (IN SUCH CAPACITY, AND TOGETHER WITH ITS SUCCESSORS AND
PERMITTED ASSIGNS, THE “ADMINISTRATIVE AGENT”).


 


The
parties hereto agree as follows:


 


ARTICLE 1

DEFINITIONS, INTERPRETATION AND ACCOUNTING TERMS


 


Section 1.1             Defined Terms.  As used in this Agreement, the following
terms have the following meanings:


 


“Additional
Lender” has the meaning specified in Section 2.22(b).


 


“Affected
Lender” has the meaning specified in Section 2.18.


 

















 


“Affiliate”
means, with respect to any Person, each officer, director or general partner of
such Person and any other Person that directly or indirectly controls, is
controlled by, or is under common control with, such Person; provided, however,
that no Secured Party shall be an Affiliate of the Borrower.  For purpose of this definition, “control”
means the possession of either (a) the power to vote, or the beneficial
ownership of, 10% or more of the Voting Stock of such Person or (b) the
power to direct or cause the direction of the management and policies of such
Person, whether by contract or otherwise.


 


“Agreement”
means this Credit Agreement.


 


“Applicable
Margin” means, (i) with respect to Base Rate Loans,  a percentage equal to 3.50% per annum,
(ii) with respect to Eurodollar Rate Loans, a percentage equal to 4.50%
per annum, and (iii) with respect to the Unused Commitment Fee, a
percentage equal to the percentage set forth below in the applicable column
opposite the level corresponding to the actual daily balance of Revolving
Credit Outstandings during the quarter for which the Unused Commitment Fee is calculated:


 




	
  ACTUAL DAILY

  BALANCE OF

  REVOLVING

  CREDIT

  OUTSTANDINGS

  	
   

  	
  UNUSED

  COMMITMENT

  FEE

  	
   

  
	
  Less than 50% of the Revolving Credit Commitment

  	
   

  	
  0.75

  	
  %

  
	
  50% or more of the Revolving Credit Commitment

  	
   

  	
  0.50

  	
  %

  






 


“Approved
Fund” means, with respect to any Lender, any Person (other than a natural
Person) that (a) is or will be engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the
ordinary course of its business and (b) is advised or managed by (i) such
Lender, (ii) any Affiliate of such Lender or (iii) any Person (other
than an individual) or any Affiliate of any Person (other than an individual)
that administers or manages such Lender.


 


“Assignment”
means an assignment agreement entered into by a Lender, as assignor, and any
Person, as assignee, pursuant to the terms and provisions of Section 11.2
(with the consent of any party whose consent is required by Section 11.2),
accepted by the Administrative Agent, in substantially the form of
Exhibit A, or any other form approved by the Administrative Agent.


 


“Bankruptcy
Code” means the Federal Bankruptcy Reform Act of 1978 (11 U.S.C. §101, et
seq.), as amended and in effect from time to time and the regulations issued
from time to time thereunder.


 


“Base
Rate” means, for any day, a rate per annum equal to the highest of
(a) the rate last quoted by The Wall Street Journal as the “Prime Rate” in
the United States or, if The Wall Street Journal ceases to quote such rate, the
highest per annum interest rate published by the Federal 


 


2

















 


Reserve
Board in Federal Reserve Statistical Release H.15 (519) (Selected Interest
Rates) as the “bank prime loan” rate or, if such rate is no longer quoted
therein, any similar rate quoted therein (as determined by the Administrative
Agent) or any similar release by the Federal Reserve Board (as determined by
the Administrative Agent), (b) the sum of 1.5% per annum and the Federal
Funds Rate, and (c) the sum of (x) the Eurodollar Rate, as defined
herein, calculated for each such day based on an Interest Period of three
months determined two (2) Business Days prior to such day (which, for the
avoidance of doubt, shall not be less than 1.5% per annum), plus (y) the excess of the Applicable Margin for
Eurodollar Rate Loans over the Applicable Margin for Base Rate Loans, in each
instance, as of such day.  Any change in
the Base Rate due to a change in any of the foregoing shall be effective on the
effective date of such change in the “Prime Rate,” “bank prime loan” rate, the
Federal Funds Rate, or the Eurodollar Rate for an Interest Period of three
months.


 


“Base
Rate Loan” means any Loan that bears interest based on the Base Rate.


 


“Benefit
Plan” means any employee benefit plan as defined in Section 3(3) of
ERISA (whether governed by the laws of the United States or otherwise) to which
any Loan Party incurs or otherwise has any obligation or liability, contingent
or otherwise.


 


“Borrower”
has the meaning set forth in the preamble to this Agreement.  If there is more than one Borrower entity,
then the term “Borrower” shall mean the singular and the collective reference
to any or all entities constituting or comprising Borrower.


 


“Borrower
Representative” means Oncure.


 


“Borrowing”
means a borrowing consisting of Loans (other than Swing Loans and Loans deemed
made pursuant to Section 2.3 or 2.4) made in one Facility on
the same day by the Lenders according to their respective Commitments under
such Facility.


 


“Business
Day” means any day of the year that is not a Saturday, Sunday or a day on
which banks are required or authorized to close in New York City or Irvine,
California and, when determined in connection with notices and determinations
in respect of any Eurodollar Rate or Eurodollar Rate Loan or any funding,
conversion, continuation, Interest Period or payment of any Eurodollar
Rate Loan, that is also a day on which dealings in Dollar deposits are carried
on in the London interbank market.


 


“Capital
Expenditures” means, for any Person for any period, the aggregate of all
expenditures, whether or not made through the incurrence of Indebtedness, by
such Person and its Subsidiaries during such period for the acquisition,
leasing (pursuant to a Capital Lease), construction, replacement, repair,
substitution or improvement of fixed or capital assets or additions to
equipment, in each case required to be capitalized under GAAP on a Consolidated
balance sheet of such Person, excluding (a) interest capitalized during
construction; (b) any expenditure to the extent, for purpose of the
definition of Permitted Acquisition, such expenditure is part of the aggregate
amounts payable in connection with, or other consideration for, any Permitted
Acquisition consummated during or prior to such period; (c) Net Cash
Proceeds of Asset Sales received during such which (i) Borrower or a
Subsidiary is permitted to reinvest pursuant to the terms of this Agreement and
(ii) the application of which is included in 


 


3

















 


capital
expenditures above; (d) proceeds of property and casualty insurance
policies received during such period which (i) Borrower or a Subsidiary is
permitted to reinvest pursuant to the terms of this Agreement and (ii) the
application of which is included in capital expenditures above; and
(e) any credit granted by the seller of equipment for the value of
existing equipment traded-in by Borrower or a Subsidiary contemporaneous with
the purchase of such equipment.


 


“Capital
Lease” means, with respect to any Person, any lease of, or other
arrangement conveying the right to use, any property (whether real, personal or
mixed) by such Person as lessee that has been or should be accounted for as a
capital lease on a balance sheet of such Person prepared in accordance with
GAAP.


 


“Capitalized
Lease Obligations” means, at any time, with respect to any Capital Lease,
any lease entered into as part of any Sale and Leaseback Transaction of any
Person or any synthetic lease, the amount of all obligations of such Person
that is (or that would be, if such synthetic lease or other lease were
accounted for as a Capital Lease) capitalized on a balance sheet of such Person
prepared in accordance with GAAP.


 


“Cash
Collateral Account” means a deposit account or securities account in the
name of the Borrower and under the sole control (as defined in the applicable
UCC) of the Administrative Agent and (a) in the case of a deposit account,
from which the Borrower may not make withdrawals except as permitted by the
Administrative Agent and (b) in the case of a securities account, with
respect to which the Administrative Agent shall be the entitlement holder and
the only Person authorized to give entitlement orders with respect thereto.


 


“Cash
Equivalents” means (a) any readily-marketable securities
(i) issued by, or directly, unconditionally and fully guaranteed or
insured by the United States federal government or (ii) issued by any
agency of the United States federal government the obligations of which are
fully backed by the full faith and credit of the United States federal
government, (b) any readily-marketable direct obligations issued by any
other agency of the United States federal government, any state of the United
States or any political subdivision of any such state or any public
instrumentality thereof, in each case having a rating of at least “A-1” from
S&P or at least “P-1” from Moody’s, (c) any commercial paper rated at
least “A-1” by S&P or “P-1” by Moody’s and issued by any
Person organized under the laws of any state of the United States, (d) any
Dollar-denominated time deposit, insured certificate of deposit, overnight bank
deposit or bankers’ acceptance issued or accepted by (i) any Lender or
(ii) any commercial bank that is (A) organized under the laws of the
United States, any state thereof or the District of Columbia, (B) “adequately
capitalized” (as defined in the regulations of its primary federal banking
regulators) and (C) has Tier 1 capital (as defined in such regulations) in
excess of $250,000,000, (e) repurchase agreements and reverse repurchase
agreements with a duration of not more than 30 days with respect to securities
described in clause (a) or (b) above entered into with
an office of a bank or trust company meeting the criteria specified in clause
(e) above and (f) shares of any United States money market fund
that (i) has substantially all of its assets invested continuously in the
types of investments referred to in clause (a), (b), (c) or
(d) above with maturities as set forth in the proviso below,
(ii) has net assets in excess of $500,000,000 and (iii) has obtained
from either S&P or Moody’s the highest rating obtainable for money market
funds in the United States; provided, however, that the
maturities of all obligations specified in any of clauses (a), (b),
(c) and (d) above shall not exceed 365 days.


 


4

















 


“CERCLA”
means the United States Comprehensive Environmental Response, Compensation, and
Liability Act (42 U.S.C. §§ 9601 et seq.).


 


“Change
of Control” means the occurrence of any of the following:  (a) the Permitted Investors shall
collectively cease to, directly or indirectly, own and control at least (i) 51%
of the outstanding equity interests of Holdings owned by them on the Closing
Date (after giving effect to the consummation of the transactions contemplated
by the Related Documents) or (ii) that percentage of the outstanding
voting equity interests of Holdings necessary at all times to elect a majority
of the board of directors (or similar governing body) of Holdings and to direct
the management policies and decisions of Holdings, unless the Permitted
Investors beneficially own and control (a) at least 35% on a fully diluted
basis, of the outstanding combined economic and voting interest in the equity
interest of Holdings and (b) on a fully diluted basis, more of the
outstanding combined economic and/or voting interests in the equity interests
of Holdings than any other Person or “group” (within the meaning of Rules 13d-3
and 13d-5 under the Securities Exchange Act of 1934), (b) Holdings shall
cease to own and control legally and beneficially all of the economic and
voting rights associated with ownership of all outstanding Voting Stock of all
classes of Voting Stock of Oncure or (c) a “Change of Control” or any term
of similar effect, as defined in the Indenture or in any other document
governing Indebtedness of any Group Member that is subordinated to the
Obligations.


 


“Closing
Date” means the date of this Agreement.


 


“CMS”
means the Centers for Medicare & Medicaid Services.


 


“Code”
means the U.S. Internal Revenue Code of 1986.


 


“Collateral”
means all property and interests in property and proceeds thereof now owned or
hereafter acquired by any Loan Party in or upon which a Lien is granted or purported
to be granted pursuant to any Loan Document.


 


“Commitment”
means, with respect to any Lender, such Lender’s Revolving Credit Commitment.


 


“Commitment
Increase Amendment” has the meaning specified in Section 2.21(d).


 


“Commitment
Increase Effective Date” has the meaning specified in Section 2.21(d).


 


“Compliance
Certificate” means a certificate substantially in the form of Exhibit G.


 


“Consolidated”
means, with respect to any Person, the accounts of such Person and its
Subsidiaries consolidated in accordance with GAAP.


 


“Consolidated
Cash Interest Expense” means, with respect to any Person for any period,
the Consolidated Interest Expense of such Person for such period less the sum
of, in each case to the extent included in the definition of Consolidated
Interest Expense, (a) the amortized amount of debt discount and debt
issuance costs, (b) charges relating to write-ups or write-downs in the
book or carrying value of existing Consolidated Total Debt, (c) interest
payable in evidences of


 


5














 


Indebtedness
or by addition to the principal of the related Indebtedness and (d) other
non-cash interest.


 


“Consolidated
EBITDA” means, with respect to any Person for any period, (a) the
Consolidated Net Income of such Person for such period plus (b) the sum
of, in each case to the extent included in the calculation of such Consolidated
Net Income but without duplication, (i) any provision for franchise taxes
and United States federal income taxes or other taxes measured by net income,
(ii) Consolidated Interest Expense, amortization of debt discount and
commissions and other fees and charges associated with Indebtedness (including
fees and expenses related to the consummation of the Related Transactions and
the payment of all fees, costs and expenses associated with the foregoing,
limited solely to the extent disclosed to the Administrative Agent on or prior
to the Closing Date or otherwise reasonably acceptable to the Administrative
Agent), (iii) any loss from extraordinary items, (iv) any depreciation,
depletion and amortization expense, (v) any aggregate net loss on the Sale
of property (other than accounts (as defined under the applicable UCC) and
inventory) outside the ordinary course of business, (vi) any other
non-cash expenditure, charge or loss for such period (other than any non-cash
expenditure, charge or loss relating to write-offs, write-downs or reserves
with respect to accounts and inventory), including the amount of any
compensation deduction as the result of any grant of Stock or Stock Equivalents
to employees, officers, directors or consultants, (vii) any portion of
Genstar Fees paid (without duplication for accruals in prior periods) or
accrued during such period, (viii) expenses incurred in connection with
funding employee stock ownership program at Oncure, (ix) non-recurring
expenses associated with executive recruiting fees, management restructuring
and executive severance fees, (x) non recurring expenses consented to by
the Administrative Agent, (xi) Pro Forma Acquisition EBITDA for each Permitted
Acquisition minus (c) the sum of, in each case to the extent included in
the calculation of such Consolidated Net Income and without duplication,
(i) any credit for United States federal income taxes or other taxes
measured by net income, (ii) any gain from extraordinary items and any
other non-recurring gain, (iii) any aggregate net gain from the Sale of
property (other than accounts (as defined in the applicable UCC) and inventory)
out of the ordinary course of business by such Person, (iv) any other
non-cash gain, including any reversal of a charge referred to in clause (b)(vi) above
by reason of a decrease in the value of any Stock or Stock Equivalent, and
(v) any other cash payment in respect of expenditures, charges and losses
that have been added to Consolidated EBITDA of such Person pursuant to clause (b) (vi) above
in any prior period.


 


“Consolidated
First Lien Debt” of any Person means Consolidated Total Debt minus
the outstanding principal balance of all Subordinated Debt and Second Lien Debt.


 


“Consolidated
First Lien Leverage Ratio” means, with respect to any Person as of any
date, the ratio of (a) Consolidated First Lien Debt to
(b) Consolidated EBITDA for such Person for the last period of four
consecutive Fiscal Quarters ending on or before such date.


 


“Consolidated
Fixed Charge Coverage Ratio” means, with respect to any Person for any
period, the ratio of (a) Consolidated EBITDA of such Person for such
period minus unfinanced Capital Expenditures of such Person for such period minus
to the extent not already reflected in the calculation of Consolidated EBITDA
of such Person, other capitalized costs, defined as the 


 


6

















 


gross
amount capitalized during such period, as long term assets, other than Capital
Expenditures to (b) the Consolidated Fixed Charges of such Person for such
period.


 


“Consolidated
Fixed Charges” means, with respect to any Person for any period, the sum,
determined on a Consolidated basis, of (a) the Consolidated Cash Interest
Expense of such Person and its Subsidiaries for such period, (b) the total
liability for United States federal income taxes and other taxes measured by
net income actually payable by such Person in respect of such period
(c) the principal amount of scheduled payments with respect to all
Consolidated Total Debt (including Capitalized Lease Obligations) of such
Person and its Subsidiaries that are due during such period, (d) all cash
dividends paid by such Person and its Subsidiaries on Stock in respect of such
period to Persons other than such Person and its Subsidiaries,
(e) increases (or less the decreases) during such period in deferred tax
assets, and (f) decreases (or less the increases) during such period in
deferred tax liabilities.


 


“Consolidated
Interest Expense” means, for any Person for any period,
(a) Consolidated total interest expense of such Person and its
Subsidiaries for such period and including, in any event, (i) interest
capitalized during such period and net costs under Interest Rate Contracts for
such period and (ii) all fees, charges, commissions, discounts and other
similar obligations (other than reimbursement obligations) with respect to
letters of credit, bank guarantees, banker’s acceptances, surety bonds and
performance bonds (whether or not matured) payable by such Person and its
Subsidiaries during such period minus (b) the sum of (i) Consolidated
net gains of such Person and its Subsidiaries under Interest Rate Contracts for
such period and (ii)  Consolidated interest income of such Person and
its Subsidiaries for such period.


 


“Consolidated
Net Income” means, with respect to any Person, for any period, the
Consolidated net income (or loss) of such Person and its Subsidiaries for such
period; provided, however, that the following
shall be excluded:  (a) the net
income of any other Person (other than a Loan Party) in which such Person or
one of its Subsidiaries has a joint interest with a third-party (which interest
does not cause the net income of such other Person to be Consolidated into the
net income of such Person), except to the extent of the amount of dividends or
distributions paid to such Person or Subsidiary (but in any event only if such
Person has pledged of all of the Stock of such joint venture (including an Unconsolidated
Operating Entity) held by such Person as Collateral for the Obligations),
(b) the net income of any Subsidiary of such Person that is, on the last
day of such period, subject to any restriction or limitation on the payment of
dividends or the making of other distributions, to the extent of such
restriction or limitation and (c) the net income of any other Person
arising prior to such other Person becoming a Subsidiary of such Person or
merging or consolidating into such Person or its Subsidiaries; and provided,
however, that, notwithstanding the foregoing, for a period of forty-five
(45) days following the Closing Date, dividends or distributions paid to USCC
Florida on account of its equity interest in Memorial Southside Cancer Center,
LLC (the “Southside JV”) shall be included as Consolidated Net Income
notwithstanding the fact USCC has not pledged all of the Stock of the Southside
JV held by USCC Florida as Collateral for the Obligations.


 


“Consolidated
Total Debt” of any Person means the sum, without duplication, of
(a) the outstanding principal amount of all Indebtedness of a type
described in clause (a), (b), (d) and (f) of
the definition thereof, (b) the outstanding amount of all Indebtedness of
a type described in clause (c)(i) of the definition thereof and
(c) the outstanding amount of all Guaranty Obligations 


 


7

















 


with
respect to any such Indebtedness a type described in clause (a), (b),
(c)(i), (d) or (f) of the definition thereof, in
each case of such Person and its Subsidiaries on a Consolidated basis.


 


“Constituent
Documents” means, with respect to any Person, collectively and, in each
case, together with any modification of any term thereof, (a) the articles
of incorporation, certificate of incorporation, constitution or certificate of
formation of such Person, (b) the bylaws, operating agreement or joint
venture agreement of such Person, (c) any other constitutive,
organizational or governing document of such Person, whether or not equivalent,
and (d) any other document setting forth the manner of election or duties
of the directors, officers or managing members of such Person or the
designation, amount or relative rights, limitations and preferences of any
Stock of such Person.


 


“Contractual
Obligation” means, with respect to any Person, any provision of any
Security issued by such Person or of any document or undertaking (other than a
Loan Document) to which such Person is a party or by which it or any of its
property is bound or to which any of its property is subject.


 


“Control
Agreement” means, with respect to any deposit account, any securities
account, commodity account, securities entitlement or commodity contract, an
agreement, in form and substance satisfactory to the Administrative Agent,
among the Administrative Agent, the financial institution or other Person at
which such account is maintained or with which such entitlement or contract is
carried and the Loan Party maintaining such account, effective to grant “control”
(as defined under the applicable UCC) over such account to the Administrative
Agent.


 


“Controlled
Deposit Account” means each deposit account (including all funds on deposit
therein) that is the subject of an effective Control Agreement and that is
maintained by any Loan Party with a financial institution approved by the
Administrative Agent.


 


“Controlled
Securities Account” means each securities account or commodity account
(including all financial assets held therein and all certificates and
instruments, if any, representing or evidencing such financial assets) that is
the subject of an effective Control Agreement and that is maintained by any
Loan Party with a securities intermediary or commodity intermediary approved by
the Administrative Agent.


 


“Copyrights”
means all rights, title and interests (and all related IP Ancillary Rights)
arising under any Requirement of Law in or relating to copyrights and all mask
work, database and design rights, whether or not registered or published, all
registrations and recordations thereof and all applications in connection
therewith.


 


“Corporate
Chart” means a document in form reasonably acceptable to the Administrative
Agent and setting forth, as of a date set forth therein, for each Person that
is a Loan Party, that is subject to Section 7.10 or that is a
Subsidiary or joint venture (including an Unconsolidated Operating Entity) of
any of them, (a) the full legal name of such Person, (b) the
jurisdiction of organization and any organizational number and tax
identification number of such Person, (c) the location of such Person’s
chief executive office (or, if applicable, sole place of business) and
(d) the number of shares of each class of Stock of such Person (other than
Holdings) authorized, the number outstanding and the number and percentage of
such 


 


8

















 


outstanding
shares for each such class owned, directly or indirectly, by any Loan Party or
any Subsidiary of any of them.


 


“Customary
Permitted Liens” means, with respect to any Person, any of the following:


 


(a)           Liens (i) with respect to the payment of taxes,
assessments or other governmental charges or (ii) of suppliers, carriers,
materialmen, warehousemen, workmen or mechanics and other similar Liens, in
each case imposed by law or arising in the ordinary course of business, and,
for each of the Liens in clauses (i) and (ii) above for
amounts that are not yet delinquent or that are being contested in good faith
by appropriate proceedings diligently conducted and with respect to which
adequate reserves or other appropriate provisions are maintained on the books
of such Person in accordance with GAAP;


 


(b)           Liens of a collection bank on items in the course of
collection arising under Section 4-208 of the UCC as in effect in the State
of New York or any similar Section under any applicable UCC or any similar
Requirement of Law of any foreign jurisdiction;


 


(c)           pledges or cash deposits made in the ordinary course of
business (i) in connection with workers’ compensation, unemployment insurance
or other types of social security benefits (other than any Lien imposed by
ERISA), (ii) to secure the performance of bids, tenders, leases (other
than Capital Leases) sales or other trade contracts (other than for the
repayment of borrowed money) or (iii) made in lieu of, or to secure the
performance of, surety, customs, reclamation or performance bonds (in each case
not related to judgments or litigation);


 


(d)           attachments, judgments and similar liens (other than for
the payment of taxes, assessments or other governmental charges) securing
judgments and other proceedings not constituting an Event of Default under Section 9.1(e) and
pledges or cash deposits made in lieu of, or to secure the performance of,
judgment or appeal bonds in respect of such judgments and proceedings;


 


(e)           Liens (i) arising by reason of zoning restrictions,
easements, licenses, reservations, restrictions, covenants, rights-of-way,
encroachments, minor defects or irregularities in title (including leasehold
title) and other similar encumbrances on the use of real property or
(ii) consisting of leases, licenses or subleases granted by a lessor,
licensor or sublessor on its property (in each case other than Capital Leases)
otherwise permitted under Section 8.4 that, for each of the Liens
in clauses (i) and (ii) above, do not, in the
aggregate, materially (x) impair the value or marketability of such real
property or (y) interfere with the ordinary conduct of the business
conducted and proposed to be conducted at such real property;


 


(f)            Liens of landlords and mortgagees of landlords
(i) arising by statute, (ii) on fixtures and movable tangible
property located on the real property leased or subleased from such landlord,
and (iii) for amounts not yet overdue or that are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves or other appropriate provisions are maintained on the books of such
Person in accordance with GAAP; and


 


9

















 


(g)           the title and interest of a lessor or sublessor in and to
personal property leased or subleased (other than through a Capital Lease), in
each case extending only to such personal property.


 


“Default”
means any Event of Default and any event that, with the passing of time or the
giving of notice or both, would become an Event of Default.


 


“Disclosure
Documents” means, collectively, all confidential information memoranda and
related materials prepared in connection with the syndication of the
Facilities.


 


“Dollars”
and the sign “$” each mean the lawful money of the United States of
America.


 


“Domestic
Person” means any “United States person” under and as defined in
Section 770l(a)(30) of the Code.


 


“E-Fax”
means any system used to receive or transmit faxes electronically.


 


“Electronic
Transmission” means each document, instruction, authorization, file,
information and any other communication transmitted, posted or otherwise made
or communicated by e-mail or E-Fax, or otherwise to or from an E-System or
other equivalent service.


 


“Environmental
Laws” means all Requirements of Law and Permits imposing liability or
standards of conduct for or relating to the regulation and protection of human
health, safety, the environment and natural resources, including CERCLA, the
SWDA, the Hazardous Materials Transportation Act (49 U.S.C. §§ 5101 et seq.),
the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§ 136 et
seq.), the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), the Clean
Air Act (42 U.S.C. §§ 7401 et seq.), the Federal Water Pollution Control Act
(33 U.S.C. §§ 1251 et seq.), the Occupational Safety and Health Act (29 U.S.C.
§§ 651 et seq.), the Safe Drinking Water Act (42 U.S.C. §§ 300(f) et
seq.), all regulations promulgated under any of the foregoing, all analogous
Requirements of Law and Permits and any environmental transfer of ownership
notification or approval statutes, including the Industrial Site Recovery Act
(N.J. Stat. Ann. §§ 13:1K-6 et seq.).


 


“Environmental
Liabilities” means all Liabilities (including costs of Remedial Actions,
natural resource damages and costs and expenses of investigation and
feasibility studies) that may be imposed on, incurred by or asserted against
any Group Member as a result of, or related to, any claim, suit, action,
investigation, proceeding or demand by any Person, whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute
or common law or otherwise, arising under any Environmental Law or in
connection with any environmental, health or safety condition or with any
Release and resulting from the ownership, lease, sublease or other operation or
occupation of property by any Group Member, whether on, prior or after the date
hereof.


 


“ERISA”
means the United States Employee Retirement Income Security Act of 1974.


 


10

















 


“ERISA
Affiliate” means, collectively, any Loan Party, and any Person under common
control, or treated as a single employer, with any Loan Party, within the
meaning of Section 414(b) , (c) , (m) or (o) of the
Code.


 


“ERISA
Event” means any of the following: 
(a) a reportable event described in Section 4043(b) of
ERISA (or, unless the 30-day notice requirement has been duly waived under the
applicable regulations, Section 4043(c) of ERISA) with respect to a
Title IV Plan, (b) the withdrawal of any ERISA Affiliate from a Title IV
Plan subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA,
(c) the complete or partial withdrawal of any ERISA Affiliate from any
Multiemployer Plan, (d) with respect to any Multiemployer Plan, the filing
of a notice of reorganization, insolvency or termination (or treatment of a
plan amendment as termination) under Section 4041A of ERISA, (e) the
filing of a notice of intent to terminate a Title IV Plan (or treatment of a
plan amendment as termination) under Section 4041 of ERISA, (f) the
institution of proceedings to terminate a Title IV Plan or Multiemployer Plan
by the PBGC, (g) the failure to make any required contribution to any
Title IV Plan or Multiemployer Plan when due, (h) the imposition of a lien
under Section 412 of the Code or Section 302 or 4068 of ERISA on any
property (or rights to property, whether real or personal) of any ERISA
Affiliate, (i) the failure of a Benefit Plan or any trust thereunder
intended to qualify for tax exempt status under Section 401 or 501 of the
Code or other Requirements of Law to qualify thereunder and (j) any other
event or condition that might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of
a trustee to administer, any Title IV Plan or Multiemployer Plan or for the
imposition of any liability upon any ERISA Affiliate under Title IV of ERISA
other than for PBGC premiums due but not delinquent.


 


“E-Signature”
means the process of attaching to or logically associating with an Electronic
Transmission an electronic symbol, encryption, digital signature or process
(including the name or an abbreviation of the name of the party transmitting
the Electronic Transmission) with the intent to sign, authenticate or accept
such Electronic Transmission.


 


“E-System”
means any electronic system, including Intralinks® and CleraPar® and any other
Internet or extranet-based site, whether such electronic system is owned,
operated or hosted by the Administrative Agent, any of its Related Persons or
any other Person, providing for access to data protected by passcodes or other
security system.


 


“Eurodollar
Base Rate” means, with respect to any Interest Period for any Eurodollar
Rate Loan,  the highest of (a) 1.50%
per annum, (b) the rate determined by the Administrative Agent to be the
offered rate for deposits in Dollars for the applicable Interest Period
appearing on the Reuters Screen LIBOR01 page as of 11:00 a.m. (London
time) on the second full Business Day next preceding the first day of each
Interest Period, and (c) the rate determined by the Administrative Agent
to be the offered rate for deposits in Dollars based on an Interest Period of
three months appearing on the Reuters Screen LIBOR01 page as of
11:00 a.m. (London time) on the second full Business Day next preceding
the first day of each Interest Period. 
In the event that such rate does not appear on the Reuters Screen
LIBOR01 page at such time, the “Eurodollar Base Rate” shall be
determined by reference to such other comparable publicly available service for
displaying the offered rate for deposit in Dollars in the London interbank
market as may be selected by the Administrative Agent and, in the absence of
availability, such 


 


11

















 


other
method to determine such offered rate as may be selected by the Administrative
Agent in its sole discretion.


 


“Eurodollar
Rate” means, with respect to any Interest Period and for any Eurodollar
Rate Loan, an interest rate per annum determined as the ratio of (a) the
Eurodollar Base Rate with respect to such Interest Period for such Eurodollar
Rate Loan to (b) the difference between the number one and the Eurodollar
Reserve Requirements with respect to such Interest Period and for such
Eurodollar Rate Loan.


 


“Eurodollar
Rate Loan” means any Loan that bears interest based on the Eurodollar Rate.


 


“Eurodollar
Reserve Requirements” means, with respect to any Interest Period and for
any Eurodollar Rate Loan, a rate per annum equal to the aggregate, without
duplication, of the maximum rates (expressed as a decimal number) of reserve
requirements in effect two Business Days prior to the first day of such
Interest Period (including basic, supplemental, marginal and emergency
reserves) under any regulations of the Federal Reserve Board or other
Governmental Authority having jurisdiction with respect thereto dealing with
reserve requirements prescribed for eurocurrency funding (currently referred to
as “eurocurrency liabilities” in Regulation D of the Federal Reserve Board)
maintained by a member bank of the United States Federal Reserve System.


 


“Event
of Default” has the meaning specified in Section 9.1.


 


“Excluded
Foreign Subsidiary” means any Subsidiary that is not a Domestic Person and
in respect of which any of (a) the pledge of all of the Stock of such
Subsidiary as Collateral for any Obligation of the Borrower, (b) the grant
by such Subsidiary of a Lien on any of its property as Collateral for any
Obligation of the Borrower or (c) such Subsidiary incurring Guaranty
Obligations with respect to any Obligation of Holdings, the Borrower or any
Domestic Person could reasonably be expected, in the good faith judgment of the
Borrower, to result in adverse tax consequences to the Loan Parties and their
Subsidiaries, taken as a whole; provided,
however, that (x) the Administrative Agent and the Borrower may agree
that, despite the foregoing, any such Subsidiary shall not be an “Excluded
Foreign Subsidiary” and (y) no such Subsidiary shall be an “Excluded
Foreign Subsidiary” if, with substantially similar tax consequences, such
Subsidiary has entered into any Guaranty Obligations with respect to, such
Subsidiary has granted a security interest in any of its property to secure, or
more than 66% of the Voting Stock of such Subsidiary was pledged to secure,
directly or indirectly, any Indebtedness (other than the Obligations) of any
Loan Party.


 


“Existing
Agent” means GE Business Financial Services Inc., in its capacity as
administrative agent under the Existing Credit Agreement.


 


“Existing
Credit Agreement” means that certain Second Amended and Restated Credit
Agreement, dated as of August 18, 2006, among each Borrower, Holdings, the
institutions party thereto as lenders and issuers and the Existing Agent.


 


“Existing
Note Purchase Agreement” means that certain Note Purchase Agreement, dated
as of August 18, 2006 (as amended, modified and supplemented from time to
time) by and among the Borrower, CDPQ Investments (U.S.) Inc., Ares Capital
Corporation and Holdings.


 


12

















 


“Facilities”
and “Facility” means the Revolving Credit Facility.


 


“Federal
Flood Insurance” means Federally backed Flood Insurance available under the
National Flood Insurance Program to owners of real property improvements
located in Special Flood Hazard Areas in a community participating in the
National Flood Insurance Program.


 


“Federal
Funds Rate” means, for any period, a fluctuating interest rate per annum
equal for each day during such period to the weighted average of the rates on
overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers, as determined by the Administrative Agent in
its sole discretion.


 


“Federal
Reserve Board” means the Board of Governors of the United States Federal
Reserve System and any successor thereto.


 


“Fee
Letter” means the letter agreement, dated as of May 13, 2010,
addressed to the Borrower from the Administrative Agent and accepted by the
Borrower, with respect to certain fees to be paid from time to time to the
Administrative Agent and its Related Persons.


 


“FEMA”
means the Federal Emergency Management Agency, a component of the U.S.
Department of Homeland Security that administers the National Flood Insurance
Program.


 


“Financial
Statement” means each financial statement delivered pursuant to
Section 4.4 or 6.1.


 


“Fiscal
Quarter” means each 3 fiscal month period ending on March 31,
June 30, September 30 or December 31.


 


“Fiscal
Year” means the twelve-month period ending on December 31.


 


“Flood
Insurance” means, for any real property located in a Special Flood Hazard
Area, Federal Flood Insurance or private insurance that meets the requirements
set forth by FEMA in its Mandatory Purchase of Flood Insurance Guidelines.  Flood Insurance shall be in an amount equal
to the full, unpaid balance of the Loans and any prior liens on the real
property up to the maximum policy limits set under the National Flood Insurance
Program, or as otherwise required by Agent, with deductibles not to exceed
$50,000.


 


“GAAP”
means generally accepted accounting principles in the United States of America,
as in effect from time to time, set forth in the opinions and pronouncements of
the Accounting Principles Board and the American Institute of Certified Public
Accountants, in the statements and pronouncements of the Financial Accounting
Standards Board and in such other statements by such other entity as may be in
general use by significant segments of the accounting profession that are
applicable to the circumstances as of the date of determination.  Subject to Section 1.3, all references
to “GAAP” shall be to GAAP applied consistently with the principles used
in the preparation of the Financial Statements described in Section 4.4(a).


 


“Genstar”
means Genstar Capital, LLC.


 


13

















 


“Genstar
Advisory Services Agreement” means the Advisory Services Agreement dated
August 18, 2006 by and between Genstar and Oncure, in the form presented
to the Administrative Agent on the date hereof, together with such amendments,
restatements, supplements or other modification to any provision thereof made
in accordance with Section 8.11 of this Agreement.


 


“Genstar
Fees” means the closing fee, the Management Fee (as such term is defined in
the Genstar Advisory Services Agreement), and the Advisory Fee (as such term is
defined in the Genstar Advisory Services Agreement), together with indemnities
and reimbursement of reasonable out-of-pocket fees and expenses, in each case
payable to Genstar pursuant to, and subject to the terms of the Genstar
Advisory Services Agreement as made available to the Administrative Agent on
the Closing Date.


 


“Governmental
Authority” means any nation, sovereign or government, any state or other
political subdivision thereof, any agency, authority or instrumentality thereof
and any entity or authority exercising executive, legislative, taxing,
judicial, regulatory or administrative functions of or pertaining to
government, including any central bank, stock exchange, regulatory body,
arbitrator, public sector entity, supra-national entity (including the European
Union and the European Central Bank) and any self-regulatory organization
(including the National Association of Insurance Commissioners).


 


“Group
Members” means, collectively, the Borrower, its Subsidiaries, Holdings and
any Unconsolidated Operating Entity that has become a Loan Party pursuant to
the terms of Section 7.10 of this Agreement.


 


“Group
Members’ Accountants” means Ernst & Young LLP or other
nationally-recognized independent registered certified public accountants reasonably
acceptable to the Administrative Agent.


 


“Guarantor”
means Holdings; each Wholly Owned Subsidiary of any Borrower listed on
Schedule 4.3 that is not a Borrower or an Excluded Foreign Subsidiary and
each other Person that enters into any Guaranty Obligation with respect to any
Obligation of any Loan Party.


 


“Guaranty
and Security Agreement” means a guaranty and security agreement, in
substantially the form of Exhibit H, among the Administrative
Agent, the Borrower and other Guarantors from time to time party thereto.


 


“Guaranty
Obligation” means, as applied to any Person, any direct or indirect
liability, contingent or otherwise, of such Person for any Indebtedness, lease,
dividend or other obligation (the “primary obligation”) of another
Person (the “primary obligor”), if the purpose or intent of such Person
in incurring such liability, or the economic effect thereof, is to guarantee
such primary obligation or provide support, assurance or comfort to the holder
of such primary obligation or to protect or indemnify such holder against loss
with respect to such primary obligation, including (a) the direct or
indirect guaranty, endorsement (other than for collection or deposit in the
ordinary course of business), co-making, discounting with recourse or sale with
recourse by such Person of any primary obligation, (b) the incurrence of
reimbursement obligations with respect to any letter of credit or bank
guarantee in support of any primary 


 


14

















 


obligation,
(c) the existence of any Lien, or any right, contingent or otherwise, to
receive a Lien, on the property of such Person securing any part of any primary
obligation and (d) any liability of such Person for a primary obligation
through any Contractual Obligation (contingent or otherwise) or other
arrangement (i) to purchase, repurchase or otherwise acquire such primary
obligation or any security therefor or to provide funds for the payment or
discharge of such primary obligation (whether in the form of a loan, advance,
stock purchase, capital contribution or otherwise), (ii) to maintain the
solvency, working capital, equity capital or any balance sheet item, level of
income or cash flow, liquidity or financial condition of any primary obligor,
(iii) to make take-or-pay or similar payments, if required, regardless of
non-performance by any other party to any Contractual Obligation, (iv) to
purchase, sell or lease (as lessor or lessee) any property, or to purchase or
sell services, primarily for the purpose of enabling the primary obligor to
satisfy such primary obligation or to protect the holder of such primary
obligation against loss or (v) to supply funds to or in any other manner
invest in, such primary obligor (including to pay for property or services irrespective
of whether such property is received or such services are rendered); provided, however, that “Guaranty
Obligations” shall not include (x) endorsements for collection or
deposit in the ordinary course of business and (y) product warranties
given in the ordinary course of business. 
The outstanding amount of any Guaranty Obligation shall equal the
outstanding amount of the primary obligation so guaranteed or otherwise
supported or, if lower, the stated maximum amount for which such Person may be
liable under such Guaranty Obligation.


 


“Hazardous
Material” means any substance, material or waste that is classified,
regulated or otherwise characterized under any Environmental Law as hazardous,
toxic, a contaminant or a pollutant or by other words of similar meaning or
regulatory effect, including petroleum or any fraction thereof, asbestos,
polychlorinated biphenyls and radioactive substances.


 


“Healthcare
Laws” means all Requirements of Law regulating the provision of and payment
for healthcare services, including without limitation, HIPAA,
Section 1128B(b) of the Social Security Act, as amended, 42 U.S.C.
Section 1320a-7b (Criminal Penalties Involving Medicare or State
Health Care Programs), commonly referred to as the “Federal Anti-Kickback
Statute,” and Section 1877 of the Social Security Act, as amended, 42
U.S.C. Section 1395nn (Prohibition Against Certain Referrals), commonly
referred to as “Stark Statute,” and all rules and regulations promulgated
thereunder.


 


“Healthcare
Permit” means a Permit issued or required under Healthcare Laws applicable
to the business of any Borrower or any of its Subsidiaries or necessary in the
sale, furnishing, or delivery of goods or services under Healthcare Laws
applicable to the business of any Borrower or any of its Subsidiaries.


 


“Hedging
Agreement” means any Interest Rate Contract, foreign exchange, swap, option
or forward contract, spot, cap, floor or collar transaction, any other
derivative instrument and any other similar speculative transaction and any
other similar agreement or arrangement designed to alter the risks of any
Person arising from fluctuations in any underlying variable.


 


“HIPAA”
means the Health Insurance Portability and Accountability Act of 1996, as the
same may be amended, modified or supplemented from time to time, and any
successor statute thereto, and any and all rules or regulations
promulgated from time to time thereunder.


 


15














 


“HIPAA
Compliant” shall mean that the applicable Person is in material compliance
with each of the applicable requirements of the so-called “Administrative
Simplification” provisions of HIPAA, and has not violated the so-called “Administrative
Simplification” provisions of HIPAA in an manner that could reasonably be
expected to have a Material Adverse Healthcare Effect.


 


“Impacted
Lender” means any Lender that fails to provide the Administrative Agent,
within three Business Days following the Administrative Agent’s written
request, satisfactory assurance that such Lender will not become a Non-Funding
Lender, or any Lender that has a Person that directly or indirectly controls
such Lender and such Person (a) becomes subject to a voluntary or
involuntary case under the Bankruptcy Code or any similar bankruptcy laws,
(b) has appointed a custodian, conservator, receiver or similar official
for such Person or any substantial part of such Person’s assets, or
(c) makes a general assignment for the benefit of creditors, is
liquidated, or is otherwise adjudicated as, or determined by any Governmental
Authority having regulatory authority over such Person or its assets to be,
insolvent or bankrupt, and for each of clauses (a) through (c), the
Administrative Agent has determined that such Lender is reasonably likely to
become a Non-Funding Lender.  For
purposes of this definition, control of a Person shall have the same meaning as
in the second sentence of the definition of Affiliate


 


“Indebtedness”
of any Person means, without duplication, any of the following, whether or not
matured:  (a) all indebtedness for
borrowed money, (b) all obligations evidenced by notes, bonds, debentures
or similar instruments, (c) all reimbursement and all obligations with
respect to (i) letters of credit, bank guarantees or bankers’ acceptances
or (ii) surety, customs, reclamation or performance bonds (in each case
not related to judgments or litigation) other than those entered into in the
ordinary course of business, (d) all obligations to pay the deferred
purchase price of property or services, other than trade payables incurred in
the ordinary course of business, (e) all obligations created or arising
under any conditional sale or other title retention agreement, regardless of
whether the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property,
(f) all Capitalized Lease Obligations, (g) all obligations, whether
or not contingent, to purchase, redeem, retire, defease or otherwise acquire
for value any of its own Stock or Stock Equivalents (or any Stock or Stock
Equivalent of a direct or indirect parent entity thereof) prior to the date
that is 180 days after the Scheduled Maturity Date, valued at, in the case of
redeemable preferred Stock, the greater of the voluntary liquidation preference
and the involuntary liquidation preference of such Stock plus accrued and
unpaid dividends, (h) all payments that would be required to be made in
respect of any Hedging Agreement in the event of a termination (including an
early termination) on the date of determination and (i) all Guaranty
Obligations for obligations of any other Person constituting Indebtedness of
such other Person; provided, however, that
the items in each of clauses (a) through (i) above shall
constitute “Indebtedness” of such Person solely to the extent, directly
or indirectly, (x) such Person is liable for any part of any such item,
(y) any such item is secured by a Lien on such Person’s property or (z) any
other Person has a right, contingent or otherwise, to cause such Person to
become liable for any part of any such item or to grant such a Lien.


 


“Indemnified
Matter” has the meaning specified in Section 11.4.


 


“Indemnitee”
has the meaning specified in Section 11.4.


 


16

















 


“Indenture”
means the Indenture, dated as of May 13, 2010 between Holdings, each of
the guarantors party thereto and the Second Lien Notes Trustee.


 


“Initial
Projections” means those financial projections, dated April 17, 2010,
covering the Fiscal Years ending in 2010 through 2015 and delivered to the
Administrative Agent by the Borrower prior to the date hereof.


 


“Intellectual
Property” means all rights, title and interests in or relating to
intellectual property and industrial property arising under any Requirement of
Law and all IP Ancillary Rights relating thereto, including all Copyrights,
Patents, Trademarks, Internet Domain Names, Trade Secrets and IP Licenses.


 


“Intercreditor
Agreement” means the Intercreditor Agreement dated as of the date hereof
between the Administrative Agent, on behalf of the Lenders under this Agreement
and the Second Lien Agent, on behalf of the Second Lien Notes Trustee and the
other holders of the Second Lien Notes, and each other First Lien Series Representative
(as defined therein) and Second Lien Series Representative (as defined
therein) that becomes a party to the Intercreditor Agreement pursuant to an
Intercreditor Agreement Joinder (as defined therein), and acknowledged and
agreed to by each Loan Party, in form and substance reasonably satisfactory to
the Administrative Agent.


 


“Interest
Period” means, with respect to any Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is made or converted to a
Eurodollar Rate Loan or, if such loan is continued, on the last day of the
immediately preceding Interest Period therefor and, in each case, ending 1, 2,
3 or 6 months thereafter (or, to the extent available to all Revolving Lenders,
9 or 12 months thereafter), as selected by the Borrower pursuant hereto; provided, however, that (a) if any
Interest Period would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day, unless
the result of such extension would be to extend such Interest Period into
another such Business Day falls in the next calendar month, in which case such
Interest Period shall end on the immediately preceding Business Day,
(b) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall end on the last
Business Day of a calendar month, (c) the Borrower may not select any
Interest Period ending after the Scheduled Revolving Credit Termination Date,
(d) the Borrower may not select any Interest Period in respect of Loans
having an aggregate principal amount of less than $1,000,000, (e) there
shall be outstanding at any one time no more than 6 Interest Periods, and
(f) the Borrower may not select any Interest Period of more than one month
until the Syndication Completion Date.


 


“Interest
Rate Contracts” means all interest rate swap agreements, interest rate cap
agreements, interest rate collar agreements and interest rate insurance.


 


“Internet
Domain Names” means all rights, title and interests (and all related IP
Ancillary Rights) arising under any Requirement of Law in or relating to
Internet domain names.


 


“Investment”
means, with respect to any Person, directly or indirectly, (a) to own,
purchase or otherwise acquire, in each case whether beneficially or otherwise,
any investment in, 


 


17

















 


including
any interest in, any Security of any other Person (other than any evidence of
any Obligation), (b) to purchase or otherwise acquire, whether in one
transaction or in a series of transactions, all or a significant part of the
property of any other Person or a business conducted by any other Person or all
or substantially all of the assets constituting the business of a division,
branch, brand or other unit operation of any other Person, (c) to incur,
or to remain liable under, any Guaranty Obligation for Indebtedness of any
other Person, to assume the Indebtedness of any other Person or to make, hold,
purchase or otherwise acquire, in each case directly or indirectly, any
deposit, loan, advance, commitment to lend or advance, or other extension of
credit (including by deferring or extending the date of, in each case outside
the ordinary course of business, the payment of the purchase price for Sales of
property or services to any other Person, to the extent such payment obligation
constitutes Indebtedness of such other Person), excluding deposits with
financial institutions available for withdrawal on demand, prepaid expenses,
accounts receivable and similar items created in the ordinary course of
business, (d) to make, directly or indirectly, any contribution to the
capital of any other Person or (e) to Sell any property for less than fair
market value, as determined by the selling Borrower in its good faith judgment
(including a disposition of cash or Cash Equivalents in exchange for
consideration of lesser value); provided,
however, that such Investment shall be valued at the difference between the
value of the consideration for such Sale and the fair market value of the
property Sold.


 


“IP
Ancillary Rights” means, with respect to any other Intellectual Property,
as applicable, all foreign counterparts to, and all divisionals, reversions,
continuations, continuations-in-part, reissues, reexaminations, renewals and
extensions of, such Intellectual Property and all income, royalties, proceeds
and Liabilities at any time due or payable or asserted under or with respect to
any of the foregoing or otherwise with respect to such Intellectual Property,
including all rights to sue or recover at law or in equity for any past,
present or future infringement, misappropriation, dilution, violation or other
impairment thereof, and, in each case, all rights to obtain any other IP
Ancillary Right.


 


“IP
License” means all Contractual Obligations (and all related IP Ancillary
Rights), whether written or oral, granting any right title and interest in or
relating to any Intellectual Property.


 


“IRS”
means the Internal Revenue Service of the United States and any successor
thereto.


 


“Issue”
means, with respect to any Letter of Credit, to issue, extend the expiration
date of, renew (including by failure to object to any automatic renewal on the
last day such objection is permitted), increase the face amount of, or reduce
or eliminate any scheduled decrease in the face amount of, such Letter of
Credit, or to cause any Person to do any of the foregoing.  The terms “Issued” and “Issuance”
have correlative meanings.


 


“Joint
Liability Payment” has the meaning specified in Section 2.21(g).


 


“JV
Participant” has the meaning specified in Section 8.3(g).


 


“L/C
Cash Collateral Account” means any Cash Collateral Account
(a) specifically designated as such by the Borrower in a notice to the
Administrative Agent and (b) from and 


 


18

















 


after
the effectiveness of such notice, not containing any funds other than those
required under the Loan Documents to be placed therein.


 


“L/C
Issuer” means (a) WFCF or any of its Affiliates and (b) each
Person that hereafter becomes an L/C Issuer with the approval of, and pursuant
to an agreement with and in form and substance satisfactory to, the
Administrative Agent and the Borrower, in each case in their capacity as L/C
Issuers hereunder and together with their successors.


 


“L/C
Obligations” means, for any Letter of Credit at any time, the sum of
(a) the L/C Reimbursement Obligations at such time for such Letter of
Credit and (b) the aggregate maximum undrawn face amount of such Letter of
Credit outstanding at such time.


 


“L/C
Reimbursement Agreement” has the meaning specified in Section 2.4(a).


 


“L/C
Reimbursement Date” has the meaning specified in Section 2.4(e).


 


“L/C
Reimbursement Obligation” means, for any Letter of Credit, the obligation
of the Borrower to the L/C Issuer thereof, as and when matured, to pay all
amounts drawn under such Letter of Credit.


 


“L/C
Request” has the meaning specified in Section 2.4(b).


 


“L/C
Sublimit” means $2,000,000.


 


“Lender”
means, collectively, the Swingline Lender and any other financial institution
or other Person that (a) is listed on the signature pages hereof as a
“Lender” or (b) from time to time becomes a party hereto by
execution of an Assignment, in each case together with its successors.


 


“Letter
of Credit” means any letter of credit Issued pursuant to Section 2.4.


 


“Letter
of Credit Fee” has the meaning specified in Section 2.11(b).


 


“Liabilities”
means all claims, actions, suits, judgments, damages, losses, liability,
obligations, responsibilities, fines, penalties, sanctions, costs, fees, taxes,
commissions, charges, disbursements and expenses, in each case of any kind or
nature (including interest accrued thereon or as a result thereto and fees,
charges and disbursements of financial, legal and other advisors and
consultants), whether joint or several, whether or not indirect, contingent,
consequential, actual, punitive, treble or otherwise.


 


“Licensed
Location” means any facility whether leased or owned, from which Borrower ,
any Subsidiary or a Professional Services Provider provides or furnishes goods
or services governed by Healthcare Laws.


 


“Lien”
means any mortgage, deed of trust, pledge, hypothecation, assignment, charge,
deposit arrangement, encumbrance, easement, lien (statutory or other), 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 agreement, 


 


19

















 


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.


 


“Loan”
means any loan made or deemed made by any Lender hereunder.


 


“Loan
Documents” means, collectively, this Agreement, any Notes, the Fee Letter,
the Intercreditor Agreement, the Guaranty and Security Agreement, the Control
Agreements, the L/C Reimbursement Agreements, the Secured Hedging Agreements
and, when executed, each document executed by a Loan Party and delivered to the
Administrative Agent, any Lender or any L/C Issuer in connection with or
pursuant to any of the foregoing or the Obligations, together with any
modification of any term, or any waiver with respect to, any of the foregoing.


 


“Loan
Party” means each Borrower and each Guarantor.


 


“Management
Services Agreement” means any management services or similar agreement
entered into between any Borrower and a physician or physician group
specializing in radiation therapy, pursuant to which such Borrower provides,
among other things, administrative and support services to such physician or
physician group (as applicable).


 


“Material
Adverse Effect” means an effect that results in or causes, or could
reasonably be expected to result in or cause, a material adverse change in any
of (a) the condition (financial or otherwise), business, operations or
property of the Loan Parties, taken as a whole, (b) the ability of any
Loan Party to perform its obligations under any Loan Document and (c) the
validity or enforceability of any Loan Document or the rights and remedies of
the Administrative Agent, the Lenders and the other Secured Parties under any
Loan Document.


 


“Material
Adverse Healthcare Effect” means (a) the termination of any Healthcare
Permit by any Governmental Authority that materially impairs any Loan Party’s
ability to operate any Licensed Location; (b) the exclusion of any Credit
Party’s participation in the Medicaid or Medicare programs under 42 U.S.C.
Section 1320a-7; or (c) the payment by any Credit Party of a penalty
or fine in excess of $2,500,000 assessed against such Credit Party by any Governmental
Authority under any Healthcare Law.


 


“Material
Environmental Liabilities” means Environmental Liabilities exceeding
$2,500,000  in the aggregate.


 


“Medicaid”
means the medical assistance programs administered by state agencies (including
Medi-Cal with respect to the State of California) and approved by CMS pursuant
to the terms of Title XIX of the Social Security Act, codified at 42 U.S.C.
1396 et seq.


 


“Medicare”
means the program of health benefits for the aged and disabled administered by
CMS pursuant to the terms of Title XVIII of the Social Security Act, codified
at 42 U.S.C. 1395 et seq.


 


“Moody’s”
means Moody’s Investors Service, Inc.


 


20

















 


“Mortgage”
means any mortgage, deed of trust or other document executed or required herein
to be executed by any Loan Party and granting a security interest over real
property in favor of the Administrative Agent as security for the Obligations.


 


“Multiemployer
Plan” means any multiemployer plan, as defined in Section 400l(a)(3) of
ERISA, to which any ERISA Affiliate incurs or otherwise has any obligation or
liability, contingent or otherwise.


 


“National
Flood Insurance Program” means the program created by the U.S. Congress
pursuant to the National Flood Insurance Act of 1968 and the Flood Disaster
Protection Act of 1973, as revised by the National Flood Insurance Reform Act
of 1994, that mandates the purchase of flood insurance to cover real property
improvements located in Special Flood Hazard Areas in participating communities
and provides protection to property owners through a Federal insurance program.


 


“Net
Cash Proceeds” means proceeds received in cash from (a) any Sale of,
or Property Loss Event with respect to, property, net of (i) the
reasonable out-of-pocket cash costs, fees and expenses paid or required to be
paid in connection therewith, (ii) taxes paid or reasonably estimated to
be payable as a result thereof and (iii) any amount required to be paid or
prepaid on Indebtedness (other than the Obligations and Indebtedness owing to
any Group Member) secured by the property subject thereto or (b) any sale
or issuance of Stock or incurrence of Indebtedness, in each case net of brokers’,
advisors’ and investment banking fees and other customary out-of-pocket
underwriting discounts, commissions and other customary out-of-pocket cash
costs, fees and expenses, in each case incurred in connection with such
transaction; provided, however, that any
such proceeds received by any Subsidiary of the Borrower that is not a Wholly
Owned Subsidiary of the Borrower shall constitute “Net Cash Proceeds”
only to the extent of the aggregate direct and indirect beneficial ownership
interest of the Borrower therein.


 


“Non-Funding
Lender” means any Lender that has (a) failed to fund any payments
required to be made by it under the Loan Documents within two Business Days
after any such payment is due (excluding expense and similar reimbursements
that are subject to good faith disputes), (b) given written notice (and
the Administrative Agent has not received a revocation in writing), to the
Borrower, the Administrative Agent, any Lender, or the L/C Issuer or has
otherwise publicly announced (and the Administrative Agent has not received
notice of a public retraction) that such Lender believes it will fail to fund
payments or purchases of participations required to be funded by it under the
Loan Documents or one or more other syndicated credit facilities,
(c) failed to fund, and not cured, loans, participations, advances, or
reimbursement obligations under one or more other syndicated credit facilities,
unless subject to a good faith dispute, or (d) any Lender that has
(i) become subject to a voluntary or involuntary case under the Bankruptcy
Code or any similar bankruptcy laws, (ii) a custodian, conservator,
receiver or similar official appointed for it or any substantial part of such
Person’s assets, or (iii) made a general assignment for the benefit of
creditors, been liquidated, or otherwise been adjudicated as, or determined by
any Governmental Authority having regulatory authority over such Person or its
assets to be, insolvent or bankrupt, and for clause (d), and the Administrative
Agent has determined that such Lender is reasonably likely to fail to fund any
payments required to be made by it under the Loan Documents.  For purposes of this definition, control of a
Person shall have the same meaning as in the second sentence of the definition
of Affiliate


 


21

















 


“Non-U.S.
Lender Party” means each of the Administrative Agent, each Lender, each L/C
Issuer, each SPV and each participant, in each case that is not a Domestic
Person.


 


“Note”
means a promissory note of the Borrower, in substantially the form of
Exhibit B, payable to the order of a Lender in any Facility in a principal
amount equal to the amount of such Lender’s Commitment under such Facility,
including a promissory note payable to the order of a Swingline Lender.


 


“Notice
of Borrowing” has the meaning specified in Section 2.2.


 


“Notice
of Conversion or Continuation” has the meaning specified in Section 2.10.


 


“Obligations”
means, with respect to any Loan Party, all amounts, obligations, liabilities,
covenants and duties of every type and description owing by such Loan Party to
the Administrative Agent, any Lender, any L/C Issuer, any other Indemnitee, any
participant, any SPV or any Secured Hedging Counterparty arising out of, under,
or in connection with, any Loan Document, whether direct or indirect
(regardless of whether acquired by assignment), absolute or contingent, due or
to become due, whether liquidated or not, now existing or hereafter arising and
however acquired, and whether or not evidenced by any instrument or for the
payment of money, including, without duplication, (a) if such Loan Party
is the Borrower, all Loans and L/C Obligations, (b) all interest, whether
or not accruing after the filing of any petition in bankruptcy or after the
commencement of any insolvency, reorganization or similar proceeding, and
whether or not a claim for post-filing or post-petition interest is allowed in
any such proceeding, and (c) all other fees, expenses (including fees,
charges and disbursement of counsel), interest, commissions, charges, costs,
disbursements, indemnities and reimbursement of amounts paid and other sums
chargeable to such Loan Party under any Loan Document (including those payable
to L/C Issuers as described in Section 2.11).


 


“Other
Taxes” has the meaning specified in Section 2.17(c).


 


“Participating
Lender” and “Participating Lenders” has the meaning specified in Section 2.21(b).


 


“Patents”
means all rights, title and interests (and all related IP Ancillary Rights)
arising under any Requirement of Law in or relating to letters patent and
applications therefor.


 


“PBGC”
means the United States Pension Benefit Guaranty Corporation and any successor
thereto.


 


“PC
Collateral” means Accounts generated by any Professional Services Provider
and all other assets of such Professional Services Provider that are pledged to
a Borrower as collateral pursuant to the terms of a Management Services
Agreement.


 


“Permit”
means, with respect to any Person, any permit, approval, authorization,
license, registration, certificate, concession, grant, franchise, variance or
permission from, and any other Contractual Obligations with, any Governmental
Authority, in each case whether or not having the force of law and applicable
to or binding upon such Person or any of its property or to which such Person
or any of its property is subject.


 


22

















 


“Permitted
Acquisition” means any Proposed Acquisition satisfying each of the
following conditions:


 


(a)           Such Permitted Acquisition shall
involve a Proposed Acquisition Target that is in a business permitted to be
engaged in by the Group Members pursuant to Section 8.8;


 


(b)           Administrative Agent shall have
received (i) not less than thirty (30) days prior notice of such
Permitted Acquisition, which notice shall contain a summary, in reasonable
detail and in form an substance reasonably satisfactory to Administrative
Agent, of: (1) the acquisition terms and conditions, including price;
(2) Borrower’s projections prepared in connection with such Permitted
Acquisition; (3) copies of the Proposed Acquisition Target’s most recent
annual income statements and balance sheets, together with the audit opinions
thereon, if any, of the Proposed Acquisition Target’s independent accountants,
together with available interim financial statements for the most recent
financial period completed within sixty (60) days prior to the proposed
date of consummation of such Permitted Acquisition, and (4) draft copies
of the proposed Management Services Agreement to be entered after consummation
of such Permitted Acquisition, (ii) not less than thirty (30) days
prior to the proposed date of such Permitted Acquisition, EBITDA of Proposed
Acquisition Target for the most recent trailing twelve month period ended
calculated on a pro forma basis in accordance with the terms of the proposed Management
Services Agreement to be entered into in connection with such Permitted
Acquisition, certified as true and accurate by an officer of Borrower,
(iii) written confirmation of the purchase price payable in connection
with such Permitted Acquisition and any Capital Expenditures expected to be
made in connection with such Permitted Acquisition, which confirmation shall be
provided not less than ten (10) days in advance of the consummation of
such Permitted Acquisition and certified as true and accurate by an officer of
Borrower, and (iv) not more than one hundred eighty (180) days
following the date of such Permitted Acquisition, written confirmation that any
Capital Expenditures contemplated to be made in connection with such Permitted
Acquisition have been made, certified as true and accurate by a Responsible
Officer of Borrower;


 


(c)           If the aggregate principal amount of
any requested Revolving Loans in respect of any Permitted Acquisition exceeds
$20,000,000, Borrower Representative (1) shall have provided evidence to
Administrative Agent, in form and substance satisfactory to Administrative
Agent, that the EBITDA, tested on a trailing twelve month basis, of the
Proposed Acquisition Target has been reviewed and confirmed by a third-party
accounting firm of recognized standing reasonably acceptable to Administrative
Agent and (2) shall utilize the EBITDA as confirmed by such accounting
firm for all financial covenant testing provided in connection with such
Permitted Acquisition;


 


(d)           Concurrently with delivery of the
notice and due diligence materials referred to in clause (b) above,
Borrower Representative shall have delivered to Administrative Agent, in form
and substance reasonably satisfactory to Administrative Agent: a pro forma
Consolidated balance sheet, income statement and cash flow statement of
Holdings, based on most recently available financial statements, which shall be
complete and shall fairly present in all material respects the assets,
liabilities, financial condition and results of operations of Holdings and its
Subsidiaries in accordance with GAAP consistently applied, but taking into
account such Permitted Acquisition, the funding of all Loans and the incurrence
or assumption of all other 


 


23

















 


Indebtedness
and repayment of Indebtedness in connection therewith, and such pro forma
statements shall reflect that (x) Holdings and Borrower are in compliance
with all financial covenants set forth in Article 5 as reflected in
the Compliance Certificate most recently delivered to Administrative Agent
prior to the consummation of such Permitted Acquisition (after giving effect to
such Permitted Acquisition and all Loans funded in connection therewith as if
made on the first day of such period) and (y) on a Pro Forma Basis, no
Event of Default exists or would result after giving effect to such Permitted
Acquisition, the funding of all Loans and the incurrence or assumption of all
other Indebtedness and repayment of Indebtedness in connection therewith, all certified
as true and accurate by an officer of Borrower;


 


(e)           No assets or liabilities (including,
without limitation, Investments and Indebtedness) shall be acquired,
incurred, assumed or otherwise be reflected on a Consolidated balance sheet of
Holdings after giving effect to such Permitted Acquisition, except
(A) Loans made hereunder, and (B) those assets and liabilities which
may be acquired, incurred or assumed in accordance with the provisions of this
Agreement;


 


(f)            Borrower Representative shall have
provided evidence to Administrative Agent, in form and substance satisfactory
to Administrative Agent, that: 
(i) the Revolving Credit Commitment minus the Revolving Credit
Outstandings is equal to or greater than  $5,000,000
(after giving pro forma effect to any requested Revolving Loans), (ii) the
Consolidated First Lien Leverage Ratio (after giving pro forma effect to any
requested Revolving Loans and Permitted Acquisition) does not exceed the
then-applicable ratio set forth in Section 5.1, and (iii) the
Consolidated Fixed Charges Ratio (after giving pro forma effect to any
requested Revolving Loans and Permitted Acquisition) is not less than 1.0 to
1.0;


 


(g)           The business and assets acquired in
such Permitted Acquisition shall be free and clear of all Liens (other than
Permitted Liens);


 


(h)           At or prior to the closing of any
Permitted Acquisition, (i) Administrative Agent shall be granted a first
priority perfected Lien (subject to Permitted Liens) in the assets and capital
stock or other equity interests of such Proposed Acquisition Target or
Subsidiary formed by Borrower to hold the assets and capital stock or other
equity interest of the Target, (ii) such Target or Subsidiary shall join
this Agreement and the other Financing Documents as a Loan Party pursuant to
the terms of Section 7.10; and (iii) the Borrower that is party to
the Management Services Agreement shall have collaterally assigned its rights
in such Management Services Agreement to Administrative Agent and taken all
other steps required pursuant to Section 7.10;


 


(i)            The Proposed Acquisition Target
shall not have incurred an operating loss for the trailing twelve-month period
preceding the date of the Permitted Acquisition, as determined based upon the
Proposed Acquisition Target’s financial statements, which shall be prepared on
an accrual basis of accounting, if available, and in any event on a pro forma
basis under the terms of the proposed Management Services Agreement to be
entered into after consummation of such Permitted Acquisition, for its most
recently completed fiscal year and its most recent interim financial period
completed within sixty (60) days prior to the date of consummation of such
Permitted Acquisition;


 


24

















 


(j)            On or prior to the last day of each
fiscal quarter, Administrative Agent shall have received, in form and substance
reasonably satisfactory to Administrative Agent, amendments to the Schedules
hereto, to the extent necessary to make the representations and warranties in this
Agreement true and correct after giving effect to the consummation of all
Permitted Acquisitions consummated during such quarter;


 


(k)           The proposed Permitted Acquisition
shall be permitted under the terms of the Indenture or otherwise consented to
by the Second Lien Notes Trustee;


 


(l)            If the aggregate principal amount of
any requested Revolving Loans in respect of any Permitted Acquisition exceeds
$20,000,000, Borrower Representative shall have delivered to Administrative
Agent draft copies of all proposed Acquisition Documents and all related
transaction documents for such Permitted Acquisition, together with all
schedules thereto, prior to submitting any Notice of Borrowing (followed by
updated drafts as the same are distributed to the parties to such Permitted
Acquisition and fully executed copies thereof within five (5) Business
Days after the closing of such Permitted Acquisition); and


 


(l)            At the time of such Permitted
Acquisition and after giving effect thereto, no Default or Event of Default shall
exist.


 


“Permitted
Investors” means, collectively Genstar, Genstar Capital Partners IV, L.P.
and Stargen IV, L.P.


 


“Permitted
Indebtedness” means any Indebtedness of any Group Member that is permitted
by Section 8.1.


 


“Permitted
Investment” means any Investment of any Group Member that is permitted by Section 8.3.


 


“Permitted
Lien” means any Lien on or with respect to the property of any Group Member
that is permitted by Section 8.2.


 


“Permitted
Refinancing” means Indebtedness constituting a refinancing or extension of
Permitted Indebtedness that (a) has an aggregate outstanding principal
amount not greater than the aggregate principal amount of such Permitted
Indebtedness outstanding at the time of such refinancing or extension,
(b) has a weighted average maturity (measured as of the date of such
refinancing or extension) and maturity no shorter than that of such Permitted
Indebtedness, (c) is not entered into as part of a Sale and Leaseback
transaction (other than a refinancing of a Capitalized Lease Obligation with
another Capitalized Lease Obligation), (d) is not secured by any property
or any Lien other than those securing such Permitted Indebtedness and
(e) is otherwise on terms no less favorable to the Group Members, taken as
a whole, than those of such Permitted Indebtedness; provided, however, that,
notwithstanding the foregoing, (x) the terms of such Permitted
Indebtedness may be modified as part of such Permitted Refinancing if such
modification is not prohibited by Section 8.11 and (y) no
Guaranty Obligation for such Indebtedness shall constitute part of such
Permitted Refinancing unless similar Guaranty Obligations with respect to such
Permitted Indebtedness existed and constituted Permitted Indebtedness prior to
such refinancing or extension.


 


25














 


“Person”
means any 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 and any other entity or Governmental Authority.


 


“Pro
Forma Acquisition EBITDA” means (i) EBITDA (calculated in the same
manner as Consolidated EBITDA is calculated pursuant to this Agreement)
attributable to each Permitted Acquisition (with such pro forma adjustments as
are reasonably acceptable to Administrative Agent based upon data presented to
Administrative Agent to its reasonable satisfaction) consummated during the one
(1) year period preceding the date of determination calculated solely for a
number of months immediately preceding the consummation of the applicable
Permitted Acquisition, which number equals twelve (12) minus the number of
months following the consummation of the applicable Permitted Acquisition for
which financial statements of Holdings and its Subsidiaries have been delivered
to Administrative Agent pursuant to Section 4.1, and (ii) for
purposes of determining compliance with the definition of “Permitted
Acquisition”, EBITDA (calculated in the same manner as Consolidated EBITDA is calculated
pursuant to this Agreement) of the Proposed Acquisition Target (adjusted with
such pro forma adjustments as are reasonably acceptable to Administrative Agent
based upon data presented to Administrative Agent to its reasonable
satisfaction) calculated for the twelve (12) months immediately preceding
the consummation of the proposed Permitted Acquisition.


 


“Pro
Forma Balance Sheet” has the meaning specified in Section 4.4(d).


 


“Pro
Forma Basis” means, with respect to any determination for any period and
any Pro Forma Transaction, that such determination shall be made by giving pro forma effect to each such Pro Forma
Transaction, as if each such Pro Forma Transaction had been consummated on the
first day of such period, based on historical results accounted for in
accordance with GAAP and, to the extent applicable, reasonable assumptions that
are specified in detail in the relevant Compliance Certificate, Financial
Statement or other document provided to the Administrative Agent or any Lender
in connection herewith in accordance with Regulation S-X of the Securities Act
of 1933.


 


“Pro
Forma Transaction” means any transaction consummated as part of any
Permitted Acquisition, together with each other transaction relating thereto
and consummated in connection therewith, including any incurrence or repayment
of Indebtedness.


 


“Professional
Services Provider” means any Person or any employee, agent or subcontractor
of such Person that provides radiation oncology or other professional health
care services with whom a Loan Party has entered into a Management Services
Agreement.


 


“Projections”
means, collectively, the Initial Projections and any document delivered
pursuant to Section 6.1(f).


 


“Property
Loss Event” means, with respect to any property, any loss of or damage to
such property or any taking of such property or condemnation thereof.


 


“Proposed
Acquisition” means (a) any proposed acquisition that is consensual and
approved by the board of directors of such Proposed Acquisition Target, of all
or substantially all 


 


26

















 


of
the assets or Stock of any Proposed Acquisition Target by the Borrower or any
Subsidiary of the Borrower (or by Holdings to the extent such assets and Stock
are transferred to the Borrower or any Subsidiary of the Borrower that is a
Loan Party contemporaneously with such acquisition) or (b) any proposed
merger of any Proposed Acquisition Target with or into the Borrower or any
Subsidiary of the Borrower (and, in the case of a merger with Oncure or any
Subsidiary of Oncure having active operations (i.e., not a “dormant”
Subsidiary), with Oncure or such Subsidiary being the surviving Person).


 


“Proposed
Acquisition Target” means any Person or any brand, line of business,
division, branch, operating division or other unit operation of any Person.


 


“Pro
Rata Outstandings”, of any Lender at any time, means the sum of
(i) the outstanding principal amount of Revolving Loans owing to such
Lender and (ii) the amount of the participation of such Lender in the L/C
Obligations outstanding with respect to all Letters of Credit.


 


“Pro
Rata Share” means, with respect to any Lender and any Facility or
Facilities at any time, the percentage obtained by dividing (a) the sum of
the Commitments (or, if such Commitments in any such Facility are terminated,
the Pro Rata Outstandings therein) of such Lender then in effect under such
Facilities by (b) the sum of the Commitments (or, if such Commitments in
any such Facility are terminated, the Pro Rata Outstandings therein) of all
Lenders then in effect under such Facilities; provided,
however, that, if there are no Commitments and no Pro Rata Outstandings in
any of such Facilities, such Lender’s Pro Rata Share in such Facilities shall
be determined based on the Pro Rata Share in such Facilities most recently in
effect, after giving effect to any subsequent assignment and any subsequent
non-pro rata payments of any Lender pursuant to Section 2.18.


 


“Register”
has the meaning specified in Section 2.14(b).


 


“Related
Documents” means, collectively, the Indenture, the Second Lien
Intercreditor Agreement, the payoff letter with respect to the Existing Credit
Agreement and Existing Note Purchase Agreement executed and delivered to the
Administrative Agent in connection with Section 3.1(e) and
each other document executed with respect to any of the foregoing or any
Related Transaction.


 


“Related
Person” means, with respect to any Person, each Affiliate of such Person
and each director, officer, employee, agent, trustee, representative, attorney,
accountant and each insurance, environmental, legal, financial and other
advisor (including those retained in connection with the satisfaction or
attempted satisfaction of any condition set forth in Article 3) and
other consultants and agents of or to such Person or any of its Affiliates,
together with, if such Person is the Administrative Agent, each other Person or
individual designated, nominated or otherwise mandated by or helping the
Administrative Agent pursuant to and in accordance with Section 10.4
or any comparable provision of any Loan Document.


 


“Related
Transactions” means, collectively, the issuance of the Second Lien Notes,
the refinancing of the Existing Credit Agreement and the Existing Note Purchase
Agreement, the 


 


27

















 


execution
and delivery of all Related Documents and the payment of all related fees,
costs and expenses.


 


“Release”
means any release, threatened release, spill, emission, leaking, pumping,
pouring, emitting, emptying, escape, injection, deposit, disposal, discharge,
dispersal, dumping, leaching or migration of Hazardous Material into or through
the environment.


 


“Remedial
Action” means all actions required to (a) clean up, remove, treat or
in any other way address any Hazardous Material in the indoor or outdoor
environment, (b) prevent or minimize any Release so that a Hazardous
Material does not migrate or endanger or threaten to endanger public health or
welfare or the indoor or outdoor environment or (c) perform pre-remedial
studies and investigations and post-remedial monitoring and care with respect
to any Hazardous Material.


 


“Required
Lenders” means, (i) at any time there are not more than two (2) Lenders
that are not Affiliates of each other (each such Lender, an “unaffiliated
Lender”), Lenders holding in the aggregate one hundred percent (100%) of the
aggregate Revolving Credit Commitments (or, if such Commitments are terminated,
the sum of the amounts of the participations in Swing Loans, the principal amount
of unparticipated portions of the Swing Loans and the Pro Rata Outstandings in
the Revolving Credit Facility) then in effect, ignoring, in such calculation,
the amounts held by any Non-Funding Lender and (ii) at any time there are
more than two (2) unaffiliated Lenders, Lenders having at such time in
excess of 50% of the aggregate Revolving Credit Commitments (or, if such
Commitments are terminated, the sum of the amounts of the participations in
Swing Loans, the principal amount of unparticipated portions of the Swing Loans
and the Pro Rata Outstandings in the Revolving Credit Facility) then in effect,
ignoring, in such calculation, the amounts held by any Non-Funding Lender.


 


“Required
Revolving Credit Lenders” means, (i) at any time there are not more
than two (2) Lenders that are not Affiliates of each other (each such
Lender, an “unaffiliated Lender”), Lenders holding in the aggregate one hundred
percent (100%) of the aggregate Revolving Credit Commitments (or, if such
Commitments are terminated, the sum of the amounts of the participations in
Swing Loans, the principal amount of unparticipated portions of the Swing Loans
and the Pro Rata Outstandings in the Revolving Credit Facility) then in effect,
ignoring, in such calculation, the amounts held by any Non-Funding Lender and (ii) at
any time there are more than two (2) unaffiliated Lenders, Lenders having
at such time in excess of 50% of the aggregate Revolving Credit Commitments
(or, if such Commitments are terminated, the sum of the amounts of the
participations in Swing Loans, the principal amount of unparticipated portions
of the Swing Loans and the Pro Rata Outstandings in the Revolving Credit
Facility) then in effect, ignoring, in such calculation, the amounts held by
any Non-Funding Lender.


 


“Requirements
of Law” means, with respect to any Person, collectively, the common law and
all federal, state, local, foreign, multinational or international laws,
statutes, codes, treaties, standards, rules and regulations, guidelines,
ordinances, orders, judgments, writs, injunctions, decrees (including
administrative or judicial precedents or authorities) and the interpretation or
administration thereof by, and other determinations, directives, requirements
or requests of, any Governmental Authority, in each case whether or not having
the force of law and that are 


 


28

















 


applicable
to or binding upon such Person or any of its property or to which such Person
or any of its property is subject.


 


“Responsible
Officer” means, with respect to any Person, any of the president, chief
executive officer, executive vice president, senior vice president, treasurer,
assistant treasurer, controller, managing member or general partner of such
Person but, in any event, with respect to financial matters, any such officer
that is responsible for preparing the Financial Statements delivered hereunder
and, with respect to the Corporate Chart and other documents delivered pursuant
to Section 6.1(e), documents delivered on the Closing Date and
documents delivered pursuant to Section 7.10, the secretary or
assistant secretary of such Person or any other officer responsible for
maintaining the corporate and similar records of such Person.


 


“Restricted
Payment” means (a) any dividend, return of capital, distribution or
any other payment or Sale of property for less than fair market value, whether
direct or indirect (including through the use of Hedging Agreements, the
making, repayment, cancellation or forgiveness of Indebtedness and similar
Contractual Obligations) and whether in cash, Securities or other property, on
account of any Stock or Stock Equivalent of the Borrower or any of its
Subsidiaries, in each case now or hereafter outstanding, including with respect
to a claim for rescission of a Sale of such Stock or Stock Equivalent and
(b) any redemption, retirement, termination, defeasance, cancellation,
purchase or other acquisition for value, whether direct or indirect (including
through the use of Hedging Agreements, the making, repayment, cancellation or
forgiveness of Indebtedness and similar Contractual Obligations), of any Stock
or Stock Equivalent of any Group Member or of any direct or indirect parent
entity of the Borrower, now or hereafter outstanding, and any payment or other
transfer setting aside funds for any such redemption, retirement, termination,
cancellation, purchase or other acquisition, whether directly or indirectly and
whether to a sinking fund, a similar fund or otherwise.


 


“Revolving
Credit Commitment” means, with respect to each Revolving Credit Lender, the
commitment of such Lender to make Revolving Loans and acquire interests in
other Revolving Credit Outstandings, which commitment is in the amount set
forth opposite such Lender’s name on Schedule I under the caption “Revolving
Credit Commitment”, as amended to reflect Assignments and as such amount
may be reduced pursuant to this Agreement. 
The aggregate amount of the Revolving Credit Commitments on the date
hereof equals $40,000,000.


 


“Revolving
Credit Commitment Increase” has the meaning specified in
Section 2.22(a).


 


“Revolving
Credit Facility” means the Revolving Credit Commitments and the provisions
herein related to the Revolving Loans, Swing Loans and Letters of Credit.


 


“Revolving
Credit Lender” means each Lender that has a Revolving Credit Commitment,
holds a Revolving Loan or participates in any Swing Loan or Letter of Credit.


 


“Revolving
Credit Outstandings” means, at any time, the sum of, in each case to the
extent outstanding at such time, (a) the aggregate principal amount of the
Revolving Loans and Swing Loans and (b) the L/C Obligations for all
Letters of Credit.


 


“Revolving
Credit Termination Date” shall mean the earliest of (a) the Scheduled
Revolving Credit Termination Date, (b) the date of termination of the
Revolving Credit 


 


29

















 


Commitments
pursuant to Section 2.5 or 9.2 and (c) the date on which the
Obligations become due and payable pursuant to Section 9.2.


 


“Revolving
Loan” has the meaning specified in Section 2.1.


 


“S&P”
means Standard & Poor’s Rating Services.


 


“Sale
and Leaseback Transaction” means, with respect to any Person (the “obligor”),
any Contractual Obligation or other arrangement with any other Person (the “counterparty”)
consisting of a lease by such obligor of any property that, directly or
indirectly, has been or is to be Sold by the obligor to such counterparty or to
any other Person to whom funds have been advanced by such counterparty based on
a Lien on, or an assignment of, such property or any obligations of such
obligor under such lease.


 


“Scheduled
Maturity Date” means the Scheduled Revolving Credit Termination Date.


 


“Scheduled
Revolving Credit Termination Date” means the 5th anniversary of the Closing
Date.


 


“Second
Lien Agent” has the meaning assigned to [“Second Lien Agent”] in the
Intercreditor Agreement.


 


“Second
Lien Debt” has the meaning assigned to [“Second Lien Obligations”]
in the Intercreditor Agreement.


 


“Second
Lien Notes” means the 113⁄4% Senior Secured Notes due 2017, issued by
Holdings in Dollars and governed by the terms of the Indenture, whether issued
on or about the Closing Date or registered with the United States Securities
and Exchange Commission and received by the Holdings in exchange for any Second
Lien Note issued on or about the Closing Date.


 


“Second
Lien Notes Documents” means, collectively, the Second Lien Notes, the
Indenture and any other document related to any of the foregoing (including,
without limitation, all [“Second Lien Documents”] as such term is
defined in the Intercreditor Agreement.  “Second
Lien Notes Document” means, individually, any such document.


 


“Second
Lien Notes Trustee” means Wilmington Trust FSB, as trustee under the
Indenture.


 


“Secured
Hedging Agreement” means any Hedging Agreement that (a) has been
entered into with a Secured Hedging Counterparty, (b) in the case of a
Hedging Agreement not entered into with or provided or arranged by the
Administrative Agent or an Affiliate of the Administrative Agent, is expressly
identified as being a “Secured Hedging Agreement” hereunder in a joint notice
from such Loan Party and such Person delivered to the Administrative Agent
reasonably promptly after the execution of such Hedging Agreement and
(c) meets the requirements of Section 8.1(f).


 


30

















 


“Secured
Hedging Counterparty” means (a) a Person who has entered into a
Hedging Agreement with a Loan Party if such Hedging Agreement was provided or
arranged by the Administrative Agent or an Affiliate of the Administrative
Agent, and any assignee of such Person or (b) a Lender or an Affiliate of
a Lender who has entered into a Hedging Agreement with a Loan Party (or a
Person who was a Lender or an Affiliate of a Lender at the time of execution
and delivery of the Hedging Agreement).


 


“Secured
Parties” means the Lenders, the L/C Issuers, the Administrative Agent, any
Secured Hedging Counterparty, each other Indemnitee and any other holder of any
Obligation of any Loan Party.


 


“Security”
means all Stock, Stock Equivalents, voting trust certificates, bonds,
debentures, instruments and other evidence of Indebtedness, whether or not
secured, convertible or subordinated, all certificates of interest, share or
participation in, all certificates for the acquisition of, and all warrants,
options and other rights to acquire, any Security.


 


“Sell”
means, with respect to any property, to sell, convey, transfer, assign,
license, lease or otherwise dispose of, any interest therein or to permit any
Person to acquire any such interest, including, in each case, through a Sale
and Leaseback Transaction or through a sale, factoring at maturity, collection
of or other disposal, with or without recourse, of any notes or accounts
receivable.  Conjugated forms thereof and
the noun “Sale” have correlative meanings.


 


“Solvent”
means, with respect to any Person as of any date of determination, that, as of
such date, (a) the value of the assets of such Person (both at fair value
and present fair saleable value) is greater than the total amount of
liabilities (including contingent and unliquidated liabilities) of such Person,
(b) such Person is able to pay all liabilities of such Person as such
liabilities mature and (c) such Person does not have unreasonably small
capital.  In computing the amount of
contingent or unliquidated liabilities at any time, such liabilities shall be
computed at the amount that, in light of all the facts and circumstances
existing at such time, represents the amount that can reasonably be expected to
become an actual or matured liability.


 


“Special
Flood Hazard Area” means an area that FEMA’s current flood maps indicate
has at least a one percent (1%) chance of a flood equal to or exceeding the
base flood elevation (a 100-year flood) in any given year.


 


“SPV”
means any special purpose funding vehicle identified as such in a writing by
any Lender to the Administrative Agent.


 


“Stock”
means all shares of capital stock (whether denominated as common stock or
preferred stock), equity interests, beneficial, partnership or membership
interests, joint venture interests, participations or other ownership or profit
interests in or equivalents (regardless of how designated) of or in a Person
(other than an individual), whether voting or non-voting.


 


“Stock
Equivalents” means all securities convertible into or exchangeable for
Stock or any other Stock Equivalent and all warrants, options or other rights
to purchase, subscribe for or otherwise acquire any Stock or any other Stock
Equivalent, whether or not presently convertible, exchangeable or exercisable.


 


31

















 


“Subordinated
Debt” means any Indebtedness that is subordinated to the payment in full of
the Obligations on terms and conditions reasonably satisfactory to the
Administrative Agent.


 


“Subsidiary”
means, with respect to any Person, any corporation, partnership, joint venture,
limited liability company, association or other entity, the management of which
is, directly or indirectly, controlled by, or of which an aggregate of more
than 50% of the outstanding Voting Stock is, at the time, owned or controlled
directly or indirectly by, such Person or one or more Subsidiaries of such
Person.  For the avoidance of doubt, the
term “Subsidiary” shall not include Unconsolidated Operating Entities.


 


“Substitute
Lender” has the meaning specified in Section 2.18(a).


 


“SWDA”
means the Solid Waste Disposal Act (42 U.S.C. §§ 6901 et seq.).


 


“Swingline
Commitment” means $2,000,000.


 


“Swingline
Lender” means, each in its capacity as Swingline Lender hereunder, GE
Capital or, upon the resignation of GE Capital as Administrative Agent
hereunder, any Lender (or Affiliate or Approved Fund of any Lender) that
agrees, with the approval of the Administrative Agent (or, if there is no such
successor Administrative Agent, the Required Lenders) and the Borrower, to act
as the Swingline Lender hereunder.


 


“Swingline
Request” has the meaning specified in Section 2.3(b).


 


“Swing
Loan” has the meaning specified in Section 2.3.


 


“Syndication
Completion Date” means the earlier to occur of (a) the 60th day
following the Closing Date and (b) the first date for which the sum of the
Commitments of GE Capital and its Affiliates then in effect under all
Facilities does not exceed $30,000,000.


 


“Tax
Affiliate” means, (a) the Borrower and its Subsidiaries and
(b) any Affiliate of the Borrower with which the Borrower files or is
eligible to file consolidated, combined or unitary tax returns.


 


“Tax
Return” has the meaning specified in Section 4.8.


 


“Taxes”
has the meaning specified in Section 2.17(a).


 


“Title
IV Plan” means a pension plan subject to Title IV of ERISA, other than a
Multiemployer Plan, to which any ERISA Affiliate incurs or otherwise has any
obligation or liability, contingent or otherwise.


 


“Trademarks”
means all rights, title and interests (and all related IP Ancillary Rights)
arising under any Requirement of Law in or relating to trademarks, trade names,
corporate names, company names, business names, fictitious business names,
trade styles, service marks, logos and other source or business identifiers
and, in each case, all goodwill associated therewith, all registrations and
recordations thereof and all applications in connection therewith.


 


32

















 


“Trade
Secrets” means all right, title and interest (and all related IP Ancillary
Rights) arising under any Requirement of Law in or relating to trade secrets.


 


“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.


 


“Unconsolidated
Operating Entity” means any Person engaged in the same line of business as
the Borrower in which Oncure or another Borrower owns equity interests but is
not wholly owned by Oncure or such other Borrower, is not a Subsidiary of such
Person, and that is not Consolidated with Holdings for financial accounting
purposes in accordance with GAAP, as so identified by Borrower on
Schedule 4.3, which such schedule shall be amended by Borrower from time
to time during the term hereof to reflect additional Unconsolidated Operating
Entities.  “Unconsolidated Operating
Entities” shall mean all such Persons, collectively.  For the avoidance of doubt, from and after
the joinder of any Unconsolidated Operating Entity as a co-Borrower or
Guarantor pursuant to Section 7.10 of this Agreement, such
Unconsolidated Operating Entity shall be deemed a “Loan Party” and “Group
Member” for purposes of all Loan Documents.


 


“United
States” means the United States of America.


 


“Unused
Commitment Fee” has the meaning specified in Section 2.11.


 


“U.S.
Lender Party” means each of the Administrative Agent, each Lender, each L/C
Issuer, each SPV and each participant, in each case that is a Domestic Person.


 


“Vidalia”
means Vidalia Regional Cancer Center, LLC, a Georgia limited liability company
in which Oncure holds 50% of the outstanding Stock.


 


“Voting
Stock” means Stock of any Person having ordinary power to vote in the
election of members of the board of directors, managers, trustees or other
controlling Persons, of such Person (irrespective of whether, at the time,
Stock of any other class or classes of such entity shall have or might have
voting power by reason of the occurrence of any contingency).


 


“Wells
L/C Issuer” has the meaning specified in Section 2.4(i).


 


“Wells
L/C Side Letter” has the meaning specified in Section 2.4(i).


 


“WFCF”
means Wells Fargo Capital Finance, Inc., a California corporation.


 


“Wholly
Owned Subsidiary” of any Person means any Subsidiary of such Person, all of
the Stock of which (other than nominal holdings and director’s qualifying
shares) is owned by such Person, either directly or through one or more Wholly
Owned Subsidiaries of such Person.


 


“Withdrawal
Liability” means, at any time, any liability incurred (whether or not
assessed) by any ERISA Affiliate and not yet satisfied or paid in full at such
time with respect to any Multiemployer Plan pursuant to Section 4201 of
ERISA.


 


33

















 


Section 1.2             UCC Terms.  The following terms have the meanings given
to them in the applicable UCC:  “commodity
account”, “commodity contract”, “commodity intermediary”, “deposit account”, “entitlement
holder”, “entitlement order”, “equipment”, “financial asset”, “general
intangible”, “goods”, “instruments”, “inventory”, “securities account”, “securities
intermediary” and “security entitlement”.


 


Section 1.3             Accounting Terms and Principles.  (a) GAAP.  All accounting determinations required to be
made pursuant hereto shall, unless expressly otherwise provided herein, be made
in accordance with GAAP.  No change in
the accounting principles used in the preparation of any Financial Statement
hereafter adopted by Holdings shall be given effect if such change would affect
a calculation that measures compliance with any provision of Article 5
or 8 unless the Borrower, the Administrative Agent and the Required
Lenders agree to modify such provisions to reflect such changes in GAAP and,
unless such provisions are modified, all Financial Statements, Compliance
Certificates and similar documents provided hereunder shall be provided
together with a reconciliation between the calculations and amounts set forth
therein before and after giving effect to such change in GAAP.  Notwithstanding any other provision contained
herein, all terms of an accounting or financial nature used herein shall be
construed, and all computations of amounts and ratios referred to in Article 5
and Article 8 shall be made, without giving effect to any election
under Accounting Standards Codification 825-10 (or any other Financial
Accounting Standard having a similar result or effect) to value any
Indebtedness or other liabilities of any Loan Party or any Subsidiary of any
Loan Party at “fair value.”


 


(b)           Pro Forma. 
All components of financial calculations made to determine compliance
with Article 5 shall be adjusted on a Pro Forma Basis to include or
exclude, as the case may be, without duplication, such components of such
calculations attributable to any Pro Forma Transaction consummated after the
first day of the applicable period of determination and prior to the end of
such period, as determined in good faith by the Borrower based on assumptions
expressed therein and that were reasonable based on the information available
to the Borrower at the time of preparation of the Compliance Certificate
setting forth such calculations.


 


Section 1.4             Payments.  The Administrative Agent may set up standards
and procedures to determine or redetermine the equivalent in Dollars of any
amount expressed in any currency other than Dollars and otherwise may, but
shall not be obligated to, rely on any determination made by any Loan Party or
any L/C Issuer.  Any such determination
or redetermination by the Administrative Agent shall be conclusive and binding
for all purposes, absent manifest error. 
No determination or redetermination by any Secured Party or Loan Party
and no other currency conversion shall change or release any obligation of any
Loan Party or of any Secured Party (other than the Administrative Agent and its
Related Persons) under any Loan Document, each of which agrees to pay
separately for any shortfall remaining after any conversion and payment of the
amount as converted.  The Administrative
Agent may round up or down, and may set up appropriate mechanisms to round up
or down, any amount hereunder to nearest higher or lower amounts and may
determine reasonable de minimis payment thresholds.


 


Section 1.5             Interpretation.  (a) Certain Terms.  Except as set forth in any Loan Document, all
accounting terms not specifically defined herein shall be construed in
accordance with GAAP (except for the term “property”, which shall be
interpreted as broadly as possible, including, in any case, cash, Securities,
other assets, rights under Contractual Obligations and 


 


34

















 


Permits and any right or interest in any
property).  The terms “herein”, “hereof”
and similar terms refer to this Agreement as a whole.  In the computation of periods of time from a
specified date to a later specified date in any Loan Document, the terms “from”
means “from and including” and the words “to” and “until” each
mean “to but excluding” and the word “through” means “to and including.”  In any other case, the term “including”
when used in any Loan Document means “including without limitation.”  The term “documents” means all
writings, however evidenced and whether in physical or electronic form,
including all documents, instruments, agreements, notices, demands,
certificates, forms, financial statements, opinions and reports.  The term “incur” means incur, create,
make, issue, assume or otherwise become directly or indirectly liable in respect
of or responsible for, in each case whether directly or indirectly, and the
terms “incurrence” and “incurred” and similar derivatives shall have
correlative meanings.


 


(b)           Certain References. 
Unless otherwise expressly indicated, references (i) in this Agreement
to an Exhibit, Schedule, Article, Section or clause refer to the
appropriate Exhibit or Schedule to, or Article, Section or clause in,
this Agreement and (ii) in any Loan Document, to (a) any agreement
shall include, without limitation, all exhibits, schedules, appendixes and
annexes to such agreement and, unless the prior consent of any Secured Party
required therefor is not obtained, any modification to any term of such
agreement, (b) any statute shall be to such statute as modified from time
to time and to any successor legislation thereto, in each case as in effect at
the time any such reference is operative and (c) any time of day shall be
a reference to New York time.  Titles of
articles, sections, clauses, exhibits, schedules and annexes contained in any
Loan Document are without substantive meaning or content of any kind whatsoever
and are not a part of the agreement between the parties hereto.  Unless otherwise expressly indicated, the
meaning of any term defined (including by reference) in any Loan Document shall
be equally applicable to both the singular and plural forms of such term.  Without limiting the generality of the
foregoing, any reference to a term that is defined in a Second Lien Notes Document
shall mean such term as defined in such Second Lien Notes Document on the
Closing Date or as may be amended with the consent of Administrative Agent.


 


ARTICLE 2

THE FACILITIES


 


Section 2.1             The Commitments.  (a) Revolving Credit Commitments.  On the terms and subject to the conditions
contained in this Agreement, each Revolving Credit Lender severally, but not
jointly, agrees to make loans in Dollars (each a “Revolving Loan”) to
the Borrower from time to time on any Business Day during the period from the
date hereof until the Revolving Credit Termination Date in an aggregate
principal amount at any time outstanding for all such loans by such Lender not
to exceed such Lender’s Revolving Credit Commitment; provided, however, that at no time shall any Revolving Credit Lender
be obligated to make a Revolving Loan in excess of such Lender’s Pro Rata Share
of the amount by which the then effective Revolving Credit Commitments exceeds
the aggregate Revolving Credit Outstandings at such time.  Within the limits set forth in the first
sentence of this clause (a), amounts of Revolving Loans repaid may
be reborrowed under this Section 2.1.


 


(b)           Reserved.


 


35














 


Section 2.2             Borrowing Procedures.  (a) Notice From the Borrower.  Each Borrowing shall be made on notice given
by the Borrower Representative to the Administrative Agent not later than
1:00 p.m. on (i) on the day of such proposed borrowing, in the case
of Base Rate Loans in an aggregate principal amount equal to or less than
$5,000,000, (ii) on the Business Day prior to such proposed borrowing, in
the case of Base Rate Loans in an aggregate principal amount greater than
$5,000,000 and (iii) the third Business Day, in the case of a Borrowing of
Eurodollar Rate Loans, prior to the date of the proposed Borrowing.  Each such notice may be made in a writing
substantially in the form of Exhibit C (a “Notice of Borrowing”)
duly completed or by telephone if confirmed promptly, but in any event within
one Business Day and prior to such Borrowing, with such a Notice of
Borrowing.  Loans shall be made as Base
Rate Loans unless, outside of a suspension period pursuant to Section 2.15,
the Notice of Borrowing specifies that all or a portion thereof shall be
Eurodollar Rate Loans.  Each Borrowing
shall be in an aggregate amount that is an integral multiple of
$1,000,000.  No Borrowing of any Eurodollar
Rate Loan with any Interest Period longer than one month shall be made prior to
the Syndication Completion Date.


 


(b)           Notice
to Each Lender.  The Administrative
Agent shall give to each Lender prompt notice of the Administrative Agent’s
receipt of a Notice of Borrowing and, if Eurodollar Rate Loans are properly
requested in such Notice of Borrowing, prompt notice of the applicable interest
rate.  Each Lender shall, before
1:00 p.m. on the date of the proposed Borrowing, make available to the
Administrative Agent at its address referred to in Section 11.11,
such Lender’s Pro Rata Share of such proposed Borrowing.  Upon fulfillment or due waiver (i) on
the Closing Date, of the applicable conditions set forth in Section 3.1
and (ii) on the Closing Date and any time thereafter, of the applicable
conditions set forth in Section 3.2, the Administrative Agent shall
make such funds available to the Borrower.


 


(c)           Non-Funding Lenders.


 


(i)            Non-Funding Lenders Responsibility.  Unless the Administrative Agent shall have
received notice from any Lender prior to the date such Lender is required to
make any payment hereunder with respect to any Loan or any participation in any
Swing Loan or Letter of Credit that such Lender will not make such payment (or
any portion thereof) available to the Administrative Agent, the Administrative
Agent may assume that such Lender has made such payment available to the
Administrative Agent on the date such payment is required to be made in
accordance with this Article 2 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount.  The Borrower
agrees to repay to the Administrative Agent on demand such amount (until repaid
by such Lender) with interest thereon for each day from the date such amount is
made available to the Borrower until the date such amount is repaid to the
Administrative Agent, at the interest rate applicable to the Obligation that
would have been created when the Administrative Agent made available such
amount to the Borrower had such Lender made a corresponding payment available;
provided, however, that such payment shall not relieve such Lender of any
obligation it may have to the Borrower, the Swingline Lender or any L/C
Issuer.  In addition, any Lender that
shall not have made available to the Administrative Agent any portion of any
payment described above agrees to pay such amount to the Administrative Agent
on demand together with interest thereon, for each day from the date such
amount 


 


36

















 


is made available to the
Borrower until the date such amount is repaid to the Administrative Agent, at
the Federal Funds Rate for the first Business Day and thereafter (a) in
the case of a payment in respect of a Loan, at the interest rate applicable at
the time to such Loan and (b) otherwise, at the interest rate applicable
to Base Rate Loans under the Revolving Credit Facility.  Such repayment shall then constitute the
funding of the corresponding Loan (including any Loan deemed to have been made
hereunder with such payment) or participation. 
The existence of any Non-Funding Lender shall not relieve any other
Lender of its obligations under any Loan Document, but no other Lender shall be
responsible for the failure of any Non-Funding Lender to make any payment
required under any Loan Document other than as expressly set forth herein.


 


(ii)           Reallocation. 
If any Revolving Credit Lender is a Non-Funding Lender, all or a portion
of such Non-Funding Lender’s L/C Obligations (unless such Lender is the L/C
Issuer that issued such Letter of Credit) and reimbursement obligations with
respect to Swing Loans shall, at the Administrative Agent’s election at any
time or upon any L/C Issuer’s or Swingline Lender’s, as applicable, written
request delivered to the Administrative Agent (whether before or after the
occurrence of any Default or Event of Default), be reallocated to and assumed
by the Revolving Credit Lenders that are not Non-Funding Lenders or Impacted
Lenders pro rata in accordance with their Pro Rata Share of the Revolving Loans
(calculated as if the Non-Funding Lender’s Pro Rata Share was reduced to zero
and each other Revolving Credit Lender’s Pro Rata Share had been increased
proportionately), provided that no Revolving Credit Lender shall be reallocated
any such amounts or be required to fund any amounts that would cause the sum of
its outstanding Revolving Loans, outstanding L/C Obligations, amounts of its
participations in Swing Loans and its pro rata share of unparticipated amounts
in Swing Loans to exceed its Revolving Credit Commitment.


 


(iii)          Borrower Payments to a Non-Funding Lender.  The Administrative Agent shall be entitled to
hold, in a non-interest bearing account, all portions of any payments received
by the Administrative Agent for the benefit of any Non-Funding Lender pursuant
to this Agreement as cash collateral. 
The Administrative Agent is hereby authorized to use such cash
collateral to pay in full the Aggregate Excess Funding Amount to the
appropriate Secured Parties thereof, and then, to hold as cash collateral the
amount of such Non-Funding Lender’s pro rata share, without giving effect to
any reallocation pursuant to Section 2.2(c)(ii), of all L/C Obligations
until the Obligations are paid in full in cash, all L/C Obligations have been
discharged or cash collateralized and all Commitments have been
terminated.  Upon any such unfunded
obligations owing by a Non-Funding Lender becoming due and payable, the
Administrative Agent shall be authorized to use such cash collateral to make
such payment on behalf of such Non-Funding Lender.  With respect to such Non-Funding Lender’s
failure to fund Revolving Loans or purchase participations in Letters of Credit
or L/C Obligations, any amounts applied by the Administrative Agent to satisfy
such funding shortfalls shall be deemed to constitute a Revolving Loan or
amount of the participation required to be funded and, if necessary to
effectuate the foregoing, the other Revolving Credit Lenders shall be deemed to
have sold, and such Non-Funding Lender shall be deemed to have purchased,
Revolving Loans or Letter of Credit participation interests from the other
Revolving Credit Lenders until such time as the aggregate amount of the
Revolving Loans and 


 


37

















 


participations in Letters of
Credit and L/C Obligations are held by the Revolving Credit Lenders in
accordance with their Pro Rata Shares with respect to the Revolving Credit
Facility.  Any amounts owing by a
Non-Funding Lender to the Administrative Agent which are not paid when due
shall accrue interest at the interest rate applicable during such period to
Revolving Loans that are Base Rate Loans. 
In the event that the Administrative Agent is holding cash collateral of
a Non-Funding Lender that cures pursuant to clause (iv) below or
ceases to be a Non-Funding Lender pursuant to the definition of Non-Funding
Lender, the Administrative Agent shall return the unused portion of such cash
collateral to such Lender. The “Aggregate Excess Funding Amount” of a
Non-Funding Lender shall be the aggregate amount of (A) all unpaid
obligations owing by such Lender to the Administrative Agent, L/C Issuers,
Swingline Lender, and other Lenders under the Loan Documents, including such
Lender’s pro rata share of all Revolving Loans, L/C Obligations, Swing Line
Loans, plus, without duplication, (B) all amounts of such Non-Funding
Lender reallocated to other Lenders pursuant to subsection
Section 2.2(c)(ii).


 


(iv)          Cure.  A
Lender may cure its status as a Non-Funding Lender under clause (a) of the
definition of Non-Funding Lender if such Lender fully pays to the
Administrative Agent, on behalf of the applicable Secured Parties, the
Aggregate Excess Funding Amount, plus all interest due thereon.  Any such cure shall not relieve any Lender
from liability for breaching its contractual obligations hereunder.


 


(v)           Fees.  A
Lender that is a Non-Funding Lender pursuant to clause (a) of the
definition of Non-Funding Lender shall not earn and shall not be entitled to
receive, and the Borrower shall not be required to pay, such Lender’s portion
of the Unused Commitment Fee during the time such Lender is a Non-Funding
Lender pursuant to clause (a) thereof. 
In the event that any reallocation of L/C Obligations occurs pursuant to
Section 2.2(c)(ii)), during the period of time that such reallocation
remains in effect, the Letter of Credit Fee payable with respect to such
reallocated portion shall be payable to (A) all Revolving Credit Lenders
based on their pro rata share of such reallocation or (B) to the L/C
Issuer for any remaining portion not reallocated to any other Revolving Credit
Lenders.


 


Section 2.3             Swing Loans.  (a) Availability.  On the terms and subject to the conditions
contained in this Agreement, the Swingline Lender may, in its sole discretion,
make loans in Dollars (each a “Swing Loan”) available to the Borrower
under the Revolving Credit Facility from time to time on any Business Day
during the period from the date hereof until the Revolving Credit Termination
Date in an aggregate principal amount at any time outstanding not to exceed its
Swingline Commitment; provided, however,
that the Swingline Lender may not make any Swing Loan (x) to the extent
that after giving effect to such Swing Loan, the aggregate Revolving Credit
Outstandings would exceed the Revolving Credit Commitments and (y) in the
period commencing on the first Business Day after it receives notice from the
Administrative Agent or the Required Revolving Credit Lenders that one or more
of the conditions precedent contained in Section 3.2 are not
satisfied and ending when such conditions are satisfied or duly waived.  In connection with the making of any Swing
Loan, the Swingline Lender may but shall not be required to determine that, or
take notice whether, the conditions precedent set forth in Section 3.2
have been satisfied or waived.  Each
Swing Loan shall be a Base Rate Loan and must 


 


38

















 


be repaid in full on the earliest of (i) the
funding date of any Borrowing of Revolving Loans and (ii) the Revolving
Credit Termination Date.  Within the
limits set forth in the first sentence of this clause (a), amounts
of Swing Loans repaid may be reborrowed under this clause (a).


 


(b)           Borrowing
Procedures.  In order to request a
Swing Loan, the Borrower Representative shall give to the Administrative Agent
a notice to be received not later than 1:00 p.m. on the day of the
proposed borrowing, which may be made in a writing substantially in the form of
Exhibit D duly completed (a “Swingline Request”) or by telephone
if confirmed promptly but, in any event, prior to such borrowing, with such a
Swingline Request.  In addition, if any
Notice of Borrowing requests a Borrowing of Base Rate Loans, the Swing Line
Lender may, notwithstanding anything else to the contrary in Section 2.2,
make a Swing Loan available to the Borrower in an aggregate amount not to
exceed such proposed Borrowing, and the aggregate amount of the corresponding
proposed Borrowing shall be reduced accordingly by the principal amount of such
Swing Loan.  The Administrative Agent
shall promptly notify the Swingline Lender of the details of the requested
Swing Loan.  Upon receipt of such notice
and subject to the terms of this Agreement, the Swingline Lender may make a
Swing Loan available to the Borrower by making the proceeds thereof available
to the Administrative Agent and, in turn, the Administrative Agent shall make
such proceeds available to the Borrower on the date set forth in the relevant
Swingline Request.


 


(c)           Refinancing Swing Loans.  The Swingline Lender may at any time forward
a demand to the Administrative Agent (which the Administrative Agent shall,
upon receipt, forward to each Revolving Credit Lender) that each Revolving
Credit Lender pay to the Administrative Agent, for the account of the Swingline
Lender, such Revolving Credit Lender’s Pro Rata Share of all or a portion of
the outstanding Swing Loans.  Each
Revolving Credit Lender shall pay such Pro Rata Share to the Administrative
Agent for the account of the Swingline Lender. 
Upon receipt by the Administrative Agent of such payment (other than
during the continuation of any Event of Default under Section 9.1(e)),
such Revolving Credit Lender shall be deemed to have made a Revolving Loan to
the Borrower, which, upon receipt of such payment by the Swingline Lender from
the Administrative Agent, the Borrower shall be deemed to have used in whole to
refinance such Swing Loan.  In addition,
regardless of whether any such demand is made, upon the occurrence of any Event
of Default under Section 9.1(e), each Revolving Credit Lender shall
be deemed to have acquired, without recourse or warranty, an undivided interest
and participation in each Swing Loan in an amount equal to such Lender’s Pro
Rata Share of such Swing Loan.  If any
payment made by any Revolving Credit Lender as a result of any such demand is
not deemed a Revolving Loan, such payment shall be deemed a funding by such
Lender of such participation.  Such
participation shall not be otherwise required to be funded.  Upon receipt by the Swingline Lender of any
payment from any Revolving Credit Lender pursuant to this clause (c) with
respect to any portion of any Swing Loan, the Swingline Lender shall promptly
pay over to such Revolving Credit Lender all payments of principal (to the
extent received after such payment by such Lender) and interest (to the extent
accrued with respect to periods after such payment) received by the Swingline
Lender with respect to such portion.


 


(d)           Obligation to Fund Absolute.  Each Revolving Credit Lender’s obligations
pursuant to clause (c) above shall be absolute, unconditional
and irrevocable and shall be performed strictly in accordance with the terms of
this Agreement under any and all 


 


39

















 


circumstances whatsoever, including (a) the
existence of any setoff, claim, abatement, recoupment, defense or other right
that such Lender, any Affiliate thereof or any other Person may have against
the Swing Loan Lender, any other Secured Party or any other Person,
(b) the failure of any condition precedent set forth in Section 3.2
to be satisfied or the failure of the Borrower Representative to deliver any
notice set forth in Section 2.2(a) (each of which requirements the
Revolving Credit Lenders hereby irrevocably waive) and (c) any
adverse change in the condition (financial or otherwise) of any Loan Party.


 


Section 2.4             Letters of Credit.  (a) Commitment and Conditions.  On the terms and subject to the conditions
contained herein, each L/C Issuer agrees to Issue, at the request of the
Borrower Representative, in accordance with such L/C Issuer’s usual and
customary business practices, and for the account of the Borrower (or, as long
as the Borrower remains responsible for the payment in full of all amounts
drawn thereunder and related fees, costs and expenses, for the account of any
Group Member), Letters of Credit (denominated in Dollars and with face amounts
that are multiples of $1,000,000) from time to time on any Business Day during
the period from the Closing Date through the earlier of the Revolving Credit
Termination Date and 7 days prior to the Scheduled Revolving Credit Termination
Date; provided, however, that such L/C
Issuer shall not be under any obligation to Issue any Letter of Credit upon the
occurrence of any of the following, after giving effect to such Issuance:


 


(i)            (A) the aggregate Revolving Credit Outstandings
would exceed the aggregate Revolving Credit Commitments or (B) the L/C
Obligations for all Letters of Credit would exceed the L/C Sublimit;


 


(ii)           the expiration date of such Letter of Credit (A) is
not a Business Day, (B) is more than one year after the date of issuance
thereof or (C) is later than 7 days prior to the Scheduled Revolving
Credit Termination Date; provided, however,
that any Letter of Credit with a term not exceeding one year may provide for
its renewal for additional periods not exceeding one year as long as
(x) each of the Borrower and such L/C Issuer have the option to prevent
such renewal before the expiration of such term or any such period and
(y) neither such L/C Issuer nor the Borrower shall permit any such renewal
to extend such expiration date beyond the date set forth in clause (C) above;
or


 


(iii)          (A) any fee due in connection with, and on or prior
to, such Issuance has not been paid, (B) such Letter of Credit is
requested to be Issued in a form that is not acceptable to such L/C Issuer or
(C) such L/C Issuer shall not have received, each in form and substance
reasonably acceptable to it and duly executed by the Borrower (and, if such
Letter of Credit is issued for the account of any other Group Member, such
Group Member), the documents that such L/C Issuer generally uses in the
ordinary course of its business for the Issuance of letters of credit of the
type of such Letter of Credit (collectively, the “L/C Reimbursement
Agreement”).


 


For
each such Issuance, the applicable L/C Issuer may, but shall not be required
to, determine that, or take notice whether, the conditions precedent set forth
in Section 3.2 have been satisfied or waived in connection with the
Issuance of any Letter of Credit; provided,
however, that no Letter of Credit shall be Issued during the period
starting on the first Business Day after the receipt by such L/C Issuer of
notice from the Administrative Agent or the Required Revolving 


 


40

















 


Credit
Lenders that any condition precedent contained in Section 3.2 is
not satisfied and ending on the date all such conditions are satisfied or duly
waived.


 


(b)           Notice of Issuance. 
Borrower Representative shall give the relevant L/C Issuer and the
Administrative Agent a notice of any requested Issuance of any Letter of
Credit, which shall be effective only if received by such L/C Issuer and the
Administrative Agent not later than 11:00 a.m. on the third Business Day
prior to the date of such requested Issuance. 
Such notice may be made in a writing substantially the form of Exhibit E
duly completed or in a writing in any other form acceptable to such L/C Issuer
(an “L/C Request”) or by telephone if confirmed promptly, but in any
event within one Business Day and prior to such Issuance, with such an L/C
Request.


 


(c)           Reporting Obligations of L/C Issuers.  Each L/C Issuer agrees to provide the
Administrative Agent (which, after receipt, the Administrative Agent shall
provide to each Revolving Credit Lender), in form and substance satisfactory to
the Administrative Agent, each of the following on the following dates:  (i) on or prior to (A) any Issuance
of any Letter of Credit by such L/C Issuer, (B) any drawing under any such
Letter of Credit or (C) any payment (or failure to pay when due) by the
Borrower of any related L/C Reimbursement Obligation, notice thereof, which
shall contain a reasonably detailed description of such Issuance, drawing or
payment, (ii) upon the request of the Administrative Agent (or any
Revolving Credit Lender through the Administrative Agent), copies of any Letter
of Credit Issued by such L/C Issuer and any related L/C Reimbursement Agreement
and such other documents and information as may reasonably be requested by the
Administrative Agent and (iii) on the first Business Day of each calendar
week, a schedule of the Letters of Credit Issued by such L/C Issuer, in
form and substance reasonably satisfactory to the Administrative Agent, setting
forth the L/C Obligations for such Letters of Credit outstanding on the last
Business Day of the previous calendar week.


 


(d)           Acquisition of Participations.  Upon any Issuance of a Letter of Credit in
accordance with the terms of this Agreement resulting in any increase in the
L/C Obligations, each Revolving Credit Lender shall be deemed to have acquired,
without recourse or warranty, an undivided interest and participation in such
Letter of Credit and the related L/C Obligations in an amount equal to such
Lender’s Pro Rata Share of such L/C Obligations.


 


(e)           Reimbursement Obligations of the Borrower.  The Borrower agrees to pay to the L/C Issuer
of any Letter of Credit each L/C Reimbursement Obligation owing with respect to
such Letter of Credit no later than the first Business Day after the Borrower
receives notice from such L/C Issuer that payment has been made under such
Letter of Credit or that such L/C Reimbursement Obligation is otherwise due
(the “L/C Reimbursement Date”) with interest thereon computed as set
forth in clause (i) below. 
In the event that any L/C Issuer incurs any L/C Reimbursement Obligation
not repaid by the Borrower as provided in this clause (e) (or
any such payment by the Borrower is rescinded or set aside for any reason),
such L/C Issuer shall promptly notify the Administrative Agent of such failure
(and, upon receipt of such notice, the Administrative Agent shall forward a
copy to each Revolving Credit Lender) and, irrespective of whether such notice
is given, such L/C Reimbursement Obligation shall be payable on demand by the
Borrower with interest thereon computed (i) from the date on which such
L/C Reimbursement Obligation arose to the L/C Reimbursement Date, at the
interest rate applicable during such period to Revolving Loans that are Base
Rate Loans and (ii) thereafter until payment 


 


41

















 


in full, at the interest rate applicable during such
period to past due Revolving Loans that are Base Rate Loans.


 


(f)            Reimbursement Obligations of the Revolving Credit
Lenders.  Upon receipt of the notice
described in clause (e) above from the Administrative Agent, each
Revolving Credit Lender shall pay to the Administrative Agent for the account of
such L/C Issuer its Pro Rata Share of such L/C Reimbursement Obligation.  By making such payment (other than during the
continuation of an Event of Default under Section 9.1(e)), such
Lender shall be deemed to have made a Revolving Loan to the Borrower, which,
upon receipt thereof by such L/C Issuer, the Borrower shall be deemed to have
used in whole to repay such L/C Reimbursement Obligation.  Any such payment that is not deemed a
Revolving Loan shall be deemed a funding by such Lender of its participation in
the applicable Letter of Credit and the related L/C Obligations.  Such participation shall not otherwise be
required to be funded.  Upon receipt by
any L/C Issuer of any payment from any Lender pursuant to this clause (f) with
respect to any portion of any L/C Reimbursement Obligation, such L/C Issuer
shall promptly pay over to such Lender all payments received after such payment
by such L/C Issuer with respect to such portion.


 


(g)           Obligations Absolute.  The obligations of the Borrower and the
Revolving Credit Lenders pursuant to clauses (d), (e) and (f) above
shall be absolute, unconditional and irrevocable and performed strictly in
accordance with the terms of this Agreement irrespective of
(i) (A) the invalidity or unenforceability of any term or provision
in any Letter of Credit, any document transferring or purporting to transfer a
Letter of Credit, any Loan Document (including the sufficiency of any such
instrument), or any modification to any provision of any of the foregoing,
(B) any document presented under a Letter of Credit being forged,
fraudulent, invalid, insufficient or inaccurate in any respect or failing to
comply with the terms of such Letter of Credit or (C) any loss or delay,
including in the transmission of any document, (ii) the existence of any
setoff, claim, abatement, recoupment, defense or other right that any Person
(including any Group Member) may have against the beneficiary of any Letter of
Credit or any other Person, whether in connection with any Loan Document or any
other Contractual Obligation or transaction, or the existence of any other
withholding, abatement or reduction, (iii) in the case of the obligations
of any Revolving Credit Lender, (A) the failure of any condition precedent
set forth in Section 3.2 to be satisfied (each of which conditions
precedent the Revolving Credit Lenders hereby irrevocably waive) or
(B) any adverse change in the condition (financial or otherwise) of any
Loan Party and (iv) any other act or omission to act or delay of any kind of
any Secured Party or any other Person or any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section 2.4, constitute a legal or equitable
discharge of any obligation of the Borrower or any Revolving Credit Lender
hereunder.


 


(h)           Non-Funding Lenders and Impacted Lenders.  Notwithstanding anything else to the contrary
herein, if any Lender is a Non-Funding Lender or Impacted Lender, no L/C Issuer
shall be obligated to Issue any Letter of Credit unless (i) the
Non-Funding Lender or Impacted Lender has been replaced in accordance with
Section 2.18 or Section 11.2, (ii) the L/C Obligations of such
Non-Funding Lender or Impacted Lender have been cash collateralized, (iii) the
Revolving Credit Commitments of the other Revolving Credit Lenders have been
increased by an amount sufficient to satisfy the Administrative Agent that all
future L/C 


 


42

















 


Obligations will be covered by all Revolving Credit
Lenders that are not Non-Funding Lenders or Impacted Lenders, or (iv) the
L/C Obligations of such Non-Funding Lender or Impacted Lender have been
reallocated to other Revolving Credit Lenders in a manner consistent with
Section 2.2(c)(ii).


 


(i)            WFCF as L/C Issuer.  In addition to the foregoing, for so long as
WFCF or an Affiliate is the L/C Issuer of a Letter of Credit (in each case, a “Wells
L/C Issuer”), the Borrowers, Administrative Agent and WFCF, in its capacity
as agent for such L/C Issuer, shall comply with the terms of that certain side
letter dated as of the Closing Date which sets forth the procedures to be
followed by the Wells L/C Issuer (the “Wells L/C Side Letter”).  In the event of any conflict between the
terms of this Section 2.4 and the Wells L/C Side Letter with
respect to any Letter of Credit Issued by a Wells L/C Issuer, the terms of the
Wells L/C Side Letter shall control.


 


Section 2.5             Reduction and Termination of the
Commitments.  (a) Optional.  The Borrower may, upon notice to the Administrative
Agent, terminate in whole or reduce in part ratably any unused portion of the
Revolving Credit Commitments; provided, however,
that each partial reduction shall be in an aggregate amount that is an integral
multiple of $1,000,000.


 


(b)           Mandatory. 
All outstanding Commitments shall terminate on the Scheduled Revolving
Credit Termination Date.


 


Section 2.6            Repayment of Loans.  The Borrower promises to repay the entire
unpaid principal amount of the Revolving Loans and the Swing Loans on the Scheduled
Revolving Credit Termination Date.


 


Section 2.7            Optional Prepayments.  The Borrower may prepay the outstanding
principal amount of any Loan in whole or in part at any time (together with
accrued interest and any breakage costs that may be owing pursuant to Section 2.16(a) after
giving effect to such prepayment); provided,
however, that each partial prepayment that is not of the entire outstanding
amount under any Facility shall be in an aggregate amount that is an integral
multiple of $1,000,000.


 


Section 2.8            Mandatory Prepayments.


 


(a)           Reserved.


 


(b)           Reserved.


 


(c)           Reserved.


 


(d)           Indenture Prepayments.   Notwithstanding the foregoing in this Section 2.8,
at any time when any Group Member consummates any [“Asset Sale”] as
defined in the Indenture (together with any term of similar effect), on or
prior to the 364th day after the date of such Asset Sale, the Borrower shall,
pay or cause to be paid to the Administrative Agent an amount, not to exceed
the lesser of the Revolving
Credit Outstandings and such Net Cash Proceeds (or such [“Excess Proceeds”]
as defined in the Indenture (together with any term of similar effect)).


 


43

















 


(e)           Excess Outstandings.  On any date on which the aggregate principal
amount of Revolving Credit Outstandings exceeds the aggregate Revolving Credit
Commitments, the Borrower shall pay to the Administrative Agent an amount equal
to such excess.


 


(f)            Application of Payments.  Any payments made to the Administrative Agent
pursuant to this Section 2.8 shall be applied to the Obligations in
accordance with Section 2.12(b).


 


Section 2.9             Interest.  (a) Rate.  All Loans and the outstanding amount of all
other Obligations (other than pursuant to Secured Hedging Agreements) shall
bear interest, in the case of Loans, on the unpaid principal amount thereof
from the date such Loans are made and, in the case of such other Obligations,
from the date such other Obligations are due and payable until, in all cases,
paid in full, except as otherwise provided in clause (c) below,
as follows:  (i) in the case of Base
Rate Loans, at a rate per annum equal to the sum of the Base Rate and the
Applicable Margin, each as in effect from time to time, (ii) in the case
of Eurodollar Rate Loans, at a rate per annum equal to the sum of the
Eurodollar Rate and the Applicable Margin, each as in effect for the applicable
Interest Period, and (iii) in the case of other Obligations, at a rate per
annum equal to the sum of the Base Rate and the Applicable Margin for Revolving
Loans that are Base Rate Loans, each as in effect from time to time.


 


(b)           Payments. 
Interest accrued shall be payable in arrears (i) if accrued on the
principal amount of any Loan, (A) at maturity (whether by acceleration or
otherwise), and (B) (1) if such Loan is a Base Rate Loan (including a
Swing Loan), on the last day of each calendar quarter commencing on the first
such day following the making of such Loan, (2) if such Loan is a
Eurodollar Rate Loan, on the last day of each Interest Period applicable to
such Loan and, if applicable, on each date during such Interest Period
occurring every 3 months from the first day of such Interest Period and
(ii) if accrued on any other Obligation, on demand from any after the time
such Obligation is due and payable (whether by acceleration or otherwise).


 


(c)           Default Interest. 
Notwithstanding the rates of interest specified in clause (a) above
or elsewhere in any Loan Document, effective immediately upon (A) the
occurrence of any Event of Default under Section 9.1 (d) or (e) or
(B) the delivery of a notice by the Administrative Agent or the Required
Lenders to the Borrower during the continuance of any other Event of Default
and, in each case, for as long as such Event of Default shall be continuing,
the principal balance of all Obligations (including any Obligation that bears
interest by reference to the rate applicable to any other Obligation) then due
and payable shall bear interest at a rate that is 2.0% per annum in excess of
the interest rate applicable to such Obligations from time to time, payable on
demand or, in the absence of demand, on the date that would otherwise be
applicable.


 


(d)           Savings Clause. 
Anything herein to the contrary notwithstanding, the obligations of the
Borrower hereunder shall be subject to the limitation that payments of interest
shall not be required, for any period for which interest is computed hereunder,
to the extent (but only to the extent) that contracting for or receiving such
payment by the respective Lender would be contrary to the provisions of any law
applicable to such Lender limiting the highest rate of interest which may be
lawfully contracted for, charged or received by such Lender, and in such 


 


44

















 


event the Borrower shall pay such Lender interest at
the highest rate permitted by applicable law (“Maximum Lawful Rate”);
provided, however, that if at any time thereafter the rate of interest payable
hereunder is less than the Maximum Lawful Rate, the Borrower shall continue to
pay interest hereunder at the Maximum Lawful Rate until such time as the total
interest received by the Administrative Agent, on behalf of Lenders, is equal
to the total interest that would have been received had the interest payable
hereunder been (but for the operation of this paragraph) the interest rate
payable since the Closing Date as otherwise provided in this Agreement.


 


Section 2.10           Conversion and Continuation
Options.  (a) Option.  The Borrower may elect (i) in the case
of any Eurodollar Rate Loan, (A) to continue such Eurodollar Rate Loan or
any portion thereof for an additional Interest Period on the last day of the
Interest Period applicable thereto and (B) to convert such Eurodollar Rate
Loan or any portion thereof into a Base Rate Loan at any time on any Business
Day, subject to the payment of any breakage costs required by Section 2.16(a),
and (ii) in the case of Base Rate Loans (other than Swing Loans), to
convert such Base Rate Loans or any portion thereof into Eurodollar Rate Loans
at any time on any Business Day upon 3 Business Days’ prior notice; provided, however, that, (x) for each
Interest Period, the aggregate amount of Eurodollar Rate Loans having such
Interest Period must be an integral multiple of $1,000,000 and (y) no
conversion in whole or in part of Base Rate Loans to Eurodollar Rate Loans and
no continuation in whole or in part of Eurodollar Rate Loans shall be permitted
at any time at which (1) an Event of Default shall be continuing and the
Administrative Agent or the Required Lenders shall have determined in their
sole discretion not to permit such conversions or continuations, (2) such
continuation or conversion would be made during a suspension imposed by Section 2.15,
or (3) prior to the Syndication Completion Date, such conversion or
continuation would result in a Eurodollar Rate Loan having an Interest Period
in excess of one month.


 


(b)           Procedure. 
Each such election shall be made by giving the Administrative Agent at
least 3 Business Days’ prior notice in substantially the form of Exhibit F
(a “Notice of Conversion or Continuation”) duly completed.  The Administrative Agent shall promptly
notify each Lender of its receipt of a Notice of Conversion or Continuation and
of the options selected therein.  If the
Administrative Agent does not receive a timely Notice of Conversion or
Continuation from the Borrower Representative containing a permitted election
to continue or convert any Eurodollar Rate Loan, then, upon the expiration of
the applicable Interest Period, such Loan shall be automatically converted to a
Base Rate Loan.  Each partial conversion
or continuation shall be allocated ratably among the Lenders in the applicable
Facility in accordance with their Pro Rata Share.


 


Section 2.11           Fees.  (a) Unused Commitment Fee.  The Borrower agrees to pay to each Revolving
Credit Lender a commitment fee on the actual daily amount by which the
Revolving Credit Commitment of such Lender exceeds its Pro Rata Share of the
sum of (i) the aggregate outstanding principal amount of Revolving Loans
and (ii) the outstanding amount of the L/C Obligations for all Letters of
Credit (the “Unused Commitment Fee”) from the date hereof through the
Revolving Credit Termination Date at a rate per annum equal to the Applicable
Margin, payable in arrears (x) on the last day of each calendar quarter
and (y) on the Revolving Credit Termination Date.


 


45














 


(b)           Letter of Credit Fees.  The Borrower agrees to pay, with respect to
all Letters of Credit issued by any L/C Issuer, (i) to such L/C Issuer,
the fees, documentary and processing charges as separately agreed between the
Borrower and such L/C Issuer or otherwise in accordance with such L/C Issuer’s
standard schedule in effect at the time of determination thereof, (ii) to
the Administrative Agent, for the benefit of the L/C Issuer, a fronting fee
equal to 0.25% per annum multiplied by the face amount of such Letter of Credit
and (iii) to the Administrative Agent, for the benefit of the Revolving
Credit Lenders according to their Pro Rata Shares, a fee (the “Letter of
Credit Fee”) accruing at a rate per annum equal to the Applicable Margin
for Revolving Loans that are Eurodollar Rate Loans on the maximum undrawn face
amount of such Letters of Credit, such fees under clauses (ii) and (iii) shall
be payable in arrears (A) on the last day of each calendar month, ending
after the issuance of such Letter of Credit and (B) on the Revolving
Credit Termination Date; provided, however, that the fee payable under clause
(iii) shall be increased by 2% per annum and shall be payable, in addition
to being payable on any date it is otherwise required to be paid hereunder, on
demand effective immediately upon (x) the occurrence of any Event of
Default under Section 9.1(e)(ii) or (y) the delivery of a notice
by the Administrative Agent or the Required Lenders to the Borrower during the
continuance of any other Event of Default and, in each case, for as long as
such Event of Default shall be continuing.


 


(c)           Additional Fees.  The Borrower shall pay to the Administrative
Agent and its Related Persons its reasonable and customary fees and expenses in
connection with any payments made pursuant to Section 2.16(a) (Breakage
Costs) and has agreed to pay the additional fees described in the Fee
Letter.


 


Section 2.12          Application of Payments.  (a) Application of Voluntary
Prepayments.  Unless otherwise
provided in this Section 2.12 or elsewhere in any Loan Document,
all payments and any other amounts received by the Administrative Agent from or
for the benefit of the Borrower shall be applied to repay the Obligations the
Borrower designates.


 


(b)           Application of Mandatory
Prepayments.  Subject to
the provisions of clause (c) below with respect to the
application of payments during the continuance of an Event of Default, any
payment made by the Borrower to the Administrative Agent pursuant to Section 2.8
or any other prepayment of the Obligations required to be applied in accordance
with this clause (b) shall be applied first, to repay the
outstanding principal balance of the Revolving Loans and the Swing Loans
(provided that any payment made pursuant to Section 2.8 shall be
made without a concurrent reduction in the Revolving Credit Commitment), and
second, in the case of any payment required pursuant to Section 2.8(e),
to provide cash collateral to the extent and in the manner in Section 9.3
and, then, any excess shall be retained by the Borrower.


 


(c)           Application of Payments
During an Event of Default.  Each of Holdings and the Borrower hereby
irrevocably waives, and agrees to cause each Loan Party and each other Group
Member to waive, the right to direct the application during the continuance of
an Event of Default of any and all payments in respect of any Obligation and
any proceeds of Collateral and agrees that, notwithstanding the provisions of clause (a) above,
the Administrative Agent may, and, upon either (A) the direction of the
Required Lenders or (B) the termination of any Commitment or the
acceleration of any Obligation pursuant to Section 9.2, shall,
apply all payments in respect of any Obligation, all funds on deposit in any
Cash Collateral Account and 


 


46

















 


all other proceeds of Collateral (i) first,
to pay Obligations in respect of any cost or expense reimbursements, fees or
indemnities then due to the Administrative Agent, (ii) second, to
pay Obligations in respect of any cost or expense reimbursements, fees or
indemnities then due to the Lenders and the L/C Issuers, (iii) third,
to pay interest then due and payable in respect of the Loans and L/C
Reimbursement Obligations, (iv) fourth, to repay the outstanding
principal amounts of the Loans and L/C Reimbursement Obligations, to provide
cash collateral for Letters of Credit in the manner and to the extent described
in Section 9.3 (v) fifth, to pay amounts owing with
respect to Secured Hedging Agreements and (vi) sixth, to the ratable
payment of all other Obligations.


 


(d)           Application of Payments
Generally.  All
payments that would otherwise be allocated to the Revolving Credit Lenders
pursuant to this Section 2.12 shall instead be allocated first,
to repay interest on Swing Loans, on any portion of the Revolving Loans that
the Administrative Agent may have advanced on behalf of any Lender and on any
L/C Reimbursement Obligation, in each case for which the Administrative Agent
or, as the case may be, the L/C Issuer has not then been reimbursed by such
Lender or the Borrower, second to pay the outstanding principal amount
of the foregoing obligations and third, to repay the Revolving
Loans.  All repayments of any Revolving
Loans shall be applied first, to repay such Loans outstanding as Base
Rate Loans and then, to repay such Loans outstanding as Eurodollar Rate
Loans, with those Eurodollar Rate Loans having earlier expiring Interest
Periods being repaid prior to those having later expiring Interest
Periods.  If sufficient amounts are not
available to repay all outstanding Obligations described in any priority level
set forth in this Section 2.12, the available amounts shall be
applied, unless otherwise expressly specified herein, to such Obligations
ratably based on the proportion of the Secured Parties’ interest in such
Obligations.  Any priority level set
forth in this Section 2.12 that includes interest shall include all
such interest, whether or not accruing after the filing of any petition in
bankruptcy or the commencement of any insolvency, reorganization or similar
proceeding, and whether or not a claim for post-filing or post-petition
interest is allowed in any such proceeding


 


Section 2.13          Payments and Computations.  (a) Procedure.  The Borrower shall make each payment under
any Loan Document not later than 11:00 a.m. on the day when due to the
Administrative Agent by wire transfer or ACH transfer (which shall be the
exclusive means of payment hereunder) to the following account (or at such
other account or by such other means to such other address as the
Administrative Agent shall have notified the Borrower in writing within a
reasonable time prior to such payment) in immediately available Dollars and
without setoff or counterclaim:


 


	
  Bank
  Name

  	
   

  	
  Deutsche
  Bank Trust Company Americas

  
	
   

  	
   

  	
  60
  Wall Street

  
	
   

  	
   

  	
  New
  York, NY 10005

  
	
  ABA
  No.

  	
   

  	
  021-001-033

  
	
  Account
  Number

  	
   

  	
  502-71079

  
	
  Account
  Name:

  	
   

  	
  HH
  Cash Flow Collections

  
	
  Reference:

  	
   

  	
  Oncure
  Medical Corp. (HFS3106)

  



 


47

















 


The Administrative Agent shall promptly thereafter cause to be
distributed immediately available funds relating to the payment of principal,
interest or fees to the Lenders, in accordance with the application of payments
set forth in Section 2.12. 
The Lenders shall make any payment under any Loan Document in
immediately available Dollars and without setoff or counterclaim.  Each Revolving Credit Lender shall make each
payment for the account of any L/C Issuer or Swingline Lender required pursuant
to Section 2.3 or 2.4 (A) if the notice or demand
therefor was received by such Lender prior to 11:00 a.m. on any Business
Day, on such Business Day and (B) otherwise, on the Business Day following
such receipt.  Payments received by the
Administrative Agent after 11:00 a.m. shall be deemed to be received on
the next Business Day.


 


(b)           Computations of Interests
and Fees.  All
computations of interest and of fees shall be made by the Administrative Agent
on the basis of a year of 360 days (or, in the case of Base Rate Loans whose
interest rate is calculated based on the rate set forth in clause (a) of
the definition of “Base Rate”, 365/366 days), in each case for the actual
number of days (including the first day but excluding the last day) occurring
in the period for which such interest and fees are payable.  Each determination of an interest rate or the
amount of a fee hereunder shall be made by the Administrative Agent (including
determinations of a Eurodollar Rate or Base Rate in accordance with the definitions
of “Eurodollar Rate” and “Base Rate”, respectively) and shall be conclusive,
binding and final for all purposes, absent manifest error.


 


(c)           Payment Dates.  Whenever any payment hereunder shall be
stated to be due on a day other than a Business Day, the due date for such
payment shall be extended to the next succeeding Business Day without any
increase in such payment as a result of additional interest or fees; provided, however, that such interest and fees
shall continue accruing as a result of such extension of time.


 


(d)           Advancing Payments.  Unless the Administrative Agent shall have
received notice from the Borrower to the Lenders prior to the date on which any
payment is due hereunder that the Borrower will not make such payment in full,
the Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may,
in reliance upon such assumption, cause to be distributed to each Lender on
such due date an amount equal to the amount then due such Lender.  If and to the extent that the Borrower shall
not have made such payment in full to the Administrative Agent, each Lender
shall repay to the Administrative Agent on demand such amount distributed to
such Lender together with interest thereon (at the Federal Funds Rate for the
first Business Day and thereafter, at the rate applicable to Base Rate Loans
under the applicable Facility) for each day from the date such amount is
distributed to such Lender until the date such Lender repays such amount to the
Administrative Agent.


 


Section 2.14          Evidence of Debt.  (a) Records of Lenders.  Each Lender shall maintain in accordance with
its usual practice accounts evidencing Indebtedness of the Borrower to such
Lender resulting from each Loan of such Lender from time to time, including the
amounts of principal and interest payable and paid to such Lender from time to
time under this Agreement.  In addition,
each Lender having sold a participation in any of its Obligations or having
identified an SPV as such to the Administrative Agent, acting as agent of the
Borrower solely for this purpose and solely for tax purposes, shall establish
and maintain at its address referred to in Section 11.11 (or at
such other address as such Lender shall notify the Borrower) a record of 


 


48

















 


ownership, in which such Lender shall register by
book entry (a) the name and address of each such participant and SPV (and
each change thereto, whether by assignment or otherwise) and (b) the
rights, interest or obligation of each such participant and SPV in any
Obligation, in any Commitment and in any right to receive any payment
hereunder.


 


(b)           Records of Administrative
Agent.  The Administrative Agent,
acting as agent of the Borrower solely for tax purposes and solely with respect
to the actions described in this Section 2.14, shall establish and
maintain at its address referred to in Section 11.11 (or at such
other address as the Administrative Agent may notify the Borrower
Representative) (A) a record of ownership (the “Register”) in which
the Administrative Agent agrees to register by book entry the interests
(including any rights to receive payment hereunder) of the Administrative
Agent, each Lender and each L/C Issuer in the Revolving Credit Outstandings,
each of their obligations under this Agreement to participate in each Loan,
Letter of Credit and L/C Reimbursement Obligation, and any assignment of any
such interest, obligation or right and (B) accounts in the Register in
accordance with its usual practice in which it shall record (1) the names
and addresses of the Lenders and the L/C Issuers (and each change thereto
pursuant to Section 2.18 (Substitution of Lenders) and Section 11.2
(Assignments and Participations; Binding Effect)), (2) the Commitments
of each Lender, (3) the amount of each Loan and each funding of any
participation described in clause (A) above, for Eurodollar
Rate Loans, the Interest Period applicable thereto, (4) the amount of any
principal or interest due and payable or paid, (5) the amount of the L/C
Reimbursement Obligations due and payable or paid and (6) any other
payment received by the Administrative Agent from the Borrower and its
application to the Obligations.


 


(c)           Registered Obligations.  Notwithstanding anything to the contrary
contained in this Agreement, the Loans (including any Notes evidencing such
Loans and, in the case of Revolving Loans, the corresponding obligations to
participate in L/C Obligations and Swing Loans) and the L/C Reimbursement
Obligations are registered obligations, the right, title and interest of the
Lenders and the L/C Issuers and their assignees in and to such Loans or L/C
Reimbursement Obligations, as the case may be, shall be transferable only upon
notation of such transfer in the Register and no assignment thereof shall be
effective until recorded therein.  This Section 2.14
and Section 11.2 shall be construed so that the Loans and L/C
Reimbursement Obligations are at all times maintained in “registered form”
within the meaning of Sections 163(f), 871(h)(2) and 881(c) (2) of
the Code and any related regulations (and any successor provisions).


 


(d)           Prima Facie Evidence.  The entries made in the Register and in the
accounts maintained pursuant to clauses (a) and (b) above
shall, to the extent permitted by applicable Requirements of Law, be prima
facie evidence of the existence and amounts of the obligations recorded
therein; provided, however, that no error
in such account and no failure of any Lender or the Administrative Agent to
maintain any such account shall affect the obligations of any Loan Party to
repay the Loans in accordance with their terms. 
In addition, the Loan Parties, the Administrative Agent, the Lenders and
the L/C Issuers shall treat each Person whose name is recorded in the Register
as a Lender or L/C Issuer, as applicable, for all purposes of this
Agreement.  Information contained in the
Register with respect to any Lender or any L/C Issuer shall be available for
access by the Borrower, the Administrative Agent, such Lender or such L/C
Issuer at any reasonable time and from time to time upon reasonable prior
notice.  No 


 


49

















 


Lender or L/C Issuer shall, in such capacity, have
access to or be otherwise permitted to review any information in the Register
other than information with respect to such Lender or L/C Issuer unless
otherwise agreed by the Administrative Agent.


 


(e)           Notes.  Upon any Lender’s request, the Borrower shall
promptly execute and deliver Notes to such Lender evidencing the Loans of such
Lender in a Facility and substantially in the form of Exhibit B; provided, however, that only one Note for each
Facility shall be issued to each Lender, except (i) to an existing Lender
exchanging existing Notes to reflect changes in the Register relating to such
Lender, in which case the new Notes delivered to such Lender shall be dated the
date of the original Notes and (ii) in the case of loss, destruction or
mutilation of existing Notes and similar circumstances.  Each Note, if issued, shall only be issued as
means to evidence the right, title or interest of a Lender or a registered
assignee in and to the related Loan, as set forth in the Register, and in no
event shall any Note be considered a bearer instrument or obligation.


 


Section 2.15          Suspension of Eurodollar
Rate Option. 
Notwithstanding any provision to the contrary in this Article 2,
the following shall apply:


 


(a)           Interest Rate
Unascertainable, Inadequate or Unfair.  In the event that (a) the Administrative
Agent determines that adequate and fair means do not exist for ascertaining the
applicable interest rates by reference to which the Eurodollar Rate is
determined or (b) the Required Lenders notify the Administrative Agent
that the Eurodollar Rate for any Interest Period will not adequately reflect
the cost to the Lenders of making or maintaining such Loans for such Interest
Period, the Administrative Agent shall promptly so notify the Borrower and the
Lenders, whereupon the obligation of each Lender to make or to continue
Eurodollar Rate Loans shall be suspended as provided in clause (c) below
until the Administrative Agent shall notify the Borrower that the Required
Lenders have determined that the circumstances causing such suspension no
longer exist.


 


(b)           Illegality.  If any Lender determines that the
introduction of, or any change in or in the interpretation of, any Requirement
of Law after the date of this Agreement shall make it unlawful, or any
Governmental Authority shall assert that it is unlawful, for any Lender or its
applicable lending office to make Eurodollar Rate Loans or to continue to fund
or maintain Eurodollar Rate Loans, then, on notice thereof and demand therefor
by such Lender to the Borrower through the Administrative Agent, the obligation
of such Lender to make or to continue Eurodollar Rate Loans shall be suspended
as provided in clause (c) below until such Lender shall,
through the Administrative Agent, notify the Borrower that it has determined
that it may lawfully make Eurodollar Rate Loans.


 


(c)           Effect of Suspension.  If the obligation of any Lender to make or to
continue Eurodollar Rate Loans is suspended, (A) the obligation of such
Lender to convert Base Rate Loans into Eurodollar Rate Loans shall be
suspended, (B) such Lender shall make a Base Rate Loan at any time such
Lender would otherwise be obligated to make a Eurodollar Rate Loan,
(C) the Borrower may revoke any pending Notice of Borrowing or Notice of
Conversion or Continuation to make or continue any Eurodollar Rate Loan or to
convert any Base Rate Loan into a Eurodollar Rate Loan and (D) each
Eurodollar Rate Loan of such Lender shall 


 


50

















 


automatically and immediately (or, in the case of
any suspension pursuant to clause (a) above, on the last day
of the current Interest Period thereof) be converted into a Base Rate Loan.


 


Section 2.16          Breakage Costs; Increased
Costs; Capital Requirements.  (a) Breakage Costs.  The Borrower shall compensate each Lender,
upon demand from such Lender to the Borrower Representative (with copy to the
Administrative Agent), for all Liabilities (including, in each case, those
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to prepare to fund, to fund or to maintain the
Eurodollar Rate Loans of such Lender to the Borrower but excluding any loss of
the Applicable Margin on the relevant Loans) that such Lender may incur
(a) to the extent, for any reason other than solely by reason of such
Lender being a Non-Funding Lender, a proposed Borrowing, conversion into or
continuation of Eurodollar Rate Loans does not occur on a date specified
therefor in a Notice of Borrowing or a Notice of Conversion or Continuation or
in a similar request made by telephone by the Borrower, (b) to the extent
any Eurodollar Rate Loan is paid (whether through a scheduled, optional or
mandatory prepayment) or converted to a Base Rate Loan (including because of Section 2.15)
on a date that is not the last day of the applicable Interest Period or
(c) as a consequence of any failure by the Borrower to repay Eurodollar
Rate Loans when required by the terms hereof. 
For purposes of this clause (a), each Lender shall be deemed
to have funded each Eurodollar Rate Loan made by it using a matching deposit or
other borrowing in the London interbank market.


 


(b)           Increased Costs.  If at any time any Lender or L/C Issuer
determines that, after the date hereof, the adoption of, or any change in or in
the interpretation, application or administration of, or compliance with, any
Requirement of Law (other than any imposition or increase of Eurodollar Reserve
Requirements) from any Governmental Authority shall have the effect of
(i) increasing the cost to such Lender of making, funding or maintaining
any Eurodollar Rate Loan or to agree to do so or of participating, or agreeing
to participate, in extensions of credit, (ii) increasing the cost to such
L/C Issuer of Issuing or maintaining any Letter of Credit or of agreeing to do
so or (iii) imposing any other cost to such Lender or L/C Issuer with
respect to compliance with its obligations under any Loan Document, then, upon
demand by such Lender or L/C Issuer (with copy to the Administrative Agent),
the Borrower shall pay to the Administrative Agent for the account of such
Lender or L/C Issuer amounts sufficient to compensate such Lender or L/C Issuer
for such increased cost.


 


(c)           Increased Capital
Requirements.  If at any
time any Lender or L/C Issuer determines that, after the date hereof, the
adoption of, or any change in or in the interpretation, application or
administration of, or compliance with, any Requirement of Law (other than any
imposition or increase of Eurodollar Reserve Requirements) from any
Governmental Authority regarding capital adequacy, reserves, special deposits,
compulsory loans, insurance charges against property of, deposits with or for
the account of, Obligations owing to, or other credit extended or participated
in by, any Lender or L/C Issuer or any similar requirement (in each case other
than any imposition or increase of Eurodollar Reserve Requirements) shall have
the effect of reducing the rate of return on the capital of such Lender’s or
L/C Issuer (or any corporation controlling such Lender or L/C Issuer) as a
consequence of its obligations under or with respect to any Loan Document or
Letter of Credit to a level below that which, taking into account the capital
adequacy policies of such Lender, L/C Issuer or corporation, such Lender, L/C
Issuer or corporation could have achieved but for such adoption or change,
then, upon demand from time 


 


51

















 


to time by such Lender or L/C Issuer (with a copy of
such demand to the Administrative Agent), the Borrower shall pay to the
Administrative Agent for the account of such Lender amounts sufficient to
compensate such Lender for such reduction.


 


(d)           Compensation Certificate.  Each demand for compensation under this Section 2.16
shall be accompanied by a certificate of the Lender or L/C Issuer claiming such
compensation, setting forth the amounts to be paid hereunder, which certificate
shall be conclusive, binding and final for all purposes, absent manifest
error.  In determining such amount, such
Lender or L/C Issuer may use any reasonable averaging and attribution
methods.  Notwithstanding the foregoing
in this Section 2.16, no Loan Party shall be required to compensate
any Lender or L/C Issuer pursuant to this Section 2.16 for any
amount incurred more than 180 days prior to the deliver of such certificate; provided,
however, that such period shall be extended in the case of a reduction
caused by any event having a retroactive effect to include the period of
retroactive effect).


 


Section 2.17          Taxes.  (a) Payments Free and Clear of Taxes.  Except as otherwise provided in this Section 2.17,
each payment by any Loan Party to, on behalf of, or at the direction of, any
Secured Party under any Loan Document shall be made free and clear of all
present or future taxes, levies, imposts, deductions, charges or withholdings
imposed, levied, collected, assessed or administered by an Governmental
Authority and all liabilities with respect thereto (and without deduction for
any of them) (collectively, but excluding the taxes set forth in clauses (i) and
(ii) below, the “Taxes”) other than for (i) taxes
measured by net income (however denominated, including branch profits taxes)
and franchise taxes imposed in lieu of net income taxes, in each case imposed
on such Secured Party as a result of a present or former connection between
such Secured Party and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein
(other than such connection arising solely from any Secured Party having
executed, delivered or performed its obligations or received a payment under,
or enforced, any Loan Document) or (ii) taxes that are directly
attributable to the failure (other than as a result of a change in any
Requirement of Law) by any Secured Party to deliver the documentation required
to be delivered pursuant to clause (f) below.


 


(b)           Gross-Up.  If any Taxes shall be required by law to be
deducted from or in respect of any amount payable under any Loan Document
(other than any Secured Hedging Agreement) to any Secured Party (i) such
amount shall be increased as necessary to ensure that, after all required
deductions for Taxes are made (including deductions applicable to any increases
to any amount under this Section 2.17), such Secured Party receives
the amount it would have received had no such deductions been made,
(ii) the relevant Loan Party shall make such deductions, (iii) the
relevant Loan Party shall timely pay the full amount deducted to the relevant
taxing authority or other authority in accordance with applicable Requirements
of Law and (iv) within 30 days after such payment is made, the relevant
Loan Party shall deliver to the Administrative Agent an original or certified
copy of a receipt evidencing such payment or other evidence of payment
reasonably satisfactory to the Administrative Agent; provided, however, that no such increase shall be made with respect
to, and no Loan Party shall be required to indemnify any such Secured Party
pursuant to clause (d) below for, (x) withholding taxes
to the extent that the obligation to withhold amounts existed on the date that
such Secured Party became a “Secured Party” under this Agreement in the
capacity under which such Secured Party makes a claim under this clause (b),
designated a new lending office through which it has begun 


 


52

















 


to maintain its Loan(s) and which maintenance
through such office causes such increase or experiences a change in
circumstances (other than a change in a Requirement of Law), except in each case
to the extent such Secured Party is a direct or indirect assignee (other than
pursuant to Section 2.18 (Substitution of Lenders)) of any
other Secured Party that was entitled, at the time the assignment of such other
Secured Party became effective or such Secured Party was entitled at the time
of designation of a new lending office or change in circumstances to receive
additional amounts under this clause (b) or (y) any
United States backup withholding tax to the extent required by Code Section 3406
and the Treasury Regulations promulgated under such section to be withheld from
amounts payable to a Secured Party that is subject to backup withholding due to
the IRS notifying the Administrative Agent or the Borrower of payee
underreporting of reportable interest or dividend payments or that the
furnished taxpayer identification number is incorrect (provided, however, that
the relevant Secured Party shall be given a reasonable period of time to
provide the correct taxpayer identification number before any amounts are
withheld).


 


(c)           Other Taxes.  In addition, the Borrower agrees to pay, and
authorizes the Administrative Agent to pay in its name, any stamp, documentary,
excise or property tax, charges or similar levies imposed by any applicable
Requirement of Law or Governmental Authority and all Liabilities with respect
thereto (including by reason of any delay in payment thereof), in each case
arising from the execution, delivery or registration of, or otherwise with
respect to, any Loan Document or any transaction contemplated therein
(collectively, “Other Taxes”). 
The Swingline Lender may, without any need for notice, demand or consent
from the Borrower, by making funds available to the Administrative Agent in the
amount equal to any such payment, make a Swing Loan to the Borrower in such
amount, the proceeds of which shall be used by the Administrative Agent in
whole to make such payment.  Within 30
days after the date of any payment of Taxes or Other Taxes by any Loan Party,
the Borrower shall furnish to the Administrative Agent, at its address referred
to in Section 11.11, the original or a certified copy of a receipt
evidencing payment thereof or other evidence of payment reasonably satisfactory
to the Administrative Agent.


 


(d)           Indemnification.  The Borrower shall reimburse and indemnify,
within 30 days after receipt of demand therefor (with copy to the
Administrative Agent), each Secured Party for all Taxes and Other Taxes
(including any Taxes and Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.17) paid by such Secured Party and any
Liabilities arising therefrom or with respect thereto, whether or not such
Taxes or Other Taxes were correctly or legally asserted.  A certificate of the Secured Party (or of the
Administrative Agent on behalf of such Secured Party) claiming any compensation
under this clause (d), setting forth the amounts to be paid thereunder and
delivered to the Borrower Representative with copy to the Administrative Agent,
shall be conclusive, binding and final for all purposes, absent manifest
error.  In determining such amount, the
Administrative Agent and such Secured Party may use any reasonable averaging
and attribution methods.  Failure or
delay on the part of any Secured Party to demand indemnification pursuant to
this Section 2.17(d) shall not constitute a waiver of such
Secured Party’s right to demand and receive indemnification from Loan Parties; provided,
however that the Borrower shall not have any obligation to indemnify the
Secured Party for (i) any additional interest related to any Taxes or
Other Taxes to the extent that such additional interest represents interest
accrued for the period beginning 180 days after the date the Secured Party
received written notice of the imposition of such Taxes or Other Taxes and
ending 


 


53

















 


on the date the Secured Party notified the Borrower
or Borrower Representative of the same (to the extent such Secured Party failed
to notify the Borrower or Borrower Representative during such 180-day period)
or (ii) additional penalties to the extent such additional penalties are
incurred as a result of such Secured Party’s failure to notify the Borrower or
Borrower Representative within the 180-day period referred to in the preceding
clause (i).


 


(e)           Mitigation.  Any Lender claiming any additional amounts
payable pursuant to this Section 2.17 shall use its reasonable
efforts (consistent with its internal policies and Requirements of Law) to
change the jurisdiction of its lending office if such a change would reduce any
such additional amounts (or any similar amount that may thereafter accrue) and
would not, in the sole determination of such Lender, be otherwise
disadvantageous to such Lender.


 


(f)            Tax Forms.  (i) Each Non-U.S. Lender Party that, at
any of the following times, is entitled to an exemption from United States
withholding tax or is subject to such withholding tax at a reduced rate under
an applicable tax treaty shall (w) on or prior to the date such Non-U.S.
Lender Party becomes a “Non-U.S. Lender Party” hereunder, (x) on or prior
to the date on which any such form or certification expires or becomes
obsolete, (y) after the occurrence of any event requiring a change in the
most recent form or certification previously delivered by it pursuant to this clause (i) and
(z) from time to time if requested by the Borrower Representative or the
Administrative Agent (or, in the case of a participant or SPV, the relevant
Lender), provide the Administrative Agent and the Borrower Representative (or,
in the case of a participant or SPV, the relevant Lender) with two completed
originals of each of the following, as applicable:  (a) Forms W-8ECI (claiming exemption
from U.S. withholding tax because the income is effectively connected with a
U.S. trade or business), W-8BEN (claiming exemption from, or a reduction of,
U.S. withholding tax under an income tax treaty) or any successor forms,
(b) in the case of a Non-U.S. Lender Party claiming exemption under
Sections 871(h) or 881(c) of the Code, Form W-8BEN
(claiming exemption from U.S. withholding tax under the portfolio interest
exemption) or any successor form and a certificate in form and substance
acceptable to the Administrative Agent that such Non-U.S. Lender Party is not
(1) a “bank” within the meaning of Section 881(c) (3)(a) of
the Code, (2) a “10 percent shareholder” of the Borrower within the
meaning of Section 881(c) (3)(b) of the Code or (3) a “controlled
foreign corporation” described in Section 881(c) (3)(c) of the
Code or (c) any other applicable document prescribed by the IRS certifying
as to the entitlement of such Non-U.S. Lender Party to such exemption from
United States withholding tax or reduced rate with respect to all payments to
be made to such Non-U.S. Lender Party under the Loan Documents.  For the avoidance of doubt, the foregoing
sentence shall not be construed to require any Non-U.S. Lender Party to provide
a form that it is not legally entitled to provide.  Unless the Borrower Representative and the
Administrative Agent have received forms or other documents satisfactory to
them indicating that payments under any Loan Document to or for a Non-U.S.
Lender Party are not subject to United States withholding tax or are subject to
such tax at a rate reduced by an applicable tax treaty, the Loan Parties and
the Administrative Agent shall withhold amounts required to be withheld by
applicable Requirements of Law from such payments at the applicable statutory
rate.  In addition, to the extent
requested by the Borrower, each Non-U.S. Lender Party shall take any reasonable
action permissible under the laws applicable to such Non-U.S. Lender Party to
comply with any information gathering or reporting requirements, in each case,
that are required to obtain the maximum permitted exemption from U.S. federal
withholding taxes available under 


 


54

















 


Sections 1471 through 1474 of the Code and any
regulations or official interpretations thereof with respect to withholdable
payments received by or on behalf of such Non-U.S. Lender Party (for the
avoidance of doubt, this sentence shall apply only to the extent that any
withholding is required under Sections 1471 through 1474 of the Code in respect
of such payments).


 


(i)            Each U.S. Lender Party shall
(A) on or prior to the date such U.S. Lender Party becomes a “U.S. Lender
Party” hereunder, (B) on or prior to the date on which any such form or
certification expires or becomes obsolete, (C) after the occurrence of any
event requiring a change in the most recent form or certification previously
delivered by it pursuant to this clause (f) and (D) from
time to time if requested by the Borrower Representative or the Administrative
Agent (or, in the case of a participant or SPV, the relevant Lender), provide
the Administrative Agent and the Borrower Representative (or, in the case of a
participant or SPV, the relevant Lender) with two completed originals of Form W-9
(certifying that such U.S. Lender Party is entitled to an exemption from U.S.
backup withholding tax) or any successor form.


 


(ii)           Each Lender having sold a
participation in any of its Obligations or identified an SPV as such to the
Administrative Agent shall collect from such participant or SPV the documents
described in this clause (f) and provide them to the
Administrative Agent.


 


(g)           If a Secured Party
determines, in its sole discretion, that it has received a refund of any Taxes
as to which it has been indemnified by any Loan Party or with respect to which
any Loan Party has paid additional amounts pursuant to this Section, it shall
pay over such refund to such Loan Party (but only to the extent of indemnity
payments made, or additional amounts paid, by any Loan Party under this Section with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expense of such Secured Party and without interest (other than
interest paid by the relevant Governmental Authority with respect to the
portion of such refund payable to such Loan Party); provided, that Loan Parties,
upon the request of such Secured Party, agree to repay to such Secured Party
the amount paid over to the Loan Parties (plus any penalties, interest or other
charges imposed by the relevant Governmental Authority) in the event such
Secured Party is required to repay such refund to such Governmental
Authority.  This clause (g) shall
not be construed to require any Secured Party to make available or otherwise
disclose any confidential information or documentation (including, without
limitation, any tax returns) to any Person (including any party hereto) or
otherwise make any accounting of or with respect to any tax refund to any
Person.


 


Section 2.18          Substitution of Lenders.  (a) Substitution Right.  In the event that any Lender in any Facility
that is not an Affiliate of the Administrative Agent (an “Affected Lender”),
(i) makes a claim under clause (b) (Increased Costs)
or (c) (Increased Capital Requirements) of Section 2.16,
(ii) notifies the Borrower Representative pursuant to Section 2.15(b) (Illegality)
that it becomes illegal for such Lender to continue to fund or make any
Eurodollar Rate Loan in such Facility, (iii) makes a claim for payment
pursuant to Section 2.17(b) (Taxes), (iv) becomes
a Non-Funding Lender or Impacted Lender with respect to such Facility or
(v) does not consent to any amendment, waiver or consent to any Loan
Document for which the consent of the Required Lenders is obtained but that
requires the consent of other Lenders in such Facility, the Borrower may either
pay in full such Affected


 


55






 










 


Lender with respect to amounts due in such Facility
with the consent of the Administrative Agent or substitute for such Affected
Lender in such Facility any Lender or any Affiliate or Approved Fund of any
Lender or any other Person acceptable (which acceptance shall not be
unreasonably withheld or delayed) to the Administrative Agent (in each case, a “Substitute
Lender”).  Notwithstanding the
foregoing, with respect to a Lender that is a Non-Funding Lender or an Impacted
Lender, the Administrative Agent may, but shall not be obligated to, obtain a
Substitute Lender and execute an Assignment on behalf of such Non-Funding
Lender or Impacted Lender at any time with three Business’ Days prior notice to
such Non-Funding Lender or Impacted Lender (unless notice is not practicable
under the circumstances) and cause such Lender’s Loans and Commitments to be
sold and assigned, in whole or in part, at par.


 


(b)           Procedure.  To substitute such Affected Lender or pay in
full the Obligations owed to such Affected Lender under such Facility, the
Borrower Representative shall deliver a notice to the Administrative Agent and
such Affected Lender.  The effectiveness
of such payment or substitution shall be subject to the delivery to the Administrative
Agent by the Borrower (or, as may be applicable in the case of a substitution,
by the Substitute Lender) of (i) payment for the account of such Affected
Lender, of, to the extent accrued through, and outstanding on, the effective
date for such payment or substitution, all Obligations owing to such Affected
Lender with respect to such Facility (including those that will be owed because
of such payment and all Obligations that would be owed to such Lender if it was
solely a Lender in such Facility), (ii) in the case of a payment in full
of the Obligations owing to such Affected Lender in the Revolving Credit
Facility, payment of any amount that, after giving effect to the termination of
the Commitment of such Affected Lender, is required to be paid pursuant to Section 2.8(e) (Excess
Outstandings) and (iii) in the case of a substitution,
(A) payment of the assignment fee set forth in Section 11.2(c) and
(B) an assumption agreement in form and substance satisfactory to the
Administrative Agent whereby the Substitute Lender shall, among other things,
agree to be bound by the terms of the Loan Documents and assume the Commitment
of the Affected Lender under such Facility.


 


(c)           Effectiveness.  Upon satisfaction of the conditions set forth
in clause (b) above, the Administrative Agent shall record
such substitution or payment in the Register, whereupon (i) in the case of
any payment in full in any Facility, such Affected Lender’s Commitments in such
Facility shall be terminated and (ii) in the case of any substitution in
any Facility, (A) the Affected Lender shall sell and be relieved of, and
the Substitute Lender shall purchase and assume, all rights and claims of such
Affected Lender under the Loan Documents with respect to such Facility, except
that the Affected Lender shall retain such rights expressly providing that they
survive the repayment of the Obligations and the termination of the
Commitments, (B) the Substitute Lender shall become a “Lender”
hereunder having a Commitment in such Facility in the amount of such Affected
Lender’s Commitment in such Facility and (C) the Affected Lender shall
execute and deliver to the Administrative Agent an Assignment to evidence such
substitution and deliver any Note in its possession with respect to such
Facility; provided, however, that the
failure of any Affected Lender to execute any such Assignment or deliver any
such Note shall not render such sale and purchase (or the corresponding
assignment) invalid.  Each Lender agrees
that if the Borrower or the Administrative Agent exercises its option hereunder
to cause an assignment by such Lender as an Affected Lender, such Lender shall,
promptly after receipt of written notice of such election, execute and deliver
all documentation necessary to effectuate such assignment in accordance 


 


56

















 


with Section 11.2.  In the event that a Lender does not comply
with the requirements of the immediately preceding sentence within one Business
Day after receipt of such notice, each Lender hereby authorizes and directs the
Administrative Agent, and hereby grants to the Administrative Agent an
irrevocable power of attorney (which power is coupled with an interest) to
execute and deliver, on behalf of such Lender as assignor, any assignment
agreement or other documentation as may be required to give effect to an
assignment in accordance with Section 11.2 on behalf of an Affected Lender
and any such documentation so executed by the Administrative Agent shall be
effective for purposes of documenting an assignment pursuant to
Section 11.2.


 


Section 2.19          Appointment of Borrower
Representative.


 


(a)           Each Borrower hereby
irrevocably appoints and constitutes the Borrower Representative as its agent
to request and receive the proceeds of advances in respect of the Loans (and to
otherwise act on behalf of such Borrower pursuant to this Agreement and the
other Loan Documents) from Lenders in the name or on behalf of each such
Borrower.  Administrative Agent may
disburse such proceeds to the bank account of Borrower Representative (or any
one or more Borrower) without notice to any other Borrower or any other Loan
Party.


 


(b)           Each Loan Party hereby
irrevocably appoints and constitutes the Borrower Representative as its agent
to (i) receive statements of account and all other notices from
Administrative Agent with respect to the Obligations or otherwise under or in
connection with this Agreement and the other Loan Documents, (ii) execute
and deliver Compliance Certificates and all other notices, certificates and
documents to be executed and/or delivered by any Loan Party under this
Agreement or the other Loan Documents; and (iii) otherwise act on behalf
of such Loan Party pursuant to this Agreement and the other Loan Documents.


 


(c)           The authorizations contained
in this Section 2.19 are coupled with an interest and shall be
irrevocable, and Administrative Agent may rely on any notice, request,
information supplied by the Borrower Representative, every document executed by
the Borrower Representative, every agreement made by the Borrower Representative
or other action taken by the Borrower Representative in respect of any Borrower
or other Loan Party as if the same were supplied, made or taken by such
Borrower or Loan Party.  Without limiting
the generality of the foregoing, the failure of one or more Borrower or other
Loan Party to join in the execution of any writing in connection herewith shall
not relieve any Borrower or other Loan Party from obligations in respect of
such writing.


 


(d)           No purported termination of
the appointment of Borrower Representative as agent shall be effective without
the prior written consent of Administrative Agent.


 


Section 2.20          Joint and Several Liability.


 


(a)           Each Borrower shall be
jointly and severally liable for all of the Obligations of each other Borrower
under this Agreement, regardless of which Borrower actually receives the
proceeds or other benefits of the Loans or other extensions of credit hereunder
or the manner in which Borrower, Administrative Agent or any Lender accounts
therefor in their respective books and records.


 


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(b)           Each Borrower acknowledges
that it will enjoy significant benefits from the business conducted by each
other Borrower because of, inter alia,
their combined ability to bargain with other Persons including without
limitation their ability to receive the Loans and other credit extensions under
this Agreement and the other Loan Documents which would not have been available
to any Borrower acting alone.  Each
Borrower has determined that it is in its best interest to procure the credit
facilities contemplated hereunder, with the credit support of each other
Borrower as contemplated by this Agreement and the other Loan Documents.


 


(c)           Each of the Agent and the
Lenders have advised Borrowers that it is unwilling to enter into this
Agreement and the other Loan Documents and make available the credit facilities
extended hereby or thereby to any Borrower unless each Borrower agrees, among
other things, to be jointly and severally liable for the due and proper payment
of the Obligations of each other Borrower under this Agreement and the other
Loan Documents.  Each Borrower has
determined that it is in its best interest and in pursuit of its purposes that
it so induce the Lenders to extend credit pursuant to this Agreement and the
other documents executed in connection herewith (A) because of the
desirability to each Borrower of the credit facilities hereunder and the
interest rates and the modes of borrowing available hereunder and thereunder, (B) because
each Borrower may engage in transactions jointly with other Borrowers and
(C) because each Borrower may require, from time to time, access to funds
under this Agreement for the purposes herein set forth.  Each Borrower, individually, expressly understands,
agrees and acknowledges, that the credit facilities contemplated hereunder
would not be made available on the terms herein in the absence of the
collective credit of all the Borrowers, and the joint and several liability of
all the Borrowers.  Accordingly, each
Borrower acknowledges that the benefit of the accommodations made under this
Agreement to the Borrower, as a whole, constitutes reasonably equivalent value,
regardless of the amount of the indebtedness actually borrowed by, advanced to,
or the amount of credit provided to, or the amount of collateral provided by,
any one Borrower.


 


(d)           The Borrower Representative
(on behalf of each Borrower) shall maintain records specifying (A) all
Obligations incurred by each Borrower, (B) the date of such incurrence,
(C) the date and amount of any payments made in respect of such
Obligations and (D) all inter-Borrower obligations pursuant to this
Section.  The Borrower Representative
shall make copies of such records available to the Agent, upon request.


 


(e)           To the extent that
applicable law otherwise would render the full amount of the joint and several
obligations of any Borrower hereunder and under the other Loan Documents
invalid or unenforceable, such Person’s obligations hereunder and under the other
Loan Documents shall be limited to the maximum amount which does not result in
such invalidity or unenforceability; provided, however, that each
Borrower’s obligations hereunder and under the other Loan Documents shall be
presumptively valid and enforceable to their fullest extent in accordance with
the terms hereof or thereof, as if this Section were not a part of this
Agreement.


 


(f)            To the extent that any
Borrower shall make a payment under this Section of all or any of the
Obligations (a “Joint Liability Payment”) which, taking into account all
other Joint Liability Payments then previously or concurrently made by any
other Borrower, exceeds the amount that such Borrower would otherwise have paid
if each Borrower had paid the 


 


58

















 


aggregate Obligations satisfied by such Joint
Liability Payments in the same proportion that such Person’s “Allocable Amount”
(as defined below) (as determined immediately prior to such Joint Liability
Payments) bore to the aggregate Allocable Amounts of each Borrower as
determined immediately prior to the making of such Joint Liability Payments,
then, following indefeasible payment in full in cash of the Obligations and
termination of the Commitments, such Borrower shall be entitled to receive
contribution and indemnification payments from, and be reimbursed by, each
other Borrower for the amount of such excess, pro
rata based upon their respective Allocable Amounts in effect
immediately prior to such Joint Liability Payments.  As of any date of determination, the “Allocable
Amount” of any Borrower shall be equal to the maximum amount of the claim which
could then be recovered from such Borrower under this Section without
rendering such claim voidable or avoidable under §548 of Chapter 11 of the
Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act,
Uniform Fraudulent Conveyance Act or similar statute or common law.


 


(g)           Each Borrower assumes
responsibility for keeping itself informed of the financial condition of each
other Borrower, and any and all endorsers and/or guarantors of any instrument
or document evidencing all or any part of such other Borrower’s Obligations,
and of all other circumstances bearing upon the risk of nonpayment by such
other Borrower of their Obligations and each Borrower agrees that
Administrative Agent nor any Lender shall not have any duty to advise such
Borrower of information known to Administrative Agent or any Lender regarding
such condition or any such circumstances or to undertake any investigation not
a part of its regular business routine. 
If Administrative Agent or any Lender, in its sole discretion,
undertakes at any time or from time to time to provide any such information to
a Borrower, Administrative Agent nor any Lender shall be under any obligation
to update any such information or to provide any such information to such
Borrower or any other Person on any subsequent occasion.


 


(h)           Administrative Agent is
hereby authorized, without notice or demand and without affecting the liability
of any Borrower hereunder, to, at any time and from time to time,
(A) renew, extend, accelerate or otherwise change the time for payment of,
or other terms relating to, Obligations incurred by any Borrower or other Loan
Party, otherwise modify, amend or change the terms of any promissory note or
other agreement, document or instrument now or hereafter executed by any
Borrower or other Loan Party and delivered to Administrative Agent or any
Lender; (B) accept partial payments on an Obligation incurred by any
Borrower; (C) take and hold security or collateral for the payment of an
Obligation incurred by any Borrower hereunder or for the payment of any
guaranties of an Obligation incurred by any Borrower or other liabilities of
any Borrower and exchange, enforce, waive and release any such security or
collateral; (D) apply such security or collateral and direct the order or
manner of sale thereof as Administrative Agent, in it’s sole respective
discretion, may determine; and (E) settle, release, compromise, collect or
otherwise liquidate an Obligation incurred by any Borrower and any security or
collateral therefor in any manner, without affecting or impairing the
obligations of any other Borrower.  Administrative
Agent shall have the exclusive right to determine the time and manner of
application of any payments or credits, whether received from a Borrower or any
other source, and such determination shall be binding on each Borrower.  All such payments and credits may be applied,
reversed and reapplied, in whole or in part, to any of an Obligation incurred
by any Borrower as Administrative Agent shall determine in it’s respective sole
discretion without affecting the validity or enforceability of the Obligations
of any other 


 


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Borrower. 
Nothing in this Section 2.20(h) shall modify any right
of any Borrower to consent to any amendment or modification of this Agreement
in accordance with the terms hereof.


 


(i)            Each Borrower hereby agrees
that, except as hereinafter provided, its obligations hereunder shall be
unconditional, irrespective of (A) the absence of any attempt to collect
an Obligation incurred by Borrower from any Borrower or any guarantor or other
action to enforce the same; (B) the waiver or consent by Administrative
Agent with respect to any provision of any instrument evidencing an Obligation
incurred by Borrower, or any part thereof, or any other agreement heretofore,
now or hereafter executed by a Borrower and delivered to Administrative Agent;
(C) failure by Administrative Agent to take any steps to perfect and
maintain its security interest in, or to preserve its rights to, any security
or collateral for an Obligation incurred by any Borrower; (D) the
institution of any proceeding under the Bankruptcy Code, or any similar
proceeding, by or against any Borrower or other Loan Party, Administrative
Agent’s or any Lender’s election in any such proceeding of the application of
§1111(b)(2) of the Bankruptcy Code; (E) any borrowing or grant of a
security interest by any Borrower as debtor-in-possession under §364 of the
Bankruptcy Code; (F) the disallowance, under §502 of the Bankruptcy Code,
of all or any portion of Administrative Agent’s or any Lender’s claim(s) for
repayment of any of an Obligation incurred by any Borrower; or (G) any
other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor.


 


(j)            Any notice given by Borrower
Representative hereunder shall constitute and be deemed to be notice given by
all Borrowers, jointly and severally. 
Notice given by Administrative Agent or any Lender to Borrower
Representative hereunder or pursuant to any other Loan Documents in accordance
with the terms hereof or thereof shall constitute notice each Borrower.  The knowledge of any Borrower shall be
imputed to all Borrowers and any consent by Borrower Representative or any
Borrower shall constitute the consent of and shall bind all Borrowers.


 


(k)           This Section is
intended only to define the relative rights of Borrower and nothing set forth
in this Section is intended to or shall impair the obligations of
Borrower, jointly and severally, to pay any amounts as and when the same shall
become due and payable in accordance with the terms of this Agreement or any
other Loan Documents.  Nothing contained
in this Section shall limit the liability of any Borrower to pay the
credit facilities made directly or indirectly to such Borrower and accrued
interest, fees and expenses with respect thereto for which such Borrower shall
be primarily liable.


 


(l)            The parties hereto
acknowledge that the rights of contribution and indemnification hereunder shall
constitute assets of each Borrower to which such contribution and
indemnification is owing.  The rights of
any indemnifying Borrower against the other Borrowers under this
Section shall be exercisable upon the full and indefeasible payment of the
Obligations and the termination of the Commitments.


 


(m)          No payment made by or for
the account of a Borrower, including, without limitation, (A) a payment
made by such Borrower on behalf of an Obligation of another Borrower or
(B) a payment made by any other person under any guaranty, shall entitle
such Borrower, by subrogation or otherwise, to any payment from such other
Borrower or from or out of property of such other Borrower and such Borrower
shall not exercise any right or remedy 


 


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against such other Borrower or any property of such
other Borrower by reason of any performance of such Borrower of its joint and
several obligations hereunder.


 


Section 2.21          Revolving Credit Commitment
Increase.


 


(a)           Request for Commitment
Increase.  Provided
(i) no Default or Event of Default exists, (ii) after giving effect
to the making of the additional loans referred to below, Borrower would be in
compliance on a pro forma basis with the covenants set forth in Article 5,
and (iii) such proposed increase is permitted pursuant to the terms of the
Indenture, Borrower may, with the prior consent of the Administrative Agent
(which consent may be granted or withheld in its sole discretion) and upon
providing notice from Borrower Representative to the Administrative Agent at
any time following the Closing Date request one or more increases in the amount
of the Revolving Credit Commitments to be made available to Borrower (each such
increase a “Revolving Credit Commitment Increase”).  Notwithstanding anything to the contrary
herein, each Revolving Credit Commitment Increase shall be in an integral multiple
of $1,000,000 and in an aggregate principal amount not less than $1,000,000.


 


(b)           Additional Lenders.  At the time of such notice, Borrower (in
consultation with Administrative Agent) shall specify the time period within
which each Lender is requested to respond in writing (which shall, in no event,
be less than ten (10) Business Days from the date of delivery of such
notice to Lenders).  No Lender shall be
obligated to participate in any Revolving Credit Commitment Increase unless it
so agrees.  Each Lender may participate
in any Revolving Credit Commitment Increase up to its Pro Rata Share of such
Revolving Credit Commitment Increase or any portion thereof.  If the proposed Revolving Credit Commitment
Increase is not fully committed by the Lenders, any Lender that has agreed to
participate in such Revolving Credit Commitment Increase may agree in writing
to increase its participation in the Revolving Credit Commitment Increase up to
the excess of the proposed Revolving Credit Commitment Increase over the
aggregate amount of pro rata commitments received from Lenders; provided that
if the excess of the proposed Revolving Credit Commitment Increase over the
aggregate amount of pro rata commitments received from Lenders is
oversubscribed, each Lender electing to participate in such excess amount may
participate up to its Pro Rata Share of such excess amount.   To the extent any portion of such Revolving
Credit Commitment Increase, as the case may be, is not fully subscribed by
existing Lenders, Borrower or Administrative Agent may invite additional banks,
financial institutions and other institutional lenders reasonably acceptable to
Administrative Agent to become Lenders. 
Any additional financial institution (each an “Additional Lender”
and, together with any Lender that agrees to participate in a Revolving Credit
Commitment Increase, each a “Participating Lender” and collectively “Participating
Lenders”) electing to participate in a Revolving Credit Commitment Increase
shall become a Lender hereunder.  A commitment
in respect of a Revolving Credit Commitment Increase shall become a Revolving
Credit Commitment (or in the case of a Revolving Credit Commitment Increase to
be provided by an existing Revolving Lender, an increase in such Revolving
Lender’s Revolving Credit Commitment) under this Agreement.


 


(c)           Terms of Revolving Credit
Commitment Increase.  Other than
pricing, each Revolving Credit Commitment Increase and Borrowing thereunder
shall be under the same terms as Revolving Loans in respect of Revolving Credit
Commitments existing prior to the Revolving Credit Commitment Increase.  Notwithstanding the foregoing, unless
otherwise 


 


61

















 


consented to by Borrower, Administrative Agent, and
Lenders (including Participating Lenders), the Loans made under a Revolving
Credit Commitment Increase shall bear interest at an interest rate no less than
the interest rate then applicable to the Revolving Loans so funded and no more
than fifty (50) basis points greater than the interest rate then
applicable to Revolving Loans.  If Loans
made under a Revolving Credit Commitment Increase shall bear interest at an
interest rate greater than the interest rate then applicable to Revolving
Loans, then the interest rate with respect to the then existing Revolving
Loans, as applicable, shall be increased to the same interest rate as is
applicable to the Revolving Loans, respectively, made under such Revolving
Credit Commitment Increase.   In addition,
but without limiting the foregoing, (i) except as provided in the
following sentence the percentage of all fees or original issue discounts
payable to any Participating Lender on any Revolving Credit Commitment Increase
(other than compensation to arrangers or their Affiliates for arranging or
underwriting such Revolving Credit Commitment Increase) shall not exceed the
percentage of the upfront fees paid to any existing Lender on the outstanding
Revolving Loans by more than two hundred (200) basis points and (ii) each
component utilized in determining the pricing with respect thereto shall be the
same as the Revolving Loans including, without limitation, the definitions of “Base
Rate” and “LIBOR.”  If the percentage of
fees or original issue discounts payable to any Participating Lender on account
of such Participating Lender’s participation in any Revolving Credit Commitment
Increase (other than compensation to arrangers or their Affiliates for
arranging or underwriting such Revolving Credit Commitment Increase) exceeds
the percentage of the upfront fees paid to any Lender on the Closing Date on
account of such Lender’s Revolving Credit Commitment on the Closing Date by
more than two hundred (200) basis points, then each Lender that was a Lender on
the Closing Date (including a Lender that is not a Participating Lender) shall
receive additional fees with respect to its Revolving Credit Commitment equal
to the percentage of fees or original issue discounts paid to such
Participating Lender on account of such Participating Lender’s participation in
such Revolving Credit Commitment Increase less two hundred (200) basis
points.


 


(d)           Modifications to Agreement.  Administrative Agent and Borrower shall
determine the effective date (the “Commitment Increase Effective Date”)
of each Revolving Credit Commitment Increase and the final allocation.  Each Participating Lender shall make its
share of the Revolving Credit Commitment Increase available under this
Agreement pursuant to an amendment (a “Commitment Increase Amendment”)
to this Agreement and the other Financing Documents, as applicable, giving
effect to the modifications permitted by this Section 2.22,
executed by the Loan Parties, each Participating Lender and Administrative
Agent.  Subject to the rights of Lenders
pursuant to Section 11.1 hereof, a Commitment Increase Amendment
may, without the consent of any other Lender, amend such provisions of this
Agreement and the other Financing Documents solely (but only to the extent) as
may be necessary or appropriate, in the opinion of Administrative Agent, to
effect the provisions of this Section 2.22, (including appropriate
amendments to the definitions) required to afford the same treatment to such
Revolving Credit Commitment Increase as is applicable to the Revolving Credit
Commitments under the Agreement.


 


(e)           Other Documents.  As a condition precedent to any Revolving
Credit Commitment Increase, Borrower shall deliver to Administrative Agent a
certificate, executed by a Responsible Officer of Borrower Representative,
certifying that such proposed increase is 


 


62

















 


permitted pursuant to the terms of the Indenture,
together with such documents, opinions and certifications as Administrative
Agent may reasonably request.


 


(f)            Adjustment of Revolving Loans.  Each Revolving Lender having a Revolving
Credit Commitment prior to such Commitment Increase Effective Date shall, on
such date, assign to each Revolving Lender and Additional Lender participating
in such Revolving Credit Commitment Increase, in consideration of the principal
amount thereof, such interests in the Revolving Loans, Lender Letters of Credit
and Swingline Loans outstanding on such date as shall be necessary in order
that, after giving effect to all such assignments and purchases, such Revolving
Loans, participation interests in Lender Letters of Credit and Swingline Loans
will be held by all Revolving Lenders (inclusive of Additional Lenders) ratably
in accordance with their Revolving Credit Commitments after giving effect to
such Revolving Credit Commitment Increase.


 


ARTICLE 3


CONDITIONS TO LOANS AND
LETTERS OF CREDIT


 


Section 3.1            Conditions Precedent to
Initial Loans and Letters of Credit.  The obligation of each Lender enter into this
Agreement and the other Loan Documents and to make its initial Loans and the
obligation of each L/C Issuer to Issue an initial Letter of Credit is subject
to the satisfaction or due waiver of each of the following conditions precedent
on or before May 13, 2010:


 


(a)           Certain Documents.  The Administrative Agent shall have received
on or prior to the Closing Date each of the following, each dated the Closing
Date unless otherwise agreed by the Administrative Agent and the Lenders party
to this Agreement on the Closing Date, in form and substance satisfactory to the
Administrative Agent and each Lender:


 


(i)            this Agreement duly executed
by Holdings and the Borrower and, for the account of each Lender having
requested the same by notice to the Administrative Agent and the Borrower
received by each at least 3 Business Days prior to the Closing Date (or such
later date as may be agreed by the Borrower), Notes in each applicable Facility
conforming to the requirements set forth in Section 2.14(e);


 


(ii)           the Guaranty and Security
Agreement, duly executed by each Borrower and Guarantor, together with
(A) copies of UCC, Intellectual Property and other appropriate search
reports and of all effective prior filings listed therein, together with
evidence of the termination of such prior filings and other documents with
respect to the priority of the security interest of the Administrative Agent in
the Collateral, in each case as may be reasonably requested by the
Administrative Agent, (B) all documents representing all Securities being
pledged pursuant to such Guaranty and Security Agreement and related undated
powers or endorsements duly executed in blank and (C) all Control
Agreements that, in the reasonable judgment of the Administrative Agent, are
required for the Loan Parties to comply with the Loan Documents as of the Closing
Date, each duly executed by, in addition to the applicable Loan Party, the
applicable financial institution;


 


63

















 


(iii)          duly executed favorable
opinions of counsel to the Loan Parties in New York and California, each
addressed to the Administrative Agent, the L/C Issuers and the Lenders and
addressing such matters as the Administrative Agent may reasonably request;


 


(iv)          a copy of each Constituent
Document of each Loan Party that is on file with any Governmental Authority in
any jurisdiction, certified as of a recent date by such Governmental Authority,
together with, if applicable, certificates attesting to the good standing of
such Loan Party in such jurisdiction and each other jurisdiction where such Loan
Party is qualified to do business as a foreign entity or where such
qualification is necessary (and, if appropriate in any such jurisdiction,
related tax certificates);


 


(v)           a certificate of the
secretary or other officer of each Loan Party in charge of maintaining books
and records of such Loan Party certifying as to (A) the names and
signatures of each officer of such Loan Party authorized to execute and deliver
any Loan Document, (B) the Constituent Documents of such Loan Party
attached to such certificate are complete and correct copies of such
Constituent Documents as in effect on the date of such certification (or, for
any such Constituent Document delivered pursuant to clause (iv) above,
that there have been no changes from such Constituent Document so delivered)
and (C) the resolutions of such Loan Party’s board of directors or other
appropriate governing body approving and authorizing the execution, delivery
and performance of each Loan Document to which such Loan Party is a party;


 


(vi)          one or more certificates of
a Responsible Officer of the Borrower to the effect that (A) each
condition set forth in Section 3.1(n) has been satisfied,
(B) both the Loan Parties taken as a whole and Oncure, individually, are
Solvent after giving effect to the initial Loans and Letters of Credit, the
consummation of the Related Transactions, the application of the proceeds
thereof in accordance with Section 7.9 (or in the case of the
proceeds of the Second Lien Notes, in accordance with Sections 3.1(e) and
(f)) and the payment of all estimated legal, accounting and other fees
and expenses related hereto and thereto and (C) attached thereto are
complete and correct copies of each Related Document (other than the payoff
letter for the Existing Credit Agreement and the Existing Note Purchase
Agreement) in each case, including schedules and exhibits thereto and together
with all amendments, modifications, supplements and waivers thereto along with
the Intercreditor Agreement, in form and substance satisfactory to the Administrative
Agent with respect to the Second Lien Notes;


 


(vii)         insurance certificates in
form and substance reasonably satisfactory to the Administrative Agent
demonstrating that the insurance policies required by Section 7.5
are in full force and effect and have all endorsements required by such Section 7.5;


 


(viii)        duly executed Second Lien
Intercreditor Agreement, in form and substance acceptable to Administrative
Agent; and


 


(ix)           such other documents and
information as any Lender through the Administrative Agent may reasonably
request.


 


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(b)           Fee and Expenses.  There shall have been paid to the
Administrative Agent, for the account of the Administrative Agent, its Related
Persons, any L/C Issuer or any Lender, as the case may be, all fees and all
reimbursements of costs or expenses, in each case due and payable under any
Loan Document on or before the Closing Date.


 


(c)           Consents.  Each Loan Party shall have received all
consents and authorizations required pursuant to any material Contractual
Obligation with any other Person and shall have obtained all Permits of, and
effected all notices to and filings with, any Governmental Authority, in each
case, as may be necessary in connection with the consummation of the
transactions contemplated in any Loan Document or Related Document (including
the Related Transactions).


 


(d)           Second Lien Notes.  Receipt by the Administrative Agent of a
certificate of the Borrower Representative’s chief financial officer certifying
that Holdings shall have received gross proceeds of at least $210,000,000 in
consideration of the issuance by it of the Second Lien Notes, upon terms,
conditions and documentation reasonably satisfactory to the Administrative
Agent.


 


(e)           Termination of Existing
Credit Agreement.  Receipt by
the Administrative Agent of evidence that the loans and other obligations under
the Existing Credit Agreement have been repaid in full with the proceeds of the
Second Lien Notes on the Closing Date and the commitments thereunder have been
terminated and all Liens associated therewith have been released or otherwise
terminated.


 


(f)            Termination of Existing Note
Purchase Agreement.  Receipt by
the Administrative Agent of evidence that the loans and other obligations under
the Existing Note Purchase Agreement have been repaid in full with the proceeds
of the Second Lien Notes on the Closing Date.


 


(g)           Capital; Equity and Second
Lien Notes Structure. 
Administrative Agent shall be reasonably satisfied with the corporate
and capital structure of Holdings, each Borrower and any other Guarantor and
their respective Subsidiaries and all legal and tax aspects relating thereto.


 


(h)           Ratings.  The corporate credit rating or corporate
family rating, respectively, of Borrower shall be at least B by S&P and at
least B2 by Moody’s.


 


(i)            No Material Adverse Change.  There shall not have occurred since
December 31, 2009 any developments or events which individually or in the
aggregate with other such circumstances has had or could reasonably be expected
to have a Material Adverse Effect.


 


(j)            No Litigation.  There exists no pending or threatened
Proceeding against any Loan Party or any of their respective Affiliates or
respective assets in any court or administrative forum other than that which
would not, in the aggregate, have a Material Adverse Effect.


 


65






 


 










 


(k)           Financial Statements;
Projections.  Receipt by
the Administrative Agent of, each to the satisfaction of Administrative Agent:


 


(i)            Pro forma estimated balance
sheet of Holdings and its Subsidiaries at the Closing Date after giving effect
to the issuance of the Second Lien Notes an all other transactions expected to
be consummated on or prior to the Closing Date;


 


(ii)           reasonably satisfactory
projections through December 31, 2015; and


 


(iii)          such other information as
the Administrative Agent may reasonably request.


 


(l)            Management Services
Agreement. 
Administrative Agent shall have received collateral assignments of each
Management Services Agreement and such other documents reasonably request to
ensure Administrative Agent has a first-priority perfected lien on the PC
Collateral.


 


(m)          Representations and
Warranties; No Defaults.  The
following statements shall be true on Closing Date:  (i) the representations and warranties
set forth in any Loan Document shall be true and correct in all respects on and
as of the Closing Date and (ii) no Default shall be continuing.


 


(n)           Other.  Receipt by the Administrative Agent and the
Lenders of such other documents, instruments, agreements and information as
reasonably requested by the Administrative Agent or any Lender, including, but
not limited to, information regarding litigation, tax, accounting, labor,
insurance, pension liabilities (actual or contingent), real estate leases,
environmental matters, material contracts, debt agreements, property ownership,
contingent liabilities, employment agreements, non-compete agreements and
management of the Loan Parties and their Subsidiaries.


 


Section 3.2            Conditions Precedent to Each
Loan and Letter of Credit.  The
obligation of each Lender on any date to make any Loan and of each L/C Issuer
on any date to Issue any Letter of Credit is subject to the satisfaction of
each of the following conditions precedent:


 


(a)           Request.  The Administrative Agent (and, in the case of
any Issuance, the relevant L/C Issuer) shall have received, to the extent
required by Article 2, a written, timely and duly executed and
completed Notice of Borrowing, Swingline Request or, as the case may be, L/C
Request.


 


(b)           Representations and
Warranties; No Defaults.  The
following statements shall be true on such date, both before and after giving
effect to such Loan or, as applicable, such Issuance:  (i) the representations and warranties
set forth in any Loan Document shall be true and correct in all material respects
(but in all respects if such representation or warranty is qualified by “material”
or “Material Adverse Effect”) on and as of such date or, to the extent such
representations and warranties expressly relate to an earlier date, on and as
of such earlier date and (ii) no Default shall be continuing.


 


66

















 


(c)           Consolidated Fixed Charge
Ratio.  The Borrower shall demonstrate
to the Administrative Agent’s satisfaction that the Consolidated Fixed Charge
Coverage Ratio (recomputed for the last month for which financial statements
are available but without giving effect to the funding of such Loan or the
issuance of such Letter of Credit) for Holdings is at least 1.00 to 1.00.


 


(d)           Maximum First Lien Principal
Amount.  The Borrower shall demonstrate
to the Administrative Agent’s satisfaction that, after giving effect to the
funding of such Loan or the issuance of such Letter of Credit, the Revolving
Credit Outstandings and the outstanding principal amount of any other [“First
Lien Obligations”] and [“First Lien Letter of Credit Obligations”]
as such terms are defined in the Intercreditor Agreement, collectively, do not
exceed the amount set forth in, and calculated in accordance with, clause (a) of
the definition of [“Maximum First Lien Principal Amount”] in the
Intercreditor Agreement.


 


(e)           Additional Matters.  The Administrative Agent shall have received
such additional documents and information as any Lender, through the
Administrative Agent, may reasonably request.


 


The
representations and warranties set forth in any Notice of Borrowing, Swingline
Request or L/C Request (or any certificate delivered in connection therewith)
shall be deemed to be made again on and as of the date of the relevant Loan or
Issuance and the acceptance of the proceeds thereof or of the delivery of the
relevant Letter of Credit.


 


Section 3.3            Determinations of Initial
Borrowing Conditions.  For
purposes of determining compliance with the conditions specified in
Section 3.1, each Lender shall be deemed to be satisfied with each document
and each other matter required to be satisfactory to such Lender unless, prior
to the Closing Date, the Administrative Agent receives notice from such Lender
specifying such Lender’s objections and such Lender has not made available its
Pro Rata Share of any Borrowing scheduled to be made on the Closing Date.


 


ARTICLE 4


REPRESENTATIONS AND
WARRANTIES


 


To
induce the Lenders, the L/C Issuers and the Administrative Agent to enter into
the Loan Documents, each of Holdings and the Borrower (and, to the extent set
forth in any other Loan Document, each other Loan Party) represents and
warrants to each of them each of the following on and as of each date
applicable pursuant to Section 3.2:


 


Section 4.1            Corporate Existence;
Compliance with Law.  Each Loan
Party (a) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization, (b) is duly qualified to
do business as a foreign entity and in good standing under the laws of each
jurisdiction where such qualification is necessary, except where the failure to
be so qualified or in good standing would not, in the aggregate, have a
Material Adverse Effect, (c) has all requisite power and authority and the
legal right to own, pledge, mortgage and operate its property, to lease or
sublease any property it operates under lease or sublease and to conduct its
business as now or currently proposed to be conducted, (d) is in
compliance with its Constituent Documents, (e) is in compliance with all
applicable Requirements of Law except 


 


67

















 


where the failure to be in compliance would not have
a Material Adverse Effect and (f) has all necessary Permits from or by,
has made all necessary filings with, and has given all necessary notices to,
each Governmental Authority having jurisdiction, to the extent required for
such ownership, lease, sublease, operation, occupation or conduct of business,
except where the failure to obtain such Permits, make such filings or give such
notices would not, in the aggregate, have a Material Adverse Effect.


 


Section 4.2            Loan and Related Documents.  (a) Power and Authority.  The execution, delivery and performance by
each Loan Party of the Loan Documents and Related Documents to which it is a
party and the consummation of the Related Transactions and other transactions
contemplated therein (i) are within such Loan Party’s corporate or similar
powers and, at the time of execution thereof, have been duly authorized by all
necessary corporate and similar action (including, if applicable, consent of
holders of its Securities), (ii) do not (A) contravene such Loan
Party’s Constituent Documents, (B) violate any applicable Requirement of
Law except where such violation would not, in the aggregate, have a Material
Adverse Effect, (C) conflict with, contravene, constitute a default or
breach under, or result in or permit the termination or acceleration of, any
material Contractual Obligation of any Loan Party or any of its Subsidiaries
(including other Related Documents or Loan Documents) other than those that
would not, in the aggregate, have a Material Adverse Effect and are not created
or caused by, or a conflict, breach, default or termination or acceleration
event under, any Loan Document or (D) result in the imposition of any Lien
(other than a Permitted Lien) upon any property of any Loan Party or any of its
Subsidiaries and (iii) do not require any Permit of, or filing with, any
Governmental Authority or any consent of, or notice to, any Person, other than
(A) with respect to the Loan Documents, the filings required to perfect
the Liens created by the Loan Documents, and (B) those listed on Schedule 4.2
and that have been, or will be prior to the Closing Date, obtained or made,
copies of which have been, or will be prior to the Closing Date, delivered to
the Administrative Agent, and each of which on the Closing Date will be in full
force and effect.


 


(b)           Due Execution and Delivery.  From and after its delivery to the
Administrative Agent, each Loan Document and Related Document has been duly
executed and delivered to the other parties thereto by each Loan Party party
thereto, is the legal, valid and binding obligation of such Loan Party and is
enforceable against such Loan Party in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency or other
similar laws relating to the enforcement of creditors’ rights generally and by
general equitable principles.


 


(c)           Related Transactions.  Contemporaneous with the closing of the
transactions contemplated by this Agreement, those transactions contemplated by
the Second Lien Notes to be consummated on or prior to the date hereof have
been so consummated (including without limitation the disbursement and transfer
of all funds in connection therewith) in all material respects pursuant to the
provisions of the applicable Related Documents, true and complete copies of
which have been delivered to Administrative Agent, and in compliance, in all
material respects, with all applicable Requirements of Law.


 


(d)           Second Lien Notes.  The Obligations constitute [“First Lien
Obligations”] under and as defined in the Indenture.  No other Indebtedness qualifies as, or has
been designated 


 


68

















 


as, [“First Lien Obligations”] under the
Indenture and no Indebtedness other than the Obligations is included in the
definition of [“Credit Facilities”] under the Indenture.


 


Section 4.3            Ownership of Group Members.  Set forth on Schedule 4.3 is a
complete and accurate list showing, as of the Closing Date, for each Loan
Party, its jurisdiction of organization, the number of shares of each class of
Stock authorized (if applicable), the number outstanding on the Closing Date
and the number and percentage of the outstanding shares of each such class
owned (directly or indirectly) by the Borrower or Holdings.  All outstanding Stock of each of them has
been validly issued, is fully paid and non-assessable (to the extent applicable)
and, except in the case of Holdings, is owned beneficially and of record by a
Loan Party (or, in the case of Oncure, by Holdings) free and clear of all Liens
other than the security interests created by the Loan Documents and the Second
Lien Notes Documents.  There are no Stock
Equivalents with respect to the Stock of any Loan Party (other than Holdings)
and, as of the Closing Date, except as set forth on Schedule 4.3,
there are no Stock Equivalents with respect to the Stock of Holdings.  There are no Contractual Obligations or other
understandings to which any Loan Party is a party with respect to (including
any restriction on) the issuance, voting, Sale or pledge of any Stock or Stock
Equivalent of any Loan Party or any such Subsidiary or joint venture.  Schedule 4.3 contains an accurate
list of all Unconsolidated Operating Entities, setting forth their respective
jurisdictions of organization and the percentage of their fully-diluted
ownership of the equity securities owned by the Loan Party identified therein.  All of the issued and outstanding equity
securities of such Unconsolidated Operating Entities owned by the Loan Parties
have been duly authorized, validly issued, fully paid, and nonassessable.


 


Section 4.4            Financial Statements.  (a) Each of (i) the audited
Consolidated balance sheet of Holdings as at December 31, 2009 and the
related Consolidated statements of income, retained earnings and cash flows of
Holdings for the Fiscal Year then ended, certified by Ernst & Young
LLP, and (ii) subject to the absence of footnote disclosure and normal
recurring year-end audit adjustments, the unaudited Consolidated balance sheets
of Holdings as at February 28, 2010 and the related Consolidated
statements of income, retained earnings and cash flows of Holdings for the two (2) months
then ended, copies of each of which have been furnished to the Administrative
Agent, fairly present in all material respects the Consolidated financial
position, results of operations and cash flow of Holdings as at the dates
indicated and for the periods indicated in accordance with GAAP.


 


(b)           On the Closing Date,
(i) none of Holdings or its Subsidiaries has any material liability or
other obligation (including Indebtedness, Guaranty Obligations, contingent
liabilities and liabilities for taxes, long-term leases and unusual forward or
long-term commitments) that is not reflected in the Financial Statements
referred to in clause (a) above or in the notes thereto and
not otherwise permitted by this Agreement and (ii) since the date of the
unaudited Financial Statements referenced in clause (a)(ii) above,
there has been no Sale of any material property of Holdings and its
Subsidiaries and no purchase or other acquisition of any material property.


 


(c)           The Initial Projections have
been prepared by the Borrower in light of the past operations of the business
of the Holdings and its Subsidiaries and reflect projections for the 5 year
period beginning on January 1, 2010 on a quarterly basis for the first
year and on a year-by-year basis thereafter. 
As of the Closing Date, the Initial Projections are based upon estimates



 


69

















 


and assumptions stated therein, all of which the
Borrower believes to be reasonable and fair in light of conditions and facts
known to the Borrower as of the Closing Date and reflect the good faith,
reasonable and fair estimates by the Borrower of the future Consolidated
financial performance of Holdings and the other information projected therein
for the periods set forth therein.


 


(d)           The unaudited Consolidated
balance sheet of Holdings (the “Pro Forma Balance Sheet”) delivered to
the Administrative Agent prior to the date hereof, has been prepared as of
December 31, 2009 and reflects as of such date, on a Pro Forma Basis for
the Related Transactions and the other transactions contemplated herein to
occur on the Closing Date, the Consolidated financial condition of Holdings,
and the assumptions expressed therein are reasonable based on the information
available to Holdings and the Borrower at such date and on the Closing Date.


 


Section 4.5            Material Adverse Effect.  Since December 31, 2009, there have been
no events, circumstances, developments or other changes in facts that would, in
the aggregate, have a Material Adverse Effect.


 


Section 4.6            Solvency.  Both before and after giving effect to
(a) the Loans and Letters of Credit made or Issued on or prior to the date
this representation and warranty is made, (b) the disbursement of the
proceeds of such Loans, (c) the consummation of the Related Transactions
and (d) the payment and accrual of all transaction costs in connection
with the foregoing, and after taking into account the rights of contribution
set forth in this Agreement and the other Loan Documents, both the Loan Parties
taken as a whole and Oncure, individually, is Solvent.


 


Section 4.7            Litigation.  Except as set forth on Schedule 4.7,
there are no pending (or, to the knowledge of any Loan Party, threatened)
actions, investigations, suits, proceedings, audits, claims, demands, orders or
disputes affecting the Borrower or any other Loan Party with, by or before any
Governmental Authority other than those that cannot reasonably be expected to
draw into question the validity of any of the Loan Documents, the Letters of
Credit or the Related Documents, the Related Transactions and the other
transactions contemplated therein and would not, in the aggregate, have a
Material Adverse Effect.


 


Section 4.8            Taxes.  All material federal, state, local and
foreign income and franchise and other tax returns, reports and statements
(collectively, the “Tax Returns”) required to be filed by any Tax
Affiliate have been filed with the appropriate Governmental Authorities in all
jurisdictions in which such Tax Returns are required to be filed, all such Tax
Returns are true and correct in all material respects, and all taxes, charges
and other impositions reflected therein or otherwise due and payable to a
Governmental Authority have been paid prior to the date on which any Liability
may be added thereto for non-payment thereof except for those contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves are maintained on the books of the appropriate Tax Affiliate in
accordance with GAAP.  No state or federal
tax Lien has been filed in connection with any such contested taxes, except for
Liens that have been stayed or specifically subordinated (whether expressly or
by Requirement of Law) to the Lien of the Administrative Agent.   Proper and accurate amounts have been
withheld by each Tax Affiliate from their respective employees for all periods
in full and complete compliance with the tax, social security and unemployment
withholding provisions of applicable 


 


70

















 


Requirements of Law and such withholdings have been
timely paid to the respective Governmental Authorities.


 


Section 4.9            Margin Regulations.  The Borrower is not engaged in the business
of extending credit for the purpose of, and no proceeds of any Loan or other
extensions of credit hereunder will be used for the purpose of, buying or
carrying margin stock (within the meaning of Regulation U of the Federal
Reserve Board) or extending credit to others for the purpose of purchasing or
carrying any such margin stock, in each case in contravention of Regulation T,
U or X of the Federal Reserve Board.


 


Section 4.10          No Burdensome Obligations;
No Defaults.  No Loan
Party is a party to any Contractual Obligation, no Loan Party has Constituent
Documents containing obligations, and, to the knowledge of any Loan Party,
there are no applicable Requirements of Law, in each case the compliance with
which would have, in the aggregate, a Material Adverse Effect.  Except as set forth on Schedule 4.10,
no Loan Party (and, to the knowledge of each Loan Party, no other party
thereto) is in default under or with respect to any Contractual Obligation of
any Loan Party, other than those that would not, in the aggregate, have a
Material Adverse Effect.


 


Section 4.11          Investment Company Act;
Public Utility Holding Company Act.  No Group Member is an “investment company” or
an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment
company”, as such terms are defined in the Investment Company Act of 1940.


 


Section 4.12          Labor Matters.  There are no strikes, work stoppages,
slowdowns or lockouts existing, pending (or, to the knowledge of any Loan
Party, threatened) against or involving any Loan Party, except, for those that
would not, in the aggregate, have a Material Adverse Effect.  Except as set forth on Schedule 4.12,
as of the Closing Date, (a) there is no collective bargaining or similar
agreement with any union, labor organization, works council or similar
representative covering any employee of any Loan Party, (b) no petition
for certification or election of any such representative is existing or pending
with respect to any employee of any Loan Party and (c) no such
representative has sought certification or recognition with respect to any
employee of any Loan Party.


 


Section 4.13          ERISA.  Schedule 4.13 sets forth, as of
the Closing Date, a complete and correct list of, and that separately
identifies, (a) all Title IV Plans, (b) all Multiemployer Plans and
(c) all material Benefit Plans. 
Each Benefit Plan, and each trust thereunder, intended to qualify for
tax exempt status under Section 401 or 501 of the Code or other
Requirements of Law so qualifies.  Except
for those that would not, in the aggregate, have a Material Adverse Effect,
(x) each Benefit Plan is in compliance with applicable provisions of
ERISA, the Code and other Requirements of Law, (y) there are no existing
or pending (or to the knowledge of any Loan Party, threatened) claims (other
than routine claims for benefits in the normal course), sanctions, actions,
lawsuits or other proceedings or investigation involving any Benefit Plan to
which any Loan Party incurs or otherwise has or could have an obligation or any
Liability and (z) no ERISA Event is reasonably expected to occur.  On the Closing Date, no ERISA Event has
occurred in connection with which material obligations and liabilities
(contingent or otherwise) remain outstanding. 
All contributions (if any) have been made on a timely basis to any
Multiemployer Plan that are required to be made by any Loan Party or any other member
of the 


 


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Controlled Group under the terms of the plan or of
any collective bargaining agreement or by applicable Requirement of Law; no
Loan Party nor any member of the Controlled Group has withdrawn or partially
withdrawn from any Multiemployer Plan, incurred any Withdrawal Liability with
respect to any such plan or received notice of any claim or demand for
Withdrawal Liability or partial Withdrawal Liability from any such plan, and no
condition has occurred which, if continued, could result in a withdrawal or
partial withdrawal from any such plan, and no Loan Party nor any member of the
Controlled Group has received any notice that any Multiemployer Plan is in
reorganization, that increased contributions to any such plan may be required
to avoid a reduction in plan benefits or the imposition of any excise tax, that
any such plan is or has been funded at a rate less than that required under Section 412
of the Code, that any such plan is or may be terminated, or that any such plan
is or may become insolvent.


 


Section 4.14          Environmental Matters.  Except as set forth on Schedule 4.14,
(a) the operations of each Loan Party are, and have been for the prior
three (3) years, in compliance with all applicable Environmental Laws,
including obtaining, maintaining and complying with all Permits required by any
applicable Environmental Law, other than non-compliances that, in the
aggregate, would not have a reasonable likelihood of resulting in Material
Environmental Liabilities, (b) no Loan Party is party to, and no Loan
Party and no real property currently (or to the knowledge of any Loan Party
previously) owned, leased, subleased, operated or otherwise occupied by or for
any Loan Party is subject to or the subject of, any Contractual Obligation or
any pending (or, to the knowledge of any Loan Party, threatened) order, action,
investigation, suit, proceeding, audit, claim, demand, dispute or notice of
violation or of potential liability or similar notice under or pursuant to any
Environmental Law other than those that, in the aggregate, are not reasonably
likely to result in Material Environmental Liabilities, (c) no Lien in
favor of any Governmental Authority securing, in whole or in part,
Environmental Liabilities has attached to any property of any Loan Party and,
to the knowledge of any Loan Party, no facts, circumstances or conditions exist
that could reasonably be expected to result in any such Lien attaching to any
such property, (d) no Loan Party has caused or suffered to occur a Release
of Hazardous Materials at, to or from any real property of any Loan Party and
each such real property is free of contamination by any Hazardous Materials
except for such Release or contamination that could not reasonably be expected
to result, in the aggregate, in Material Environmental Liabilities, (e) no
Loan Party (i) is or has been engaged in, or has permitted any current or
former tenant to engage in, operations, or (ii) knows of any facts,
circumstances or conditions, including receipt of any information request or
notice of potential responsibility under CERCLA or similar Environmental Laws,
that, in the aggregate, would have a reasonable likelihood of resulting in
Material Environmental Liabilities and (f) each Loan Party has made
available to the Administrative Agent copies of all existing environmental
reports, reviews and audits and all documents pertaining to actual or potential
Environmental Liabilities, in each case to the extent such reports, reviews,
audits and documents are in their possession, custody or control.


 


Section 4.15          Intellectual Property.  Each Loan Party owns or licenses all
Intellectual Property that that is material to the condition (financial or
other), business or operations of such Loan Party.  To the knowledge of each Loan Party,
(a) the conduct and operations of the businesses of each Group Member does
not infringe, misappropriate, dilute, violate or otherwise impair any
Intellectual Property owned by any other Person and (b) no other Person has
contested any right, title or interest of any Group Member in, or relating to,
any Intellectual 


 


72

















 


Property, other than, in each case, as cannot
reasonably be expected to affect the Loan Documents and the transactions
contemplated therein and would not, in the aggregate, have a Material Adverse
Effect.  In addition, (x) there are
no pending (or, to the knowledge of any Loan Party, threatened) actions,
investigations, suits, proceedings, audits, claims, demands, orders or disputes
affecting any Loan Party with respect to, (y) no judgment or order
regarding any such claim has been rendered by any competent Governmental
Authority, no settlement agreement or similar Contractual Obligation has been
entered into by any Loan Party, with respect to and (z) no Loan Party
knows or has any reason to know of any valid basis for any claim based on, any
such infringement, misappropriation, dilution, violation or impairment or
contest, other than, in each case, as cannot reasonably be expected to affect
the Loan Documents and the transactions contemplated therein and would not, in
the aggregate, have a Material Adverse Effect.


 


Section 4.16          Title; Real Property.  (a)  Each Loan Party has good and
marketable fee simple title to all material owned real property and valid
leasehold interests in all material leased real property, and owns all material
personal property, in each case that is purported to be owned or leased by it,
including those reflected on the most recent balance sheet contained in the
Financial Statements delivered by the Borrower, and none of such property is
subject to any Lien except Permitted Liens.


 


(b)           Set forth on Schedule 4.16
is, as of the Closing Date, (i) a complete and accurate list of all real
property owned in fee simple by any Loan Party or in which any Loan Party owns
a leasehold interest setting forth, for each such real property, the current
street address (including, where applicable, county, state and other relevant
jurisdictions), the record owner thereof and, where applicable, each lessee and
sublessee thereof and (ii) any lease, sublease, license or sublicense of
such real property by any Loan Party.


 


Section 4.17          Full Disclosure.  The information prepared or furnished by or
on behalf of any Loan Party in connection with any Loan Document or Related
Document (including the information contained in any Financial Statement or
Disclosure Document) or the consummation of any Related Transaction or any
other transaction contemplated therein, taken as a whole, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements contained therein, in light of the circumstances when
made, not misleading; provided, however,
that projections contained therein are not to be viewed as factual and that
actual results during the periods covered thereby may differ from the results
set forth in such projections by a material amount.  All projections that are part of such
information (including those set forth in any Projections delivered subsequent
to the Closing Date) are based upon good faith estimates and stated assumptions
believed to be reasonable and fair as of the date made in light of conditions
and facts then known and, as of such date, reflect good faith, reasonable and
fair estimates of the information projected for the periods set forth therein.


 


Section 4.18          Patriot Act.  No Group Member (and, to the knowledge of
each Group Member, no joint venture or subsidiary thereof) is in violation in
any material respects of any United States Requirements of Law relating to
terrorism, sanctions or money laundering (the “Anti-Terrorism Laws”),
including the United States Executive Order No. 13224 on Terrorist
Financing (the “Anti-Terrorism Order”) and the Patriot Act.


 


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Section 4.19          Management
Services Agreements.  The Loan
Parties have made available to Administrative Agent complete copies of the each
Management Services Agreement including all schedules, exhibits and disclosure
letters referred to therein or delivered pursuant thereto, if any, and all
amendments thereto, waivers relating thereto and other side letters or written
agreements affecting the term thereof. 
None of such agreements and documents has been amended or supplemented,
nor have any of the provisions thereof been waived, except pursuant to a
written agreement or agreement which has heretofore been made available to
Administrative Agent.  Borrowers shall at
all times render services at the Licensed Locations solely pursuant to a
Management Services Agreement and in accordance in all material respects with
the terms thereof.  The provisions of the
Management Agreements describe procedures that are in accordance, and do not
restrict the parties thereto from compliance, with the Medicare “anti-assignment”
provisions, as set forth in 42 U.S.C. 1395u(b)(6).  The Management Services Agreements provide
for the Borrower party thereto to perform administrative and support services
to Professional Services Providers that are in accordance with “corporate
practice of medicine” or similar Requirements of Law that are in effect in each
state where a Licensed Location is located.


 


Section 4.20          Insurance.  As of the Closing Date, the insurance
maintained by the Loan Parties is in full force and effect.  The Loan Parties are insured by financially
sound and reputable insurers and such insurance is in amounts and covering such
risks and liabilities as are in accordance with normal and prudent industry
practice.


 


Section 4.21          Representations and
Warranties Pertaining to Licensed Locations.  (a)  No Borrower is in violation of any
Health Care Laws, except where any such violation would not have a Material
Adverse Healthcare Effect;


 


(b)           Neither Borrower nor any Affiliate
of Borrower has ever owned or operated a health care facility (including,
without limitation, any Licensed Location) that has experienced a Material
Adverse Healthcare Effect at any time while it was under the ownership or
operation of Borrower or an Affiliate;


 


(c)           All Healthcare Permits that
are issued to Borrower are valid and in full force and effect and each Borrower
is in compliance with the terms and conditions of all such Healthcare Permits
except where failure to be in such compliance or for a Healthcare Permit to be
valid and in full force and effect would not have a Material Adverse Healthcare
Effect;


 


(d)           Each Borrower has the
requisite provider number or other Healthcare Permit to bill the Medicare
program (to the extent such entity participates in the Medicare program), the
respective Medicaid program in the state or states in which such entity
operates (to the extent such entity participates in the Medicaid program in
such state or states) except where the failure to have such Healthcare Permit
would not have a Material Adverse Healthcare Effect; and


 


(e)           If (i) any Borrower is
or becomes a “covered entity” within the meaning of HIPAA, or (ii) any
Borrower is or becomes subject to the “Administrative Simplification”
provisions of HIPAA, each Borrower is HIPAA Compliant.


 


74

















 


ARTICLE 5


FINANCIAL COVENANTS


 


Each
of Holdings and the Borrower (and, to the extent set forth in any other Loan
Document, each other Loan Party) agrees with the Lenders, the L/C Issuers and
the Administrative Agent to each of the following, as long as any Obligation or
any Commitment remains outstanding:


 


Section 5.1            Maximum First Lien Leverage
Ratio.  Holdings shall not have, on
the last day of each Fiscal Quarter set forth below, a Consolidated First Lien
Leverage Ratio greater than the maximum ratio set forth opposite such Fiscal
Quarter:


 


	
  FISCAL QUARTER ENDING

  	
   

  	
  MAXIMUM CONSOLIDATED

  FIRST LIEN LEVERAGE RATIO

  
	
   

  	
   

  	
   

  
	
  June 30, 2010 and the last day of each Fiscal Quarter thereafter

  	
   

  	
  1.5 to 1.0

  



 


Section 5.2            Reserved.


 


Section 5.3            Minimum Consolidated Fixed
Charge Coverage Ratio. 
Holdings shall not have, on the last day of each Fiscal Quarter, a
Consolidated Fixed Charge Coverage Ratio for the 4 Fiscal Quarter period ending
on such day less than 1.0 to 1.0; provided that Holdings shall be required to
demonstrate compliance with this covenant only to the extent the Revolving
Credit Outstandings exceed $0 on the last day of a Fiscal Quarter.


 


Section 5.4            Reserved.


 


ARTICLE 6


REPORTING COVENANTS


 


Each
of Holdings and the Borrower (and, to the extent set forth in any other Loan
Document, each other Loan Party) agrees with the Lenders, the L/C Issuers and
the Administrative Agent to each of the following, as long as any Obligation or
any Commitment remains outstanding:


 


Section 6.1            Financial Statements.  The Borrower Representative shall deliver to
the Administrative Agent each of the following:


 


(a)           Monthly Reports.  As soon as available, and in any event within
45 days after the end of each fiscal month, the Consolidated unaudited balance
sheet of Oncure as of the close of such fiscal month and related Consolidated
statements of income for such fiscal month and that portion of the Fiscal Year
ending as of the close of such fiscal month, setting forth in comparative form
the figures for the corresponding period in the prior Fiscal Year, in each case
certified by a Responsible Officer of the Borrower Representative as fairly
presenting in all material respects the Consolidated financial position and
results of operations of Oncure as at the


 


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dates indicated and for the periods indicated in
accordance with GAAP (subject to the absence of footnote disclosure and audit
and normal year-end adjustments).


 


(b)           Quarterly Reports. 
As soon as available, and in any event within 45 days after the end of
each Fiscal Quarter of each Fiscal Year, the Consolidated unaudited balance
sheet of Holdings as of the close of such Fiscal Quarter and related
Consolidated statements of income and cash flow for such Fiscal Quarter and
that portion of the Fiscal Year ending as of the close of such Fiscal Quarter,
setting forth in comparative form the figures for the corresponding period in
the prior Fiscal Year and the figures contained in the latest Projections, in
each case certified by a Responsible Officer of the Borrower Representative as
fairly presenting in all material respects the Consolidated financial position,
results of operations and cash flow of Holdings as at the dates indicated and
for the periods indicated in accordance with GAAP (subject to the absence of
footnote disclosure and audit and normal year-end adjustments).


 


(c)           Annual Reports. 
As soon as available, and in any event within 95 days after the end of
each Fiscal Year, the Consolidated balance sheet of Holdings as of the end of
such year and related Consolidated statements of income, stockholders’ equity
and cash flow for such Fiscal Year, each prepared in accordance with GAAP,
together with a certification by the Group Members’ Accountants that
(i) such Consolidated Financial Statements have been prepared in
accordance with GAAP without qualification as to the scope of the audit or as
to going concern and without any other similar qualification and (ii) in
the course of the regular audit of the businesses of the Group Members, which
audit was conducted in accordance with the standards of the United States’
Public Company Accounting Oversight Board (or any successor entity), such Group
Members’ Accountants have obtained no knowledge that a Default in respect of
any financial covenant contained in Article 5 is continuing or, if
in the opinion of the Group Members’ Accountants such a Default is continuing,
a statement as to the nature thereof.


 


(d)           Compliance Certificate.  Together with each delivery of any Financial
Statement pursuant to clause (b) or (c) above, a
Compliance Certificate duly executed by a Responsible Officer of the Borrower
Representative that, among other things, (i) demonstrates compliance with
each financial covenant contained in Article 5 that is tested at
least on a quarterly basis and (ii) states that no Default is continuing
as of the date of delivery of such Compliance Certificate or, if a Default is
continuing, states the nature thereof and the action that the Borrower proposes
to take with respect thereto.


 


(e)           Corporate Chart and Other Collateral Updates.  As part of the Compliance Certificate
delivered pursuant to clause (d) above, each in form and
substance satisfactory to the Administrative Agent, a certificate by a
Responsible Officer of the Borrower that (i) the Corporate Chart attached
thereto (or the last Corporate Chart delivered pursuant to this clause (e))
is correct and complete as of the date of such Compliance Certificate,
(ii) the Loan Parties have delivered all documents (including updated
schedules as to locations of Collateral and acquisition of Intellectual
Property or real property) they are required to deliver pursuant to any Loan
Document on or prior to the date of delivery of such Compliance Certificate and
(iii) complete and correct copies of all documents modifying any term of
any Constituent Document of any Group Member or any Subsidiary or joint venture
(including an 


 


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Unconsolidated Operating Entity) thereof on or prior
to the date of delivery of such Compliance Certificate have been delivered to
the Administrative Agent or are attached to such certificate.


 


(f)            Additional Projections.  As soon as available and in any event not
later than 30 days after the end of each Fiscal Year, (i) the annual business
plan of the Group Members for the Fiscal Year next succeeding such Fiscal Year
and (ii) forecasts prepared in connection with such annual business plan
by management of the Borrower for each Fiscal Quarter in such next succeeding
Fiscal Year, in each case including in such forecasts (x) a projected
year-end Consolidated balance sheet, income statement and statement of cash
flows, and (y) a statement of all of the material assumptions on which
such forecasts are based.


 


(g)           Management Discussion and Analysis.  Together with each delivery of any Compliance
Certificate pursuant to clause (d) above, a discussion and
analysis of the financial condition and results of operations of the Group
Members for the portion of the Fiscal Year then elapsed and discussing the
reasons for any significant variations from the Projections for such period and
the figures for the corresponding period in the previous Fiscal Year.


 


(h)           Reserved.


 


(i)            Audit Reports, Management Letters, Etc.  Together with each delivery of any Financial
Statement for any Fiscal Year pursuant to clause (c) above,
copies of each management letter, audit report or similar letter or report
received by any Loan Party from any independent registered certified public
accountant (including the Group Members’ Accountants) in connection with such
Financial Statements or any audit thereof, each certified to be complete and
correct copies by a Responsible Officer of the Borrower Representative as part
of the Compliance Certificate delivered in connection with such Financial
Statements.


 


(j)            Insurance. 
Together with each delivery of any Financial Statement for any Fiscal
Year pursuant to clause (c) above, a summary of all material
insurance coverage maintained as of the date thereof by any Group Member,
together with such other related documents and information as the
Administrative Agent may reasonably require.


 


(k)           Acquisition Purchase Price Adjustments.  Promptly upon such information becoming
available, a summary of all purchase price and other monetary adjustments that
are made in connection with any Permitted Acquisition, to the extent any such
adjustment or series of adjustments made exceeds $1,000,000.


 


Section 6.2             Other Events.  The Borrower shall give the Administrative
Agent notice of each of the following (which may be made by telephone if
promptly confirmed in writing) promptly after any Responsible Officer of any
Loan Party knows or has reason to know of it: (a)(i) any Default, (ii) any
notices received from any agent or trustee under the Second Lien Notes
Documents and any request by and party thereto for any waiver, amendment or
modification of any of the terms thereof, and (iii) any event that would
have a Material Adverse Effect or Material Adverse Healthcare Effect,
specifying, in each case, the nature and anticipated effect thereof and any
action proposed to be taken in connection therewith, (b) any event (other
than any event involving loss or damage to property) reasonably expected to
result in a mandatory payment of the Obligations pursuant to Section 2.8,
stating the material terms and 


 


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conditions of such transaction and estimating the
Net Cash Proceeds thereof, (c) the commencement of, or any material
developments in, any action, investigation, suit, proceeding, audit, claim,
demand, order or dispute with, by or before any Governmental Authority
affecting any Loan Party or any property of any Loan Party that (i) seeks
injunctive or similar relief, (ii) in the reasonable judgment of the Borrower,
exposes any Loan Party to liability in an aggregate amount in excess of
$500,000 or (iii) could reasonably be expected to have a Material Adverse
Effect or a Material Adverse Healthcare Effect and (d) the acquisition of
any material real property or the entering into any material lease.


 


Section 6.3             Copies of Notices and Reports.  The Borrower shall promptly deliver to the
Administrative Agent copies of each of the following: (a) all reports that
Holdings transmits to its security holders generally, (b) all documents
that any Group Member files with the Securities and Exchange Commission, the
National Association of Securities Dealers, Inc., any securities exchange
or any Governmental Authority exercising similar functions, (c) all press
releases not made available directly to the general public concerning
developments in the business of any Credit Party which could reasonably be
expected to have a Material Adverse Effect, and (d) all documents
transmitted or received pursuant to, or in connection with, any Related
Document and (e) any material document transmitted or received pursuant
to, or in connection with, any Contractual Obligation governing Indebtedness of
any Group Member or Unconsolidated Operating Entity (but, in the case of an
Unconsolidated Operating Entity that is not a Group Member, only to the extent
received by Borrower or any other Loan Party).


 


Section 6.4             Taxes.  The Borrower shall give the Administrative
Agent notice of each of the following (which may be made by telephone if
promptly confirmed in writing) promptly after any Responsible Officer of any
Loan Party knows or has reason to know of it: (a) the creation, or filing
with the IRS or any other Governmental Authority, of any Contractual Obligation
or other document extending, or having the effect of extending, the period for
assessment or collection of any taxes with respect to any Tax Affiliate and
(b) the creation of any Contractual Obligation of any Tax Affiliate, or
the receipt of any request directed to any Tax Affiliate, to make any
adjustment under Section 481(a) of the Code, by reason of a change in
accounting method or otherwise, which would have a Material Adverse Effect.


 


Section 6.5             Labor Matters.  The Borrower shall give the Administrative
Agent notice of each of the following (which may be made by telephone if
promptly confirmed in writing), promptly after, and in any event within 30 days
after any Responsible Officer of any Loan Party knows or has reason to know of
it: (a) the commencement of any material labor dispute to which any Loan
Party is or may become a party, including any strikes, lockouts or other
disputes relating to any of such Person’s plants and other facilities and
(b) the incurrence by any Loan Party of any Worker Adjustment and
Retraining Notification Act or related or similar liability incurred with
respect to the closing of any plant or other facility of any such Person (other
than, in each case under this Section 6.5, those that would not, in
the aggregate, have a Material Adverse Effect).


 


Section 6.6             ERISA Matters.  To the extent the Borrower maintains a Title
IV Plan or a Multiemployer Plan, the Borrower shall give the Administrative
Agent (a) on or prior to any filing by any ERISA Affiliate of any notice
of intent to terminate any Title IV Plan, a copy of such notice and
(b) promptly, and in any event within 10 days, after any Responsible
Officer of 


 


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any ERISA Affiliate knows or has reason to know that
a request for a minimum funding waiver under Section 412 of the Code has
been filed with respect to any Title IV Plan or Multiemployer Plan, a notice
(which may be made by telephone if promptly confirmed in writing) describing
such waiver request and any action that any ERISA Affiliate proposes to take
with respect thereto, together with a copy of any notice filed with the PBGC or
the IRS pertaining thereto.


 


Section 6.7             Reserved.


 


Section 6.8             Other Information.  The Borrower shall provide the Administrative
Agent with such other documents and information with respect to the business,
property, condition (financial or otherwise), legal, financial or corporate or
similar affairs or operations of any Loan Party or Unconsolidated Operating
Entity as the Administrative Agent or such Lender through the Administrative
Agent may from time to time reasonably request.


 


ARTICLE 7

AFFIRMATIVE COVENANTS


 


Each
of Holdings and the Borrower (and, to the extent set forth in any other Loan
Document, each other Loan Party) agrees with the Lenders, the L/C Issuers and
the Administrative Agent to each of the following, as long as any Obligation or
any Commitment remains outstanding:


 


Section 7.1             Maintenance of Corporate
Existence.  Each Group Member shall
(a) preserve and maintain its legal existence, except in the consummation
of transactions expressly permitted by Sections 8.4 and 8.7,
and (b) preserve and maintain it rights (charter and statutory),
privileges franchises and Permits necessary or desirable in the conduct of its
business, except, in the case of this clause (b), where the failure
to do so would not, in the aggregate, have a Material Adverse Effect.


 


Section 7.2             Compliance with Laws, Etc.  Each Group Member shall comply with all
applicable Requirements of Law, Contractual Obligations and Permits, except for
such failures to comply that would not, in the aggregate, have a Material
Adverse Effect.


 


Section 7.3             Payment of Obligations.  Each Group Member shall pay or discharge
before they become delinquent (a) all material claims, taxes, assessments,
charges and levies imposed by any Governmental Authority and (b) all other
lawful claims that if unpaid would, by the operation of applicable Requirements
of Law, become a Lien upon any property of any Group Member, except, in each
case, (i) for those whose amount or validity is being contested in good
faith by proper proceedings diligently conducted and for which adequate
reserves are maintained on the books of the appropriate Group Member in
accordance with GAAP or (ii) the nonpayment or nondischarge of which could
not reasonably be expected to have a Material Adverse Effect.


 


Section 7.4             Maintenance of Property.  Each Group Member shall maintain and preserve
(a) in good working order and condition all of its property necessary in
the conduct of its business and (b) all rights, permits, licenses,
approvals and privileges (including all Permits) necessary, used or useful,
whether because of its ownership, lease, sublease or other operation or
occupation of property or other conduct of its business, and shall make all necessary
or 


 


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appropriate filings with, and give all required
notices to, Government Authorities, except for such failures to maintain and
preserve the items set forth in clauses (a) and (b) above
that would not, in the aggregate, have a Material Adverse Effect.


 


Section 7.5             Maintenance of Insurance.  Each Group Member shall (a) maintain or
cause to be maintained in full force and effect all policies of insurance of
any kind with respect to the property and businesses of the Group Members
(including policies of life, fire, theft, product liability, public liability,
Flood Insurance, property damage, other casualty, employee fidelity, workers’
compensation, business interruption and employee health and welfare insurance)
with financially sound and reputable insurance companies or associations (in
each case that are not Affiliates of the Borrower) of a nature and providing
such coverage as is sufficient and as is customarily carried by businesses of
the size and character of the business of the Group Members and (b) cause
all such insurance relating to any property or business of any Loan Party to
name the Administrative Agent on behalf of the Secured Parties as additional
insured or loss payee, as appropriate, and to provide that no cancellation,
material reduction in amount or material change in coverage shall be effective
until after 30 days’ notice thereof to the Administrative Agent.  Notwithstanding the requirement in
subsection (a) above, Federal Flood Insurance shall not be required
for (x) real property not located in a Special Flood Hazard Area, or
(y) real property located in a Special Flood Hazard Area in a community
that does not participate in the National Flood Insurance Program.  Without limiting the foregoing, if, after the
Closing Date, the Loan Parties desire to provide commercial general liability
coverage for the Group Members through an Affiliate of any Borrower,
Administrative Agent agrees to work in good faith to permit such arrangement so
long as Administrative Agent is satisfied in its good faith credit judgment
with the scope of coverage provided by, and financial worthiness of, such
Affiliate insurance provider, including without limitation, the amount of
assets maintained by such Affiliate for the sole purpose of settling claims,
the liability coverage limits, and the annual insurance premiums; provided,
however, that nothing in this Section 7.5 shall be deemed to
be advance consent by Administrative Agent or any Lender to any Group Member maintaining
any policies of insurance with an Affiliate of the Borrower, as opposed to a
third party insurance company or association.


 


Section 7.6             Keeping of Books.  The Loan Parties shall keep proper books of
record and account, in which full, true and correct entries shall be made in
accordance with GAAP and all other applicable Requirements of Law of all
financial transactions and the assets and business of each Group Member.


 


Section 7.7             Access to Books and Property.  Each Group Member shall permit the
Administrative Agent, the Lenders and any Related Person (but for any Lender
and any Related Person of any Lender, at such Lender’s expense) of any of them,
as often as reasonably requested, at any reasonable time during normal business
hours and with reasonable advance notice (except that, during the continuance
of an Event of Default, no such notice shall be required) to (a) visit and
inspect the property of each Group Member and examine and make copies of and
abstracts from, the corporate (and similar), financial, operating and other
books and records of each Group Member, (b) discuss the affairs, finances
and accounts of each Group Member with any officer or director of any Group
Member and (c) communicate directly with any registered certified public accountants
(including the Group Members’ Accountants) of any Group Member.  Each Group Member shall authorize their
respective registered certified public 


 


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accountants (including the Group Members’ Accountants)
to communicate directly with the Administrative Agent, the Lenders and their
Related Persons and to disclose to the Administrative Agent, the Lenders and
their Related Persons all financial statements and other documents and
information as they might have and the Administrative Agent or any Lender
reasonably requests with respect to any Group Member.  Notwithstanding anything to the contrary in
this Section 7.7, other than during the continuance of an Event of
Default, the Loan Parties shall be required to reimburse Administrative Agent
for expenses incurred in connection with not more than one such visit or
inspection per calendar year.


 


Section 7.8             Environmental.  Each Group Member shall comply with, and
maintain its real property, whether owned, leased, subleased or otherwise
operated or occupied, in compliance with, all applicable Environmental Laws
(including by implementing any Remedial Action necessary to achieve such
compliance or that is required by orders and directives of any Governmental Authority)
except for failures to comply that would not, in the aggregate, have a Material
Adverse Effect.  Without limiting the
foregoing, if the Administrative Agent at any time has a reasonable basis to
believe that there exist violations of Environmental Laws by any Group Member
or that there exist any Environmental Liabilities, in each case, that would
have, in the aggregate, a Material Adverse Effect, then each Group Member
shall, promptly upon receipt of request from the Administrative Agent, cause the
performance of, and allow the Administrative Agent and its Related Persons
access to such real property for the purpose of conducting, such environmental
audits and assessments, including subsurface sampling of soil and groundwater,
and cause the preparation of such reports, in each case as the Administrative
Agent may from time to time reasonably request. 
Such audits, assessments and reports, to the extent not conducted by the
Administrative Agent or any of its Related Persons, shall be conducted and prepared
by reputable environmental consulting firms reasonably acceptable to the
Administrative Agent and shall be in form and substance reasonably acceptable
to the Administrative Agent.


 


Section 7.9             Use of Proceeds.  The proceeds of the Loans shall be used by
the Borrower (and, to the extent distributed to them by the Borrower
Representative, each other Loan Party) solely (a) to consummate Permitted
Acquisitions and (b) for working capital and general corporate and similar
purposes.


 


Section 7.10           Additional Collateral and
Guaranties.  To the extent not
delivered to the Administrative Agent on or before the Closing Date (including
in respect of after-acquired property and Persons that become Subsidiaries or
Unconsolidated Operating Entities of any Loan Party after the Closing Date),
each Loan Party shall, promptly, do each of the following, unless otherwise
agreed by the Administrative Agent:


 


(a)           deliver to the Administrative Agent such modifications to
the terms of the Loan Documents (or, to the extent applicable as determined by
the Administrative Agent, such other documents), in each case in form and
substance reasonably satisfactory to the Administrative Agent and as the
Administrative Agent deems necessary or advisable in order to ensure the
following:


 


(i)            (A) each Subsidiary of any Loan Party that has
entered into Guaranty Obligations with respect to any Indebtedness of the
Borrower, (B) each 


 


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Wholly-Owned Subsidiary of
any Loan Party, and (C) each Subsidiary of any Loan Party that is not a
Wholly-Owned Subsidiary and each Unconsolidated Operating Entity, in each case
to the extent the Borrower elects to have its aggregate Investment in such
Subsidiary or Unconsolidated Operating Entity not limited pursuant to the terms
of Section 8.3(g), shall guaranty, as primary obligor and not as
surety, the payment of the Obligations of the Borrower (provided that, at
Administrative Agent’s sole option, each such Subsidiary and/or Unconsolidated
Operating Entity shall join this Agreement and the other Loan Documents as a
Borrower);


 


(ii)           each Loan Party (including any Person required to become a
Guarantor or Borrower pursuant to clause (i) above) shall
effectively grant to the Administrative Agent, for the benefit of the Secured
Parties, a valid and enforceable security interest in all of its property,
including all of its Stock and Stock Equivalents and other Securities
(including Stock, Stock Equivalents and other Securities of an Unconsolidated
Operating Entity held by such Loan Party), as security for the Obligations of
such Loan Party;


 


provided, however, that, unless the Borrower and the
Administrative Agent otherwise agree, in no event shall (x) any Excluded
Foreign Subsidiary be required to guaranty the payment of any Obligation,
(y) the Loan Parties, individually or collectively, be required to pledge
in excess of 66% of the outstanding Voting Stock of any Excluded Foreign
Subsidiary or (z) a security interest be required to be granted on any
property of any Excluded Foreign Subsidiary as security for any Obligation; and
provided, further, that Borrower shall use commercially
reasonable efforts to satisfy the requirements set forth in this Section 7.10
with respect to Vidalia prior to the first day on which Vidalia operates after
receipt of a Certificate of Need by the applicable Governmental Authority).


 


(b)           deliver to the Administrative Agent all documents
representing all Stock, Stock Equivalents and other Securities pledged pursuant
to the documents delivered pursuant to clause (a) above, together
with undated powers or endorsements duly executed in blank;


 


(c)           to take all other actions necessary or advisable to ensure
the validity or continuing validity of any guaranty for any Obligation or any
Lien securing any Obligation, to perfect, maintain, evidence or enforce any
Lien securing any Obligation or to ensure such Liens have the same priority as
that of the Liens on similar Collateral set forth in the Loan Documents
executed on the Closing Date (or, for Collateral located outside the United
States, a similar priority acceptable to the Administrative Agent), including
the filing of UCC financing statements in such jurisdictions as may be required
by the Loan Documents or applicable Requirements of Law or as the
Administrative Agent may otherwise reasonably request; and


 


(d)           deliver to the Administrative Agent legal opinions
relating to the matters described in this Section 7.10, which
opinions shall be as reasonably required by, and in form and substance and from
counsel reasonably satisfactory to, the Administrative Agent.


 


Section 7.11           Deposit Accounts; Securities
Accounts and Cash Collateral Accounts. 
(a) Each Loan Party shall (i) deposit all of its cash in
deposit accounts that are Controlled Deposit Accounts, provided, however, that each Loan Party may maintain zero-balance
accounts 


 


82

















 


for the purpose of managing local disbursements and
may maintain payroll, withholding tax and other fiduciary accounts, (ii) deposit
all of its Cash Equivalents in securities accounts that are Controlled
Securities Accounts, in each case under clause (i) and clause (ii) except
for cash and Cash Equivalents the aggregate value of which does not exceed
$100,000 at any time.  Without limiting
the generality of the foregoing, each Borrower shall enter into Control
Agreements with respect to each [“Company Lockbox Account”], as such
term is defined in each Management Services Agreement, without regard to the
aggregate amount of funds on deposit in such Company Lockbox Account.


 


(b)           The Administrative Agent shall not have any responsibility
for, or bear any risk of loss of, any investment or income of any funds in any
Cash Collateral Account.  From time to
time after funds are deposited in any Cash Collateral Account, the
Administrative Agent may apply funds then held in such Cash Collateral Account
to the payment of Obligations in accordance with Section 2.12.  No Group Member and no Person claiming on
behalf of or through any Group Member shall have any right to demand payment of
any funds held in any Cash Collateral Account at any time prior to the
termination of all Commitments and the payment in full of all Obligations and,
in the case of L/C Cash Collateral Accounts, the termination of all outstanding
Letters of Credit.


 


Section 7.12           Covenants Pertaining to Licensed
Locations.  Each Loan Party will:


 


(a)           comply with all applicable Healthcare Laws relating to
such Loan Party’s business operations, except to the extent that failure to so
comply could not reasonably be expected to have a Material Adverse Healthcare
Effect;


 


(b)           maintain in full force and effect, and free from
restrictions, probations, conditions or known conflicts which would materially
impair the business operations of such Loan Party, any and all Healthcare
Permits necessary under applicable Healthcare Laws to carry on the business of
such Loan Party as it is conducted on the Closing Date, except to the extent
that failure to so comply could not reasonably be expected to have a Material
Adverse Healthcare Effect;


 


(c)           not suffer or permit to occur any of the following:


 


(i)            any pledge or hypothecation of any Healthcare Permit
issued to Borrower as collateral security for any indebtedness other than
indebtedness to Lenders; or


 


(ii)           any rescission, withdrawal, revocation, amendment or
modification of or other alteration to the nature, tenor or scope of any
Healthcare Permit issued to Borrower without Administrative Agent’s prior
written consent, except to the extent that such occurrence could not reasonably
be expected to have a Material Adverse Healthcare Effect.


 


Section 7.13           Post-Closing Deliveries.  Each of Holdings and the Borrower shall, and
shall cause each Subsidiary of the Borrower to, (a) deliver to the
Administrative Agent each item set forth on Schedule 7.13 in form and
substance reasonably satisfactory to the Administrative Agent and (b) perform
each action set forth on Schedule 7.13 in a manner reasonably
satisfactory 


 


83

















 


to Administrative Agent, in each case (x) within
the periods set forth opposite each such item or action on such Schedule and (y) unless
otherwise agreed by the Administrative Agent and Required Lenders in respect of
any such item or action.


 


Section 7.14           Management Services Agreements.  The Borrower shall at all times maintain a
valid, perfected Lien (subject to no other Liens other than Liens in favor of
Administrative Agent and Second Lien Agent) on all PC Collateral to secure the
obligations of such Professional Services Provider to such Loan Party, and
shall maintain a current UCC-1 financing statement on record with the
appropriate jurisdiction sufficient to perfect such Lien.  Each Borrower shall cause all its rights and
interests in each Management Services Agreement (including, without limitation,
its right and interest in the PC Collateral) to be validly assigned to, and
subject to the perfected Lien of, Administrative Agent, and shall assign of
record the related UCC-1 financing statements to Administrative Agent.  Borrower shall promptly (but in no event more
than ten (10) days after execution thereof) provide Administrative Agent
with a copy of each Management Services Agreement entered into with a
Professional Services Provider after the Closing Date.  Borrower shall promptly notify Administrative
Agent upon knowledge that any Professional Services Provider has (or intends
to) (i) changed the legal name or organizational identification number of
such Professional Services Provider as it appears in official filings in the
jurisdiction of its organization, (ii) changed the jurisdiction of
incorporation or formation of such Professional Services Provider or designated
any jurisdiction as an additional jurisdiction of incorporation for such
Professional Services Provider, or changed the type of entity that it is, or (iii) changed
its chief executive office or principal place of business.


 


Section 7.15           Reimbursement Reduction.  If CMS or any other Governmental Authority
releases any news or official announcement, or otherwise takes immediate
action, to make a material reduction in the amount of reimbursement that
Borrower receives as part of its business for healthcare services rendered by
any Borrower, or a Professional Services Provider that is party to a Management
Services Agreement, then (i) Borrower Representative shall promptly, but
in no event more than fifteen (15) Business Days after final published
announcement by such Governmental Authority regarding such reduction, provide
written notice to Administrative Agent, and (ii) upon request by the
Administrative Agent or the Required Lenders, Borrower Representative shall
conduct a meeting, within fifteen (15) Business Days after Administrative Agent
or the Required Lenders makes such request, by conference call, at which shall
be present a Responsible Officer and such other officers of the Credit Parties
as may be requested to attend by the Administrative Agent, in each case using
reasonable credit judgment, to discuss with Administrative Agent such
reductions announced or made by CMS or any other Governmental Authority, the
impact upon the performance and operations of the Group Members, and the
financial condition of the Group Members.


 


ARTICLE 8

NEGATIVE COVENANTS


 


Each
of Holdings and the Borrower (and, to the extent set forth in any other Loan
Document, each other Loan Party) agrees with the Lenders, the L/C Issuers and
the Administrative Agent to each of the following, as long as any Obligation or
any Commitment remains outstanding:


 


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Section 8.1             Indebtedness.  No Group Member shall, directly or
indirectly, incur or otherwise remain liable with respect to or responsible
for, any Indebtedness except for the following:


 


(a)           the Obligations;


 


(b)           Indebtedness existing on the date hereof and set forth on Schedule 8.1,
together with any Permitted Refinancing of any Indebtedness permitted hereunder
in reliance upon this clause (b);


 


(c)           Indebtedness consisting of Capitalized Lease Obligations
(other than with respect to a lease entered into as part of a Sale and
Leaseback Transaction) and purchase money Indebtedness, in each case incurred
by any Group Member (other than Holdings) to finance the acquisition, repair,
improvement or construction of fixed or capital assets of such Group Member,
together with any Permitted Refinancing of any Indebtedness permitted hereunder
in reliance upon this clause (c); provided,
however, that the aggregate outstanding principal amount of all such
Indebtedness does not exceed, at any time, the lesser of (i) $7,500,000
and (ii) three percent (3%) of [“Total Assets”] as defined in and
calculated in accordance with the applicable provisions of the Indenture.


 


(d)           Capitalized Lease Obligations arising under Sale and Leaseback
Transactions permitted hereunder in reliance upon Section 8.4(b)(ii);


 


(e)           intercompany loans owing to any Group Member and
constituting Permitted Investments of such Group Member;


 


(f)            obligations under other Hedging Agreements entered into
for the sole purpose of hedging in the normal course of business and consistent
with industry practices;


 


(g)           Guaranty Obligations of any Group Member with respect to
Indebtedness of any Group Member other than Holdings (other than Indebtedness
permitted hereunder in reliance upon clause (b) or (c) above
or clause (l) below, for which Guaranty Obligations may be
permitted to the extent set forth in such clauses);


 


(h)           Second Lien Debt, subject to the restrictions set forth in
the Intercreditor Agreement; provided, however,
that the aggregate outstanding principal amount of all such Indebtedness shall
not the [“Maximum Second Lien Principal Amount”] as such term is defined
in the Intercreditor Agreement, at any time;


 


(i)            Indebtedness incurred in connection with a Permitted
Acquisition (either in the form of seller notes, or otherwise), in an aggregate
amount (together with any Indebtedness incurred pursuant to
Section 5.1(j)) not to exceed 20% of the total purchase price paid in
connection with such Permitted Acquisition; provided that such Indebtedness is
subordinated to the Obligations in a manner satisfactory to Administrative
Agent unless otherwise consented to by the Required Lenders;


 


(j)            Indebtedness of consisting of earn-outs or similar
payment obligations in connection with a Permitted Acquisition (together with
any Indebtedness incurred pursuant to


 


85














 


Section 5.1(i)) not to exceed 20% of the total
purchase price paid in connection with such Permitted Acquisition;


 


(k)           Indebtedness of consisting of guarantees, indemnities or
obligations in respect of purchase price adjustments in connection with an Asset
Sale not to exceed 20% of the total purchase price paid in connection with such
Asset Sale;


 


(l)            Indebtedness of a Subsidiary of the Borrower assumed by
such Subsidiary in connection with any Permitted Acquisition (or if such
Subsidiary is acquired as part of such Permitted Acquisition, existing prior
thereto), in an aggregate principal amount outstanding not exceeding $2,500,000
at any time together with any Permitted Refinancing of any Indebtedness
permitted hereunder in reliance upon this clause (l); provided,
however that such Indebtedness (i) exists at the time of such Permitted
Acquisition at least in the amounts assumed in connection therewith and (ii) is
not drawn down, created or increased in contemplation of or in connection with
such Permitted Acquisition on or after the consummation thereof and no Group
Member (other than such Person that becomes a Subsidiary as part of the
Permitted Acquisition) shall provide any credit support therefor,


 


(m)          Indebtedness consisting of financing of insurance premiums
in the ordinary course of business;


 


(n)           Indebtedness consisting of amounts payable by any Borrower
to a Professional Services Provider in accordance with the terms of a
Management Services Agreement;


 


(o)           Indebtedness constituting Investments permitted by
Section 8.3; and


 


(p)           any unsecured Indebtedness of any Group Member; provided,
however, that the aggregate outstanding principal amount of all such unsecured
Indebtedness shall not exceed $500,000 at any time.


 


Section 8.2             Liens.  No Group Member shall incur, maintain or
otherwise suffer to exist any Lien upon or with respect to any of its property,
whether now owned or hereafter acquired, or assign any right to receive income
or profits, except for the following:


 


(a)           Liens created pursuant to any Loan Document;


 


(b)           Customary Permitted Liens of Group Members;


 


(c)           Liens existing on the date hereof and set forth on Schedule 8.2;


 


(d)           Liens on the property of the Borrower or any of its
Subsidiaries securing Indebtedness permitted hereunder in reliance upon Section 8.1(c);
provided, however, that (i) such Liens
exist prior to the acquisition of, or attach substantially simultaneously with,
or within 90 days after, the acquisition, repair, improvement or construction
of, such property financed, whether directly or through a Permitted
Refinancing, by such Indebtedness and (ii) such Liens do not extend to any
property of any Group Member other than the property (and 


 


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proceeds thereof) acquired or built, or the
improvements or repairs, financed, whether directly or through a Permitted
Refinancing, by such Indebtedness;


 


(e)           any Lien securing Indebtedness permitted pursuant to Section 8.1(j);
provided,  however that such Lien exists at the time of the Permitted
Acquisition relating to such Indebtedness and is not created in contemplation
of or in connection with such Permitted Acquisition;


 


(f)            Liens on the property of the Borrower or any of its
Subsidiaries securing the Permitted Refinancing of any Indebtedness secured by
any Lien on such property permitted hereunder in reliance upon clause (c),
(d), (e) above or this clause (f) without any change in the
property subject to such Liens;


 


(g)           Liens pursuant to the Second Lien Notes Documents so long
as such Liens are subject to the Intercreditor Agreement; and


 


(h)           Liens on any property of the Borrower or any of its
Subsidiaries securing any of their Indebtedness or their other liabilities; provided, however, that the aggregate
outstanding principal amount of all such Indebtedness and other liabilities
shall not exceed $2,000,000 at any time.


 


Section 8.3             Investments.  No Group Member shall make or maintain,
directly or indirectly, any Investment except for the following:


 


(a)           Investments existing on the date hereof and set forth on Schedule 8.3;


 


(b)           Investments in cash and Cash Equivalents;


 


(c)           (i) endorsements for collection or deposit in the
ordinary course of business consistent with past practice, (ii) extensions
of trade credit (other than to Affiliates of the Borrower) arising or acquired
in the ordinary course of business and (iii) Investments received in
settlements in the ordinary course of business of such extensions of trade
credit;


 


(d)           Investments made as part of a Permitted Acquisition;


 


(e)           Investments by (i) Holdings in the Borrower,
(ii) any Loan Party (other than Holdings) in any other Loan Party (other
than Holdings), or (iii) any Group Member that is not a Loan Party in any Group
Member (other than Holdings) or in any joint venture; provided, further, that any Investment in de novo entities using Loan proceeds shall be limited to
$5,000,000 in the aggregate annually, or such greater amount as may be agreed
to in writing by Required Lenders; and provided,
further, that any Investment consisting of loans or advances to any Loan
Party pursuant to clause (iii) above shall be subordinated in full
to the payment of the Obligations of such Loan Party on terms and conditions
satisfactory to the Administrative Agent;


 


(f)            loans or advances to employees of the Borrower or any of
its Subsidiaries to finance travel, entertainment and relocation expenses and
other ordinary business purposes in the ordinary course of business as
presently conducted; provided, however,
that the aggregate 


 


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outstanding principal amount of all loans and
advances permitted pursuant to this clause (f) shall not exceed
$500,000 at any time;


 


(g)           Investments by an Borrower in the Stock of any
Subsidiaries or Unconsolidated Operating Entities formed or organized by with
another Person on or after the Closing Date (each such Person, a “JV
Participant”) in connection with a joint venture so long as each of the
following conditions are satisfied: (A) the Borrower that is party to such
joint venture has pledged to Administrative Agent all of the outstanding Stock
of any such Subsidiary or Unconsolidated Operating Entity held by such
Borrower; (B) the Borrower has complied with, and caused such newly formed
Subsidiary or Unconsolidated Operating Entity to comply with, the provisions of
Section 7.10; and (C) such JV Participant has pledged to Administrative
Agent all of the outstanding Stock of any such Subsidiary or Unconsolidated
Operating Entity held by such JV Participant; provided, however,
that, if subparts (B) and/or (C) of this clause (g) are not satisfied,
so long as the Borrower has pledged to Administrative Agent all of the
outstanding stock of any such joint venture Subsidiary or Unconsolidated
Operating Entity held by the Borrower, such Investment described in this clause
(g) shall be permitted but the aggregate outstanding amount of all such
Investments permitted pursuant to this clause (g) in reliance on this
proviso shall not exceed $5,000,000 per joint venture and $10,000,000 in the
aggregate during the term hereof;


 


(h)           bank deposits established in compliance with
Section 7.11;


 


(i)            Investments in securities of account debtors received
pursuant to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of such account debtors;


 


(j)            Investments in securities of purchasers received in
connection with an Asset Disposition permitted by Section 8.4;


 


(k)           Investments in the form of Hedging Agreements entered into
for the sole purpose of hedging in the normal course of business and consistent
with industry practices, so long as no Event of Default existed at the time
such Hedging Agreements were entered into;


 


(l)            loans and advances made by any Borrower to physician
practices that are parties to Management Services Agreements in connection with
physician recruitment efforts of such practices in an aggregate principal
amount not to exceed $4,200,000 at any time outstanding; provided, however, that upon the request of Administrative Agent at
any time, any such loans or advances shall be evidenced by promissory notes and
the sole originally executed counterparts thereof shall be pledged and
delivered to Administrative Agent, for the benefit of Administrative Agent and
Lenders, as security for the obligations; and


 


(m)          any Investment by the Borrower or any of its Subsidiaries;
provided, however, that the aggregate outstanding amount of all such
Investments shall not exceed $500,000 at any time.


 


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Section 8.4             Asset Sales.  No Group Member shall Sell any of its
property (other than cash) or issue shares of its own Stock, except for the
following:


 


(a)           In each case to the extent entered into in the ordinary
course of business and made to a Person that is not an Affiliate of the
Borrower, (i) Sales of Cash Equivalents, inventory or property that has
become damaged, obsolete or worn out or is no longer useful in the business,
(ii) non-exclusive licenses of Intellectual Property, and (iii) leases,
subleases, licenses or sublicenses of property by any Loan Party in the
ordinary course of business that do not materially interfere with the business
of the Borrower;


 


(b)           (i) any Sale of any property (other than their own
Stock or Stock Equivalents) by any Group Member (other than Holdings) to any
other Group Member (other than Holdings) to the extent any resulting Investment
constitutes a Permitted Investment, (ii) any Restricted Payment by any
Group Member (other than Holdings) permitted pursuant to Section 8.5
and (iii) any distribution by Holdings of the proceeds of Restricted
Payments from any other Group Member to the extent permitted in Section 8.5;


 


(c)           (i) any Sale or issuance by Holdings of its own
Stock, (ii) any Sale or issuance by the Borrower of its own Stock to Holdings,
(iii) any Sale or issuance by any Subsidiary of the Borrower of its own Stock
to any Group Member (other than Holdings), provided,
however, that the proportion of such Stock and of each class of such Stock
(both on an outstanding and fully-diluted basis) held by the Loan Parties
(other than Holdings), taken as a whole, does not change as a result of such
Sale or issuance and (iv) to the extent necessary to satisfy any Requirement of
Law in the jurisdiction of incorporation of any Subsidiary of the Borrower, any
Sale or issuance by such Subsidiary of its own Stock constituting directors’
qualifying shares or nominal holdings; and


 


(d)           as long as no Default is continuing or would result
therefrom, any Sale of property (other than as part of a Sale and Leaseback
Transaction) of any Group Member (other than Holdings) for fair market value
payable in cash upon such sale; provided,
however, that (A) the aggregate consideration received for any Sale
shall not exceed $500,000 and the aggregate consideration during any Fiscal
Year for all such Sales shall not exceed $1,000,000 and (B) a Subsidiary
does not become an Unconsolidated Operating Entity as a result of such Asset
Sale; and


 


(e)           any lease, license, transfer or assignment of property
among Loan Parties in connection with a Management Services Agreement.


 


Section 8.5             Restricted Payments.  No Group Member (other than Holdings) shall
directly or indirectly, declare, order, pay, make or set apart any sum for any
Restricted Payment except for the following (and Holdings shall not use the
proceeds of any Restricted Payment made in reliance under clause (c)
below other than as set forth in such clause (c)):


 


(a)           (i) Restricted Payments (A) by any Group Member
(other than Holdings) that is a Loan Party to any Loan Party other than
Holdings and (B) by any Group Member that is not a Loan Party to any Group
Member other than Holdings and (ii) dividends and distributions 


 


89

















 


by any Subsidiary of the Borrower that is not a Loan
Party to any holder of its Stock, to the extent made to all such holders
ratably according to their ownership interests in such Stock;


 


(b)           dividends and distributions declared and paid on the
common Stock of any Group Member (other than Holdings) ratably to the holders
of such common Stock and payable only in common Stock of such Group Member; and


 


(c)           cash dividends on the Stock of the Borrower to Holdings
paid and declared solely for the purpose of funding the following:


 


(i)            payments by Holdings in respect of taxes owing by
Holdings in respect of the other Group Members;


 


(ii)           ordinary operating expenses of Holdings;


 


(iii)          the redemption, purchase or other acquisition or retirement
for value by Holdings of its common Stock (or Stock Equivalents with respect to
its common Stock) (a) from any present or former employee, director or
officer (or the assigns, estate, heirs or current or former spouses thereof) of
any Group Member upon the death, disability or termination of employment of
such employee, director or officer; provided,
however, that the amount of such cash dividends paid in any Fiscal Year
shall not exceed $2,500,000 in the aggregate or (b) from any other Person;
provided, however, that the amount of such cash dividends paid in any Fiscal
Year in reliance upon this clause (b) shall not exceed $7,500,000 in
the aggregate;


 


(iv)          scheduled payments of interest by Holdings on the Second
Lien Debt in accordance with the terms of the Second Lien Notes Documents, but
only to the extent permitted by the terms of the Intercreditor Agreement.


 


provided, however, that no action that would otherwise be
permitted hereunder in reliance upon this clause (c) (other than clause (i)
or (ii) above) shall be permitted if (A) an Event of Default is
then continuing or would result therefrom or (B) such action is otherwise
prohibited under any Loan Document or under the terms of any Indebtedness
(other than the Obligations) of any Group Member.


 


Section 8.6             Prepayment of Indebtedness.  No Group Member shall (x) prepay,
redeem, purchase, defease or otherwise satisfy prior to the scheduled maturity
thereof any Indebtedness or Genstar Fee, (y) set apart any property for
such purpose, whether directly or indirectly and whether to a sinking fund, a
similar fund or otherwise, or (z) make any payment in violation of any
subordination terms of any Indebtedness or Genstar Fee; provided, however, that each Group Member may, to the extent
otherwise permitted by the Loan Documents, do each of the following:


 


(a)           (i) prepay the Obligations, (ii) consummate a Permitted
Refinancing, and (iii) prepay in full on the Closing Date Indebtedness owing
under the Existing Credit Agreement and the Existing Note Purchase Agreement;


 


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(b)           prepay, redeem, purchase, defease or otherwise satisfy
prior to the scheduled maturity date thereof (or set apart any property for
such purpose) (A) in the case of any Group Member that is not a Loan Party, any
Indebtedness owing by such Group Member to any other Group Member (other than
Holdings) and (B) otherwise, any Indebtedness owing to any Loan Party (other
than Holdings);


 


(c)           make regularly scheduled or otherwise required repayments
or redemptions of Subordinated Debt (other than Indebtedness owing to any
Affiliate of the Borrower) but only to the extent permitted by the
subordination provisions thereof;


 


(d)           make regularly scheduled or otherwise required repayments
or redemptions of Second Lien Debt (but no voluntary prepayments or
redemptions) but only to the extent that, after giving effect to such proposed
repayment or redemption, the sum of (i) cash and Cash Equivalents of the
Borrower that are (A) owned by such Person, (B) not subject to any Lien other
than a Lien in favor of Administrative Agent and Liens securing the Second Lien
Debt, and (C) not pledged to or held by Administrative Agent to secure a
specified Obligation plus (ii) the difference between the Revolving
Credit Commitment and Revolving Credit Outstandings is at least $15,000,000 (as
demonstrated to Administrative Agent’s reasonable satisfaction prior to making
such repayment or redemption);


 


(e)           pay Genstar Fees pursuant to, and in accordance with, the
Genstar Advisory Services Agreement and the subordination agreement entered
into in connection therewith, as long as (except for indemnities and
reimbursement of reasonable out-of-pocket fees and expenses) (i) the Genstar
Advisory Services Agreement shall remain in full force and effect and (ii) no
Event of Default is continuing and none would result therefrom; provided,
however that if the Borrower is not permitted to pay any Genstar Fee
hereunder solely because of the occurrence of any Event of Default, the
Borrower shall be permitted to make such payment as soon as no Event of Default
shall be continuing;


 


(f)            make any voluntary prepayments of any Indebtedness (other
than the Subordinated Debt, the Second Lien Debt and the Genstar Fees or any
Indebtedness owing to any Affiliate of the Borrower) but only to the extent
that, after giving effect to such prepayment, the Consolidated First Lien
Leverage Ratio (recomputed for the last fiscal quarter for which financial
statements are available as if such prepayment had been made during such
quarter) for Holdings is at least 1.25 to 1.00.


 


Section 8.7             Fundamental Changes.  No Group Member shall (a) merge,
consolidate or amalgamate with any Person, (b) acquire all or
substantially all of the Stock or Stock Equivalents of any Person or
(c) acquire any brand or all or substantially all of the assets of any
Person or all or substantially all of the assets constituting any line of
business, division, branch, operating division or other unit operation of any
Person, in each case except for the following: (w) to consummate any
Permitted Acquisition, (x) the merger, consolidation or amalgamation of
any Subsidiary of the Borrower into any Loan Party, (y) the merger,
consolidation or amalgamation of any Subsidiary of the Borrower that is not a
Wholly Owned Subsidiary and not a Loan Party into any other Subsidiary of the
Borrower that is not a Wholly Owned Subsidiary and not a Loan Party and
(z) the merger, consolidation or amalgamation of any Group Member (other
than Holdings) for the sole purpose, and with the sole material effect, of
changing its State of 


 


91

















 


organization within the United States; provided, however, that (A) in the case
of any merger, consolidation or amalgamation involving the Borrower, except as
expressly permitted in the definition of “Proposed Acquisition,” the Borrower
shall be the surviving Person, (B) in the case of any merger,
consolidation or amalgamation involving any other Loan Party, except as
expressly permitted in the definition of “Proposed Acquisition,” a Loan Party
shall be the surviving corporation, and (C) in the case of any merger,
consolidation or amalgamation involving any Group Member or Unconsolidated
Operating Entity, all actions required to maintain the perfection of the Lien
of the Administrative Agent on the Stock or property of such Loan Party shall
have been made.


 


Section 8.8             Change in Nature of Business.  (a) No Group Member (other than
Holdings) shall carry on any business, operations or activities (whether
directly, through a joint venture, in connection with a Permitted Acquisition
or otherwise) substantially different from those carried on by the Borrower and
its Subsidiaries at the date hereof and business, operations and activities
reasonably related thereto.


 


(b)           Holdings shall not engage in any business, operations or
activity, or hold any property, other than (i) holding Stock and Stock
Equivalents of Oncure, (ii) issuing, selling and redeeming its own Stock,
(ii) paying taxes, (iii) holding directors’ and shareholders’ meetings,
preparing corporate and similar records and other activities required to
maintain its separate corporate or other legal structure, (iv) preparing
reports to, and preparing and making notices to and filings with, Governmental
Authorities and to its holders of Stock and Stock Equivalents,
(v) receiving, and holding proceeds of, Restricted Payments from the
Borrower and its Subsidiaries and distributing the proceeds thereof to the
extent permitted in Section 8.5, and (vi) consummating any
Permitted Acquisition, but only to the extent such assets and Stock acquired as
part of such Permitted Acquisition are transferred to the Borrower or any
Subsidiary of the Borrower that is a Loan Party contemporaneously with such
acquisition.  Without limiting the
generality of the foregoing, Holdings shall not enter into or permit to exist
any transaction or agreement (including any agreement for the incurrence or
assumption of Indebtedness, any purchase, sale, lease or exchange of any
property or the rendering of any service), between itself and any other Person,
other than the Loan Documents, the Second Lien Notes Documents, with respect to
its own Stock and in connection with a Permitted Acquisition (subject to the
limitations set forth in this clause (b).


 


Section 8.9             Transactions with Affiliates.
 No Group Member shall, except as
otherwise expressly permitted herein, enter into any other transaction directly
or indirectly with, or for the benefit of, any Affiliate of the Borrower
(including, without limitation, any Unconsolidated Operating Entity) that is
not a Loan Party (including Guaranty Obligations with respect to any obligation
of any such Affiliate), other than:


 


(a)           As otherwise disclosed on Schedule 8.9;


 


(b)           transactions on a basis no less favorable to such Group
Member as would be obtained in a comparable arm’s length transaction with a
Person not an Affiliate of the Borrower;


 


(c)           transactions between or among a Loan Party and any other
Loan Party;


 


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(d)           Restricted Payments that are permitted by
Section 8.5, the proceeds of which, if received by Holdings, are used as
required by Section 8.5,


 


(e)           reasonable salaries and other reasonable director or
employee compensation to officers and directors of any Group Member, and


 


(f)            the payment of Genstar Fees.


 


Section 8.10           Third-Party Restrictions on
Indebtedness, Liens, Investments or Restricted Payments.  No Group Member shall incur or otherwise
suffer to exist or become effective or remain liable on or responsible for any
Contractual Obligation limiting the ability of (a) any Subsidiary of the
Borrower to make Restricted Payments to, or Investments in, or repay
Indebtedness or otherwise Sell property to, any Group Member (other than
Holdings) or (b) any Group Member to incur or suffer to exist any Lien
upon any property of any Group Member, whether now owned or hereafter acquired,
securing any of its Obligations (including any “equal and ratable”
clause and any similar Contractual Obligation requiring, when a Lien is
granted on any property, another Lien to be granted on such property or any
other property), except, for each of clauses (a) and (b) above,
(i) pursuant to the Loan Documents and the Second Lien Notes Documents
(but, with respect to any such restrictions in the Second Lien Notes Documents,
only so long as such restriction does not prohibit the ability of any Loan
Party to take any of the actions described in clauses (a) and (b) above
pursuant to the terms of the Loan Documents); (ii) restrictions existing
under or by reason of applicable Requirements of Law; (iii) customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of a Group Member entered into in the ordinary course of
business; (iv) customary provisions restricting assignment of any agreement
entered into by a Group Member entered into in the ordinary course of business;
(v) limitations on Liens (other than those securing any Obligation) on any
property whose acquisition, repair, improvements or construction is financed by
purchase money Indebtedness, Capitalized Lease Obligations or Permitted
Refinancings permitted hereunder in reliance upon Section 8.1(b) or (c)
set forth in the Contractual Obligations governing such Indebtedness,
Capitalized Lease Obligations or Permitted Refinancing or Guaranty Obligations
with respect thereto; (vii) any agreement in effect at the time any
Subsidiary of Oncure becomes a Subsidiary, so long as such agreement was not
entered into in connection with or in contemplation of such person becoming a Subsidiary,
which encumbrance or restriction is not applicable to any Loan Party, or the
properties or assets of any Loan Party, other than such Subsidiary, or the
property or assets of such Subsidiary, so acquired.


 


Section 8.11           Modification of Certain Documents.  No Group Member shall do any of the
following:


 


(a)           waive or otherwise modify any term of any Related Document
(other than any Second Lien Notes Document or the terms of any Subordinated
Debt or Second Lien Debt) or any Constituent Document of, or otherwise change
the capital structure of, any Group Member (including the terms of any of their
outstanding Stock or Stock Equivalents), in each case except for those
modifications and waivers that (x) do not elect, or permit the election,
to treat the Stock or Stock Equivalents of any limited liability company (or
similar entity) as certificated and (y) do not materially and adversely
affect the rights and privileges of any Group 


 


93

















 


Member and do not materially and adversely affect
the interests of any Secured Party under the Loan Documents or in the
Collateral;


 


(b)           waive or otherwise modify any term of any Subordinated
Debt if the effect thereof on such Subordinated Debt is to (i) increase
the interest rate, (ii) change the due dates for principal or interest,
other than to extend such dates, (iii) modify any default or event of
default, other than to delete it or make it less restrictive, (iv) add any
covenant with respect thereto, (v) modify any subordination provision,
(vi) modify any redemption or prepayment provision, other than to extend
the dates therefor or to reduce the premiums payable in connection therewith,
or (vii) materially increase any obligation of any Group Member or confer
additional material rights to the holder of such Subordinated Debt in a manner
adverse to any Group Member or any Secured Party.


 


(c)           amend or otherwise modify the terms of any Second Lien
Notes Document, except for amendments or modifications made in full compliance
with the Intercreditor Agreement.


 


(d)           Designate or permit any Indebtedness (other than the
Obligations) to be part of the [“Credit Facilities”] as defined in the
Indenture or qualify as [“First Lien Obligations”] under the Indenture
or any other Second Lien Notes Document or permit the Obligations to cease
qualifying as [“First Lien Obligations”] as defined in the Indenture.


 


(e)           Designate or permit any Indebtedness (other than the
Obligations) to be part of the [“First Lien Obligations”] as defined in
the Intercreditor Agreement.


 


(f)            amend or otherwise modify, or waive any rights under, any
Management Services Agreement if, in any case, such amendment, modification or
waiver affects the scope of the PC Collateral pledged by the Professional
Services Provider party thereto, the cash management process described therein,
or otherwise impacts the continued perfection of Administrative Agent’s Lien on
the PC Collateral.


 


(g)           Change or amend the terms of the Genstar Advisory Services
Agreement (or any other material document entered into with respect to the
payment of any fee to Genstar in connection therewith) if the effect of such
amendment is to (i) increase the interest rate (or decrease the portion thereof
that is not required to be paid in cash) payable upon default on the Genstar
Fees or otherwise increase any amount payable by a Group Member thereunder,
(ii) change the subordination provisions set forth therein or any other term
relating to the payment of Genstar Fees that would otherwise conflict with this
Agreement or (iii) change or amend any other term if such change or amendment
would provide for the payment of Genstar Fees during the continuation of any
Event of Default (except to the extent permitted hereunder), materially
increase the payment obligations of the obligor or otherwise add any provision
that provides, directly or indirectly, for the transfer of any property or
assets of any Group member to the Permitted Equity Investors in a manner
adverse to Holdings, the Borrower, any of their respective Subsidiaries, or any
Agent, Lender, Issuer or other Secured Party.


 


Section 8.12           Accounting Changes; Fiscal Year.  No Group Member shall change its fiscal year
or its method for determining fiscal quarters or fiscal months.


 


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Section 8.13           Margin Regulations.  No Group Member shall use all or any portion
of the proceeds of any credit extended hereunder to purchase or carry margin
stock (within the meaning of Regulation U of the Federal Reserve Board) in
contravention of Regulation U of the Federal Reserve Board.


 


Section 8.14           Compliance with ERISA.  No ERISA Affiliate shall cause or suffer to
exist (a) any event that could result in the imposition of a Lien with
respect to any Title IV Plan or Multiemployer Plan or (b) any other
ERISA Event, that would, in the aggregate, have a Material Adverse Effect.  No Group Member shall cause or suffer to
exist any event that could result in the imposition of a Lien with respect to
any Benefit Plan.


 


Section 8.15           Restricted Payments.  No Loan Party shall, directly or indirectly,
make any payment (including the payment of any proceeds of a Loan or the
payment of proceeds of Collateral) to any direct or indirect Subsidiary of
Oncure or any Unconsolidated Operating Entity, in each case that is not a Loan
Party.


 


ARTICLE 9

EVENTS OF DEFAULT


 


Section 9.1             Definition.  Each of the following shall be an Event of
Default:


 


(a)           the Borrower shall fail to pay (i) any principal of
any Loan or any L/C Reimbursement Obligation when the same becomes due and
payable or (ii) any interest on any Loan, any fee under any Loan Document
or any other Obligation (other than those set forth in clause (i)
above) and, in the case of this clause (ii), such non-payment
continues for a period of 3 Business Days after the due date therefor; or


 


(b)           any representation, warranty or certification made or
deemed made by or on behalf of any Loan Party in any Loan Document or by or on
behalf of any Loan Party (or any Responsible Officer thereof) in connection
with any Loan Document (including in any document delivered in connection with
any Loan Document) shall prove to have been incorrect in any material respect
(or in any respect if such representation or warranty is qualified by “material”
or “Material Adverse Effect”) when made or deemed made; or


 


(c)           any Loan Party shall fail to comply with (i) any
provision of Article 5 (Financial Covenants),
Section 6.1 (Financial Statements), 6.2(a)(i) (Other Events),
7.1 (Maintenance of Corporate Existence), 7.9 (Application of Loan
Proceeds), 7.13 (Post-Closing Deliveries) or Article 8 (Negative
Covenants) or (ii) any other provision of any Loan Document if, in the
case of this clause (ii), such failure shall remain unremedied for 30 days
after the earlier of (A) the date on which a Responsible Officer of any
Borrower becomes aware of such failure and (B) the date on which notice
thereof shall have been given to the Borrower Representative by the
Administrative Agent or the Required Lenders; or


 


(d)           (i) any Loan Party shall fail to make any payment
when due (whether due because of scheduled maturity, required prepayment
provisions, acceleration, demand or otherwise) on any Indebtedness of any Loan
Party (other than the Obligations or any Hedging Agreement or Second Lien Debt)
and, in each case, such failure relates to Indebtedness having a principal
amount of $5,000,000 or more, (ii) any other event shall occur or
condition shall exist


 


95














 


under any Contractual Obligation relating to any
such Indebtedness, if the effect of such event or condition is to accelerate,
or to permit the acceleration of, the maturity of such Indebtedness,
(iii) any such Indebtedness shall become or be declared to be due and
payable, or be required to be prepaid, redeemed, defeased or repurchased (other
than by a regularly scheduled required prepayment), prior to the stated
maturity thereof, or (iv) there shall occur a “Default,” an “Event of Default”
(or any comparable term) under any document evidencing or relating to
Subordinated Debt; or


 


(e)           (i) any Loan Party shall generally not pay its debts
as such debts become due, shall admit in writing its inability to pay its debts
generally or shall make a general assignment for the benefit of creditors,
(ii) any proceeding shall be instituted by or against any Loan Party
seeking to adjudicate it a bankrupt or insolvent or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief, composition
of it or its debts or any similar order, in each case under any Requirement of
Law relating to bankruptcy, insolvency or reorganization or relief of debtors
or seeking the entry of an order for relief or the appointment of a custodian,
receiver, trustee, conservator, liquidating agent, liquidator, other similar
official or other official with similar powers, in each case for it or for any
substantial part of its property and, in the case of any such proceedings
instituted against (but not by or with the consent of) any Loan Party, either
such proceedings shall remain undismissed or unstayed for a period of 60 days
or more or any action sought in such proceedings shall occur or (iii) any
Loan Party shall take any corporate or similar action or any other action to
authorize any action described in clause (i) or (ii) above;
or


 


(f)            one or more judgments, orders or decrees (or other
similar process) shall be rendered against any Loan Party (i)(A) in the
case of money judgments, orders and decrees, involving an aggregate amount
(excluding amounts adequately covered by insurance payable to any Loan Party,
to the extent the relevant insurer has not denied coverage therefor) in excess
of $2,500,000 or (B) otherwise, that would have, in the aggregate, a Material
Adverse Effect and (ii)(A) enforcement proceedings shall have been
commenced by any creditor upon any such judgment, order or decree or
(B) such judgment, order or decree shall not have been vacated or
discharged for a period of 30 consecutive days and there shall not be in effect
(by reason of a pending appeal or otherwise) any stay of enforcement thereof;
or


 


(g)           except pursuant to a valid, binding and enforceable
termination or release permitted under the Loan Documents and executed by the
Administrative Agent or as otherwise expressly permitted under any Loan
Document, (i) any provision of any Loan Document shall, at any time after
the delivery of such Loan Document, fail to be valid and binding on, or
enforceable against, any Loan Party party thereto, (ii) any Loan Document
purporting to grant a Lien to secure any Obligation shall, at any time after
the delivery of such Loan Document, fail to create a valid and enforceable Lien
on any Collateral purported to be covered thereby or such Lien shall fail or cease
to be a perfected Lien with the priority required in the relevant Loan Document
or (iii) any lien or debt subordination provision set forth in any Second
Lien Notes Document shall, in whole or in part, terminate or otherwise fail or
cease to be valid and binding on, or enforceable against, the Second Lien Notes
Trustee, the Second Lien Agent or any holder of the Second Lien Notes (or the
Second Lien Notes Trustee, the Second Lien Agent or any such holder shall so
state in writing), or any Group Member shall state in writing that any of the
events described in clause (i), (ii) or (iii) above
shall have occurred;


 


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(h)           (i) there shall occur a “Default,” an “Event of Default”
(or any comparable term) under any Second Lien Notes Document or any document
evidencing or relating to Second Lien Debt, (ii) any of the Obligations for any
reason shall cease to be [“First Lien Obligations”] (or any comparable
term) under, and as defined in, the Second Lien Notes Documents or any other
document evidencing the Second Lien Debt, (iii) the Intercreditor Agreement
shall, in whole or in part, terminate, cease to be effective or cease to be
legally valid, binding and enforceable against any holder of the Second Lien Debt,
(iv) any Loan Party shall modify the terms or provisions of the Second Lien
Notes Documents or any other documents evidencing the Second Lien Debt without
the Administrative Agent’s prior written consent, unless in the case of the
Second Lien Notes Documents such modification is permitted by the Intercreditor
Agreement; or (v) any Loan Party shall designate any Indebtedness (other than
the Obligations hereunder) as part of the [“Credit Facilities”] or [“First
Lien Obligation”] (or any comparable term) under, and as defined in the
Second Lien Notes Documents or the Intercreditor Agreement, without the prior
written consent of Administrative Agent (which consent may be granted or
withheld in its sole discretion);


 


(i)            there shall occur any Change of Control; or


 


(j)            a state or federal regulatory agency shall have revoked
any license, permit, certificate or Medicaid or Medicare qualification
pertaining to a Licensed Location and required in the provision of radiation
therapy services and/or the provision of management services to physicians or
physician groups to the extent that such revocation could reasonably be
expected to have a Material Adverse Effect, regardless of whether such
Healthcare Permit was held by or originally issued for the benefit of Borrower
or a Professional Services Provider.


 


Section 9.2             Remedies.  During the continuance of any Event of
Default, the Administrative Agent may, and, at the request of the Required
Lenders, shall, in each case by notice to the Borrower and in addition to any other
right or remedy provided under any Loan Document or by any applicable
Requirement of Law, do each of the following: (a) declare all or any
portion of the Commitments terminated, whereupon the Commitments shall
immediately be reduced by such portion or, in the case of a termination in
whole, shall terminate together with any obligation any Lender may have
hereunder to make any Loan and any L/C Issuer may have hereunder to Issue any
Letter of Credit or (b) declare immediately due and payable all or part of
any Obligation (including any accrued but unpaid interest thereon), whereupon
the same shall become immediately due and payable, without presentment, demand,
protest or further notice or other requirements of any kind, all of which are
hereby expressly waived by Holdings and the Borrower (and, to the extent
provided in any other Loan Document, other Loan Parties); provided, however, that, effective immediately upon the occurrence
of the Events of Default specified in Section 9.1(e)(ii),
(x) the Commitments of each Lender to make Loans and the commitment of
each L/C Issuer to Issue Letters of Credit shall each automatically be
terminated and (y) each Obligation (including in each case any accrued all
accrued but unpaid interest thereon) shall automatically become and be due and
payable, without presentment, demand, protest or further notice or other
requirement of any kind, all of which are hereby expressly waived by Holdings
and the Borrower (and, to the extent provided in any other Loan Document, any other
Loan Party).


 


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Section 9.3             Actions in Respect of Letters of
Credit.  At any time (i) upon
the Revolving Credit Termination Date, (ii) after the Revolving Credit
Termination Date when the aggregate funds on deposit in L/C Cash Collateral
Accounts shall be less than 105% of the L/C Obligations for all Letters of
Credit at such time and (iii) as required by Section 2.12, the
Borrower shall pay to the Administrative Agent, for the benefit of the Secured
Parties, in immediately available funds at the Administrative Agent’s office
referred to in Section 11.11, for deposit in a L/C Cash Collateral
Account, the amount required so that, after such payment, the aggregate funds
on deposit in the L/C Cash Collateral Accounts equals or exceeds 105% of the
L/C Obligations for all Letters of Credit at such time (not to exceed, in the
case of clause (iii) above, the payment to be applied pursuant to Section 2.12
to provide cash collateral for Letters of Credit).


 


ARTICLE 10

THE ADMINISTRATIVE AGENT


 


Section 10.1           Appointment and Duties.  (a) Appointment of Administrative
Agent.  Each Lender and each L/C
Issuer hereby appoints GE Capital (together with any successor Administrative
Agent pursuant to Section 10.9) as the Administrative Agent
hereunder and authorizes the Administrative Agent to (i) execute and
deliver the Loan Documents and accept delivery thereof on its behalf from any
Group Member, (ii) take such action on its behalf and to exercise all
rights, powers and remedies and perform the duties as are expressly delegated
to the Administrative Agent under such Loan Documents and (iii) exercise
such powers as are reasonably incidental thereto.


 


(b)           Duties as Collateral and Disbursing Agent.  Without limiting the generality of clause (a)
above, the Administrative Agent shall have the sole and exclusive right and
authority (to the exclusion of the Lenders and L/C Issuers), and is hereby
authorized, to (i) act as the disbursing and collecting agent for the
Lenders and the L/C Issuers with respect to all payments and collections
arising in connection with the Loan Documents (including in any proceeding
described in Section 9.1(e)(ii) or any other bankruptcy, insolvency
or similar proceeding), and each Person making any payment in connection with
any Loan Document to any Secured Party is hereby authorized to make such
payment to the Administrative Agent, (ii) file and prove claims and file
other documents necessary or desirable to allow the claims of the Secured
Parties with respect to any Obligation in any proceeding described in Section 9.1(e)(ii)
or any other bankruptcy, insolvency or similar proceeding (but not to vote,
consent or otherwise act on behalf of such Secured Party), (iii) act as
collateral agent for each Secured Party for purposes of the perfection of all
Liens created by such agreements and all other purposes stated therein,
(iv) manage, supervise and otherwise deal with the Collateral,
(v) take such other action as is necessary or desirable to maintain the
perfection and priority of the Liens created or purported to be created by the
Loan Documents, (vi) except as may be otherwise specified in any Loan Document,
exercise all remedies given to the Administrative Agent and the other Secured
Parties with respect to the Collateral, whether under the Loan Documents,
applicable Requirements of Law or otherwise and (vii) execute any
amendment, consent or waiver under the Loan Documents on behalf of any Lender
that has consented in writing to such amendment, consent or waiver; provided, however, that the Administrative
Agent hereby appoints, authorizes and directs each Lender and L/C Issuer to act
as collateral sub-agent for the Administrative Agent, the Lenders and the L/C
Issuers for purposes of the perfection of all Liens 


 


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with respect to the Collateral, including any
deposit account maintained by a Loan Party with, and cash and Cash Equivalents
held by, such Lender or L/C Issuer, and may further authorize and direct the
Lenders and the L/C Issuers to take further actions as collateral sub-agents
for purposes of enforcing such Liens or otherwise to transfer the Collateral
subject thereto to the Administrative Agent, and each Lender and L/C Issuer
hereby agrees to take such further actions to the extent, and only to the
extent, so authorized and directed.


 


(c)           Limited Duties. 
Under the Loan Documents, the Administrative Agent (i) is acting
solely on behalf of the Lenders and the L/C Issuers (except to the limited
extent provided in Section 2.14(b) with respect to the Register and
in Section 10.11), with duties that are entirely administrative in
nature, notwithstanding the use of the defined term “Administrative Agent”, the
terms “agent”, “administrative agent” and “collateral agent” and similar terms
in any Loan Document to refer to the Administrative Agent, which terms are used
for title purposes only, (ii) is not assuming any obligation under any
Loan Document other than as expressly set forth therein or any role as agent,
fiduciary or trustee of or for any Lender, L/C Issuer or any other Secured
Party and (iii) shall have no implied functions, responsibilities, duties,
obligations or other liabilities under any Loan Document, and each Lender and
L/C Issuer hereby waives and agrees not to assert any claim against the
Administrative Agent based on the roles, duties and legal relationships
expressly disclaimed in clauses (i) through (iii) above.


 


Section 10.2           Binding Effect.  Each Lender and each L/C Issuer agrees that
(i) any action taken by the Administrative Agent or the Required Lenders
(or, if expressly required hereby, a greater proportion of the Lenders) in
accordance with the provisions of the Loan Documents, (ii) any action
taken by the Administrative Agent in reliance upon the instructions of Required
Lenders (or, where so required, such greater proportion) and (iii) the exercise
by the Administrative Agent or the Required Lenders (or, where so required,
such greater proportion) of the powers set forth herein or therein, together
with such other powers as are reasonably incidental thereto, shall be
authorized and binding upon all of the Secured Parties.


 


Section 10.3           Use of Discretion.  (a) No Action without Instructions.  The Administrative Agent shall not be required
to exercise any discretion or take, or to omit to take, any action, including
with respect to enforcement or collection, except any action it is required to
take or omit to take (i) under any Loan Document or (ii) pursuant to
instructions from the Required Lenders (or, where expressly required by the
terms of this Agreement, a greater proportion of the Lenders).


 


(b)           Right Not to Follow Certain Instructions.  Notwithstanding clause (a) above,
the Administrative Agent shall not be required to take, or to omit to take, any
action (i) unless, upon demand, the Administrative Agent receives an
indemnification satisfactory to it from the Lenders (or, to the extent
applicable and acceptable to the Administrative Agent, any other Secured Party)
against all Liabilities that, by reason of such action or omission, may be
imposed on, incurred by or asserted against the Administrative Agent or any
Related Person thereof or (ii) that is, in the opinion of the
Administrative Agent or its counsel, contrary to any Loan Document or
applicable Requirement of Law.


 


Section 10.4           Delegation of Rights and Duties.  The Administrative Agent may, upon any term
or condition it specifies, delegate or exercise any of its rights, powers and
remedies 


 


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under, and delegate or perform any of its duties or
any other action with respect to, any Loan Document by or through any trustee,
co-agent, employee, attorney-in-fact and any other Person (including any
Secured Party).  Any such Person shall
benefit from this Article 10 to the extent provided by the
Administrative Agent.


 


Section 10.5           Reliance and Liability.  (a) The Administrative Agent may, without
incurring any liability hereunder, (i) treat the payee of any Note as its
holder until such Note has been assigned in accordance with Section 11.2(e),
(ii) rely on the Register to the extent set forth in Section 2.14,
(iii) consult with any of its Related Persons and, whether or not selected
by it, any other advisors, accountants and other experts (including advisors
to, and accountants and experts engaged by, any Loan Party) and (iv) rely
and act upon any document and information (including those transmitted by
Electronic Transmission) and any telephone message or conversation, in each case
believed by it to be genuine and transmitted, signed or otherwise authenticated
by the appropriate parties.


 


(b)           None of the Administrative Agent and its Related Persons
shall be liable for any action taken or omitted to be taken by any of them
under or in connection with any Loan Document, and each Lender, L/C Issuer,
Holdings and the Borrower hereby waive and shall not assert (and each of
Holdings and the Borrower shall cause each other Loan Party to waive and agree
not to assert) any right, claim or cause of action based thereon, except to the
extent of liabilities resulting primarily from the gross negligence or willful
misconduct of the Administrative Agent or, as the case may be, such Related
Person (each as determined in a final, non-appealable judgment by a court of
competent jurisdiction) in connection with the duties expressly set forth
herein.  Without limiting the foregoing,
the Administrative Agent:


 


(i)            shall not be responsible or otherwise incur liability for
any action or omission taken in reliance upon the instructions of the Required
Lenders or for the actions or omissions of any of its Related Persons selected
with reasonable care (other than employees, officers and directors of the
Administrative Agent, when acting on behalf of the Administrative Agent);


 


(ii)           shall not be responsible to any Secured Party for the due
execution, legality, validity, enforceability, effectiveness, genuineness,
sufficiency or value of, or the attachment, perfection or priority of any Lien
created or purported to be created under or in connection with, any Loan
Document;


 


(iii)          makes no warranty or representation, and shall not be
responsible, to any Secured Party for any statement, document, information,
representation or warranty made or furnished by or on behalf of any Related
Person or any Loan Party in connection with any Loan Document or any
transaction contemplated therein or any other document or information with
respect to any Loan Party, whether or not transmitted or (except for documents
expressly required under any Loan Document to be transmitted to the Lenders)
omitted to be transmitted by the Administrative Agent, including as to
completeness, accuracy, scope or adequacy thereof, or for the scope, nature or
results of any due diligence performed by the Administrative Agent in
connection with the Loan Documents; and


 


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(iv)          shall not have any duty to ascertain or to inquire as to
the performance or observance of any provision of any Loan Document, whether any
condition set forth in any Loan Document is satisfied or waived, as to the
financial condition of any Loan Party or as to the existence or continuation or
possible occurrence or continuation of any Default or Event of Default and
shall not be deemed to have notice or knowledge of such occurrence or
continuation unless it has received a notice from the Borrower, any Lender or
L/C Issuer describing such Default or Event of Default clearly labeled “notice
of default” (in which case the Administrative Agent shall promptly give notice
of such receipt to all Lenders);


 


and,
for each of the items set forth in clauses (i) through (iv)
above, each Lender, L/C Issuer, Holdings and the Borrower hereby waives and
agrees not to assert (and each of Holdings and the Borrower shall cause each
other Loan Party to waive and agree not to assert) any right, claim or cause of
action it might have against the Administrative Agent based thereon.


 


Section 10.6           Administrative Agent Individually.  The Administrative Agent and its Affiliates
may make loans and other extensions of credit to, acquire Stock and Stock
Equivalents of, engage in any kind of business with, any Loan Party or
Affiliate thereof as though it were not acting as Administrative Agent and may
receive separate fees and other payments therefor.  To the extent the Administrative Agent or any
of its Affiliates makes any Loan or otherwise becomes a Lender hereunder, it
shall have and may exercise the same rights and powers hereunder and shall be
subject to the same obligations and liabilities as any other Lender and the
terms “Lender”, “Revolving Credit Lender”, “Required Lender”, and “Required
Revolving Credit Lender” and any similar terms shall, except where otherwise
expressly provided in any Loan Document, include, without limitation, the
Administrative Agent or such Affiliate, as the case may be, in its individual
capacity as Lender, Revolving Credit Lender, or as one of the Required Lenders
or Required Revolving Credit Lenders respectively.


 


Section 10.7           Lender Credit Decision.  Each Lender and each L/C Issuer acknowledges
that it shall, independently and without reliance upon the Administrative
Agent, any Lender or L/C Issuer or any of their Related Persons or upon any
document (including the Disclosure Documents) solely or in part because such
document was transmitted by the Administrative Agent or any of its Related
Persons, conduct its own independent investigation of the financial condition
and affairs of each Loan Party and make and continue to make its own credit
decisions in connection with entering into, and taking or not taking any action
under, any Loan Document or with respect to any transaction contemplated in any
Loan Document, in each case based on such documents and information as it shall
deem appropriate.  Except for documents
expressly required by any Loan Document to be transmitted by the Administrative
Agent to the Lenders or L/C Issuers, the Administrative Agent shall not have
any duty or responsibility to provide any Lender or L/C Issuer with any credit
or other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of any Loan Party or any
Affiliate of any Loan Party that may come in to the possession of the
Administrative Agent or any of its Related Persons.


 


Section 10.8           Expenses; Indemnities.  (a) Each Lender agrees to reimburse the
Administrative Agent and each of its Related Persons (to the extent not
reimbursed by any Loan Party) promptly upon demand for such Lender’s Pro Rata
Share with respect to the Facilities of 


 


101

















 


any costs and expenses (including fees, charges and
disbursements of financial, legal and other advisors and Other Taxes paid in
the name of, or on behalf of, any Loan Party) that may be incurred by the
Administrative Agent or any of its Related Persons in connection with the
preparation, syndication, execution, delivery, administration, modification,
consent, waiver or enforcement (whether through negotiations, through any
work-out, bankruptcy, restructuring or other legal or other proceeding or
otherwise) of, or legal advice in respect of its rights or responsibilities
under, any Loan Document.


 


(b)           Each Lender further agrees to indemnify the Administrative
Agent and each of its Related Persons (to the extent not reimbursed by any Loan
Party), from and against such Lender’s aggregate Pro Rata Share with respect to
the Facilities of the Liabilities (including taxes, interests and penalties
imposed for not properly withholding or backup withholding on payments made to
on or for the account of any Lender) that may be imposed on, incurred by or
asserted against the Administrative Agent or any of its Related Persons in any
matter relating to or arising out of, in connection with or as a result of any
Loan Document, any Related Document or any other act, event or transaction
related, contemplated in or attendant to any such document, or, in each case,
any action taken or omitted to be taken by the Administrative Agent or any of
its Related Persons under or with respect to any of the foregoing; provided, however, that no Lender shall be
liable to the Administrative Agent or any of its Related Persons to the extent
such liability has resulted primarily from the gross negligence or willful
misconduct of the Administrative Agent or, as the case may be, such Related
Person, as determined by a court of competent jurisdiction in a final
non-appealable judgment or order.


 


Section 10.9           Resignation of Administrative
Agent or L/C Issuer.  (a) The
Administrative Agent may resign at any time by delivering notice of such
resignation to the Lenders and the Borrower Representative, effective on the
date set forth in such notice or, if not such date is set forth therein, upon
the date such notice shall be effective. 
If the Administrative Agent delivers any such notice, the Required
Lenders shall have the right, in consultation with the Borrower Representative,
to appoint a successor Administrative Agent. 
If, within 30 days after the retiring Administrative Agent having given
notice of resignation, no successor Administrative Agent has been appointed by
the Required Lenders that has accepted such appointment, then the retiring
Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent from among the Lenders. 
Each appointment under this clause (a) shall be subject to
the prior consent of the Borrower Representative, which may not be unreasonably
withheld but shall not be required during the continuance of a Default.


 


(b)           Effective immediately upon its resignation, (i) the
retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents, (ii) the Lenders shall assume and
perform all of the duties of the Administrative Agent until a successor
Administrative Agent shall have accepted a valid appointment hereunder,
(iii) the retiring Administrative Agent and its Related Persons shall no
longer have the benefit of any provision of any Loan Document other than with
respect to any actions taken or omitted to be taken while such retiring
Administrative Agent was, or because such Administrative Agent had been,
validly acting as Administrative Agent under the Loan Documents and
(iv) subject to its rights under Section 10.3, the retiring
Administrative Agent shall take such action as may be reasonably necessary to
assign to the successor Administrative Agent its rights as Administrative Agent
under the Loan Documents.  Effective
immediately upon its acceptance of a valid appointment as 


 


102

















 


Administrative Agent, a successor Administrative
Agent shall succeed to, and become vested with, all the rights, powers,
privileges and duties of the retiring Administrative Agent under the Loan
Documents.


 


(c)           Any L/C Issuer may resign at any time by delivering notice
of such resignation to the Administrative Agent, effective on the date set
forth in such notice or, if no such date is set forth therein, on the date such
notice shall be effective.  Upon such
resignation, the L/C Issuer shall remain an L/C Issuer and shall retain its
rights and obligations in its capacity as such (other than any obligation to
Issue Letters of Credit but including the right to receive fees or to have
Lenders participate in any L/C Reimbursement Obligation thereof) with respect
to Letters of Credit issued by such L/C Issuer prior to the date of such
resignation and shall otherwise be discharged from all other duties and
obligations under the Loan Documents.


 


Section 10.10         Release of Collateral or Guarantors.  Each Lender and L/C Issuer hereby consents to
the release and hereby directs the Administrative Agent to release (or, in the
case of clause (b) (ii) below, release or subordinate) the
following:


 


(a)           any Subsidiary of the Borrower from its guaranty of any
Obligation of any Loan Party if all of the Securities of such Subsidiary owned
by any Group Member are Sold in a Sale permitted under the Loan Documents
(including pursuant to a waiver or consent), to the extent that, after giving
effect to such Sale, such Subsidiary would not be required to guaranty any
Obligations pursuant to Section 7.10; and


 


(b)           any Lien held by the Administrative Agent for the benefit
of the Secured Parties against (i) any Collateral that is Sold by a Loan
Party in a Sale permitted by the Loan Documents (including pursuant to a valid
waiver or consent), to the extent all Liens required to be granted in such
Collateral pursuant to Section 7.10 after giving effect to such
Sale have been granted, (ii) any property subject to a Lien permitted
hereunder in reliance upon Section 8.2(d) or (e) and
(iii) all of the Collateral and all Loan Parties, upon
(A) termination of the Commitments, (B) payment and satisfaction in
full of all Loans, all L/C Reimbursement Obligations and all other Obligations
that the Administrative Agent has been notified in writing are then due and
payable by the holder of such Obligation, (C) deposit of cash collateral
with respect to all contingent Obligations (or, in the case of any L/C
Obligation, a back-up letter of credit has been issued), in amounts and on
terms and conditions and with parties satisfactory to the Administrative Agent
and each Indemnitee that is owed such Obligations and (D) to the extent
requested by the Administrative Agent, receipt by the Secured Parties of
liability releases from the Loan Parties each in form and substance acceptable
to the Administrative Agent.


 


Each
Lender and L/C Issuer hereby directs the Administrative Agent, and the
Administrative Agent hereby agrees, upon receipt of reasonable advance notice
from the Borrower Representative, to execute and deliver or file such documents
and to perform other actions reasonably necessary to release the guaranties and
Liens when and as directed in this Section 10.10.


 


Section 10.11         Additional Secured Parties.  The benefit of the provisions of the Loan
Documents directly relating to the Collateral or any Lien granted thereunder
shall extend to and be available to any Secured Party that is not a Lender or
L/C Issuer as long as, by accepting such 


 


103

















 


benefits, such Secured Party agrees, as among the
Administrative Agent and all other Secured Parties, that such Secured Party is
bound by (and, if requested by the Administrative Agent, shall confirm such
agreement in a writing in form and substance acceptable to the Administrative
Agent) this Article 10, Section 11.8 (Right of
Setoff), Section 11.9 (Sharing of Payments) and Section 11.20
(Confidentiality) and the decisions and actions of the Administrative
Agent and the Required Lenders (or, where expressly required by the terms of
this Agreement, a greater proportion of the Lenders) to the same extent a
Lender is bound; provided, however, that, notwithstanding the foregoing,
(a) such Secured Party shall be bound by Section 10.8 only to the
extent of Liabilities, costs and expenses with respect to or otherwise relating
to the Collateral held for the benefit of such Secured Party, in which case the
obligations of such Secured Party thereunder shall not be limited by any
concept of Pro Rata Share or similar concept, (b) except as set forth
specifically herein, each of the Administrative Agent, the Lenders and the L/C
Issuers shall be entitled to act at its sole discretion, without regard to the
interest of such Secured Party, regardless of whether any Obligation to such
Secured Party thereafter remains outstanding, is deprived of the benefit of the
Collateral, becomes unsecured or is otherwise affected or put in jeopardy thereby,
and without any duty or liability to such Secured Party or any such Obligation
and (c) except as set forth specifically herein, such Secured Party shall
not have any right to be notified of, consent to, direct, require or be heard
with respect to, any action taken or omitted in respect of the Collateral or
under any Loan Document.


 


ARTICLE 11

MISCELLANEOUS


 


Section 11.1           Amendments, Waivers, Etc.  (a) No amendment or waiver of any
provision of any Loan Document (other than the Fee Letter, the Control Agreements,
and the L/C Reimbursement Agreements) and no consent to any departure by any
Loan Party therefrom shall be effective unless the same shall be in writing and
signed (1) in the case of an amendment, consent or waiver to cure any
ambiguity, omission, defect or inconsistency or granting a new Lien for the
benefit of the Secured Parties or extending an existing Lien over additional
property, by the Administrative Agent and the Borrower, (2) in the case of
any other waiver or consent, by the Required Lenders (or by the Administrative
Agent with the consent of the Required Lenders) and (3) in the case of any
other amendment, by the Required Lenders (or by the Administrative Agent with
the consent of the Required Lenders) and the Borrower; provided, however, that no amendment, consent or waiver described in
clause (2) or (3) above shall, unless in writing and signed
by each Lender directly affected thereby (or by the Administrative Agent with
the consent of such Lender), in addition to any other Person the signature of
which is otherwise required pursuant to any Loan Document, do any of the
following:


 


(i)            waive any condition specified in Section 3.1,
except any condition referring to any other provision of any Loan Document;


 


(ii)           increase the Commitment of such Lender or subject such
Lender to any additional obligation;


 


(iii)          reduce (including through release, forgiveness, assignment
or otherwise) (a) the principal amount of, the interest rate on, or any
obligation of the Borrower to repay (whether or not on a fixed date), any
outstanding Loan owing to such 


 


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Lender, (b) any fee or
accrued interest payable to such Lender or (c) if such Lender is a
Revolving Credit Lender, any L/C Reimbursement Obligation or any obligation of
the Borrower to repay (whether or not on a fixed date) any L/C Reimbursement
Obligation; provided, however, that this clause (iii)
does not apply to (x) any change to any provision increasing any interest
rate or fee during the continuance of an Event of Default or to any payment of
any such increase or (y) any modification to any financial covenant set
forth in Article 5 or in any definition set forth therein or
principally used therein;


 


(iv)          waive or postpone any scheduled maturity date or other
scheduled date fixed for the payment, in whole or in part, of principal of or
interest on any Loan or fee owing to such Lender or for the reduction of such
Lender’s Commitment; provided, however,
that this clause (iv) does not apply to any change to mandatory
prepayments, including those required under Section 2.8, or to the
application of any payment, including as set forth in Section 2.12;


 


(v)           except as provided in Section 10.10, release
all or substantially all of the Collateral or any Guarantor from its guaranty
of any Obligation of the Borrower;


 


(vi)          reduce or increase the proportion of Lenders required for
the Lenders (or any subset thereof) to take any action hereunder or change the
definition of the terms “Required Lenders”, “Pro Rata Share” or “Pro Rata
Outstandings”; or


 


(vii)         amend Section 10.10 (Release of Collateral or
Guarantor), Section 11.9 (Sharing of Payments) or this Section 11.1;


 


and
provided, further, that (x)(A) any
waiver of any payment applied pursuant to Section 2.12(b) (Application
of Mandatory Prepayments) to, and any modification of the application of
any such payment to, the Revolving Loans shall require the consent of the
Required Revolving Credit Lenders, and (B) any change to the definition of
the term “Required Revolving Credit Lender” shall require the consent of the
Required Revolving Credit Lenders, (y) no amendment, waiver or consent
shall affect the rights or duties under any Loan Document of, or any payment
to, the Administrative Agent (or otherwise modify any provision of Article 10
or the application thereof), the Swingline Lender, any L/C Issuer or any SPV
that has been granted an option pursuant to Section 11.2(f) unless
in writing and signed by the Administrative Agent, the Swingline Lender, such
L/C Issuer or, as the case may be, such SPV in addition to any signature
otherwise required and (z) the consent of the Borrower shall not be
required to change any order of priority set forth in Section 2.12.  No amendment, modification or waiver of this
Agreement or any Loan Document altering the ratable treatment of Obligations
arising under Secured Hedging Agreement resulting in such Obligations being
junior in right of payment to principal of the Loans or resulting in
Obligations owing to any Secured Hedging Counterparty being unsecured (other
than releases of Liens in accordance with the terms hereof), in each case in a
manner adverse to any Secured Hedging Counterparty, shall be effective without
the written consent of such Secured Hedging Counterparty or, in the case of a
Secured Hedging Agreement provided or arranged by the Administrative Agent or
an Affiliate thereof, the Administrative Agent.


 


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(b)           In addition, notwithstanding the foregoing or anything
else in this Agreement, this Agreement may be amended with the written consent
of the Administrative Agent, the Borrower and the Required Lenders to (a)
effectuate a Revolving Credit Commitment Increase and to permit the extensions
of credit from time to time outstanding thereunder and the outstanding
principal and accrued interest and fees in respect thereof to share ratably in
the benefits of this Agreement and the other Loan Documents with the Revolving
Loans and (b) include appropriately the Lenders holding such credit facilities
in any determination of the Required Lenders.


 


(c)           Each waiver or consent under any Loan Document shall be
effective only in the specific instance and for the specific purpose for which
it was given.  No notice to or demand on
any Loan Party shall entitle any Loan Party to any notice or demand in the
same, similar or other circumstances.  No
failure on the part of any Secured Party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right.


 


Section 11.2           Assignments and Participations;
Binding Effect.  (a) Binding
Effect.  This Agreement shall become
effective when it shall have been executed by Holdings, the Borrower and the
Administrative Agent and when the Administrative Agent shall have been notified
by each Lender and L/C Issuer that such Lender or L/C Issuer has executed
it.  Thereafter, it shall be binding upon
and inure to the benefit of, but only to the benefit of, Holdings, the Borrower
(in each case except for Article 10), the Administrative Agent,
each Lender and L/C Issuer and, to the extent provided in Section 10.11,
each other Indemnitee and Secured Party and, in each case, their respective
successors and permitted assigns.  Except
as expressly provided in any Loan Document (including in Section 10.9),
none of Holdings, the Borrower, any L/C Issuer or the Administrative Agent
shall have the right to assign any rights or obligations hereunder or any
interest herein.


 


(b)           Right to Assign. 
Each Lender may sell, transfer, negotiate or assign all or a portion of
its rights and obligations hereunder (including all or a portion of its
Commitments and its rights and obligations with respect to Loans and Letters of
Credit) to (i) any existing Lender (other than a Non-Funding Lender or Impacted
Lender), (ii) any Affiliate or Approved Fund of any existing Lender (other than
a Non-Funding Lender or Impacted Lender) or (iii) any other Person (other than
the Borrower, the Permitted Investors or any of their respective Affiliates)
acceptable (which acceptance shall not be unreasonably withheld or delayed) to
the Administrative Agent and, as long as no Event of Default is continuing, the
Borrower (which acceptance shall be deemed to have been given if the Borrower
has not responded within five Business Days of a request for such acceptance)
and, with respect to Sales of Revolving Credit Commitments, each L/C Issuer
that is a Lender; provided, however, that (x) such Sales do not have to be
ratable between the Facilities but must be ratable among the obligations owing
to and owed by such Lender with respect to a Facility, (y) for each Facility,
the aggregate outstanding principal amount (determined as of the effective date
of the applicable Assignment) of the Loans, Commitments and L/C Obligations
subject to any such Sale shall be in a minimum amount of $1,000,000, unless
such Sale is made to an existing Lender or an Affiliate or Approved Fund of any
existing Lender, is of the assignor’s (together with its Affiliates and
Approved Funds) entire interest in such Facility or is made with the prior
consent of the Borrower (to the extent the 


 


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Borrower’s consent is otherwise required) and the
Administrative Agent and (z) such Sales by Lenders who are Non-Funding Lenders
due to clause (a) of the definition of Non-Funding Lenders shall be subject to
the Administrative Agent’s prior written consent in all instances, unless in
connection with such sale, such Non-Funding Lender cures, or causes the cure
of, its Non-Funding Lender status as contemplated in Section 2.2(c)(ii).  The Administrative Agent’s refusal to accept
a Sale to a Loan Party, an Affiliate of a Loan Party, a holder of Subordinated
Debt, a holder of Second Lien Debt, or an Affiliate of such a holder, or to a
Person that would be (or could reasonably be expected to become) a Non-Funding
or an Impacted Lender, or the imposition of conditions or limitations
(including limitations on voting) upon Sales to such Persons, shall not be
deemed to be unreasonable.


 


(c)           Procedure. 
The parties to each Sale made in reliance on clause (b)
above (other than those described in clause (e) or (f)
below) shall execute and deliver to the Administrative Agent an Assignment via
an electronic settlement system designated by the Administrative Agent (or if
previously agreed with the Administrative Agent, via a manual execution and
delivery of the assignment) evidencing such Sale, together with any existing
Note subject to such Sale (or any affidavit of loss therefor acceptable to the
Administrative Agent), any tax forms required to be delivered pursuant to Section 2.17(f)
and payment of an assignment fee in the amount of $3,500, provided that
(1) if a Sale by a Lender is made to an Affiliate or an Approved Fund of
such assigning Lender, then no assignment fee shall be due in connection with
such Sale, and (2) if a Sale by a Lender is made to an assignee that is
not an Affiliate or Approved Fund of such assignor Lender, and concurrently to
one or more Affiliates or Approved Funds of such assignee, then only one
assignment fee of $3,500 shall be due in connection with such Sale.  Upon receipt of all the foregoing, and
conditioned upon such receipt and, if such assignment is made in accordance
with Section 11.2(b) (iii), upon the Administrative Agent (and the
Borrower, if applicable) consenting to such Assignment, from and after the
effective date specified in such Assignment, the Administrative Agent shall
record or cause to be recorded in the Register the information contained in
such Assignment.


 


(d)           Effectiveness. 
Subject to the recording of an Assignment by the Administrative Agent in
the Register pursuant to Section 2.14(b) , (i) the assignee
thereunder shall become a party hereto and, to the extent that rights and
obligations under the Loan Documents have been assigned to such assignee
pursuant to such Assignment, shall have the rights and obligations of a Lender,
(ii) any applicable Note shall be transferred to such assignee through
such entry and (iii) the assignor thereunder shall, to the extent that
rights and obligations under this Agreement have been assigned by it pursuant
to such Assignment, relinquish its rights (except for those surviving the
termination of the Commitments and the payment in full of the Obligations) and
be released from its obligations under the Loan Documents, other than those
relating to events or circumstances occurring prior to such assignment (and, in
the case of an Assignment covering all or the remaining portion of an assigning
Lender’s rights and obligations under the Loan Documents, such Lender shall
cease to be a party hereto except that each Lender agrees to remain bound by Article 10,
Section 11.8 (Right of Setoff) and Section 11.9
(Sharing of Payments) to the extent provided in Section 10.11
(Additional Beneficiaries of Collateral)).


 


(e)           Grant of Security Interests.  In addition to the other rights provided in
this Section 11.2, each Lender may grant a security interest in, or
otherwise assign as collateral, any of its rights under this Agreement, whether
now owned or hereafter acquired (including rights to 


 


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payments of principal or interest on the Loans), to
(A) any federal reserve bank (pursuant to Regulation A of the Federal
Reserve Board), without notice to the Administrative Agent or (B) any
holder of, or trustee for the benefit of the holders of, such Lender’s
Securities by notice to the Administrative Agent; provided, however, that no such holder or trustee, whether because
of such grant or assignment or any foreclosure thereon (unless such foreclosure
is made through an assignment in accordance with clause (b) above),
shall be entitled to any rights of such Lender hereunder and no such Lender
shall be relieved of any of its obligations hereunder.


 


(f)            Participants and SPVs.  In addition to the other rights provided in
this Section 11.2, each Lender may, (x) with notice to the
Administrative Agent, grant to an SPV the option to make all or any part of any
Loan that such Lender would otherwise be required to make hereunder (and the exercise
of such option by such SPV and the making of Loans pursuant thereto shall
satisfy the obligation of such Lender to make such Loans hereunder) and such
SPV may assign to such Lender the right to receive payment with respect to any
Obligation and (y) without notice to or consent from the Administrative
Agent or the Borrower, sell participations to one or more Persons in or to all
or a portion of its rights and obligations under the Loan Documents (including
all its rights and obligations with respect to the Revolving Loans and Letters
of Credit); provided, however, that,
whether as a result of any term of any Loan Document or of such grant or
participation, (i) no such SPV or participant shall have a commitment, or
be deemed to have made an offer to commit, to make Loans hereunder, and, except
as provided in the applicable option agreement, none shall be liable for any
obligation of such Lender hereunder, (ii) such Lender’s rights and
obligations, and the rights and obligations of the Loan Parties and the Secured
Parties towards such Lender, under any Loan Document shall remain unchanged and
each other party hereto shall continue to deal solely with such Lender, which
shall remain the holder of the Obligations in the Register, except that
(A) each such participant and SPV shall be entitled to the benefit of Sections 2.16
(Breakage Costs; Increased Costs; Capital Requirements) and 2.17
(Taxes), but only to the extent such participant or SPV delivers the tax
forms such Lender is required to collect pursuant to Section 2.17(f)
and then only to the extent of any amount to which such Lender would be
entitled in the absence of any such grant or participation and (B) each
such SPV may receive other payments that would otherwise be made to such Lender
with respect to Loans funded by such SPV to the extent provided in the
applicable option agreement and set forth in a notice provided to the
Administrative Agent by such SPV and such Lender, provided, however, that in no case (including pursuant to clause (A)
or (B) above) shall an SPV or participant have the right to enforce any
of the terms of any Loan Document, and (iii) the consent of such SPV or
participant shall not be required (either directly, as a restraint on such
Lender’s ability to consent hereunder or otherwise) for any amendments, waivers
or consents with respect to any Loan Document or to exercise or refrain from
exercising any powers or rights such Lender may have under or in respect of the
Loan Documents (including the right to enforce or direct enforcement of the
Obligations), except for those described in clauses (iii) and (iv)
of Section 11.1(a) with respect to amounts, or dates fixed for
payment of amounts, to which such participant or SPV would otherwise be
entitled and, in the case of participants, except for those described in Section 11.1(a)(v)
(or amendments, consents and waivers with respect to Section 10.10
to release all or substantially all of the Collateral).  No party hereto shall institute (and each of
Borrower and Holdings shall cause each other Loan Party not to institute)
against any SPV grantee of an option pursuant to this clause (f)
any bankruptcy, reorganization, insolvency, liquidation or similar proceeding,
prior to the date that is one year and one day after the payment in full of all



 


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outstanding commercial paper of such SPV; provided,
however, that each Lender having designated an SPV as such agrees to indemnify
each Indemnitee against any Liability that may be incurred by, or asserted
against, such Indemnitee as a result of failing to institute such proceeding
(including a failure to get reimbursed by such SPV for any such
Liability).  The agreement in the
preceding sentence shall survive the termination of the Commitments and the
payment in full of the Obligations.


 


Section 11.3           Costs and Expenses.  Any action taken by any Loan Party under or
with respect to any Loan Document, even if required under any Loan Document or
at the request of any Secured Party, shall be at the expense of such Loan
Party, and no Secured Party shall be required under any Loan Document to
reimburse any Loan Party or Group Member therefor except as expressly provided
therein.  In addition, the Borrower
agrees to pay or reimburse upon demand (a) the Administrative Agent for
all reasonable and documented out-of-pocket costs and expenses incurred by it
or any of its Related Persons in connection with the investigation,
development, preparation, negotiation, syndication, execution, interpretation
or administration of, any modification of any term of or termination of, any
Loan Document, any commitment or proposal letter therefor, any other document
prepared in connection therewith or the consummation and administration of any
transaction contemplated therein (including periodic audits in connection
therewith and environmental audits and assessments), in each case including the
reasonable fees, charges and disbursements of legal counsel to the
Administrative Agent or such Related Persons, fees, costs and expenses incurred
in connection with Intralinks® or any other E-System and
allocated to the Facilities by the Administrative Agent in its sole discretion
and fees, charges and disbursements of the auditors, appraisers, printers and
other of their Related Persons retained by or on behalf of any of them or any
of their Related Persons, (b) subject to the limitation on reimbursement
pursuant to Section 7.7, the Administrative Agent for all reasonable and
documented costs and expenses incurred by it or any of its Related Persons in
connection with internal audit reviews, field examinations and Collateral
examinations (which shall be reimbursed, in addition to the out-of-pocket costs
and expenses of such examiners, at the per diem rate per individual charged by
the Administrative Agent for its examiners) and (c) each of the
Administrative Agent, its Related Persons, and each Lender and L/C Issuer for
all reasonable and documented out-of-pocket costs and expenses incurred in
connection with (i) any refinancing or restructuring of the credit
arrangements provided hereunder in the nature of a “work-out”, (ii) the
enforcement or preservation of any right or remedy under any Loan Document, any
Obligation, with respect to the Collateral or any other related right or remedy
or (iii) the commencement, defense, conduct of, intervention in, or the
taking of any other action with respect to, any proceeding (including any
bankruptcy or insolvency proceeding) related to any Group Member, Loan
Document, Obligation or Related Transaction (or the response to and preparation
for any subpoena or request for document production relating thereto),
including reasonable fees and disbursements of counsel (including reasonable
allocated costs of internal counsel); provided, that to the extent that
the costs and expenses referred to in this clause (c) consist of fees,
costs and expenses of counsel, Borrower shall be obligated to pay such fees,
costs and expenses for only one counsel acting for all Lenders (other than
Administrative Agent).


 


Section 11.4           Indemnities.  (a) The Borrower agrees to indemnify,
hold harmless and defend the Administrative Agent, each Lender, each L/C
Issuer, each Secured Hedging Counterparty, each Person that each L/C Issuer
causes to Issue Letters of Credit hereunder and each of their respective
Related Persons (each such Person being an “Indemnitee”) from and 


 


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against all Liabilities (including brokerage
commissions, fees and other compensation) that may be imposed on, incurred by
or asserted against any such Indemnitee in any matter relating to or arising
out of, in connection with or as a result of (i) any Loan Document, any
Related Document, any Disclosure Document, any Obligation (or the repayment
thereof), any Letter of Credit, the use or intended use of the proceeds of any
Loan or the use of any Letter of Credit, any Related Transaction, or any
securities filing of, or with respect to, any Group Member, (ii) any
commitment letter, proposal letter or term sheet with any Person or any
Contractual Obligation, arrangement or understanding with any broker, finder or
consultant, in each case entered into by or on behalf of any Group Member or
any Affiliate of any of them in connection with any of the foregoing and any
Contractual Obligation entered into in connection with any E-Systems or other
Electronic Transmissions, (iii) any actual or prospective investigation,
litigation or other proceeding, whether or not brought by any such Indemnitee
or any of its Related Persons, any holders of Securities or creditors (and
including attorneys’ fees in any case), whether or not any such Indemnitee,
Related Person, holder or creditor is a party thereto, and whether or not based
on any securities or commercial law or regulation or any other Requirement of
Law or theory thereof, including common law, equity, contract, tort or
otherwise, or (iv) any other act, event or transaction related,
contemplated in or attendant to any of the foregoing (collectively, the “Indemnified
Matters”); provided, however, that the
Borrower shall not have any liability under this Section 11.4 to
any Indemnitee with respect to any Indemnified Matter, and no Indemnitee shall
have any liability with respect to any Indemnified Matter other than (to the
extent otherwise liable), to the extent such liability has resulted primarily
from the gross negligence or willful misconduct of such Indemnitee, as
determined by a court of competent jurisdiction in a final non-appealable
judgment or order.  Furthermore, each of
Holdings and the Borrower waives and agrees not to assert against any
Indemnitee, and shall cause each other Loan Party to waive and not assert
against any Indemnitee, any right of contribution with respect to any
Liabilities that may be imposed on, incurred by or asserted against any Related
Person.


 


(b)           Without limiting the foregoing, “Indemnified Matters”
includes all Environmental Liabilities, including those arising from, or
otherwise involving, any property of any Related Person or any actual, alleged
or prospective damage to property or natural resources or harm or injury
alleged to have resulted from any Release of Hazardous Materials on, upon or
into such property or natural resource or any property on or contiguous to any
real property of any Related Person, whether or not, with respect to any such
Environmental Liabilities, any Indemnitee is a mortgagee pursuant to any
leasehold mortgage, a mortgagee in possession, the successor-in-interest to any
Related Person or the owner, lessee or operator of any property of any Related
Person through any foreclosure action, in each case except to the extent such
Environmental Liabilities (i) are incurred solely following foreclosure by
any Secured Party or following any Secured Party having become the successor-in-interest
to any Loan Party and (ii) are attributable solely to acts of such
Indemnitee.


 


Section 11.5           Survival.  Any indemnification or other protection
provided to any Indemnitee pursuant to any Loan Document (including pursuant to
Section 2.17 (Taxes), Section 2.16 (Breakage Costs;
Increased Costs; Capital Requirements), Article 10 (The
Administrative Agent), Section 11.3 (Costs and Expenses),
Section 11.4 (Indemnities) or this Section 11.5)
and all representations and warranties made in any Loan Document shall
(A) survive the termination of the Commitments and the payment in full of
other Obligations and 


 


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(B) inure to the benefit of any Person that at
any time held a right thereunder (as an Indemnitee or otherwise) and,
thereafter, its successors and permitted assigns.


 


Section 11.6           Limitation of Liability for
Certain Damages.  In no event shall
any Indemnitee be liable on any theory of liability for any special, indirect,
consequential or punitive damages (including any loss of profits, business or
anticipated savings).  Each of Holdings
and the Borrower hereby waives, releases and agrees (and shall cause each other
Loan Party to waive, release and agree) not to sue upon any such claim for any
special, indirect, consequential or punitive damages, whether or not accrued
and whether or not known or suspected to exist in its favor.


 


Section 11.7           Lender-Creditor Relationship.  The relationship between the Lenders, the L/C
Issuers and the Administrative Agent, on the one hand, and the Loan Parties, on
the other hand, is solely that of lender and creditor.  No Secured Party has any fiduciary
relationship or duty to any Loan Party arising out of or in connection with, and
there is no agency, tenancy or joint venture relationship between the Secured
Parties and the Loan Parties by virtue of, any Loan Document or any transaction
contemplated therein.


 


Section 11.8           Right of Setoff.  Each of the Administrative Agent, each
Lender, each L/C Issuer and each Affiliate (including each branch office
thereof) of any of them is hereby authorized, without notice or demand (each of
which is hereby waived by Holdings and the Borrower), at any time and from time
to time during the continuance of any Event of Default and to the fullest
extent permitted by applicable Requirements of Law, to set off and apply any
and all deposits (whether general or special, time or demand, provisional or
final) at any time held and other Indebtedness, claims or other obligations at
any time owing by the Administrative Agent, such Lender, such L/C Issuer or any
of their respective Affiliates to or for the credit or the account of Holdings
or the Borrower against any Obligation of any Loan Party now or hereafter
existing, whether or not any demand was made under any Loan Document with
respect to such Obligation and even though such Obligation may be
unmatured.  Each of the Administrative
Agent, each Lender and each L/C Issuer agrees promptly to notify the Borrower
Representative and the Administrative Agent after any such setoff and
application made by such Lender or its Affiliates; provided, however, that the failure to give such notice shall not
affect the validity of such setoff and application.  The rights under this Section 11.8
are in addition to any other rights and remedies (including other rights of
setoff) that the Administrative Agent, the Lenders and the L/C Issuers and
their Affiliates and other Secured Parties may have.


 


Section 11.9           Sharing of Payments, Etc.  If any Lender, directly or through an
Affiliate or branch office thereof, obtains any payment of any Obligation of
any Loan Party (whether voluntary, involuntary or through the exercise of any
right of setoff or the receipt of any Collateral or “proceeds” (as
defined under the applicable UCC) of Collateral) other than pursuant to Sections 2.16
(Breakage Costs; Increased Costs; Capital Requirements), 2.17 (Taxes)
and 2.18 (Substitution of Lenders), and 11.2 (Assignments
and Participations; Binding Effect) and such payment exceeds the amount
such Lender would have been entitled to receive if all payments had gone to,
and been distributed by, the Administrative Agent in accordance with the
provisions of the Loan Documents, such Lender shall purchase for cash from
other Secured Parties such participations in their Obligations as necessary for
such Lender to share such excess payment with such Secured Parties to ensure
such payment is applied as though it had been received by 


 


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the Administrative Agent and applied in accordance
with this Agreement (or, if such application would then be at the discretion of
the Borrower, applied to repay the Obligations in accordance herewith); provided, however, that (a) if such
payment is rescinded or otherwise recovered from such Lender or L/C Issuer in
whole or in part, such purchase shall be rescinded and the purchase price
therefor shall be returned to such Lender or L/C Issuer without interest and
(b) such Lender shall, to the fullest extent permitted by applicable
Requirements of Law, be able to exercise all its rights of payment (including
the right of setoff) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of such
participation.  If a Non-Funding Lender
receives any such payment as described in the previous sentence, such Lender
shall turn over such payments to Agent in an amount that would satisfy the cash
collateral requirements set forth in Section 2.2(c)(ii).


 


Section 11.10         Marshaling; Payments Set Aside.  No Secured Party shall be under any
obligation to marshal any property in favor of any Loan Party or any other
party or against or in payment of any Obligation.  To the extent that any Secured Party receives
a payment from the Borrower, from the proceeds of the Collateral, from the
exercise of its rights of setoff, any enforcement action or otherwise, and such
payment is subsequently, in whole or in part, invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a trustee,
receiver or any other party, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens,
rights and remedies therefor, shall be revived and continued in full force and
effect as if such payment had not occurred.


 


Section 11.11         Notices.  (a) Addresses.  All notices, demands, requests, directions
and other communications required or expressly authorized to be made by this
Agreement shall, whether or not specified to be in writing but unless otherwise
expressly specified to be given by any other means, be given in writing and
(i) addressed to (A) if to Holdings or any Borrower, to Oncure
Medical Corp., 188 Inverness Drive West, Suite 650, Englewood, Colorado 80112
Attention: Chief Executive Officer, Tel: (303) 643-6500, Fax: (303) 643-6560,
with copy to Oncure Medical Corp., 18100 Von Karman Avenue, Suite 450, Irvine,
California 92612, Attention: General Counsel, Tel: (949) 863-8834, Fax: (949)
863-8835, (B) if to the Administrative Agent or the Swingline Lender, to
General Electric Capital Corporation, Two Bethesda Metro Center, Suite 600,
Bethesda, MD 20814, Attention: Portfolio Management Group, Tel: 301-961-1640,
Fax: (301) 664-9890, with copy to General Electric Capital Corporation, Two
Bethesda Metro Center, Suite 600, Bethesda, MD 20814, Attention: Maryanne
Courtney, Internal Counsel, Tel: 301-961-1640, Fax: (866) 358-1754 and
(C) otherwise to the party to be notified at its address specified
opposite its name on Schedule II or on the signature page of
any applicable Assignment, (ii) posted to Intralinks® (to the extent such system is available and
set up by or at the direction of the Administrative Agent prior to posting) in
an appropriate location by uploading such notice, demand, request, direction or
other communication to www.intralinks.com, faxing it to 866-545-6600 with an
appropriate bar-coded fax coversheet or using such other means of posting to
Intralinks® as may be available and reasonably acceptable
to the Administrative Agent prior to such posting, (iii) posted to any
other E-System set up by or at the direction of the Administrative Agent in an
appropriate location or (iv) addressed to such other address as shall be
notified in writing (a) in the case of the Borrower, the Administrative
Agent and the Swingline Lender, to the other parties hereto and (b) in the
case of all other parties, to the Borrower and the Administrative Agent.  Transmission by electronic mail (including
E-Fax, even if transmitted to the fax numbers set forth in clause (i)



 


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above) shall not be sufficient or effective to
transmit any such notice under this clause (a) unless such
transmission is an available means to post to any E-System.


 


(b)           Effectiveness. 
All communications described in clause (a) above and
all other notices, demands, requests and other communications made in
connection with this Agreement shall be effective and be deemed to have been
received (i) if delivered by hand, upon personal delivery, (ii) if
delivered by overnight courier service, one Business Day after delivery to such
courier service, (iii) if delivered by mail, when deposited in the mails, (iv)
if delivered by facsimile (other than to post to an E-System pursuant to clause (a)(ii) or
(a)(iii) above), upon sender’s receipt of confirmation of proper
transmission, and (v) if delivered by posting to any E-System, on the later of
the date of such posting in an appropriate location and the date access to such
posting is given to the recipient thereof in accordance with the standard
procedures applicable to such E-System; provided,
however, that no communications to the Administrative Agent pursuant to Article 2
or Article 10 shall be effective until received by the Administrative
Agent.


 


Section 11.12         Electronic Transmissions.  (a) Authorization.  Subject to the provisions of Section 11.11(a),
each of the Administrative Agent, the Borrower, the Lenders, the L/C Issuers
and each of their Related Persons is authorized (but not required) to transmit,
post or otherwise make or communicate, in its sole discretion, Electronic
Transmissions in connection with any Loan Document and the transactions
contemplated therein.  Each of Holdings,
the Borrower and each Secured Party hereby acknowledges and agrees, and each of
Holdings and the Borrower shall cause each other Group Member to acknowledge
and agree, that the use of Electronic Transmissions is not necessarily secure
and that there are risks associated with such use, including risks of
interception, disclosure and abuse and each indicates it assumes and accepts
such risks by hereby authorizing the transmission of Electronic Transmissions.


 


(b)           Signatures. 
Subject to the provisions of Section 11.11(a),
(i)(A) no posting to any E-System shall be denied legal effect merely
because it is made electronically, (B) each E-Signature on any such
posting shall be deemed sufficient to satisfy any requirement for a “signature”
and (C) each such posting shall be deemed sufficient to satisfy any
requirement for a “writing”, in each case including pursuant to any Loan
Document, any applicable provision of any UCC, the federal Uniform Electronic
Transactions Act, the Electronic Signatures in Global and National Commerce Act
and any substantive or procedural Requirement of Law governing such subject
matter, (ii) each such posting that is not readily capable of bearing
either a signature or a reproduction of a signature may be signed, and shall be
deemed signed, by attaching to, or logically associating with such posting, an
E-Signature, upon which each Secured Party and Loan Party may rely and assume
the authenticity thereof, (iii) each such posting containing a signature,
a reproduction of a signature or an E-Signature shall, for all intents and
purposes, have the same effect and weight as a signed paper original and
(iv) each party hereto or beneficiary hereto agrees not to contest the
validity or enforceability of any posting on any E-System or E-Signature on any
such posting under the provisions of any applicable Requirement of Law
requiring certain documents to be in writing or signed; provided, however, that nothing herein shall limit such party’s or
beneficiary’s right to contest whether any posting to any E-System or
E-Signature has been altered after transmission.


 


113

















 


(c)           Separate Agreements.  All uses of an E-System shall be governed by
and subject to, in addition to Section 11.11 and this Section 11.12,
separate terms and conditions posted or referenced in such E-System and related
Contractual Obligations executed by Secured Parties and Group Members in
connection with the use of such E-System.


 


(d)           Limitation of Liability.  All E-Systems and Electronic Transmissions
shall be provided “as is” and “as available”. 
None of Administrative Agent or any of its Related Persons warrants the
accuracy, adequacy or completeness of any E-Systems or Electronic Transmission,
and each disclaims all liability for errors or omissions therein.  No Warranty of any kind is made by the
Administrative Agent or any of its Related Persons in connection with any
E-Systems or Electronic Communication, including any warranty of
merchantability, fitness for a particular purpose, non-infringement of
third-party rights or freedom from viruses or other code defects.  Each of Holdings, the Borrower and each
Secured Party agrees (and each of Holdings and the Borrower shall cause each
other Loan Party to agree) that the Administrative Agent has no responsibility
for maintaining or providing any equipment, software, services or any testing
required in connection with any Electronic Transmission or otherwise required
for any E-System.


 


Section 11.13         Governing Law.  This Agreement, each other Loan Document that
does not expressly set forth its applicable law, and the rights and obligations
of the parties hereto and thereto shall be governed by, and construed and
interpreted in accordance with, the law of the State of New York without regard
to choice of law rules to the extent the application of the laws of another
jurisdiction would be required thereby.


 


Section 11.14         Jurisdiction.  (a) Submission to Jurisdiction.  Any legal action or proceeding with respect
to any Loan Document shall be brought exclusively in the courts of the State of
New York located in the City of New York, Borough of Manhattan, or of the
United States of America for the Southern District of New York and, by
execution and delivery of this Agreement, each of Holdings and the Borrower
hereby accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts; provided that
nothing in this Agreement shall limit the right of Agent to commence any
proceeding in the federal or state courts of any other jurisdiction to the
extent Agent determines that such action is necessary or appropriate to
exercise its rights or remedies under the Loan Documents.  The parties hereto (and, to the extent set
forth in any other Loan Document, each other Loan Party) hereby irrevocably
waive any objection, including any objection to the laying of venue or based on
the grounds of forum non conveniens, that
any of them may now or hereafter have to the bringing of any such action or
proceeding in such jurisdictions.


 


(b)           Service of Process. 
Each of Holdings and Borrower (and, to the extent set forth in any other
Loan Document, each other Loan Party) hereby irrevocably waives personal
service of any and all legal process, summons, notices and other documents and
other service of process of any kind and consents to such service in any suit,
action or proceeding brought in the United States of America with respect to or
otherwise arising out of or in connection with any Loan Document by any means
permitted by applicable Requirements of Law, including by the mailing thereof
(by registered or certified mail, postage prepaid) to the address of Borrower
specified in Section 11.11 (and shall be effective when such
mailing shall be effective, as provided therein).  Each of Holdings and the Borrower (and, to
the extent set forth in any other 


 


114

















 


Loan Document, each other Loan Party) agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.


 


(c)           Non-Exclusive Jurisdiction.  Nothing contained in this Section 11.14
shall affect the right of the Administrative Agent or any Lender to serve
process in any other manner permitted by applicable Requirements of Law or
commence legal proceedings or otherwise proceed against any Loan Party in any
other jurisdiction.


 


Section 11.15         Waiver of Jury Trial.  Each party hereto hereby irrevocably waives
trial by jury in any suit, action or proceeding with respect to, or directly or
indirectly arising out of, under or in connection with, any Loan Document or
the transactions contemplated therein or related thereto (whether founded in
contract, tort or any other theory). 
Each party hereto (A) certifies that no other party and no Related
Person of any other party has represented, expressly or otherwise, that such
other party would not, in the event of litigation, seek to enforce the
foregoing waiver and (B) acknowledges that it and the other parties hereto
have been induced to enter into the Loan Documents, as applicable, by the
mutual waivers and certifications in this Section 11.15.


 


Section 11.16         Severability.  Any provision of any Loan Document being held
illegal, invalid or unenforceable in any jurisdiction shall not affect any part
of such provision not held illegal, invalid or unenforceable, any other
provision of any Loan Document or any part of such provision in any other
jurisdiction.


 


Section 11.17         Execution in Counterparts.  This Agreement may be executed in any number
of counterparts and by different parties in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.  Signature pages may be detached from multiple
separate counterparts and attached to a single counterpart.  Delivery of an executed signature
page of this Agreement by facsimile transmission or Electronic
Transmission shall be as effective as delivery of a manually executed
counterpart hereof.


 


Section 11.18         Entire Agreement.  The Loan Documents embody the entire
agreement of the parties and supersede all prior agreements and understandings
relating to the subject matter thereof and any prior letter of interest, commitment
letter, fee letter, confidentiality and similar agreements involving any Loan
Party and any of the Administrative Agent, any Lender or any L/C Issuer or any
of their respective Affiliates relating to a financing of substantially similar
form, purpose or effect.  In the event of
any conflict between the terms of this Agreement and any other Loan Document,
the terms of this Agreement shall govern (unless such terms of such other Loan
Documents are necessary to comply with applicable Requirements of Law, in which
case such terms shall govern to the extent necessary to comply therewith).


 


Section 11.19         Use of Name.  Each of Holdings and the Borrower agrees, and
shall cause each other Loan Party to agree, that it shall not, and none of its
Affiliates shall, issue any press release or other public disclosure (other
than any document filed with any Governmental Authority relating to a public
offering of the Securities of any Loan Party) using the name, logo or otherwise
referring to GE Capital or of any of its Affiliates, the Loan Documents or any


 


115














 


transaction contemplated therein to which the
Secured Parties are party without at least 2 Business Days’ prior notice to GE
Capital and without the prior consent of GE Capital except to the extent
required to do so under applicable Requirements of Law and then, only after
consulting with GE Capital prior thereto.


 


Section 11.20         Non-Public Information;
Confidentiality.  (a) Each
Lender and L/C Issuer acknowledges and agrees that it may receive material
non-public information hereunder concerning the Loan Parties and their
Affiliates and Securities and agrees to use such information in compliance with
all relevant policies, procedures and Contractual Obligations and applicable
Requirements of Laws (including United States federal and state security laws
and regulations).


 


(b)           Each Lender, L/C Issuer and the Administrative Agent
agrees to use all reasonable efforts to maintain, in accordance with its
customary practices, the confidentiality of information obtained by it pursuant
to any Loan Document and designated in writing by any Loan Party as
confidential, except that such information may be disclosed (i) with the
Borrower Representative’s prior written consent, (ii) to Related Persons
of such Lender, L/C Issuer or the Administrative Agent, as the case may be, or
to any Person that any L/C Issuer causes to Issue Letters of Credit hereunder,
that are advised of the confidential nature of such information and are
instructed to keep such information confidential, (iii) to the extent such
information presently is or hereafter becomes available to such Lender, L/C
Issuer or the Administrative Agent, as the case may be, on a non-confidential
basis from a source other than any Loan Party, (iv) to the extent
disclosure is required by applicable Requirements of Law or other legal process
or requested or demanded by any Governmental Authority, (v) to the extent
necessary or customary for inclusion in league table measurements or in any
tombstone or other advertising materials (and the Loan Parties consent to the publication
of such tombstone or other advertising materials by the Administrative Agent,
any Lender, any L/C Issuer or any of their Related Persons), (vi) to the
National Association of Insurance Commissioners or any similar organization,
any examiner or any nationally recognized rating agency or otherwise to the
extent consisting of general portfolio information that does not identify
borrowers, (vii) to current or prospective assignees, SPVs grantees of any
option described in Section 11.2(f) or participants, direct or
contractual counterparties to any Hedging Agreement permitted hereunder and to
their respective Related Persons, in each case to the extent such assignees,
participants, counterparties or Related Persons agree to be bound by provisions
substantially similar to the provisions of this Section 11.20 and (viii) in
connection with the exercise of any remedy under any Loan Document.  In the event of any conflict between the
terms of this Section 11.20 and those of any other Contractual
Obligation entered into with any Loan Party (whether or not a Loan Document),
the terms of this Section 11.20 shall govern.  Any Person required to maintain the
confidentiality of information as provided in this Section 11.20
shall be considered to have complied with its obligation to do so if such
Person has exercised the same degree of care to maintain the confidentiality of
such Information as such Person would accord its own confidential information.


 


Section 11.21         Patriot Act Notice.  Each Lender subject to the USA Patriot Act of
2001 (31 U.S.C. 5318 et seq.) hereby notifies the Borrower that, pursuant to
Section 326 thereof, it is required to obtain, verify and record
information that identifies the Borrower, including the name and address of the
Borrower and other information allowing such Lender to identify the Borrower in
accordance with such act.


 


116

















 


[SIGNATURE PAGES FOLLOW]


 


117

















 


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


 


	
  BORROWER:

  	
  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 CENTER, 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

  



 

















 


	
  BORROWER:

  	
  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

  
	
   

  	
   

  
	
  HOLDINGS:

  	
  ONCURE HOLDINGS, INC., a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
  /s/
  L. Duane Choate

  
	
   

  	
   

  	
  L. Duane Choate

  
	
   

  	
   

  	
  President
  and Chief Executive Officer

  
				



 

















 


	
  GE CAPITAL:

  	
  GENERAL ELECTRIC CAPITAL CORPORATION, as
  Administrative Agent, Swingline Lender and Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Brent Sheperd

  
	
   

  	
   

  	
  Brent
  Shepherd

  
	
   

  	
   

  	
  Duly
  Authorized Signatory

  



 

















 


	
  LENDERS:

  	
  WELLS FARGO CAPITAL FINANCE, INC.,  (formerly known as Wells Fargo Foothill, Inc.),
  a California corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Deseriee R. Whitwer

  
	
   

  	
   

  	
  Deseriee
  R. Whitwer

  
	
   

  	
   

  	
  Vice
  President

  



 

















 


	
  L/C ISSUER:

  	
  WELLS FARGO CAPITAL FINANCE, INC.,  (formerly known as Wells Fargo Foothill, Inc.),
  a California corporation

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Deseriee R. Whitwer

  
	
   

  	
   

  	
  Deseriee
  R. Whitwer

  
	
   

  	
   

  	
  Vice
  President

  



 

















 


SCHEDULE
I


 


REVOLVING CREDIT COMMITMENTS


 


(as of the Closing Date)


 




	
  Lender

  	
   

  	
  Revolving Credit

  Commitment

  	
   

  
	
  General Electric Capital Corporation

  	
   

  	
  $

  	
  25,000,000

  	
   

  
	
  Wells Fargo Capital Finance, Inc.

  	
   

  	
  $

  	
  15,000,000

  	
   

  
	
  TOTALS

  	
   

  	
  $

  	
  40,000,000

  	
   

  






 

















 


SCHEDULE II


 


LENDER NOTICE INFORMATION


 




	
  Lender

  	
   

  	
  Notice Information

  
	
  Wells
  Fargo Capital Finance, Inc.

  	
   

  	
  2450
  Colorado Avenue,

  Suite 3000 West

  Santa Monica, CA 90404

  Ph: (310) 453-7352

  Fax: (866) 358-0949

  E-Mail: Deseriee.r.visger@wellsfargo.com

  






 

















 


EXHIBIT A

TO

CREDIT AGREEMENT


 


Form of Assignment


 


This
ASSIGNMENT, dated as of the Effective Date, is entered into between the
Assignor and the Assignee (each as defined below).


 


The
parties hereto hereby agree as follows:


 


	
  Borrower:

  	
  Oncure
  Medical Corp., a Delaware corporation and each of its direct and indirect
  subsidiaries (individually and collectively, the “Borrower”)

  
	
   

  	
   

  
	
  Administrative
  Agent:

  	
  General
  Electric Capital Corporation, as administrative agent and collateral agent
  for the Lenders and L/C Issuers (in such capacity and together with its
  successors and permitted assigns, the “Administrative Agent”)

  
	
   

  	
   

  
	
  Credit
  Agreement:

  	
  Credit
  Agreement, dated as of May 13, 2010, among the Borrower, OnCure
  Holdings, Inc., as one of the Guarantors, the Lenders and L/C Issuers
  party thereto and the Administrative Agent (as the same may be amended,
  restated, supplemented or otherwise modified from time to time, the “Credit
  Agreement”; capitalized terms used herein without definition are used as
  defined in the Credit Agreement)

  
	
   

  	
   

  
	
  [Trade
  Date:

  	
            ,
          ]

  
	
   

  	
   

  
	
   

  	
   

  
	
  Effective
  Date:

  	
            ,
          

  



 


 


	
  Facility Assigned

  	
   

  	
  Aggregate amount of

  Commitments or principal

  amount of Loans for all

  Lenders

  	
   

  	
  Aggregate amount of

  Commitments or principal

  amount of Loans Assigned

  	
   

  	
  Percentage Assigned

  	
   

  
	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
     .         

  	
  %

  
	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
     .         

  	
  %

  
	
   

  	
   

  	
  $

  	
   

  	
   

  	
  $

  	
   

  	
   

  	
     .         

  	
  %

  



 


[THE REMAINDER OF THIS 
PAGE WAS INTENTIONALLY LEFT BLANK]


 














 


Assignment.  Assignor hereby sells and assigns to
Assignee, and Assignee hereby purchases and assumes from Assignor, Assignor’s
rights and obligations in its capacity as Lender under the Credit Agreement
(including Liabilities owing to or by Assignor thereunder) and the other Loan
Documents, in each case to the extent related to the amounts identified above
(the “Assigned Interest”).


 


Representations,
Warranties and Covenants of Assignors.  Assignor (a) represents and warrants to
Assignee and the Administrative Agent that (i) it has full power and
authority, and has taken all actions necessary for it, to execute and deliver
this Assignment and to consummate the transactions contemplated hereby and
(ii) it is the legal and beneficial owner of its Assigned Interest and
that such Assigned Interest is free and clear of any Lien and other adverse
claims, and (iii) by executing, signing and delivering this Assignment via
ClearPar® or any other electronic settlement system
designated by the Administrative Agent, the Person signing, executing and
delivering this Assignment on behalf of the Assignor is an authorized signer
for the Assignor and is authorized to execute, sign and deliver this Agreement,
(b) makes no other representation or warranty and assumes no responsibility,
including with respect to the aggregate amount of the Facilities, the
percentage of the Facilities represented by the amounts assigned, any
statements, representations and warranties made in or in connection with any
Loan Document or any other document or information furnished pursuant thereto,
the execution, legality, validity, enforceability or genuineness of any Loan
Document or any document or information provided in connection therewith and
the existence, nature or value of any Collateral, (c) assumes no
responsibility (and makes no representation or warranty) with respect to the
financial condition of any Group Member or Loan Party or the performance or
nonperformance by any Loan Party of any obligation under any Loan Document or
any document provided in connection therewith and (d) attaches any Notes
held by it evidencing at least in part the Assigned Interest of such Assignor
(or, if applicable, an affidavit of loss or similar affidavit therefor) and
requests that the Administrative Agent exchange such Notes for new Notes in
accordance with Section 2.14(e) of the Credit Agreement.


 


Representations,
Warranties and Covenants of Assignees.  Assignee (a) represents and warrants to
Assignor and the Administrative Agent that (i) it has full power and
authority, and has taken all actions necessary for Assignee, to execute and
deliver this Assignment and to consummate the transactions contemplated hereby,
(ii) to the extent indicated above, is an Affiliate or an Approved Fund of
the Lender set forth above and (iii) it is sophisticated with respect to
decisions to acquire assets of the type represented by the Assigned Interest
assigned to it hereunder and either such Assignee or the Person exercising
discretion in making the decision for such assignment is experienced in
acquiring assets of such type, (iv) by executing, signing and delivering
this Assignment via ClearPar® or any other electronic
settlement system designated by the Administrative Agent, the Person signing,
executing and delivering this Assignment on behalf of the Assignor is an
authorized signer for the Assignor and is authorized to execute, sign and
deliver this Agreement, (b) appoints and authorizes the Administrative
Agent to take such action as administrative agent and collateral agent on its
behalf and to exercise such powers under the Loan Documents as are delegated to
the Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto, (c) shall perform in accordance with their
terms all obligations that, by the terms of the Loan Documents, are required to
be performed by it as a Lender, (d) confirms it has received such
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter 


 


2

















 


into this Assignment and shall continue to
make its own credit decisions in taking or not taking any action under any Loan
Document independently and without reliance upon any Secured Party and based on
such documents and information as it shall deem appropriate at the time,
(e) acknowledges and agrees that, as a Lender, it may receive material
non-public information and confidential information concerning the Loan Parties
and their Affiliates and Securities and agrees to use such information in
accordance with Section 11.20 of the Credit Agreement,
(f) specifies as its applicable lending offices (and addresses for
notices) the offices at the addresses set forth beneath its name on the
signature pages hereof, (g) shall pay to the Administrative Agent an
assignment fee in the amount of $3,500 to the extent such fee is required to be
paid under Section 11.2(c) of the Credit Agreement and
(h) to the extent required pursuant to Section 2.17(f) of
the Credit Agreement, attaches two completed originals of Forms W-8ECI, W-8BEN
or W-9.


 


Determination
of Effective Date; Register.  Following the due execution and delivery of
this Assignment by Assignor, Assignee and, to the extent required by Section 11.2(b) of
the Credit Agreement, the Borrower, this Assignment (including its attachments)
will be delivered to the Administrative Agent for its acceptance and recording
in the Register.  The effective date of
this Assignment (the “Effective Date”) shall be the later of
(i) the acceptance of this Assignment by the Administrative Agent and
(ii) the recording of this Assignment in the Register.  The Administrative Agent shall insert the
Effective Date when known in the space provided therefor at the beginning of
this Assignment.


 


Effect.  As of the Effective Date, (a) Assignee
shall be a party to the Credit Agreement and, to the extent provided in this
Assignment, have the rights and obligations of a Lender under the Credit
Agreement and (b) Assignor shall, to the extent provided in this Assignment,
relinquish its rights (except those surviving the termination of the
Commitments and payment in full of the Obligations) and be released from its
obligations under the Loan Documents other than those obligations relating to
events and circumstances occurring prior to the Effective Date.


 


Distribution
of Payments.  On and
after the Effective Date, the Administrative Agent shall make all payments
under the Loan Documents in respect of each Assigned Interest (a) in the
case of amounts accrued to but excluding the Effective Date, to Assignor and
(b) otherwise, to the Assignee.


 


3

















 


Miscellaneous.  This Assignment is a Loan Document and, as
such, is subject to certain provisions of the Credit Agreement, including Sections 1.5
(Interpretation), 11.14(a) (Submission to Jurisdiction)
and 11.15 (Waiver of Jury Trial) thereof.  On and after the Effective Date, this
Assignment shall be binding upon, and inure to the benefit of, the Assignors,
Assignees, the Administrative Agent and their Related Persons and their
successors and assigns.  This Assignment
shall be governed by, and be construed and interpreted in accordance with, the
law of the State of New York.  This
Assignment may be executed in any number of counterparts and by different
parties in separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same agreement.  Signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart.  Delivery of an executed
signature page of this Assignment by facsimile transmission or Electronic
Transmission shall be as effective as delivery of a manually executed
counterpart of this Assignment.


 


[SIGNATURE PAGES FOLLOW]


 


4

















 


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


 


	
   

  	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  	
  as
  Assignor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  	
  as
  Assignee

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lending
  Office for Eurodollar Rate Loans:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert
  Address (including contact name, fax number and e-mail address)]

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lending
  Office (and address for notices) for any other purpose:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [Insert
  Address (including contact name, fax number and e-mail address)]

  
	
   

  	
   

  	
   

  
	
  ACCEPTED
  and AGREED

  	
   

  	
   

  
	
  this
       day of
              
            :

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  GENERAL
  ELECTRIC CAPITAL CORPORATION, as Administrative Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



[SIGNATURE
PAGE FOR ASSIGNMENT FOR ONCURE MEDICAL CORP.’S CREDIT AGREEMENT]


 

















 


	
  [BORROWER]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


[SIGNATURE PAGE FOR ASSIGNMENT FOR ONCURE MEDICAL CORP.’S CREDIT
AGREEMENT]


 

















 


EXHIBIT B

TO

CREDIT AGREEMENT


 


Form of Revolving Loan Note


 


	
  Lender:
  [NAME OF LENDER]

  	
  New York, New York

  
	
  Principal
  Amount: $

  	
  ,      

  



 


FOR
VALUE RECEIVED, each of the undersigned, ONCURE MEDICAL CORP., a Delaware
corporation (“Oncure”), FOUNTAIN VALLEY & ANAHEIM RADIATION
ONCOLOGY CENTERS, INC., a California corporation (“F&A”), FROG
ONCURE SOUTHSIDE, L.L.C., a Florida limited liability company (“Frog”),
JAXPET, LLC, a Florida limited liability company (“JaxPet”),
JAXPET/POSITECH, LLC, a Florida limited liability company (“Positech”),
MANATEE RADIATION ONCOLOGY, INC., a Florida corporation (“Manatee”),
MICA FLO II, INC., a Delaware corporation (“Mica Flo”), MISSION
VIEJO RADIATION ONCOLOGY MEDICAL GROUP, INC., a California corporation (“Mission
Viejo”), POINTE WEST ONCOLOGY, LLC, a Delaware limited liability company (“Pointe
West”), RADIATION ONCOLOGY CENTER, LLC, a California limited liability
company (“Radiation Oncology”), U.S. CANCER CARE, INC., a Delaware
corporation (“US Cancer Care”), USCC ACQUISITION CORP., a Delaware
corporation (“USCC Acquisition”), USCC FLORIDA ACQUISITION CORP., a
Delaware corporation (“Florida Acquisition”), USCC HEALTHCARE MANAGEMENT
CORP., a California corporation (“Healthcare Management”), SARASOTA
RADIATION & MEDICAL ONCOLOGY CENTER, INC., a Florida corporation
(“Sarasota”), VENICE ONCOLOGY CENTER, INC., a Florida corporation (“Venice”),
ENGLEWOOD ONCOLOGY, INC., a Florida corporation (“Englewood”),
CHARLOTTE COMMUNITY RADIATION ONCOLOGY, INC., a Florida corporation (“Charlotte”), INTERHEALTH
FACILITY TRANSPORT, INC., a Florida corporation (“Transport”),  SARASOTA COUNTY ONCOLOGY, INC., a
Florida corporation (“County”), COASTAL ONCOLOGY, INC., a
California corporation (“Coastal”) and SANTA CRUZ RADIATION ONCOLOGY
MANAGEMENT CORP., a California corporation (“Santa Cruz”; together with
Oncure, F&A, Frog, JaxPet, Positech, Manatee, Mica Flo, Mission Viejo,
Pointe West, Radiation Oncology, US Cancer Care, USCC Acquisition, Florida
Acquisition, Healthcare Management, Sarasota, Venice, Englewood, Charlotte,
Transport, County and Coastal, individually and collectively, the “Borrower”),
jointly and severally, hereby promises to pay to the order of the Lender set
forth above (the “Lender”) the Principal Amount set forth above, or, if
less, the aggregate unpaid principal amount of all Revolving Loans (as defined
in the Credit Agreement referred to below) of the Lender to the Borrower,
payable at such times and in such amounts as are specified in the Credit
Agreement (as defined below).


 


Each
Borrower promises to pay interest on the unpaid principal amount of the
Revolving Loans from the date made until such principal amount is paid in full,
payable at such times and at such interest rates as are specified in the Credit
Agreement (as defined below).  Demand,
diligence, presentment, protest and notice of non-payment and protest are
hereby waived by the Borrower.


 


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Both
principal and interest are payable in Dollars to General Electric Capital
Corporation, as Administrative Agent, at Two Bethesda Metro Center, Suite 600,
Bethesda, MD 20814, in immediately available funds.


 


This
Note is one of the Notes referred to in, and is entitled to the benefits of,
the Credit Agreement, dated as of May 13, 2010 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among the Borrower, OnCure Holdings, Inc., as one of the
Guarantors, the Lenders and the L/C Issuers party thereto and General Electric
Capital Corporation, as administrative agent and collateral agent for the
Lenders and L/C Issuers.  Capitalized
terms used herein without definition are used as defined in the Credit
Agreement.


 


The
Credit Agreement, among other things, (a) provides for the making of
Revolving Loans by the Lender to the Borrower in an aggregate amount not to
exceed at any time outstanding the Principal Amount set forth above, the
indebtedness of the Borrower resulting from such Revolving Loans being
evidenced by this Note and (b) contains provisions for acceleration of the
maturity of the unpaid principal amount of this Note upon the happening of
certain stated events and also for prepayments on account of the principal
hereof prior to the maturity hereof upon the terms and conditions specified
therein.


 


This
Note is a Loan Document, is entitled to the benefits of the Loan Documents and
is subject to certain provisions of the Credit Agreement, including Sections 1.5
(Interpretation), 11.14(a) (Submission to Jurisdiction)
and 11.15 (Waiver of Jury Trial) thereof.


 


This
Note is a registered obligation, transferable only upon notation in the
Register, and no assignment hereof shall be effective until recorded therein.


 


This
Note shall be governed by, and construed and interpreted in accordance with,
the law of the State of New York.


 


[SIGNATURE PAGES FOLLOW]


 


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IN
WITNESS WHEREOF, each Borrower has caused this Note to be executed and
delivered by its duly authorized officer as of the day and year and at the
place set forth above.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


SIGNATURE PAGE FROM
PROMISSORY NOTE OF ONCURE MEDICAL CORP., ET AL 

FOR THE BENEFIT OF [NAME OF LENDER]


 

















 


EXHIBIT C

TO

CREDIT AGREEMENT


 


Form of Notice of Borrowing


 


GENERAL
ELECTRIC CAPITAL CORPORATION

as Administrative Agent under the

Credit Agreement referred to below


 


,


 


Attention:


 


Re:                               Oncure Medical Corp. and its
direct and indirect Subsidiaries (individually and collectively, the “Borrower”)


 


Reference
is made to the Credit Agreement, dated as of May 13, 2010 (as the same may
be amended, restated, supplemented or otherwise modified from time to time, the
“Credit Agreement”), among the Borrower, OnCure Holdings, Inc., as
one of the Guarantors, the Lenders and L/C Issuers party thereto and General
Electric Capital Corporation, as administrative agent and collateral agent for
such Lenders and L/C Issuers. 
Capitalized terms used herein without definition are used as defined in
the Credit Agreement.


 


The
Borrower hereby gives you irrevocable notice, pursuant to Section 2.2
of the Credit Agreement of its request of a Borrowing (the “Proposed
Borrowing”) under the Credit Agreement and, in that connection, sets forth
the following information:


 


The date of the Proposed Borrowing is
                    ,
         (the “Funding Date”).


 


The aggregate principal amount of Revolving Loans is
$                  ,
of which
$                
consists of Base Rate Loans and
$                
consists of Eurodollar Rate Loans having an initial Interest Period of
              months.


 


The
undersigned hereby certifies that the following statements are true on the date
hereof, both before and after giving effect to the Proposed Borrowing and any
other Loan to be made or Letter of Credit to be Issued on or before the Funding
Date:


 


(i)                                     the
representations and warranties set forth in Article 4 of the Credit
Agreement and elsewhere in the Loan Documents are true and correct in all
material respects as though made on and as of such Funding Date (or in all
respects if such representation or warranty is qualified by “material” or “Material
Adverse Effect”) or, to the extent such representations and warranties
expressly relate to an earlier date, in which case such representations and
warranties were true and correct as of such date;


 


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(ii)                                  the
Consolidated Fixed Charge Coverage Ratio (recomputed for the last month for
which financial statements are available but without giving effect to the
funding of such proposed Loan) for Holdings is at least 1.00 to 1.00, as shown
on the attached worksheet;


 


(iii)                               after giving
effect to the funding of such Loan, the Revolving Credit Outstandings and the
outstanding principal amount of any other [“First Lien Obligations”] and
[“First Lien Letter of Credit Obligations”] as such terms are defined in
the Intercreditor Agreement, collectively, do not exceed the amount set forth
in, and calculated in accordance with, clause (a) of the definition of [“Maximum
First Lien Principal Amount”] in the Intercreditor Agreement; and


 


(iv)                              no Default is
continuing.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
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  Name:

  
	
   

  	
   

  	
  Title:

  



 


[SIGNATURE PAGE TO NOTICE OF
BORROWING DATED
            
    ,         ]


 














 


EXHIBIT D

TO

CREDIT AGREEMENT


 


Form of Swing Loan Request


 


GENERAL
ELECTRIC CAPITAL CORPORATION,

as Administrative Agent under the

Credit Agreement referred to below


 


Attention:


 


                  
    ,


 


Re:                               Oncure Medical Corp. and its
direct and indirect Subsidiaries (individually and collectively, the “Borrower”)


 


Reference
is made to the Credit Agreement, dated as of May 13, 2010 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among the Borrower, OnCure Holdings, Inc., as one of the
Guarantors, the Lenders and L/C Issuers party thereto and General Electric
Capital Corporation, as administrative agent and collateral agent for such
Lenders and L/C Issuers.  Capitalized
terms used herein without definition are used as defined in the Credit
Agreement.


 


The
Borrower hereby gives you irrevocable notice pursuant to Section 2.3
of the Credit Agreement that it requests Swing Loans under the Credit Agreement
(the “Proposed Advance”) and, in that connection, sets for the following
information:


 


A.                                   The date of the
Proposed Advance is
                    ,
         (the “Funding Date”).


 


B.                                     The aggregate
principal amount of Swing Loan is
$                  .


 


The
undersigned hereby certifies that the following statements are true on the date
hereof both before and after giving effect to the Proposed Advance and any
other Loan to be made or Letter of Credit to be Issued on or before the Funding
Date:


 


(i)                                     the
representations and warranties set forth in Article 4 of the Credit
Agreement and elsewhere in the Loan Documents are true and correct in all
material respects as though made on and as of such Funding Date (or in all
respects if such representation or warranty is qualified by “material” or “Material
Adverse Effect”) or, to the extent such representations and warranties
expressly relate to an earlier date, in which case such representations and
warranties were true and correct as of such date;


 


(ii)                                  the
Consolidated Fixed Charge Coverage Ratio (recomputed for the last month for
which financial statements are available but without giving effect to the 


 


[SIGNATURE
PAGE TO NOTICE OF BORROWING DATED
          
    ,         ]


 

















 


funding
of such proposed Swing Loan) for Holdings is at least 1.00 to 1.00, as shown on
the attached worksheet; and


 


(iii)                               after giving
effect to the funding of such Loan, the Revolving Credit Outstandings and the
outstanding principal amount of any other [“First Lien Obligations”] and
[“First Lien Letter of Credit Obligations”] as such terms are defined in
the Intercreditor Agreement, collectively, do not exceed the amount set forth
in, and calculated in accordance with, clause (a) of the definition of [“Maximum
First Lien Principal Amount”] in the Intercreditor Agreement; and


 


(iv)                              no Default is
continuing.


 


	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


[SIGNATURE PAGE TO NOTICE OF
BORROWING DATED           
    ,         ]


 

















 


EXHIBIT E

TO

CREDIT AGREEMENT


 


Form of Letter of Credit Request


 


[NAME
OF L/C ISSUER], as L/C Issuer

under the Credit Agreement referred to below


 


Attention:


 


                  
    ,


 


Re:                               Oncure Medical Corp. and its
direct and indirect Subsidiaries (individually and collectively, the “Borrower”)


 


Reference
is made to the Credit Agreement, dated as of May 13, 2010 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among the Borrower, OnCure Holdings, Inc., as one of the
Guarantors, the Lenders and L/C Issuers party thereto and General Electric
Capital Corporation, as administrative agent and collateral agent for such
Lenders and L/C Issuers.  Capitalized
terms used herein without definition are used as defined in the Credit
Agreement.


 


The
Borrower hereby gives you notice, irrevocably, pursuant to Section 2.4(b)
of the Credit Agreement, of its request for your Issuance of a Letter of
Credit, in the form attached hereto, for the benefit of [Name of Beneficiary],
in the amount of
$                ,
to be issued on
                ,
         (the “Issue Date”) with
an expiration date of
                  ,
        .


 


The
undersigned hereby certifies that the following statements are true on the date
hereof, both before and after giving effect to the Issuance of the Letter of
Credit requested above and any Loan to be made or any other Letter of Credit to
be Issued on or before the Issue Date:


 


(i)                                     the
representations and warranties set forth in Article 4 of the Credit
Agreement and elsewhere in the Loan Documents are true and correct in all
material respects as though made on and as of such Funding Date (or in all
respects if such representation or warranty is qualified by “material” or “Material
Adverse Effect”) or, to the extent such representations and warranties
expressly relate to an earlier date, in which case such representations and
warranties were true and correct as of such date;


 


(ii)                                  the
Consolidated Fixed Charge Coverage Ratio (recomputed for the last month for
which financial statements are available but without giving effect to the
issuance of such Letter of Credit) for Holdings is at least 1.00 to 1.00, as
shown on the attached worksheet;


 


(iii)                               after giving
effect to the Issuance of such Letter of Credit, the Revolving Credit
Outstandings and the outstanding principal amount of any other [“First Lien
Obligations”] and [“First Lien Letter of Credit Obligations”] as
such terms are defined in 


 


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the
Intercreditor Agreement, collectively, do not exceed the amount set forth in,
and calculated in accordance with, clause (a) of the definition of [“Maximum
First Lien Principal Amount”] in the Intercreditor Agreement; and


 


(iv)                              no Default is
continuing.


 


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[SIGNATURE PAGE TO LETTER OF CREDIT REQUEST DATED
          
    ,         ]


 

















 


EXHIBIT F

TO

CREDIT AGREEMENT


 


Form of Notice of Conversion or Continuation


 


GENERAL
ELECTRIC CAPITAL CORPORATION

as Administrative Agent under the

Credit Agreement referred to below


 


                  
    ,


 


Attention:


 


Re:                               Oncure Medical Corp. and its
direct and indirect Subsidiaries (individually and collectively, the “Borrower”)


 


Reference
is made to the Credit Agreement, dated as of May 13, 2010 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among the Borrower, OnCure Holdings, Inc., as one of the
Guarantors, the Lenders and L/C Issuers party thereto and General Electric
Capital Corporation, as administrative agent and collateral agent for such
Lenders and L/C Issuers.  Capitalized
terms used herein without definition are used as defined in the Credit
Agreement.


 


The
Borrower hereby gives you irrevocable notice, pursuant to Section 2.10 of
the Credit Agreement of its request for the following:


 


(v)                                 a continuation,
on
                ,
        , as Eurodollar Rate Loans
having an Interest Period of        months of
Revolving Loans in an aggregate outstanding principal amount of
$                        
having an Interest Period ending on the proposed date for such continuation;


 


(vi)                              a conversion,
on
                ,
        , to Eurodollar Rate Loans
having an Interest Period of        months of
Revolving Loans in an aggregate outstanding principal amount of
$                  ;
and


 


(vii)                           a conversion,
on
                ,
        , to Base Rate Loans, of
Revolving Loans in an aggregate outstanding principal amount of $                  .


 


In
connection herewith, the undersigned hereby certifies that no Default is continuing
on the date hereof, both before and after giving effect to any Loan to be made
or Letter of Credit to be Issued on or before any date for any proposed
conversion or continuation set forth above.


 


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  Name:

  
	
   

  	
   

  	
  Title:

  



 


[SIGNATURE PAGE TO NOTICE OF
CONVERSION/CONTINUATION DATED
          
    ,         ]


 

















 


EXHIBIT G

TO

CREDIT AGREEMENT


 


Form of compliance certificate


 


                    ,


 


This
certificate is delivered pursuant to Section 6.1(d) of, and in
connection with the consummation of the transactions contemplated in, the
Credit Agreement, dated as of May 13, 2010 (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the “Credit
Agreement”), among Oncure Medical Corp. and its direct and indirect
Subsidiaries (the “Borrower”), OnCure Holdings, Inc., as one of the
Guarantors, the Lenders and L/C Issuers party thereto and General Electric
Capital Corporation, as administrative agent and collateral agent for the
Lenders and L/C Issuers (the “Administrative Agent”).  Capitalized terms used herein and not
otherwise defined herein are used herein as defined in the Credit Agreement.


 


The
undersigned, a duly authorized Responsible Officer of the Borrower having the
name and title set forth below under his signature, hereby certifies, on behalf
of the Borrower for the benefit of the Secured Parties and pursuant to Section 6.1
of the Credit Agreement that such Responsible Officer of the Borrower is familiar
with the Credit Agreement and that, in accordance with each of the following
sections of the Credit Agreement, each of the following is true on the
date hereof, both before and after giving effect to any Loan to be made or
Letter of Credit to be Issued on or before the date hereof:


 


No Default is continuing.


 


In accordance with Section 6.1[(a)/(b) /(c)] of the
Credit Agreement, attached hereto as Annex A are the Financial
Statements for the [fiscal month/Fiscal Quarter/Fiscal Year] ended
                  ,
         required to be delivered
pursuant to Section 6.1[(a)/(b) /(c)] of the Credit
Agreement.  Such Financial Statements
fairly present in all material respects the Consolidated financial position,
results of operations and cash flow of Holdings as at the dates indicated
therein and for the periods indicated therein in accordance with GAAP [(subject
to the absence of footnote disclosure and audit and normal year-end audit
adjustments)] [without qualification as to the scope of the audit or as to
going concern and without any other similar qualification, together with the
certificate from the Group Members’ Accountants with respect to such
Consolidated Financial Statements required to be delivered pursuant to
Section 6.1(c) of the Credit Agreement.  The examination by the Borrower’s Accountants
in connection with such Financial Statements has been made in accordance with
the standards of the United States’ Public Company accounting Oversight Board
(or any successor entity).]


 


In accordance with Section 6.1(d) of the Credit Agreement,
attached hereto as Annex B are the calculations used to determine
the Consolidated First Lien Leverage Ratio and, if applicable, Consolidated
Fixed Charge Coverage Ratio, to determine compliance with each financial covenant
contained in Article 5 of the Credit Agreement that are tested on a
quarterly basis.


 


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In accordance with Section 6.1(d) of the Credit Agreement,
no Default is continuing as of the date hereof[, except as provided for on Annex C
attached hereto, with respect to each of which the Borrower proposes to take
the actions set forth on Annex C].


 


In accordance with Section 6.1(e) of the Credit Agreement,
(i) the [Corporate Chart attached hereto as Annex D[-1]] [last
Corporate Chart delivered pursuant to such Section)], is correct and complete
as of the date hereof, (ii) all documents (including updated schedules as
to locations of Collateral and acquisition of Intellectual Property or real
property) required to be delivered pursuant to the Loan Documents by any Loan
Party in the preceding Fiscal Quarter have been delivered thereunder (or such
delivery requirement was otherwise duly waived or extended) and (iii) complete
and correct copies of all documents modifying any term of any Constituent
Document of any Group Member or any Subsidiary or joint venture thereof on or
prior to the date hereof have been delivered to the Administrative Agent [or
are attached hereto as Annex D[-2]].


 


In accordance with Section 6.1(g) of the Credit Agreement,
attached hereto as Annex E is a discussion and analysis of the
financial condition and results of operations of the Group Members for the
portion of the Fiscal Year elapsed on or prior to the date hereof discussing
the reasons for any significant variations from the Projections for such period
and the figures for the corresponding period in the previous Fiscal Year.


 


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[In accordance with Sections 6.1(i) and (j) of
the Credit Agreement, attached hereto as Annexes F and G are
complete and correct (i) copies of each management letter, audit report or
similar letter or report received by any Group Member from any independent
registered certified public accountant (including the Group Members’
Accountants) in connection with such Financial Statements or any audit thereof
and (ii) a summary of all material insurance coverage maintained as of the
date thereof by any Group Member].


 


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[SIGNATURE PAGE FOLLOWS]


 


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IN
WITNESS WHEREOF, the undersigned has executed this certificate on the date
first written above.


 


 


	
   

  	
   

  
	
   

  	
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[SIGNATURE PAGE TO
COMPLIANCE CERTIFICATE OF ONCURE MEDICAL CORP. DATED
          
    ,         ]