Exhibit 10.26




 





 


 


GUARANTY AND SECURITY AGREEMENT


 


Dated as of May 13, 2010


 


among


 


ONCURE MEDICAL CORP. AND ALL OF THE DIRECT AND
INDIRECT SUBSIDIARIES OF ONCURE MEDICAL CORP., 

as Borrower


 


ONCURE HOLDINGS, INC., 

as Guarantor


 


Each Grantor

From Time to Time Party Hereto


 


in favor of


 


GENERAL ELECTRIC CAPITAL CORPORATION, 

as Administrative Agent and Collateral Agent


 




 





 

















 


	
  ARTICLE I                                          DEFINED TERMS

  	
   

  	
  2

  
	
  Section 1.1

  	
  Definitions

  	
   

  	
  2

  
	
  Section 1.2

  	
  Certain Other Terms

  	
   

  	
  4

  
	
  ARTICLE II                                      GUARANTY

  	
   

  	
  5

  
	
  Section 2.1

  	
  Guaranty

  	
   

  	
  5

  
	
  Section 2.2

  	
  Limitation of Guaranty

  	
   

  	
  5

  
	
  Section 2.3

  	
  Contribution

  	
   

  	
  5

  
	
  Section 2.4

  	
  Authorization; Other Agreements

  	
   

  	
  5

  
	
  Section 2.5

  	
  Guaranty Absolute and Unconditional

  	
   

  	
  6

  
	
  Section 2.6

  	
  Waivers

  	
   

  	
  7

  
	
  Section 2.7

  	
  Reliance

  	
   

  	
  7

  
	
  ARTICLE III                                  GRANT OF
  SECURITY INTEREST

  	
   

  	
  8

  
	
  Section 3.1

  	
  Collateral

  	
   

  	
  8

  
	
  Section 3.2

  	
  Grant of Security Interest in Collateral

  	
   

  	
  8

  
	
  ARTICLE IV                                  REPRESENTATIONS
  AND WARRANTIES

  	
   

  	
  8

  
	
  Section 4.1

  	
  Title; No Other Liens

  	
   

  	
  9

  
	
  Section 4.2

  	
  Perfection and Priority

  	
   

  	
  9

  
	
  Section 4.3

  	
  Jurisdiction of Organization; Chief Executive Office

  	
   

  	
  9

  
	
  Section 4.4

  	
  Locations of Inventory, Equipment and Books and Records

  	
   

  	
  10

  
	
  Section 4.5

  	
  Pledged Collateral

  	
   

  	
  10

  
	
  Section 4.6

  	
  Instruments and Tangible Chattel Paper Formerly Accounts

  	
   

  	
  10

  
	
  Section 4.7

  	
  Intellectual Property

  	
   

  	
  10

  
	
  Section 4.8

  	
  Commercial Tort Claims

  	
   

  	
  11

  
	
  Section 4.9

  	
  Specific Collateral

  	
   

  	
  11

  
	
  Section 4.10

  	
  Enforcement

  	
   

  	
  11

  
	
  Section 4.11

  	
  Representations and Warranties of the Credit Agreement

  	
   

  	
  11

  
	
  ARTICLE V                                      COVENANTS

  	
   

  	
  12

  
	
  Section 5.1

  	
  Maintenance of Perfected Security Interest; Further Documentation and
  Consents

  	
   

  	
  12

  
	
  Section 5.2

  	
  Changes in Locations, Name, Etc.

  	
   

  	
  13

  
	
  Section 5.3

  	
  Pledged Collateral

  	
   

  	
  13

  
	
  Section 5.4

  	
  Accounts

  	
   

  	
  14

  
	
  Section 5.5

  	
  Commodity Contracts

  	
   

  	
  14

  



 

















 


	
  Section 5.6

  	
  Delivery of Instruments and Tangible Chattel Paper and Control of
  Investment Property, Letter-of-Credit Rights and Electronic Chattel Paper

  	
   

  	
  14

  
	
  Section 5.7

  	
  Intellectual Property

  	
   

  	
  15

  
	
  Section 5.8

  	
  Notices

  	
   

  	
  17

  
	
  Section 5.9

  	
  Notice of Commercial Tort Claims

  	
   

  	
  17

  
	
  Section 5.10

  	
  Compliance with Credit Agreement

  	
   

  	
  17

  
	
  ARTICLE VI                                  REMEDIAL
  PROVISIONS

  	
   

  	
  17

  
	
  Section 6.1

  	
  Code and Other Remedies

  	
   

  	
  17

  
	
  Section 6.2

  	
  Accounts and Payments in Respect of General Intangibles

  	
   

  	
  20

  
	
  Section 6.3

  	
  Pledged Collateral

  	
   

  	
  21

  
	
  Section 6.4

  	
  Proceeds to be Turned over to and Held by Administrative Agent

  	
   

  	
  22

  
	
  Section 6.5

  	
  Registration Rights

  	
   

  	
  22

  
	
  Section 6.6

  	
  Deficiency

  	
   

  	
  23

  
	
  ARTICLE VII                              THE
  ADMINISTRATIVE AGENT

  	
   

  	
  23

  
	
  Section 7.1

  	
  Administrative Agent’s Appointment as Attorney-in-Fact

  	
   

  	
  23

  
	
  Section 7.2

  	
  Authorization to File Financing Statements

  	
   

  	
  25

  
	
  Section 7.3

  	
  Authority of Administrative Agent

  	
   

  	
  25

  
	
  Section 7.4

  	
  Duty; Obligations and Liabilities

  	
   

  	
  25

  
	
  ARTICLE VIII                          MISCELLANEOUS

  	
   

  	
  26

  
	
  Section 8.1

  	
  Reinstatement

  	
   

  	
  26

  
	
  Section 8.2

  	
  Release of Collateral

  	
   

  	
  26

  
	
  Section 8.3

  	
  Independent Obligations

  	
   

  	
  27

  
	
  Section 8.4

  	
  No Waiver by Course of Conduct

  	
   

  	
  27

  
	
  Section 8.5

  	
  Amendments in Writing

  	
   

  	
  27

  
	
  Section 8.6

  	
  Additional Grantors; Additional Pledged Collateral

  	
   

  	
  27

  
	
  Section 8.7

  	
  Notices

  	
   

  	
  28

  
	
  Section 8.8

  	
  Successors and Assigns

  	
   

  	
  28

  
	
  Section 8.9

  	
  Counterparts

  	
   

  	
  28

  
	
  Section 8.10

  	
  Severability

  	
   

  	
  28

  
	
  Section 8.11

  	
  Governing Law

  	
   

  	
  28

  
	
  Section 8.12

  	
  WAIVER OF JURY TRIAL

  	
   

  	
  28

  



 

















 


ANNEXES AND SCHEDULES


 


	
  Annex
  1

  	
  Form of
  Pledge Amendment

  	
   

  
	
  Annex
  2

  	
  Form of
  Joinder Agreement

  	
   

  
	
  Annex
  3

  	
  Form of
  Intellectual Property Security Agreement

  	
   

  
	
  Annex
  4

  	
  Form of
  Pledge Registration and Control Agreement

  	
   

  
	
   

  	
   

  	
   

  
	
  Schedule
  1

  	
  Commercial
  Tort Claims

  	
   

  
	
  Schedule
  2

  	
  Filings

  	
   

  
	
  Schedule
  3

  	
  Jurisdiction
  of Organization; Chief Executive Office

  	
   

  
	
  Schedule
  4

  	
  Location
  of Inventory and Equipment

  	
   

  
	
  Schedule
  5

  	
  Pledged
  Collateral

  	
   

  
	
  Schedule
  6

  	
  Intellectual
  Property

  	
   

  



 

















 


GUARANTY AND SECURITY AGREEMENT, dated as of May 13,
2010, by 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 (“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 (“SCROM”, with 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, Coastal
and Oncure, individually and collectively, “Borrower”), and ONCURE
HOLDINGS, INC., a Delaware corporation (“Holdings” together with
the Borrower, the “Grantors”), in favor of General Electric Capital
Corporation (“GE Capital”), as administrative agent and collateral agent
(in such capacity, together with its successors and permitted assigns, the “Administrative
Agent”) for the Lenders and the L/C Issuers and each other Secured Party
(each as defined in the Credit Agreement referred to below).


 


W I T N E S S E T H:


 


WHEREAS, pursuant to the Credit Agreement dated as of
May 13, 2010 (as the same may be modified from time to time, the “Credit
Agreement”) among the Borrower, Holdings, the Lenders and the L/C Issuers
from time to time party thereto and GE Capital, as administrative agent and
collateral agent for the Lenders and the L/C Issuers, the Lenders and the L/C
Issuers have severally agreed to make extensions of credit to the Borrower upon
the terms and subject to the conditions set forth therein;


 


WHEREAS, Guarantor (as defined herein) has agreed to
guaranty the Obligations (as defined in the Credit Agreement) of the Borrower;


 


WHEREAS, each Grantor will derive substantial direct and
indirect benefits from the making of the extensions of credit under the Credit
Agreement; and


 

















 


WHEREAS, it is a condition precedent to the obligation of
the Lenders and the L/C Issuers to make their respective extensions of credit
to the Borrower under the Credit Agreement that the Grantors shall have
executed and delivered this Agreement to the Administrative Agent;


 


NOW, THEREFORE, in consideration of the premises and to
induce the Lenders, the L/C Issuers and the Administrative Agent to enter into
the Credit Agreement and to induce the Lenders and the L/C Issuers to make
their respective extensions of credit to the Borrower thereunder, each Grantor
hereby agrees with the Administrative Agent as follows:


 


ARTICLE I


 


DEFINED TERMS


 


Section 1.1                                      Definitions.  (a)              Capital terms used herein without definition are
used as defined in the Credit Agreement.


 


(b)                                 The following
terms have the meanings given to them in the UCC and terms used herein without
definition that are defined in the UCC have the meanings given to them in the
UCC (such meanings to be equally applicable to both the singular and plural
forms of the terms defined):  “account”,
“account debtor”, “as-extracted collateral”, “certificated
security”, “chattel paper”, “commercial tort claim”, “commodity
contract”, “deposit account”, “electronic chattel paper”, “equipment”,
“farm products”, “financial asset”, “fixture”, “general
intangible”, “goods”, “health-care-insurance receivable”, “instruments”,
“inventory”, “investment property”, “letter-of-credit right”,
“proceeds”, “record”, “securities account”, “security”,
“supporting obligation” and “tangible chattel paper”.


 


(c)                                  The following
terms shall have the following meanings:


 


“Agreement”
means this Guaranty and Security Agreement.


 


“Applicable
IP Office” means the United States Patent and Trademark Office, the United
States Copyright Office or any similar office or agency within or outside the
United States.


 


“Collateral”
has the meaning specified in Section 3.1.


 


“Excluded
Equity” means any voting stock in excess of 66% of the outstanding voting
stock of any Excluded Foreign Subsidiary. 
For the purposes of this definition, “voting stock” means, with
respect to any issuer, the issued and outstanding shares of each class of Stock
of such issuer entitled to vote (within the meaning of Treasury Regulations §
1.956-2(c)(2)).


 


“Excluded
Property” means, collectively, (i) Excluded Equity, (ii) any
permit or license or any Contractual Obligation entered into by any Grantor
(A) that prohibits or requires the consent of any Person other than the
Borrower and its Affiliates as a condition to the creation by such Grantor of a
Lien on any right, title or interest in such permit, license or Contractual
Agreement or any Stock or Stock Equivalent related thereto or (B) to the
extent that any Requirement of Law applicable thereto prohibits the creation of
a Lien thereon, but only, with respect to the prohibition in (A) and (B),
to the extent, and for as long as, such prohibition is not terminated or
rendered unenforceable or otherwise deemed ineffective by the UCC or any other 


 


2

















 


Requirement
of Law, (iii) fixed or capital assets owned by any Grantor that is subject
to a purchase money Lien or a Capital Lease if the Contractual Obligation
pursuant to which such Lien is granted (or in the document providing for such
Capital Lease) prohibits or requires the consent of any Person other than the
Borrower and its Affiliates as a condition to the creation of any other Lien on
such equipment, to the extent, and for as long as, such prohibition is not
terminated or rendered unenforceable or otherwise deemed ineffective by the UCC
or any other Requirement of Law, and (iv) any “intent to use” Trademark
applications for which a statement of use has not been filed (but only until
such statement is filed); provided, however, “Excluded
Property” shall not include any proceeds, products, substitutions or
replacements of Excluded Property (unless such proceeds, products,
substitutions or replacements would otherwise constitute Excluded Property).


 


“Guaranteed
Obligations” has the meaning set forth in Section 2.1.


 


“Guarantor”
means each Grantor other than the Borrower.


 


“Guaranty”
means the guaranty of the Guaranteed Obligations made by the Guarantors as set
forth in this Agreement.


 


“Material
Intellectual Property” means Intellectual Property that is owned by or licensed
to a Grantor and material to the conduct of any Grantor’s business.


 


“Pledged
Certificated Stock” means all certificated securities and any other Stock
or Stock Equivalent of any Person evidenced by a certificate, instrument or
other similar document (as defined in the UCC), in each case owned by any
Grantor, and any distribution of property made on, in respect of or in exchange
for the foregoing from time to time, exceeding $100,000 in the aggregate
including all Stock and Stock Equivalents listed on Schedule 5.  Pledged Certificated Stock excludes any
Excluded Property and any Cash Equivalents that are not held in Controlled
Securities Accounts to the extent permitted by Section 7.11 of the
Credit Agreement.


 


“Pledged
Collateral” means, collectively, the Pledged Stock and the Pledged Debt
Instruments.


 


“Pledged
Debt Instruments” means all right, title and interest of any Grantor in
instruments evidencing any Indebtedness owed to such Grantor or other
obligations, and any distribution of property made on, in respect of or in
exchange for the foregoing from time to time, exceeding $100,000 in the
aggregate including all Indebtedness described on Schedule 5,
issued by the obligors named therein. 
Pledged Debt Instruments excludes any Cash Equivalents that are not held
in Controlled Securities Accounts to the extent permitted by Section 7.11
of the Credit Agreement


 


“Pledged
Investment Property” means any investment property of any Grantor, and any
distribution of property made on, in respect of or in exchange for the
foregoing from time to time, exceeding $100,000 in the aggregate other than any
Pledged Stock or Pledged Debt Instruments. 
Pledged Investment Property excludes any Cash Equivalents that are not
held in Controlled Securities Accounts to the extent permitted by Section 7.11
of the Credit Agreement


 


3

















 


“Pledged
Stock” means all Pledged Certificated Stock and all Pledged Uncertificated
Stock.


 


“Pledged
Uncertificated Stock” means any Stock or Stock Equivalent of any Person
that is not Pledged Certificated Stock, including all right, title and interest
of any Grantor as a limited or general partner in any partnership not
constituting Pledged Certificated Stock or as a member of any limited liability
company, all right, title and interest of any Grantor in, to and under any
Constituent Document of any partnership or limited liability company to which
it is a party, and any distribution of property made on, in respect of or in
exchange for the foregoing from time to time, exceeding $100,000 in the
aggregate including in each case those interests set forth on Schedule 5,
to the extent such interests are not certificated.  Pledged Uncertificated Stock excludes any
Excluded Property and any Cash Equivalents that are not held in Controlled
Securities Accounts to the extent permitted by Section 7.11 of the
Credit Agreement.


 


“Security
Cash Collateral Account” means a Cash Collateral Account that is not a L/C
Cash Collateral Account.


 


“Software”
means (a) all computer programs, including source code and object code
versions, (b) all data, databases and compilations of data, whether
machine readable or otherwise, and (c) all documentation, training
materials and configurations related to any of the foregoing.


 


“Subsidiary
Guarantor” means any Guarantor that is a Subsidiary of the Borrower.


 


“UCC”
means the Uniform Commercial Code as from time to time in effect in the State
of New York; provided, however, that, in the event that, by
reason of mandatory provisions of any applicable Requirement of Law, any of the
attachment, perfection or priority of the Administrative Agent’s or any other
Secured Party’s security interest in any Collateral is governed by the Uniform
Commercial Code of a jurisdiction other than the State of New York, “UCC”
shall mean the Uniform Commercial Code as in effect in such other jurisdiction
for purposes of the provisions hereof relating to such attachment, perfection
or priority and for purposes of the definitions related to or otherwise used in
such provisions.


 


“Vehicles”
means all vehicles covered by a certificate of title law of any state.


 


Section 1.2                                      Certain Other
Terms.  (a) The meanings given to
terms defined herein shall be equally applicable to both the singular and
plural forms of such terms.  The terms “herein”,
“hereof” and similar terms refer to this Agreement as a whole and not to
any particular Article, Section or clause in this Agreement.  References herein to an Annex, Schedule,
Article, Section or clause refer to the appropriate Annex or
Schedule to, or Article, Section or clause in this Agreement.  Where the context requires, provisions
relating to any Collateral when used in relation to a Grantor shall refer to
such Grantor’s Collateral or any relevant part thereof.


 


(b)                                 Section 1.5
(Interpretation) of the Credit Agreement is applicable to this Agreement
as and to the extent set forth therein.


 


4

















 


ARTICLE II


 


GUARANTY


 


Section 2.1                                      Guaranty.  To induce the Lenders to make the Loans and
the L/C Issuers to Issue Letters of Credit, each Guarantor hereby, jointly and
severally, absolutely, unconditionally and irrevocably guarantees, as primary
obligor and not merely as surety, the full and punctual payment when due,
whether at stated maturity or earlier, by reason of acceleration, mandatory
prepayment or otherwise in accordance with any Loan Document, of all the
Obligations of the Borrower whether existing on the date hereof or hereinafter
incurred or created (the “Guaranteed Obligations”).  This Guaranty by each Guarantor hereunder
constitutes a guaranty of payment and not of collection.


 


Section 2.2                                      Limitation of
Guaranty.  Any term or
provision of this Guaranty or any other Loan Document to the contrary
notwithstanding, the maximum aggregate amount for which any Subsidiary
Guarantor shall be liable hereunder shall not exceed the maximum amount for
which such Subsidiary Guarantor can be liable without rendering this Guaranty
or any other Loan Document, as it relates to such Subsidiary Guarantor, subject
to avoidance under applicable Requirements of Law relating to fraudulent
conveyance or fraudulent transfer (including the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act and Section 548 of title 11 of
the United States Code or any applicable provisions of comparable Requirements
of Law) (collectively, “Fraudulent Transfer Laws”).  Any analysis of the provisions of this
Guaranty for purposes of Fraudulent Transfer Laws shall take into account the
right of contribution established in Section 2.3 and, for purposes
of such analysis, give effect to any discharge of intercompany debt as a result
of any payment made under the Guaranty.


 


Section 2.3                                      Contribution.  To the extent that any Subsidiary Guarantor
shall be required hereunder to pay any portion of any Guaranteed Obligation
exceeding the greater of (a) the amount of the economic benefit actually
received by such Subsidiary Guarantor from the Loans and other Obligations and
(b) the amount such Subsidiary Guarantor would otherwise have paid if such
Subsidiary Guarantor had paid the aggregate amount of the Guaranteed
Obligations (excluding the amount thereof repaid by the Borrower and Holdings)
in the same proportion as such Subsidiary Guarantor’s net worth on the date
enforcement is sought hereunder bears to the aggregate net worth of all the
Subsidiary Guarantors on such date, then such Guarantor shall be reimbursed by
such other Subsidiary Guarantors for the amount of such excess, pro rata, based
on the respective net worth of such other Subsidiary Guarantors on such date.


 


Section 2.4                                      Authorization;
Other Agreements.  The Secured
Parties are hereby authorized, without notice to or demand upon any Guarantor
and without discharging or otherwise affecting the obligations of any Guarantor
hereunder and without incurring any liability hereunder, from time to time, to
do each of the following:


 


(a)                                  (i)                                     modify, amend,
supplement or otherwise change, (ii) accelerate or otherwise change the
time of payment or (iii) waive or otherwise consent to noncompliance with,
any Guaranteed Obligation or any Loan Document;


 


5

















 


(b)                                 apply to the
Guaranteed Obligations any sums by whomever paid or however realized to any
Guaranteed Obligation in such order as provided in the Loan Documents;


 


(c)                                  refund at any
time any payment received by any Secured Party in respect of any Guaranteed
Obligation;


 


(d)                                 (i)                                     Sell, exchange,
enforce, waive, substitute, liquidate, terminate, release, abandon, fail to
perfect, subordinate, accept, substitute, surrender, exchange, affect, impair
or otherwise alter or release any Collateral for any Guaranteed Obligation or
any other guaranty therefor in any manner, (ii) receive, take and hold
additional Collateral to secure any Guaranteed Obligation, (iii) add,
release or substitute any one or more other Guarantors, makers or endorsers of
any Guaranteed Obligation or any part thereof and (iv) otherwise deal in
any manner with the Borrower and any other Guarantor, maker or endorser of any
Guaranteed Obligation or any part thereof; and


 


(e)                                  settle,
release, compromise, collect or otherwise liquidate the Guaranteed Obligations.


 


Section 2.5                                      Guaranty
Absolute and Unconditional.  Each Guarantor hereby waives and agrees not
to assert any defense, whether arising in connection with or in respect of any
of the following or otherwise, and hereby agrees that its obligations under
this Guaranty are irrevocable, absolute and unconditional and shall not be
discharged as a result of or otherwise affected by any of the following (which
may not be pleaded and evidence of which may not be introduced in any
proceeding with respect to this Guaranty, in each case except as otherwise
agreed in writing by the Administrative Agent):


 


(a)                                  the invalidity
or unenforceability of any obligation of the Borrower or any other Guarantor
under any Loan Document or any other agreement or instrument relating thereto
(including any amendment, consent or waiver thereto), or any security for, or
other guaranty of, any Guaranteed Obligation or any part thereof, or the lack
of perfection or continuing perfection or failure of priority of any security
for the Guaranteed Obligations or any part thereof;


 


(b)                                 the absence of
(i) any attempt to collect any Guaranteed Obligation or any part thereof
from the Borrower or any other Guarantor or other action to enforce the same or
(ii) any action to enforce any Loan Document or any Lien thereunder;


 


(c)                                  the failure by
any Person to take any steps to perfect and maintain any Lien on, or to
preserve any rights with respect to, any Collateral;


 


(d)                                 any workout,
insolvency, bankruptcy proceeding, reorganization, arrangement, liquidation or
dissolution by or against the Borrower, any other Guarantor or any of the
Borrower’s other Subsidiaries or any procedure, agreement, order, stipulation,
election, action or omission thereunder, including any discharge or
disallowance of, or bar or stay against collecting, any Guaranteed Obligation
(or any interest thereon) in or as a result of any such proceeding;


 


6






 










 


(e)                                  any
foreclosure, whether or not through judicial sale, and any other Sale of any
Collateral or any election following the occurrence of an Event of Default by
any Secured Party to proceed separately against any Collateral in accordance
with such Secured Party’s rights under any applicable Requirement of Law; or


 


(f)                                    any other
defense, setoff, counterclaim or any other circumstance that might otherwise
constitute a legal or equitable discharge of the Borrower, any other Guarantor
or any of the Borrower’s other Subsidiaries, in each case other than the
payment in full of the Guaranteed Obligations.


 


Section 2.6                                      Waivers.  Each Guarantor hereby unconditionally and
irrevocably waives and agrees not to assert any claim, defense, setoff or
counterclaim based on diligence, promptness, presentment, requirements for any
demand or notice hereunder including any of the following:  (a) any demand for payment or
performance and protest and notice of protest, (b) any notice of
acceptance, (c) any presentment, demand, protest or further notice or
other requirements of any kind with respect to any Guaranteed Obligation
(including any accrued but unpaid interest thereon) becoming immediately due
and payable and (d) any other notice in respect of any Guaranteed Obligation
or any part thereof, and any defense arising by reason of any disability or
other defense of the Borrower or any other Guarantor.  Each Guarantor further unconditionally and
irrevocably agrees not to (x) enforce or otherwise exercise any right of
subrogation or any right of reimbursement or contribution or similar right
against the Borrower or any other Guarantor by reason of any Loan Document or
any payment made thereunder until the date that all conditions set forth in
subparts (A) through (D) of clause (b)(iii) of Section 10.10
(Release of Collateral of Guarantors) of the Credit Agreement are
satisfied and all obligations (other than those expressly stated to survive
such termination) of the Administrative Agent and each Grantor have terminated
or (y) assert any claim, defense, setoff or counterclaim it may have
against any other Loan Party or set off any of its obligations to such other
Loan Party against obligations of such Loan Party to such Guarantor.  No obligation of any Guarantor hereunder
shall be discharged other than by complete performance.


 


Section 2.7                                      Reliance.  Each Guarantor hereby assumes responsibility
for keeping itself informed of the financial condition of the Borrower, each
other Guarantor and any other guarantor, maker or endorser of any Guaranteed
Obligation or any part thereof, and of all other circumstances bearing upon the
risk of nonpayment of any Guaranteed Obligation or any part thereof that
diligent inquiry would reveal, and each Guarantor hereby agrees that no Secured
Party shall have any duty to advise any Guarantor of information known to it
regarding such condition or any such circumstances.  In the event any Secured Party, in its sole
discretion, undertakes at any time or from time to time to provide any such
information to any Guarantor, such Secured Party shall be under no obligation
to (a) undertake any investigation not a part of its regular business
routine, (b) disclose any information that such Secured Party, pursuant to
accepted or reasonable commercial finance or banking practices, wishes to
maintain confidential or (c) make any future disclosures of such
information or any other information to any Guarantor.


 


7

















 


ARTICLE III


 


GRANT OF SECURITY INTEREST


 


Section 3.1                                      Collateral.  For the purposes of this Agreement, all of
the following property now owned or at any time hereafter acquired by a Grantor
or in which a Grantor now has or at any time in the future may acquire any
right, title or interests is collectively referred to as the “Collateral”:


 


(a)                                  all accounts,
chattel paper, deposit accounts, documents (as defined in the UCC), equipment,
general intangibles, health-care-insurance-receivables, instruments, inventory,
investment property and supporting obligations;


 


(b)                                 the commercial
tort claims described on Schedule 1 and on any supplement thereto
received by the Administrative Agent pursuant to Section 5.9;


 


(c)                                  all books and
records pertaining to the other property described in this Section 3.1;


 


(d)                                 all property of
such Grantor held by any Secured Party, including all property of every
description, in the custody of or in transit to such Secured Party for any
purpose, including safekeeping, collection or pledge, for the account of such
Grantor or as to which such Grantor may have any right or power, including but
not limited to cash;


 


(e)                                  all other goods
(including but not limited to fixtures) and personal property of such Grantor,
whether tangible or intangible and wherever located; and


 


(f)                                    to the extent
not otherwise included, all proceeds of the foregoing;


 


provided, however,
that “Collateral” shall not include any Excluded Property; and provided,
further, that if and when any property shall cease to be Excluded
Property, such property shall be deemed at all times from and after the date
hereof to constitute Collateral.


 


Section 3.2                                      Grant of
Security Interest in Collateral.  Each Grantor, as collateral security for the
prompt and complete payment and performance when due (whether at stated
maturity, by acceleration or otherwise) of the Obligations of such Grantor (the
“Secured Obligations”), hereby mortgages, pledges and hypothecates to
the Administrative Agent for the benefit of the Secured Parties, and grants to
the Administrative Agent for the benefit of the Secured Parties a Lien on and
security interest in, all of its right, title and interest in, to and under the
Collateral of such Grantor.


 


ARTICLE IV


 


REPRESENTATIONS AND
WARRANTIES


 


To
induce the Lenders, the L/C Issuers and the Administrative Agent to enter into
the Loan Documents, each Grantor hereby represents and warrants each of the
following to the Administrative Agent, the Lenders, the L/C Issuers and the
other Secured Parties:


 


8

















 


Section 4.1                                      Title; No Other
Liens.  Except for the Lien granted to
the Administrative Agent pursuant to this Agreement and other Permitted Liens
(except for those Permitted Liens not permitted to exist on any Collateral)
under any Loan Document (including those permitted under Section 4.2),
such Grantor owns each item of the Collateral free and clear of any and all
Liens or claims of others.  Such Grantor
(a) is the record and beneficial owner of the Collateral pledged by it
hereunder constituting instruments or certificates and (b) has rights in
or the power to transfer each other item of Collateral in which a Lien is
granted by it hereunder, free and clear of any other Lien.


 


Section 4.2                                      Perfection and
Priority.  The
security interest granted pursuant to this Agreement constitutes a valid and
continuing perfected security interest in favor of the Administrative Agent in
all Collateral subject, for the following Collateral, to the occurrence of the
following:  (i) in the case of all
Collateral in which a security interest may be perfected by filing a financing
statement under the UCC, the completion of the filings and other actions
specified on Schedule 2 (which, in the case of all filings and
other documents referred to on such schedule, have been delivered to the
Administrative Agent in completed and duly authorized form), (ii) with
respect to any deposit account, the execution of Control Agreements,
(iii) in the case of all Copyrights, Trademarks and Patents for which UCC
filings are insufficient, all appropriate filings having been made with the
United States Copyright Office or the United States Patent and Trademark
Office, as applicable, (iv) in the case of letter-of-credit rights that
are not supporting obligations of Collateral, the execution of a Contractual
Obligation granting control to the Administrative Agent over such
letter-of-credit rights, (v) in the case of electronic chattel paper, the
completion of all steps necessary to grant control to the Administrative Agent
over such electronic chattel paper and (vi) in the case of Vehicles, the
actions required under Section 5.1(e).  Such security interest shall be prior to all
other Liens on the Collateral except for Customary Permitted Liens having
priority over the Administrative Agent’s Lien by operation of law or unless otherwise
permitted by any Loan Document upon (i) in the case of all Pledged
Certificated Stock, Pledged Debt Instruments and Pledged Investment Property,
the delivery thereof to the Administrative Agent of such Pledged Certificated
Stock, Pledged Debt Instruments and Pledged Investment Property consisting of
instruments and certificates, in each case properly endorsed for transfer to
the Administrative Agent or in blank, (ii) in the case of all Pledged
Investment Property not in certificated form, the execution of Control
Agreements with respect to such investment property, (iii) in the case of
all other instruments and tangible chattel paper that are not Pledged
Certificated Stock, Pledged Debt Instruments or Pledged Investment Property,
the delivery thereof to the Administrative Agent of such instruments and
tangible chattel paper and (iv) in the case of Pledged Uncertificated
Stock, execution by the applicable issuer thereof, Administrative Agent and
Grantors of a Pledge Registration and Control Agreement, in the form attached
hereto as Annex 4, with respect to all such Pledged Uncertificated Stock.  Except as set forth in this Section 4.2,
all actions by each Grantor necessary or desirable to protect and perfect the
Lien granted hereunder on the Collateral have been duly taken.


 


Section 4.3                                      Jurisdiction of
Organization; Chief Executive Office.  Such Grantor’s jurisdiction of organization,
legal name and organizational identification number, if any, and the location
of such Grantor’s chief executive office or sole place of business, in each
case as of the date hereof, is specified on Schedule 3 and such Schedule 3
also lists all jurisdictions of 


 


9

















 


incorporation, legal names and locations of such
Grantor’s chief executive office or sole place of business for the five years
preceding the date hereof.


 


Section 4.4                                      Locations of
Inventory, Equipment and Books and Records.  On the date hereof, such Grantor’s inventory
and equipment (other than inventory or equipment in transit) and books and
records concerning the Collateral are kept at the locations listed on Schedule 4
and such Schedule 4 also lists the locations of such inventory,
equipment and books and records for the five years preceding the date hereof.


 


Section 4.5                                      Pledged
Collateral.  (a) 
The Pledged Stock pledged by such Grantor hereunder (a) is listed on Schedule 5
and constitutes that percentage of the issued and outstanding equity of all
classes of each issuer thereof as set forth on Schedule 5, (b) has
been duly authorized, validly issued and is fully paid and nonassessable (other
than Pledged Stock in limited liability companies and partnerships) and
(c) constitutes the legal, valid and binding obligation of the obligor
with respect thereto, enforceable in accordance with its terms.


 


(b)                                 As of the
Closing Date, all Pledged Collateral (other than Pledged Uncertificated Stock)
and all Pledged Investment Property consisting of instruments and certificates
has been delivered to the Administrative Agent in accordance with Section 5.3(a).  As of the Closing Date, Pledge Registration
and Control Agreements have been delivered to Administrative Agent with respect
to all Pledged Uncertificated Stock in accordance with Section 5.3(a).


 


(c)                                  Upon the
occurrence and during the continuance of an Event of Default, and upon notice
by the Administrative Agent to the relevant Grantor or Grantors, the
Administrative Agent shall be entitled to exercise all of the rights of the
Grantor granting the security interest in any Pledged Stock, and a transferee
or assignee of such Pledged Stock shall become a holder of such Pledged Stock
to the same extent as such Grantor and be entitled to participate in the
management of the issuer of such Pledged Stock and, upon the transfer of the entire
interest of such Grantor, such Grantor shall, by operation of law, cease to be
a holder of such Pledged Stock.


 


Section 4.6                                      Instruments and
Tangible Chattel Paper Formerly Accounts.  No amount payable to such Grantor under or in
connection with any account is evidenced by any instrument or tangible chattel
paper that has not been delivered to the Administrative Agent, properly
endorsed for transfer, to the extent delivery is required by Section 5.6(a).


 


Section 4.7                                      Intellectual
Property.  (a)  Schedule 6
sets forth a true and complete list of the following Intellectual Property such
Grantor owns, licenses or otherwise has the right to use:  (i) Intellectual Property that is
registered or subject to applications for registration, (ii) Internet
Domain Names and (iii) Material Intellectual Property and material
Software, separately identifying that owned and licensed to such Grantor and
including for each of the foregoing items (1) the owner, (2) the
title, (3) the jurisdiction in which such item has been registered or
otherwise arises or in which an application for registration has been filed,
(4) as applicable, the registration or application number and registration
or application date and (5) any IP Licenses or other rights (including
franchises) granted by the Grantor with respect thereto.


 


10

















 


(b)                                 On the Closing
Date, all Material Intellectual Property owned by such Grantor is valid, in
full force and effect, subsisting, unexpired and enforceable, and no Material
Intellectual Property has been abandoned. 
No breach or default of any material IP License shall be caused by any
of the following, and none of the following shall limit or impair the
ownership, use, validity or enforceability of, or any rights of such Grantor
in, any Material Intellectual Property: 
(i) the consummation of the transactions contemplated by any Loan
Document or (ii) any holding, decision, judgment or order rendered by any
Governmental Authority.  There are no
pending (or, to the knowledge of such Grantor, threatened) actions,
investigations, suits, proceedings, audits, claims, demands, orders or disputes
challenging the ownership, use, validity, enforceability of, or such Grantor’s
rights in, any Material Intellectual Property of such Grantor.  To such Grantor’s knowledge, no Person has
been or is infringing, misappropriating, diluting, violating or otherwise
impairing any Intellectual Property of such Grantor.  Such Grantor, and to such Grantor’s knowledge
each other party thereto, is not in material breach or default of any material
IP License.


 


Section 4.8                                      Commercial Tort
Claims.  The only commercial tort
claims of any Grantor existing on the date hereof (regardless of whether the
amount, defendant or other material facts can be determined and regardless of
whether such commercial tort claim has been asserted, threatened or has
otherwise been made known to the obligee thereof or whether litigation has been
commenced for such claims) are those listed on Schedule 1, which
sets forth such information separately for each Grantor.


 


Section 4.9                                      Specific
Collateral.  None of the
Collateral is or is proceeds or products of farm products, as-extracted
collateral, or timber to be cut.


 


Section 4.10                                Enforcement.  No Permit, notice to or filing with any
Governmental Authority or any other Person or any consent from any Person is
required for the exercise by the Administrative Agent of its rights (including
voting rights) provided for in this Agreement or the enforcement of remedies in
respect of the Collateral pursuant to this Agreement, including the transfer of
any Collateral, except as may be required in connection with the disposition of
any portion of the Pledged Collateral by laws affecting the offering and sale
of securities generally or any approvals that may be required to be obtained
from any bailees or landlords to collect the Collateral.


 


Section 4.11                                Representations
and Warranties of the Credit Agreement.  The representations and warranties as to such
Grantor and its Subsidiaries made by the Borrower in Article IV (Representations
and Warranties) of the Credit Agreement are true and correct in all
respects on the date hereof and in all material respects (but in all respects
if such representation or warranty is qualified by “material” or “Material
Adverse Effect”) on each date as required by Section 3.2(b) of
the Credit Agreement.


 


11

















 


ARTICLE V


 


COVENANTS


 


Each
Grantor agrees with the Administrative Agent to the following, as long as any
Obligation or Commitment remains outstanding and, in each case, unless the
Required Lenders otherwise consent in writing:


 


Section 5.1                                      Maintenance of
Perfected Security Interest; Further Documentation and Consents.  (a) Generally.  Such Grantor shall (i) not use or permit
any Collateral to be used unlawfully or in violation of any provision of any
Loan Document, any Related Document, any Requirement of Law or any policy of
insurance covering the Collateral except for such violations that could not
reasonably have a Material Adverse Effect and (ii) not enter into any
Contractual Obligation or undertaking restricting the right or ability of such
Grantor or the Administrative Agent to Sell any Collateral if such restriction
would have a Material Adverse Effect.


 


(b)                                 Such Grantor
shall maintain the security interest created by this Agreement as a perfected
security interest having at least the priority described in Section 4.2
and shall defend such security interest and such priority against the claims
and demands of all Persons.


 


(c)                                  Pursuant to Section 6.1(e) of
the Credit Agreement, such Grantor shall furnish to the Administrative Agent
from time to time statements and schedules further identifying and describing
the Collateral and such other documents in connection with the Collateral as
the Administrative Agent may reasonably request, all in reasonable detail and
in form and substance reasonably satisfactory to the Administrative Agent.


 


(d)                                 At any time and
from time to time, upon the written request of the Administrative Agent, such
Grantor shall, for the purpose of obtaining or preserving the full benefits of
this Agreement and of the rights and powers herein granted, (i) promptly and
duly execute and deliver, and have recorded, such further documents, including
an authorization to file (or, as applicable, the filing) of any financing
statement or amendment under the UCC (or other filings under similar
Requirements of Law) in effect in any jurisdiction with respect to the security
interest created hereby and (ii) take such further action as the
Administrative Agent may reasonably request, including (A) using
commercially reasonable efforts to secure all approvals necessary or
appropriate for the assignment to or for the benefit of the Administrative Agent
of any Contractual Obligation, including any IP License, held by such Grantor
and to enforce the security interests granted hereunder and (B) executing
and delivering any Control Agreements with respect to deposit accounts and
securities accounts.


 


(e)                                  If requested by
the Administrative Agent, the Grantor shall arrange for the Administrative
Agent’s first priority security interest to be noted on the certificate of
title of each Vehicle with a value in excess of $50,000 and shall file any
other necessary documentation in each jurisdiction that the Administrative
Agent shall deem advisable to perfect its security interests in such Vehicle.


 


12

















 


(f)                                    To ensure that
any of the Excluded Property set forth in clause (ii) of the
definition of “Excluded Property” becomes part of the Collateral, such Grantor
shall use commercially reasonable efforts to obtain any required consents from
any Person other than the Borrower and its Affiliates with respect to any
permit or license or any Contractual Obligation with such Person entered into
by such Grantor that requires such consent as a condition to the creation by
such Grantor of a Lien on any right, title or interest in such permit, license
or Contractual Obligation or any Stock or Stock Equivalent related thereto.


 


Section 5.2                                      Changes in
Locations, Name, Etc. 
Except upon 30 days’ prior written notice to the Administrative Agent
and delivery to the Administrative Agent of (a) all documents reasonably
requested by the Administrative Agent to maintain the validity, perfection and
priority of the security interests provided for herein and (b) if
applicable, a written supplement to Schedule 4 showing any
additional locations at which inventory or equipment shall be kept, such
Grantor shall not do any of the following:


 


(i)                                     permit any
inventory or equipment to be kept at a location other than those listed on Schedule 4,
except for (A) inventory or equipment in transit, (B) equipment which
is being repaired and (C) equipment that is no longer used or useful in
the Grantors’ business having an aggregate value not to exceed $500,000 at any
time, provided that such Grantor shall give notice (in reasonable detail) of
any such relocation of equipment for repairs and/or relocation of equipment described
in subpart (C);


 


(ii)                                  change its
jurisdiction of organization or its location, in each case from that referred
to in Section 4.3; or


 


(iii)                               change its
legal name or organizational identification number, if any, or corporation,
limited liability company, partnership or other organizational structure to
such an extent that any financing statement filed in connection with this
Agreement would become misleading.


 


Section 5.3                                      Pledged
Collateral.  (a)  Delivery
of Pledged Collateral.  Such Grantor
shall (i) deliver to the Administrative Agent, in suitable form for
transfer and in form and substance satisfactory to the Administrative Agent,
(A) all Pledged Certificated Stock, (B) all Pledged Debt Instruments
and (C) all certificates and instruments evidencing Pledged Investment
Property, (ii) maintain all other Pledged Investment Property in a Controlled
Securities Account, and (iii) deliver to the Administrative Agent, Pledge
Registration and Control Agreements, in the form attached hereto as Annex 4,
with respect to all Pledged Uncertificated Stock of any Subsidiary and use
commercially reasonable efforts to obtain such Pledge Registration and Control
Agreement from any other issuer of Pledged Uncertificated Stock.  Without limiting the requirements of the foregoing
sentence to the extent a Pledge Registration and Control Agreement is not
executed by an issuer, no Grantor shall take any action that would allow any
Pledged Stock consisting of an interest in a partnership or a limited liability
company to (i) be dealt in or traded on a securities exchange or in a
securities market, (ii) by its terms expressly provide that it is a
security governed by Article 8 of the UCC, (iii) be an investment
company security, (iv) be held in a securities account or (v) constitute
a security or a financial asset; provided that the Pledged Stock of Sonora
Radiation Oncology, L.L.C. may be governed by Article 8 of the UCC so long
as (i) such Pledged Stock is not evidenced by a certificate (unless 


 


13

















 


such certificate is delivered to Administrative
Agent in suitable form for transfer) and (ii) such Pledged Stock is not
subject to the “control” (as such term is used in Article 8 of the UCC) of
any Person other than the Administrative Agent.


 


(b)                                 Event of
Default.  During the continuance of an
Event of Default, the Administrative Agent shall have the right, at any time in
its discretion and without notice to the Grantor, to (i) transfer to or to
register in its name or in the name of its nominees any Pledged Collateral or
any Pledged Investment Property and (ii) exchange any certificate or
instrument representing or evidencing any Pledged Collateral or any Pledged
Investment Property for certificates or instruments of smaller or larger
denominations.


 


(c)                                  Cash
Distributions with respect to Pledged Collateral.  Except as provided in Article VI,
such Grantor shall be entitled to receive all cash distributions paid in
respect of the Pledged Collateral.


 


(d)                                 Voting Rights.  Except as provided in Article VI,
such Grantor shall be entitled to exercise all voting, consent and corporate,
partnership, limited liability company and similar rights with respect to the
Pledged Collateral; provided, however, that no vote shall be
cast, consent given or right exercised or other action taken by such Grantor
that would be inconsistent with or result in any violation of any provision of
any Loan Document.


 


Section 5.4                                      Accounts.  (a) Such Grantor shall not, other than
in the ordinary course of business, (i) grant any extension of the time of
payment of any account, (ii) compromise or settle any account having a
value in excess of $500,000.00 for less than the full amount thereof,
(iii) release, wholly or partially, any Person liable for the payment of
any account, (iv) allow any credit or discount on any account or
(v) amend, supplement or modify any account in any manner that could
adversely affect the value thereof.


 


(b)                                 The
Administrative Agent shall have the right to make test verifications of the
Accounts in any manner and through any medium that it reasonably considers
advisable, and such Grantor shall furnish all such assistance and information
as the Administrative Agent may reasonably require in connection
therewith.  At any time and from time to
time, upon the Administrative Agent’s request, such Grantor shall cause
independent public accountants or others reasonably satisfactory to the
Administrative Agent to furnish to the Administrative Agent reports showing
reconciliations, aging and test verifications of, and trial balances for, the
accounts; provided, however, that unless a Default shall be
continuing, the Administrative Agent shall request no more than two such
reports during any calendar year.


 


Section 5.5                                      Commodity
Contracts.  Such
Grantor shall not have any commodity contract other than with a Person approved
by the Administrative Agent and subject to a Control Agreement.


 


Section 5.6                                      Delivery of
Instruments and Tangible Chattel Paper and Control of Investment Property,
Letter-of-Credit Rights and Electronic Chattel Paper.  (a) If any amount in excess of $50,000
payable under or in connection with any Collateral owned by such Grantor shall
be or become evidenced by an instrument or tangible chattel paper other than
such instrument delivered in accordance with Section 5.3(a) and
in the possession of the 


 


14

















 


Administrative Agent, such Grantor shall mark all
such instruments and tangible chattel paper with the following legend:  “This writing and the obligations evidenced
or secured hereby are subject to the security interest of General Electric
Capital Corporation, as Administrative Agent” and, at the request of the
Administrative Agent, shall immediately deliver such instrument or tangible
chattel paper to the Administrative Agent, duly indorsed in a manner reasonably
satisfactory to the Administrative Agent; provided, however, that unless an
Event of Default has occurred and is continuing, the Administrative Agent
shall, promptly upon the request of Borrower, make appropriate arrangements for
making all tangible chattel paper or instrument previously delivered to
Administrative Agent available to Borrower for purposes of presentation,
collection and renewal.


 


(b)                                 Such Grantor
shall not grant “control” (within the meaning of such term under
Article 9-106 of the UCC) over any investment property (other than
investment property consisting of Cash Equivalents held in a securities account
and having an aggregate fair market value not in excess of $100,000 at any
time, with respect to which “control” (within the meaning of such term under
Article 9-106 of the UCC) is granted to another Person solely in
connection with the consummation of a Permitted Acquisition or a Sale of
property that is permitted by the Credit Agreement)  to any Person other than the Administrative
Agent and, pursuant to the terms of the Intercreditor Agreement, Second Lien
Agent.


 


(c)                                  If such Grantor
is or becomes the beneficiary of a letter of credit that is (i) not a
supporting obligation of any Collateral and (ii) in excess of $50,000 (or,
when added to all letters of credit for which any Grantor is a beneficiary,
with an aggregate value in excess of $250,000), such Grantor shall promptly,
and in any event within 2 Business Days after becoming a beneficiary, notify
the Administrative Agent thereof and enter into a Contractual Obligation with
the Administrative Agent, the issuer of such letter of credit or any nominated
person with respect to the letter-of-credit rights under such letter of
credit.  Such Contractual Obligation
shall assign such letter-of-credit rights to the Administrative Agent and such
assignment shall be sufficient in all material respects to grant control for
the purposes of Section 9-107 of the UCC (or any similar section under
any equivalent UCC).  Such Contractual
Obligation shall also direct all payments thereunder to a Security Cash
Collateral Account.  The provisions of
the Contractual Obligation shall be in form and substance reasonably
satisfactory to the Administrative Agent.


 


(d)                                 If any amount
in excess of $50,000 payable under or in connection with any Collateral owned
by such Grantor shall be or become evidenced by electronic chattel paper, such
Grantor shall take all steps necessary to grant the Administrative Agent
control of all such electronic chattel paper for the purposes of Section 9-105
of the UCC (or any similar section under any equivalent UCC) and all “transferable
records” as defined in each of the Uniform Electronic Transactions Act and the
Electronic Signatures in Global and National Commerce Act.


 


Section 5.7                                      Intellectual
Property.  (a) Within
60 days after any change to Schedule 6 for such Grantor, such
Grantor shall provide the Administrative Agent notification thereof and the
short-form intellectual property agreements and assignments as described in
this Section 5.7 and other documents that the Administrative Agent
reasonably requests with respect thereto.


 


15

















 


(b)                                 Such Grantor
shall (and shall cause all its licensees to) (i) (1) use commercially
reasonable efforts to continue to use each Trademark that is Material
Intellectual Property in order to maintain such Trademark in full force and
effect with respect to each class of goods for which such Trademark is
currently used, free from any claim of abandonment for non-use, (2) use
commercially reasonable efforts to maintain at least the same standards of
quality of products and services offered under such Trademark as are currently
maintained, (3) use such Trademark with the appropriate notice of
registration and all other notices and legends required by applicable
Requirements of Law, (4) not adopt or use any other Trademark that is
confusingly similar or a colorable imitation of such Trademark unless the
Administrative Agent shall obtain a perfected security interest in such other
Trademark pursuant to this Agreement and (ii) not do any act or omit to do
any act whereby (w) such Trademark (or any goodwill associated therewith)
may become destroyed, invalidated, impaired or harmed in any way, (x) any
Patent included in the Material Intellectual Property may become forfeited,
misused, unenforceable, abandoned or dedicated to the public, (y) any
portion of the Copyrights included in the Material Intellectual Property may
become invalidated, otherwise impaired or fall into the public domain or (z) any
Trade Secret that is Material Intellectual Property may become publicly
available or otherwise unprotectable.


 


(c)                                  Such Grantor
shall notify the Administrative Agent immediately if it knows, or has reason to
know, that any application or registration relating to any Material
Intellectual Property may become forfeited, misused, unenforceable, abandoned
or dedicated to the public, or of any adverse determination or development
regarding the validity or enforceability or such Grantor’s ownership of,
interest in, right to use, register, own or maintain any Material Intellectual
Property (including the institution of, or any such determination or
development in, any proceeding relating to the foregoing in any Applicable IP
Office).  Such Grantor shall take all
actions that are necessary or reasonably requested by the Administrative Agent
to maintain and pursue each application (and to obtain the relevant registration
or recordation) and to maintain each registration and recordation included in
the Material Intellectual Property.


 


(d)                                 Such Grantor
shall not knowingly do any act or omit to do any act to infringe,
misappropriate, dilute, violate or otherwise impair in any material respects
the Intellectual Property of any other Person. 
In the event that any Material Intellectual Property of such Grantor is
or has been infringed, misappropriated, violated, diluted or otherwise impaired
by a third party, such Grantor shall take such action as it reasonably deems
appropriate under the circumstances in response thereto, including promptly
bringing suit and recovering all damages therefor.


 


(e)                                  Such Grantor
shall execute and deliver to the Administrative Agent in form and substance
reasonably acceptable to the Administrative Agent and suitable for
(i) filing in the Applicable IP Office the short-form intellectual
property security agreements in the form attached hereto as Annex 3 for
all Copyrights, Trademarks, Patents and IP Licenses of such Grantor and
(ii) recording with the appropriate Internet domain name registrar, a duly
executed form of assignment for all Internet Domain Names of such Grantor
(together with appropriate supporting documentation as may be requested by the
Administrative Agent).


 


16






 










 


Section 5.8                                      Notices.  Such Grantor shall promptly notify the
Administrative Agent in writing of its acquisition of any interest hereafter in
property that is of a type where a security interest or lien must be or may be
registered, recorded or filed under, or notice thereof given under, any federal
statute or regulation.


 


Section 5.9                                      Notice of
Commercial Tort Claims.  Such
Grantor agrees that, if it shall acquire any interest in any commercial tort
claim (whether from another Person or because such commercial tort claim shall
have come into existence) with a value in excess of $100,000 (or, when added to
all commercial tort claims of all Grantors, with an aggregate value in excess
of $250,000), (i) such Grantor shall, immediately upon such acquisition,
deliver to the Administrative Agent, in each case in form and substance
reasonably satisfactory to the Administrative Agent, a notice of the existence
and nature of such commercial tort claim and a supplement to Schedule 1
containing a specific description of such commercial tort claim, (ii) Section 3.1
shall apply to such commercial tort claim and (iii) such Grantor shall
execute and deliver to the Administrative Agent, in each case in form and
substance reasonably satisfactory to the Administrative Agent, any document,
and take all other action, deemed by the Administrative Agent to be reasonably
necessary or appropriate for the Administrative Agent to obtain, on behalf of
the Lenders, a perfected security interest having at least the priority set
forth in Section 4.2 in all such commercial tort claims.  Any supplement to Schedule 1
delivered pursuant to this Section 5.9 shall, after the receipt
thereof by the Administrative Agent, become part of Schedule 1 for
all purposes hereunder other than in respect of representations and warranties
made prior to the date of such receipt.


 


Section 5.10                                Compliance with
Credit Agreement.  Such
Grantor agrees to comply with all covenants and other provisions applicable to
it under the Credit Agreement, including Sections 2.17 (Taxes),
11.3 (Costs and Expenses) and 11.4 (Indemnities) of
the Credit Agreement and agrees to the same submission to jurisdiction as that
agreed to by the Borrower in the Credit Agreement.


 


ARTICLE VI


 


REMEDIAL PROVISIONS


 


Section 6.1                                      Code and Other
Remedies.  (a)  UCC
Remedies.  During the continuance of
an Event of Default, the Administrative Agent may exercise, in addition to all
other rights and remedies granted to it in this Agreement and in any other
instrument or agreement securing, evidencing or relating to any Secured
Obligation, all rights and remedies of a secured party under the UCC or any
other applicable law.


 


(b)                                 Disposition of
Collateral.  Without
limiting the generality of the foregoing, the Administrative Agent may, without
demand of performance or other demand, presentment, protest, advertisement or
notice of any kind (except any notice required by law referred to below) to or
upon any Grantor or any other Person (all and each of which demands, defenses,
advertisements and notices are hereby waived), during the continuance of any
Event of Default (personally or through its agents or attorneys),
(i) enter upon the premises where any Collateral is located, without any
obligation to pay rent, through self-help, without judicial process, without
first obtaining a final judgment or giving any Grantor or any other Person
notice or opportunity 


 


17

















 


for a hearing on the Administrative Agent’s claim or
action, (ii) collect, receive, appropriate and realize upon any Collateral
and (iii) Sell, grant option or options to purchase and deliver any
Collateral (enter into Contractual Obligations to do any of the foregoing), in
one or more parcels at public or private sale or sales, at any exchange, broker’s
board or office of any Secured Party or elsewhere upon such terms and
conditions as it may deem advisable and at such prices as it may deem best, for
cash or on credit or for future delivery without assumption of any credit risk.  The Administrative Agent shall have the
right, upon any such public sale or sales and, to the extent permitted by the
UCC and other applicable Requirements of Law, upon any such private sale, to
purchase the whole or any part of the Collateral so sold, free of any right or
equity of redemption of any Grantor, which right or equity is hereby waived and
released.


 


(c)                                  Management of
the Collateral.  Each
Grantor further agrees, that, during the continuance of any Event of Default,
(i) at the Administrative Agent’s request, it shall assemble the
Collateral and make it available to the Administrative Agent at places that the
Administrative Agent shall reasonably select, whether at such Grantor’s
premises or elsewhere, (ii) without limiting the foregoing, the
Administrative Agent also has the right to require that each Grantor store and
keep any Collateral pending further action by the Administrative Agent and,
while any such Collateral is so stored or kept, provide such guards and
maintenance services as shall be necessary to protect the same and to preserve
and maintain such Collateral in good condition, (iii) until the
Administrative Agent is able to Sell any Collateral, the Administrative Agent
shall have the right to hold or use such Collateral to the extent that it deems
appropriate for the purpose of preserving the Collateral or its value or for
any other purpose deemed appropriate by the Administrative Agent and
(iv) the Administrative Agent may, if it so elects, seek the appointment
of a receiver or keeper to take possession of any Collateral and to enforce any
of the Administrative Agent’s remedies (for the benefit of the Secured
Parties), with respect to such appointment without prior notice or hearing as
to such appointment.  The Administrative
Agent shall not have any obligation to any Grantor to maintain or preserve the
rights of any Grantor as against third parties with respect to any Collateral
while such Collateral is in the possession of the Administrative Agent.


 


(d)                                 Application of
Proceeds.  The
Administrative Agent shall apply the cash proceeds of any action taken by it
pursuant to this Section 6.1, after deducting all reasonable and
documented costs and expenses of every kind incurred in connection therewith or
incidental to the care or safekeeping of any Collateral or in any way relating
to the Collateral or the rights of the Administrative Agent and any other
Secured Party hereunder, including reasonable attorneys’ fees and
disbursements, to the payment in whole or in part of the Secured Obligations,
as set forth in the Credit Agreement, and only after such application and after
the payment by the Administrative Agent of any other amount required by any
Requirement of Law, need the Administrative Agent account for the surplus, if
any, to any Grantor.


 


(e)                                  Direct Obligation.  Neither the Administrative Agent nor any
other Secured Party shall be required to make any demand upon, or pursue or
exhaust any right or remedy against, any Grantor, any other Loan Party or any
other Person with respect to the payment of the Obligations or to pursue or
exhaust any right or remedy with respect to any Collateral therefor or any
direct or indirect guaranty thereof.  All
of the rights and remedies of the Administrative Agent and any other Secured Party
under any Loan Document shall be cumulative, may be exercised individually or
concurrently and not exclusive of any other rights 


 


18

















 


or remedies provided by any Requirement of Law.  To the extent it may lawfully do so, each
Grantor absolutely and irrevocably waives and relinquishes the benefit and
advantage of, and covenants not to assert against the Administrative Agent or
any Lender, any valuation, stay, appraisement, extension, redemption or similar
laws and any and all rights or defenses it may have as a surety, now or
hereafter existing, arising out of the exercise by them of any rights
hereunder.  If any notice of a proposed
sale or other disposition of any Collateral shall be required by law, such
notice shall be deemed reasonable and proper if given at least 10 days before
such sale or other disposition.


 


(f)                                    Commercially
Reasonable.  To the
extent that applicable Requirements of Law impose duties on the Administrative
Agent to exercise remedies in a commercially reasonable manner, each Grantor
acknowledges and agrees that it is not commercially unreasonable for the
Administrative Agent to do any of the following:


 


(i)                                     fail to incur
significant costs, expenses or other Liabilities reasonably deemed as such by
the Administrative Agent to prepare any Collateral for disposition or otherwise
to complete raw material or work in process into finished goods or other
finished products for disposition;


 


(ii)                                  fail to obtain
Permits, or other consents, for access to any Collateral to Sell or for the
collection or Sale of any Collateral, or, if not required by other Requirements
of Law, fail to obtain Permits or other consents for the collection or
disposition of any Collateral;


 


(iii)                               fail to
exercise remedies against account debtors or other Persons obligated on any
Collateral or to remove Liens on any Collateral or to remove any adverse claims
against any Collateral;


 


(iv)                              advertise
dispositions of any Collateral through publications or media of general
circulation, whether or not such Collateral is of a specialized nature or to
contact other Persons, whether or not in the same business as any Grantor, for
expressions of interest in acquiring any such Collateral;


 


(v)                                 exercise
collection remedies against account debtors and other Persons obligated on any
Collateral, directly or through the use of collection agencies or other
collection specialists, hire one or more professional auctioneers to assist in
the disposition of any Collateral, whether or not such Collateral is of a
specialized nature or, to the extent deemed appropriate by the Administrative
Agent, obtain the services of other brokers, investment bankers, consultants
and other professionals to assist the Administrative Agent in the collection or
disposition of any Collateral, or utilize Internet sites that provide for the
auction of assets of the types included in the Collateral or that have the
reasonable capacity of doing so, or that match buyers and sellers of assets to
dispose of any Collateral;


 


(vi)                              dispose of
assets in wholesale rather than retail markets;


 


(vii)                           disclaim
disposition warranties, such as title, possession or quiet enjoyment; or


 


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(viii)                        purchase
insurance or credit enhancements to insure the Administrative Agent against risks
of loss, collection or disposition of any Collateral or to provide to the
Administrative Agent a guaranteed return from the collection or disposition of
any Collateral.


 


Each
Grantor acknowledges that the purpose of this Section 6.1 is to
provide a non-exhaustive list of actions or omissions that are commercially
reasonable when exercising remedies against any Collateral and that other
actions or omissions by the Secured Parties shall not be deemed commercially
unreasonable solely on account of not being indicated in this Section 6.1.  Without limitation upon the foregoing,
nothing contained in this Section 6.1 shall be construed to grant
any rights to any Grantor or to impose any duties on the Administrative Agent
that would not have been granted or imposed by this Agreement or by applicable
Requirements of Law in the absence of this Section 6.1.


 


(g)                                 IP Licenses.  For the purpose of enabling the
Administrative Agent to exercise rights and remedies under this Section 6.1
(including in order to take possession of, collect, receive, assemble, process,
appropriate, remove, realize upon, Sell or grant options to purchase any
Collateral) at such time as the Administrative Agent shall be lawfully entitled
to exercise such rights and remedies, each Grantor hereby grants to the
Administrative Agent, for the benefit of the Secured Parties, (i) an
irrevocable, nonexclusive, worldwide license (exercisable without payment of
royalty or other compensation to such Grantor), including in such license the
right to sublicense, use and practice any Intellectual Property now owned or
hereafter acquired by such Grantor and access to all media in which any of the
licensed items may be recorded or stored and to all Software and programs used
for the compilation or printout thereof and (ii) an irrevocable license
(without payment of rent or other compensation to such Grantor) to use, operate
and occupy all Real Property owned, operated, leased, subleased or otherwise
occupied by such Grantor.


 


Section 6.2                                      Accounts and
Payments in Respect of General Intangibles.  (a) In addition to, and not in
substitution for, any similar requirement in the Credit Agreement, if required
by the Administrative Agent at any time during the continuance of an Event of
Default, any payment of accounts or payment in respect of general intangibles,
when collected by any Grantor, shall be promptly (and, in any event, within 2
Business Days) deposited by such Grantor in the exact form received, duly
indorsed by such Grantor to the Administrative Agent, in a Security Cash
Collateral Account, subject to withdrawal by the Administrative Agent as
provided in Section 6.4. 
Until so turned over, such payment shall be held by such Grantor in
trust for the Administrative Agent, segregated from other funds of such Grantor.  Each such deposit of proceeds of accounts and
payments in respect of general intangibles shall be accompanied by a report
identifying in reasonable detail the nature and source of the payments included
in the deposit.


 


(b)                                 At any time
during the continuance of an Event of Default:


 


(i)                                     each Grantor
shall, upon the Administrative Agent’s request, deliver to the Administrative
Agent all original and other documents evidencing, and relating to, the
Contractual Obligations and transactions that gave rise to any account or any
payment in respect of general intangibles, including all original orders,
invoices and 


 


20

















 


shipping receipts and notify
account debtors that the accounts or general intangibles have been collaterally
assigned to the Administrative Agent and that payments in respect thereof shall
be made directly to the Administrative Agent;


 


(ii)                                  the
Administrative Agent may, without notice, at any time during the continuance of
an Event of Default, limit or terminate the authority of a Grantor to collect
its accounts or amounts due under general intangibles or any thereof and, in
its own name or in the name of others, communicate with account debtors to
verify with them to the Administrative Agent’s reasonable satisfaction the
existence, amount and terms of any account or amounts due under any general
intangible.  In addition, the
Administrative Agent may at any time enforce such Grantor’s rights against such
account debtors and obligors of general intangibles; and


 


(iii)                               each Grantor
shall take all actions, deliver all documents and provide all information
necessary or reasonably requested by the Administrative Agent to ensure any
Internet Domain Name is registered.


 


(c)                                  Anything herein
to the contrary notwithstanding, each Grantor shall remain liable under each
account and each payment in respect of general intangibles to observe and
perform all the conditions and obligations to be observed and performed by it
thereunder, all in accordance with the terms of any agreement giving rise
thereto.  No Secured Party shall have any
obligation or liability under any agreement giving rise to an account or a
payment in respect of a general intangible by reason of or arising out of any
Loan Document or the receipt by any Secured Party of any payment relating
thereto, nor shall any Secured Party be obligated in any manner to perform any
obligation of any Grantor under or pursuant to any agreement giving rise to an
account or a payment in respect of a general intangible, to make any payment,
to make any inquiry as to the nature or the sufficiency of any payment received
by it or as to the sufficiency of any performance by any party thereunder, to
present or file any claim, to take any action to enforce any performance or to
collect the payment of any amounts that may have been assigned to it or to
which it may be entitled at any time or times.


 


Section 6.3                                      Pledged
Collateral.  (a) Voting
Rights.  During the continuance of an
Event of Default, upon notice by the Administrative Agent to the relevant
Grantor or Grantors, the Administrative Agent or its nominee may exercise
(A) any voting, consent, corporate and other right pertaining to the
Pledged Collateral at any meeting of shareholders, partners or members, as the
case may be, of the relevant issuer or issuers of Pledged Collateral or
otherwise and (B) any right of conversion, exchange and subscription and
any other right, privilege or option pertaining to the Pledged Collateral as if
it were the absolute owner thereof (including the right to exchange at its
discretion any Pledged Collateral upon the merger, amalgamation, consolidation,
reorganization, recapitalization or other fundamental change in the corporate
or equivalent structure of any issuer of Pledged Stock, the right to deposit
and deliver any Pledged Collateral with any committee, depositary, transfer
agent, registrar or other designated agency upon such terms and conditions as
the Administrative Agent may determine), all without liability except to
account for property actually received by it; provided, however,
that the Administrative Agent shall have no duty to any Grantor to exercise any
such right, privilege or option and shall not be responsible for any failure to
do so or delay in so doing.


 


21

















 


(b)                                 Proxies.  In order to permit the Administrative Agent
to exercise the voting and other consensual rights that it may be entitled to
exercise pursuant hereto and to receive all dividends and other distributions
that it may be entitled to receive hereunder, (i) each Grantor shall
promptly execute and deliver (or cause to be executed and delivered) to the
Administrative Agent all such proxies, dividend payment orders and other
instruments as the Administrative Agent may from time to time reasonably
request and (ii) without limiting the effect of clause (i) above,
such Grantor hereby grants to the Administrative Agent an irrevocable proxy to
vote all or any part of the Pledged Collateral and to exercise all other rights,
powers, privileges and remedies to which a holder of the Pledged Collateral
would be entitled (including giving or withholding written consents of
shareholders, partners or members, as the case may be, calling special meetings
of shareholders, partners or members, as the case may be, and voting at such
meetings), which proxy shall be effective, automatically and without the
necessity of any action (including any transfer of any Pledged Collateral on
the record books of the issuer thereof) by any other person (including the
issuer of such Pledged Collateral or any officer or agent thereof) during the
continuance of an Event of Default and which proxy shall only terminate upon
the payment in full of the Secured Obligations.


 


(c)                                  Authorization
of Issuers.  Each
Grantor hereby expressly irrevocably authorizes and instructs, without any
further instructions from such Grantor, each issuer of any Pledged Collateral
pledged hereunder by such Grantor to (i) comply with any instruction
received by it from the Administrative Agent in writing that states that an
Event of Default is continuing and is otherwise in accordance with the terms of
this Agreement and each Grantor agrees that such issuer shall be fully
protected from Liabilities to such Grantor in so complying and (ii) unless
otherwise expressly permitted hereby, pay any dividend or make any other
payment with respect to the Pledged Collateral directly to the Administrative
Agent.


 


Section 6.4                                      Proceeds to be
Turned over to and Held by Administrative Agent.  Unless otherwise expressly provided in the
Credit Agreement or this Security Agreement, all proceeds of any Collateral
received by any Grantor hereunder in cash or Cash Equivalents shall be held by
such Grantor in trust for the Administrative Agent and the other Secured
Parties, segregated from other funds of such Grantor, and shall, promptly upon
receipt by any Grantor, be turned over to the Administrative Agent in the exact
form received (with any necessary endorsement). 
All such proceeds of Collateral and any other proceeds of any Collateral
received by the Administrative Agent in cash or Cash Equivalents shall be held
by the Administrative Agent in a Security Cash Collateral Account.  All proceeds being held by the Administrative
Agent in a Security Cash Collateral Account (or by such Grantor in trust for
the Administrative Agent) shall continue to be held as collateral security for
the Secured Obligations and shall not constitute payment thereof until applied
as provided in the Credit Agreement.


 


Section 6.5                                      Registration
Rights.  (a) Each Grantor
recognizes that the Administrative Agent may be unable to effect a public sale
of any Pledged Collateral by reason of certain prohibitions contained in the
Securities Act and applicable state or foreign securities laws or otherwise or
may determine that a public sale is impracticable, not desirable or not
commercially reasonable and, accordingly, may resort to one or more private
sales thereof to a restricted group of purchasers that shall be obliged to
agree, among other things, to acquire such securities for their own account for
investment and not with a view to the distribution or resale thereof.  Each Grantor acknowledges and agrees that any
such private sale may result in prices and other terms 


 


22

















 


less favorable than if such sale were a public sale
and, notwithstanding such circumstances, agrees that any such private sale
shall be deemed to have been made in a commercially reasonable manner.  The Administrative Agent shall be under no
obligation to delay a sale of any Pledged Collateral for the period of time
necessary to permit the issuer thereof to register such securities for public
sale under the Securities Act or under applicable state securities laws even if
such issuer would agree to do so.


 


(b)                                 Each Grantor
agrees to use its best efforts to do or cause to be done all such other acts as
may be necessary to make such sale or sales of any portion of the Pledged
Collateral pursuant to this Section 6.5 valid and binding and in
compliance with all applicable Requirements of Law.  Each Grantor further agrees that a breach of
any covenant contained in this Section 6.5 will cause irreparable
injury to the Administrative Agent and other Secured Parties, that the Administrative
Agent and the other Secured Parties have no adequate remedy at law in respect
of such breach and, as a consequence, that each and every covenant contained in
this Section 6.5 shall be specifically enforceable against such
Grantor, and such Grantor hereby waives and agrees not to assert any defense
against an action for specific performance of such covenants except for a
defense that no Event of Default has occurred under the Credit Agreement.


 


Section 6.6                                      Deficiency.  Each Grantor shall remain liable for any
deficiency if the proceeds of any sale or other disposition of any Collateral
are insufficient to pay the Secured Obligations and the fees and disbursements
of any attorney employed by the Administrative Agent or any other Secured Party
to collect such deficiency.


 


ARTICLE VII


 


THE ADMINISTRATIVE AGENT


 


Section 7.1                                      Administrative
Agent’s Appointment as Attorney-in-Fact.  (a) Each Grantor hereby irrevocably
constitutes and appoints the Administrative Agent and any Related Person
thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of such Grantor and in the name of such Grantor or in its own name, for
the purpose of carrying out the terms of the Loan Documents, to take any
appropriate action and to execute any document or instrument that may be
necessary or desirable to accomplish the purposes of the Loan Documents, and,
without limiting the generality of the foregoing, each Grantor hereby gives the
Administrative Agent and its Related Persons the power and right, on behalf of
such Grantor, without notice to or assent by such Grantor, to do any of the
following when an Event of Default shall be continuing:


 


(i)                                     in the name of
such Grantor, in its own name or otherwise, take possession of and indorse and
collect any check, draft, note, acceptance or other instrument for the payment
of moneys due under any account or general intangible or with respect to any
other Collateral and file any claim or take any other action or proceeding in
any court of law or equity or otherwise deemed appropriate by the
Administrative Agent for the purpose of collecting any such moneys due under
any account or general intangible or with respect to any other Collateral
whenever payable;


 


23

















 


(ii)                                  in the case of
any Intellectual Property owned by or licensed to the Grantors, execute,
deliver and have recorded any document that the Administrative Agent may
request to evidence, effect, publicize or record the Administrative Agent’s
security interest in such Intellectual Property and the goodwill and general
intangibles of such Grantor relating thereto or represented thereby;


 


(iii)                               pay or
discharge taxes and Liens levied or placed on or threatened against any
Collateral, effect any repair or pay any insurance called for by the terms of
the Credit Agreement (including all or any part of the premiums therefor and
the costs thereof);


 


(iv)                              execute, in
connection with any sale provided for in Section 6.1 or Section 6.5,
any document to effect or otherwise necessary or appropriate in relation to
evidence the Sale of any Collateral; or


 


(v)                                 (A)                              direct any
party liable for any payment under any Collateral to make payment of any moneys
due or to become due thereunder directly to the Administrative Agent or as the
Administrative Agent shall direct, (B) ask or demand for, and collect and
receive payment of and receipt for, any moneys, claims and other amounts due or
to become due at any time in respect of or arising out of any Collateral,
(C) sign and indorse any invoice, freight or express bill, bill of lading,
storage or warehouse receipt, draft against debtors, assignment, verification,
notice and other document in connection with any Collateral, (D) commence
and prosecute any suit, action or proceeding at law or in equity in any court
of competent jurisdiction to collect any Collateral and to enforce any other
right in respect of any Collateral, (E) defend any actions, suits,
proceedings, audits, claims, demands, orders or disputes brought against such
Grantor with respect to any Collateral, (F) settle, compromise or adjust
any such actions, suits, proceedings, audits, claims, demands, orders or
disputes and, in connection therewith, give such discharges or releases as the
Administrative Agent may deem appropriate, (G) assign any Intellectual
Property owned by the Grantors or any IP Licenses of the Grantors throughout
the world on such terms and conditions and in such manner as the Administrative
Agent shall in its sole discretion determine, including the execution and
filing of any document necessary to effectuate or record such assignment and
(H) generally, Sell, grant a Lien on, make any Contractual Obligation with
respect to and otherwise deal with, any Collateral as fully and completely as
though the Administrative Agent were the absolute owner thereof for all
purposes and do, at the Administrative Agent’s option, at any time or from time
to time, all acts and things that the Administrative Agent deems necessary to
protect, preserve or realize upon any Collateral and the Secured Parties’
security interests therein and to effect the intent of the Loan Documents, all
as fully and effectively as such Grantor might do.


 


(b)                                 If any Grantor
fails to perform or comply with any Contractual Obligation contained herein,
the Administrative Agent, at its option, but without any obligation so to do,
may perform or comply, or otherwise cause performance or compliance, with such
Contractual Obligation.


 


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(c)                                  The expenses of
the Administrative Agent incurred in connection with actions undertaken as
provided in this Section 7.1, together with interest thereon at a
rate set forth in Section 2.9 (Interest) of the Credit Agreement,
from the date of payment by the Administrative Agent to the date reimbursed by
the relevant Grantor, shall be payable by such Grantor to the Administrative
Agent on demand.


 


(d)                                 Each Grantor
hereby ratifies all that said attorneys shall lawfully do or cause to be done
by virtue of this Section 7.1. 
All powers, authorizations and agencies contained in this Agreement are
coupled with an interest and are irrevocable until this Agreement is terminated
and the security interests created hereby are released.


 


Section 7.2                                      Authorization
to File Financing Statements.  Each Grantor authorizes the Administrative
Agent and its Related Persons, at any time and from time to time, to file or
record financing statements, amendments thereto, and other filing or recording
documents or instruments with respect to any Collateral in such form and in
such offices as the Administrative Agent reasonably determines appropriate to
perfect the security interests of the Administrative Agent under this
Agreement, and such financing statements and amendments may described the
Collateral covered thereby as “all assets of the debtor”.  A photographic or other reproduction of this
Agreement shall be sufficient as a financing statement or other filing or
recording document or instrument for filing or recording in any
jurisdiction.  Such Grantor also hereby
ratifies its authorization for the Administrative Agent to have filed any
initial financing statement or amendment thereto under the UCC (or other
similar laws) in effect in any jurisdiction if filed prior to the date hereof.


 


Section 7.3                                      Authority of
Administrative Agent.  Each
Grantor acknowledges that the rights and responsibilities of the Administrative
Agent under this Agreement with respect to any action taken by the Administrative
Agent or the exercise or non-exercise by the Administrative Agent of any
option, voting right, request, judgment or other right or remedy provided for
herein or resulting or arising out of this Agreement shall, as between the
Administrative Agent and the other Secured Parties, be governed by the Credit
Agreement and by such other agreements with respect thereto as may exist from
time to time among them, but, as between the Administrative Agent and the
Grantors, the Administrative Agent shall be conclusively presumed to be acting
as agent for the Secured Parties with full and valid authority so to act or
refrain from acting, and no Grantor shall be under any obligation or
entitlement to make any inquiry respecting such authority.


 


Section 7.4                                      Duty; Obligations
and Liabilities.  (a) Duty
of Administrative Agent.  The
Administrative Agent’s sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession shall be to deal with
it in the same manner as the Administrative Agent deals with similar property
for its own account.  The powers
conferred on the Administrative Agent hereunder are solely to protect the
Administrative Agent’s interest in the Collateral and shall not impose any duty
upon the Administrative Agent to exercise any such powers.  The Administrative Agent shall be accountable
only for amounts that it receives as a result of the exercise of such powers,
and neither it nor any of its Related Persons shall be responsible to any
Grantor for any act or failure to act hereunder, except for their own gross
negligence or willful misconduct as finally determined by a court of competent
jurisdiction.  In addition, the
Administrative Agent shall not be liable or responsible for any loss or damage
to 


 


25

















 


any Collateral, or for any diminution in the value
thereof, by reason of the act or omission of any warehousemen, carrier,
forwarding agency, consignee or other bailee if such Person has been selected
by the Administrative Agent in good faith.


 


(a)                                  Obligations and
Liabilities with respect to Collateral.  No Secured Party and no Related Person
thereof shall be liable for failure to demand, collect or realize upon any
Collateral or for any delay in doing so or shall be under any obligation to
sell or otherwise dispose of any Collateral upon the request of any Grantor or
any other Person or to take any other action whatsoever with regard to any
Collateral.  The powers conferred on the
Administrative Agent hereunder shall not impose any duty upon any other Secured
Party to exercise any such powers.  The
other Secured Parties shall be accountable only for amounts that they actually
receive as a result of the exercise of such powers, and neither they nor any of
their respective officers, directors, employees or agents shall be responsible
to any Grantor for any act or failure to act hereunder, except for their own
gross negligence or willful misconduct as finally determined by a court of
competent jurisdiction.


 


ARTICLE VIII


 


MISCELLANEOUS


 


Section 8.1                                      Reinstatement.  Each Grantor agrees that, if any payment made
by any Loan Party or other Person and applied to the Secured Obligations is at
any time annulled, avoided, set aside, rescinded, invalidated, declared to be
fraudulent or preferential or otherwise required to be refunded or repaid, or
the proceeds of any Collateral are required to be returned by any Secured Party
to such Loan Party, its estate, trustee, receiver or any other party, including
any Grantor, under any bankruptcy law, state or federal law, common law or
equitable cause, then, to the extent of such payment or repayment, any Lien or
other Collateral securing such liability shall be and remain in full force and
effect, as fully as if such payment had never been made.  If, prior to any of the foregoing,
(a) any Lien or other Collateral securing such Grantor’s liability
hereunder shall have been released or terminated by virtue of the foregoing or
(b) any provision of the Guaranty hereunder shall have been terminated,
cancelled or surrendered, such Lien, other Collateral or provision shall be
reinstated in full force and effect and such prior release, termination,
cancellation or surrender shall not diminish, release, discharge, impair or
otherwise affect the obligations of any such Grantor in respect of any Lien or
other Collateral securing such obligation or the amount of such payment.


 


Section 8.2                                      Release of
Collateral.  (a) 
At the time provided in clause (b)(iii) of Section 10.10
(Release of Collateral or Guarantors) of the Credit Agreement, the
Collateral shall be released from the Lien created hereby and this Agreement
and all obligations (other than those expressly stated to survive such
termination) of the Administrative Agent and each Grantor hereunder shall
terminate, all without delivery of any instrument or performance of any act by
any party, and all rights to the Collateral shall revert to the Grantors.  Each Grantor is hereby authorized to file UCC
amendments at such time evidencing the termination of the Liens so
released.  At the request of any Grantor
following any such termination, the Administrative Agent shall deliver to such
Grantor any Collateral of such Grantor held by the Administrative Agent
hereunder and execute and deliver to such Grantor such documents as such
Grantor shall reasonably request to evidence such termination.


 


26














 


(b)                                 If the
Administrative Agent shall be directed or permitted pursuant to clause (i) or
(ii) of Section 10.10(b) of the Credit Agreement
to release any Lien or any Collateral, such Collateral shall be released from
the Lien created hereby to the extent provided under, and subject to the terms
and conditions set forth in, such clauses (i) and (ii).  In connection therewith, the Administrative
Agent, at the request of any Grantor, shall execute and deliver to such Grantor
such documents as such Grantor shall reasonably request to evidence such
release.


 


(c)                                  At the time
provided in Section 10.10(a) of the Credit Agreement and at
the request of the Borrower, a Grantor shall be released from its obligations
hereunder in the event that all the Securities of such Grantor shall be Sold to
any Person that is not an Affiliate of Holdings, the Borrower and the
Subsidiaries of the Borrower in a transaction permitted by the Loan Documents.


 


Section 8.3                                      Independent
Obligations.  The
obligations of each Grantor hereunder are independent of and separate from the
Secured Obligations and the Guaranteed Obligations.  If any Secured Obligation or Guaranteed
Obligation is not paid when due, or upon any Event of Default, the
Administrative Agent may, at its sole election, proceed directly and at once,
without notice, against any Grantor and any Collateral to collect and recover
the full amount of any Secured Obligation or Guaranteed Obligation then due,
without first proceeding against any other Grantor, any other Loan Party or any
other Collateral and without first joining any other Grantor or any other Loan
Party in any proceeding.


 


Section 8.4                                      No Waiver by
Course of Conduct.  No Secured
Party shall by any act (except by a written instrument pursuant to Section 8.6),
delay, indulgence, omission or otherwise be deemed to have waived any right or
remedy hereunder or to have acquiesced in any Default or Event of Default.  No failure to exercise, nor any delay in
exercising, on the part of any Secured Party, any right, power or privilege
hereunder shall operate as a waiver thereof. 
No single or partial exercise of any right, power or privilege hereunder
shall preclude any other or further exercise thereof or the exercise of any
other right, power or privilege.  A
waiver by any Secured Party of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy that such
Secured Party would otherwise have on any future occasion.


 


Section 8.5                                      Amendments in
Writing.  None of the terms or
provisions of this Agreement may be waived, amended, supplemented or otherwise
modified except in accordance with Section 11.1 of the Credit
Agreement; provided, however, that annexes to this Agreement may
be supplemented (but no existing provisions may be modified and no Collateral
may be released) through Pledge Amendments and Joinder Agreements, in
substantially the form of Annex 1 and Annex 2, respectively, in
each case duly executed by the Administrative Agent and each Grantor directly
affected thereby.


 


Section 8.6                                      Additional
Grantors; Additional Pledged Collateral.  (a)  Joinder Agreements.  If, at the option of the Borrower or as
required pursuant to Section 7.10 of the Credit Agreement, the
Borrower shall cause any Subsidiary that is not a Grantor to become a Grantor
hereunder, such Subsidiary shall execute and deliver to the Administrative
Agent a Joinder Agreement substantially in the form of Annex 2 and shall
thereafter for all purposes be a 


 


27

















 


party hereto and have the same rights, benefits and
obligations as a Grantor party hereto on the Closing Date.


 


(b)                                 Pledge
Amendments.  To the
extent any Pledged Collateral has not been delivered as of the Closing Date,
such Grantor shall deliver a pledge amendment duly executed by the Grantor in
substantially the form of Annex 1 (each, a “Pledge Amendment”).  Such Grantor authorizes the Administrative
Agent to attach each Pledge Amendment to this Agreement.  Without limiting any other terms of this
Agreement, such Grantor further agrees to comply with Section 5.3(a) with
respect to any additional Pledged Collateral that is Pledged Stock (whether
certificated or uncertificated) or Pledged Investment Property.


 


Section 8.7                                      Notices.  All notices, requests and demands to or upon
the Administrative Agent or any Grantor hereunder shall be effected in the
manner provided for in Section 11.11 of the Credit Agreement; provided,
however, that any such notice, request or demand to or upon any Grantor
shall be addressed to the Borrower’s notice address set forth in such Section 11.11.


 


Section 8.8                                      Successors and
Assigns.  This Agreement shall be
binding upon the successors and assigns of each Grantor and shall inure to the
benefit of each Secured Party and their successors and assigns; provided,
however, that, except in connection with a transaction between two
Grantors that is permitted by the terms of the Credit Agreement, no Grantor may
assign, transfer or delegate any of its rights or obligations under this
Agreement without the prior written consent of the Administrative Agent.


 


Section 8.9                                      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 by Electronic
Transmission shall be as effective as delivery of a manually executed
counterpart hereof.


 


Section 8.10                                Severability.  Any provision of this Agreement 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 this Agreement or any part of such provision in any other
jurisdiction.


 


Section 8.11                                Governing Law.  This Agreement and the rights and obligations
of the parties hereto 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 8.12                                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 


 


28

















 


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 THIS AGREEMENT BY THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 8.12.


 


[Signature Pages Follow]


 


29

















 


IN WITNESS WHEREOF, each of the undersigned
has caused this Guaranty and Security Agreement to be duly executed and
delivered 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

  



 

















 


	
  ACCEPTED
  AND AGREED

  	
   

  	
  GENERAL
  ELECTRIC CAPITAL CORPORATION

  
	
  as
  of the date first above written:

  	
   

  	
   

  	
  as
  Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:
  

  	
  /s/
  Brent Shepherd

  
	
   

  	
   

  	
   

  	
  Brent
  Shepherd

  
	
   

  	
   

  	
   

  	
  Duly
  Authorized Signatory

  



 














 


SCHEDULE I


 


TO


 


[COPYRIGHT] [PATENT] [TRADEMARK] SECURITY AGREEMENT


 


[Copyright] [Patent] [Trademark] Registrations


 


	
  A.

  	
  REGISTERED
  [COPYRIGHTS] [PATENTS] [TRADEMARKS]

  
	
   

  	
   

  
	
   

  	
  [Include
  Registration Number and Date]

  
	
   

  	
   

  
	
  B.

  	
  [COPYRIGHT]
  [PATENT] [TRADEMARK] APPLICATIONS

  
	
   

  	
   

  
	
   

  	
  [Include
  Application Number and Date]

  
	
   

  	
   

  
	
  C.

  	
  IP
  LICENSES

  
	
   

  	
   

  
	
   

  	
  [Include
  complete legal description of agreement (name of agreement, parties and
  date)]

  



 


1

















 


ANNEX 4

TO

GUARANTY AND SECURITY AGREEMENT


 


FORM OF PLEDGE REGISTRATION AND CONTROL AGREEMENT


 


1