Exhibit 10.28


 


SUBORDINATION AGREEMENT


 


THIS SUBORDINATION AGREEMENT (this “Agreement”)
is entered into as of this 13th day of May, 2010, by and among ONCURE HOLDINGS, INC.,  a Delaware corporation (“Holdings”), ONCURE MEDICAL CORP., a Delaware
corporation (“Oncure”), and each of the entities identified on Exhibit A
hereto (Oncure and such entities referred to herein individually and
collectively, as “Borrower”), GENSTAR
CAPITAL, LLC, a Delaware limited liability company (“Subordinated
Creditor”), and GENERAL ELECTRIC CAPITAL
CORPORATION, a Delaware corporation, as administrative agent (in
such capacity, “Agent”) for itself and the other financial institutions
or entities from time to time party to the Credit Agreement as lenders
(collectively referred to herein as the “Lenders”), and together with
Agent, collectively referred to herein as “Senior Secured Parties” and
individually referred to herein as a “Senior Secured Party”).


 


RECITALS


 


A.            Holdings, as guarantor, Borrower, Agent and
the Lenders have entered into that certain Credit Agreement dated as of even
date herewith (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the “Credit Agreement”) pursuant to which,
among other things, Agent and Lenders have agreed, subject to the terms and
conditions set forth in the Credit Agreement, to make certain loans and
financial accommodations to Borrower. 
All of Borrower’s obligations to Agent and Lenders under the Credit
Agreement and the other Loan Documents are secured by first priority Liens on
and security interests in substantially all of the now existing and hereafter
acquired assets of Borrower, Holdings and subject to certain exceptions set
forth in the Credit Agreement or other Loan Documents, any future direct or indirect
subsidiary of Borrower (each, a “Loan Party” and collectively, the “Loan
Parties”) (all collateral, now or hereafter encumbered by the Lien or
security interest of any Loan Document, is herein referred to collectively as
the “Collateral”).


 


C.            Subordinated
Creditor and Oncure have entered into that certain Advisory Services Agreement
dated as of August 18, 2006 (as the same may be amended, restated,
supplemented or otherwise modified from time to time in accordance with Section 3.2
hereof, the “Management Agreement”) pursuant to which, among other
things, Oncure has agreed, subject to the terms and conditions set forth in the
Management Agreement, to pay certain management fees to Subordinated Creditor.


 


D.            As an inducement to and as one of the conditions
precedent to the agreement of, Agent and the Lenders to consummate the
transactions contemplated by, Senior Secured Parties have required the
execution and delivery of this Agreement by Subordinated Creditor, Holdings and
Borrower in order to set forth the relative rights and priorities of Senior
Secured Parties and Subordinated Creditor under the Senior Loan Documents and
the Subordinated Debt Documents (as hereinafter defined).


 


NOW, THEREFORE, in order to induce Agent
and the Lenders to consummate the transactions contemplated by the Credit
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which hereby are acknowledged, the parties hereto hereby
covenant and agree as follows:


 

















 


1.             Definitions.  Unless defined herein, capitalized terms used
in this Agreement shall have the meanings set forth in the Credit Agreement,
and the following terms shall have the following meanings in this Agreement:


 


“Bankruptcy Code” shall mean Chapter 11
of Title 11 of the United States Code, as amended from time to time, and any
successor statute and all rules and regulations promulgated thereunder.


 


“Distribution” means, with respect to
any indebtedness or obligation, (a) any payment or distribution by any
Person of cash, securities or other property, by set-off or otherwise, on
account of such indebtedness or obligation, (b) any redemption, purchase
or other acquisition of such indebtedness or obligation by any Person, or (c) the
granting of any Lien or security interest to or for the benefit of the holders
of such indebtedness or obligation in or upon any property of any Person.


 


“Enforcement Action” shall mean (a) to
take from or for the account of Borrower or any guarantor of the Subordinated
Debt, by set-off or in any other manner, the whole or any part of any moneys
which may now or hereafter be owing by Borrower or any such guarantor with
respect to the Subordinated Debt; (b) to sue for payment of, or to
initiate or participate with others in any suit, action or proceeding against
Borrower or any such guarantor to (i) enforce payment of or to collect the
whole or any part of the Subordinated Debt, or (ii) commence judicial
enforcement of any of the rights and remedies under the Subordinated Debt
Documents or applicable law with respect to the Subordinated Debt, including,
without limitation, any judicial proceedings to obtain possession of any
premises leased under the Subordinated Debt Documents; (c) to accelerate
the Subordinated Debt; (d) to exercise any put option or redemption right
or to cause Borrower or any such guarantor to honor any redemption or mandatory
prepayment obligation under any Subordinated Debt Document; (e) to notify
account debtors or directly collect accounts receivable or other payment rights
of Borrower or any such guarantor; (f) to exercise any self-help remedies
available to the Subordinated Creditor in its capacity as a landlord under a
lease which constitutes a portion of the Subordinated Debt Documents; or (g) take
any action under the provisions of any state or federal law, including, without
limitation, the Uniform Commercial Code, or under any contract or agreement, to
enforce, foreclose upon, take possession of or sell any property or assets of
Borrower or any such guarantor including the Collateral.


 


“Lien” shall mean, with respect to any asset, any
mortgage, lien, pledge, charge, security interest or encumbrance of any kind,
or any other type of preferential arrangement that has the practical effect of
creating a security interest, in respect of such asset.


 


“Permitted Subordinated Debt Payments”
means payments of regularly scheduled payments of the (a) Management Fee
referred to in the Management Agreement, (b) Advisory Fee referred to in the
Management Agreement, (c) the closing fee referred to in Section 2 of the
Management Agreement, and (d) reasonable expenses and documented expenses
incurred in connection with providing services under the Management Agreement,
all due and payable on a non-accelerated basis in accordance with the terms of
the Management Agreement as in effect on the date hereof, but only if (a) true,
correct and complete copies of the Management Agreement have been delivered to
Senior Secured Parties, and (b) such payments are made as permitted 


 


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herein or as otherwise approved in writing by
Agents (which approval may be given or withheld in each Agent’s sole and
absolute discretion).


 


“Person” means any natural person,
corporation, general or limited partnership, limited liability company, firm,
trust, association, government, governmental agency or other entity, whether
acting in an individual, fiduciary or other capacity.


 


“Proceeding” shall mean any voluntary or
involuntary insolvency, bankruptcy, receivership, custodianship, liquidation,
dissolution, reorganization, assignment for the benefit of creditors,
appointment of a custodian, receiver, trustee or other officer with similar
powers or any other proceeding for the liquidation, dissolution or other
winding up of a Person.


 


“Senior Loan” shall mean all
obligations, liabilities and indebtedness of every nature of the Loan Parties
from time to time owed to Agent and Lenders under the Loan Documents or
otherwise, whether now existing or hereafter created, including, without limitation,
the principal amount of all debts, claims and indebtedness, accrued and unpaid
interest and all fees, costs and expenses, whether primary, secondary, direct,
contingent, fixed or otherwise, heretofore, now and from time to time hereafter
owing, due or payable, whether before or after the filing of a Proceeding under
the Bankruptcy Code, together with (a) any amendments, modifications,
renewals or extensions thereof, and (b) any interest accruing thereon
after the commencement of a Proceeding, without regard to whether or not such
interest is an allowed claim.


 


“Senior Loan Default” shall mean any “Event
of Default”, as defined in the Credit Agreement.


 


“Senior Loan Documents” shall mean the
promissory notes or other instruments evidencing the Senior Loan or the
obligation to pay the Senior Loan, any guaranty with respect to the Senior
Loan, any security agreement or other collateral document securing the Senior
Loan (including, without limitation, the Credit Agreement) and all other
documents, agreements and instruments now existing or hereafter entered into
evidencing or pertaining to all or any portion of the Senior Loan (including,
without limitation, the “Loan Documents”, as defined in the Credit Agreement).


 


“Subordinated Debt” shall mean all obligations,
liabilities and indebtedness of every nature of any Loan Party from time to
time owed to Subordinated Creditor, whether now existing or hereafter created,
including, without limitation, the principal amount of all debts, claims
(including, without limitation, indemnification rights arising in Subordinated
Creditor’s capacity as a shareholder, officer, director, member and/or partner
of Borrower and any right of Subordinated Creditor to a return of any capital
contributed to Borrower) and indebtedness, accrued and unpaid interest and all
fees, costs and expenses, whether primary, secondary, direct, contingent, fixed
or otherwise, heretofore, now and from time to time hereafter owing, due or
payable, whether before or after the filing of a Proceeding under the
Bankruptcy Code together with any amendments, modifications, renewals or
extensions thereof, including but not limited to the obligations of Borrower
pursuant to the Management Agreement.


 


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“Subordinated Debt Documents” shall mean
the Management Agreement, and all other documents, agreements and instruments
now existing or hereafter entered into evidencing or pertaining to all or any
portion of the Subordinated Debt.


 


“Termination Date” shall mean the date upon
which the Senior Loan has been indefeasibly paid in full in cash and all
lending commitments of Agent and Lenders under the Senior Loan Documents have
been terminated as evidenced in writing by Agent.


 


2.             Subordination.


 


2.1.         Subordination
of Subordinated Debt to Senior Loan.  Each Loan Party covenants and agrees, and
Subordinated Creditor likewise covenants and agrees, notwithstanding anything
to the contrary contained in any of the Subordinated Debt Documents, that the
payment of any and all of the Subordinated Debt, and Subordinated Creditor’s
right to receive and accept such payment, shall be subordinate and subject in
right and time of payment, to the extent and in the manner hereinafter set
forth, to the prior payment in full in cash of all of the Senior Loan at all
times prior to the Termination Date. 
Each holder of the Senior Loan, whether now outstanding or hereafter
created, incurred, assumed or guaranteed, shall be deemed to have acquired the
Senior Loan in reliance upon the provisions contained in this Agreement.


 


2.2.         Subordinated Debt Payment
Restrictions. 
Notwithstanding the provisions of subsection 2.1 hereinabove, Permitted
Subordinated Debt Payments may be made by the Loan Parties or accepted by
Subordinated Creditor, but only if, at the time of such payment, no Senior Loan
Default exists or would be created by reason of such payment.


 


2.3.         Subordinated
Debt Standstill Provisions.  Until the Termination Date, Subordinated
Creditor shall not, without the prior written consent of Agent, take any
Enforcement Action with respect to the Subordinated Debt.


 


2.4.         Incorrect Payments.  If any Distribution on account of the
Subordinated Debt not permitted to be made by a Loan Party or accepted by
Subordinated Creditor under this Agreement is made and received by Subordinated
Creditor, such Distribution shall not be commingled with any of the assets of
Subordinated Creditor, shall be held in trust by Subordinated Creditor for the
benefit of Agent and the Lenders and shall be promptly paid over to Agent for
application in accordance with the Senior Loan Documents to the payment of the
Loan then remaining unpaid until the Termination Date.


 


2.5.         Agreement
Not to Take Liens and Security Interests; Agreement Not to Contest; Agreement
to Release Liens.  Until the
Senior Loan has been indefeasibly paid in full in cash and all lending
commitments under the Senior Loan Documents have terminated, Subordinated
Creditor shall not take any Liens or security interests in any Collateral, nor
shall Subordinated Creditor accept any security for the Subordinated Debt at
any time. If, notwithstanding the terms of this Agreement, Subordinated
Creditor shall at any time obtain any Lien or security interest in any
Collateral, upon the request of any Senior Secured Party Subordinated Creditor
shall (or shall cause its agent) to release, on a prompt basis, any Liens and
security interests which it may have in such Collateral.  Subordinated
Creditor agrees that it will not at any time contest the validity, perfection,
priority or enforceability of the Senior Debt, the 


 


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Senior Debt Documents, or
the liens and security interests of Senior Agent in the Collateral securing the
Senior Debt.  In furtherance of the foregoing,
Subordinated Creditor hereby irrevocably appoints Agent, until the Termination
Date, its attorney-in-fact with full authority in the place and stead of
Subordinated Creditor and in the name of Subordinated Creditor or otherwise to
execute and deliver any document or instrument that Subordinated Creditor may
be required to deliver pursuant to this subsection 2.5 if Subordinated Creditor
fails to so execute and deliver the same within ten (10) days after
request by any of the Senior Secured Parties.


 


2.6.         Application
of Proceeds from Sale or other Disposition of the Collateral.  In the event of any sale, transfer or other
disposition (including a casualty loss or taking through eminent domain) of the
Collateral, the proceeds resulting therefrom (including insurance proceeds)
shall be applied in accordance with the terms of the Senior Loan Documents or
as otherwise consented to by Agent until the Termination Date.


 


2.7.         Reserved.


 


2.8.         Reserved.


 


2.9.         Liquidation,
Dissolution, Bankruptcy.  In the event of any Proceeding involving any
Loan Party:


 


(a)           Any Distribution, whether in
cash, securities or other property which would otherwise, but for the terms
hereof, be payable or deliverable in respect of the Subordinated Debt shall be
held in trust for the benefit of Agent and the Lenders and paid over, or
delivered directly, to Agent for application in accordance with the Senior Loan
Documents to the payment of the Senior Loan then remaining unpaid until the
Termination Date of the Senior Loan. 
Subordinated Creditor irrevocably authorizes, empowers and directs any
debtor, debtor in possession, receiver, trustee, liquidator, custodian,
conservator or other Person having authority, to pay or otherwise deliver all
such Distributions to Agent. Subordinated Creditor also irrevocably authorizes
and empowers Agent, in the name of Subordinated Creditor, to demand, sue for,
collect and receive any and all such Distributions.


 


(b)           Subordinated Creditor agrees
that Senior Secured Parties may consent to the use of cash collateral or
provide financing to any Loan Party on such terms and conditions and in such
amounts as Senior Secured Parties, in their sole discretion, may decide and, in
connection therewith, any Loan Party may grant to Senior Secured Parties Liens
and security interests upon all of the property of such Loan Party, which Liens
and security interests (i) shall secure payment of the Senior Loan
(whether such Senior Loan arose prior to the commencement of any Proceeding or
at any time thereafter) and all other financing provided by Senior Secured
Parties during the Proceeding, and (ii) shall be superior in priority to
the Liens and security interests, if any, in favor of Subordinated Creditor on
the property of such Loan Party. Subordinated Creditor agrees that it will not
object to or oppose a sale or other disposition of any property securing all of
any part of the Senior Loan free and clear of security interests, Liens or
other claims of Subordinated Creditor under Section 363 of the Bankruptcy
Code or any other provision of the Bankruptcy Code if Senior Secured Parties
have consented to such sale or disposition. Subordinated Creditor agrees not to
assert any right it may have to “adequate protection” of Subordinated Creditor’s
interest in any Collateral in any Proceeding and agrees 


 


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that it will not seek to have the automatic stay
lifted with respect to any Collateral without the prior written consent of
Senior Secured Parties. Subordinated Creditor waives any claim it may now or
hereafter have arising out of Senior Secured Parties’ election, in any
Proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of
the Bankruptcy Code, and/or any borrowing or grant of a security interest under
Section 364 of the Bankruptcy Code by Borrower, as debtor in possession.
Subordinated Creditor further agrees that it will not seek to participate or
participate on any creditor’s committee without Senior Secured Parties’ prior
written consent.


 


(c)           Subordinated Creditor agrees
to execute, verify, deliver and file any proofs of claim in respect of the
Subordinated Debt requested by Senior Secured Parties in connection with any
such Proceeding and hereby irrevocably authorizes, empowers and appoints Agent,
until the Termination Date, as its agent and attorney-in-fact to (i) execute,
verify, deliver and file such proofs of claim upon the failure of Subordinated
Creditor promptly to do so prior to thirty (30) days before the expiration of
the time to file any such proof of claim, and (ii) vote such claim in any
such Proceeding upon the failure of Subordinated Creditor to do so prior to
fifteen (15) days before the expiration of the time to vote any such claim; provided, however, that Agent shall have
no obligation to execute, verify, deliver, file and/or vote any such proof of
claim.  Subordinated Creditor hereby
assigns to Senior Secured Parties or their nominee (and will, upon request of
Senior Secured Parties, reconfirm in writing the assignment to Senior Secured
Parties or their nominee of) all rights of Subordinated Creditor under such
claims.


 


(d)           The Senior Loan shall
continue to be treated as the Senior Loan and the provisions of this Agreement
shall continue to govern the relative rights and priorities of Senior Secured
Parties and Subordinated Creditor even if all or part of the Senior Loan or the
Liens or security interests securing the Senior Loan are subordinated, set
aside, avoided, invalidated or disallowed in connection with any such Proceeding,
and this Agreement shall be reinstated if at any time any payment of any of the
Senior Loan is rescinded or must otherwise be returned by any holder of the
Senior Loan or any representative of such holder.


 


3.             Modifications.


 


3.1.         Modifications
to Senior Loan Documents.  Agent may at any time and from time to time
without the consent of or notice to Subordinated Creditor, without incurring
liability to Subordinated Creditor and without impairing or releasing the
obligations of Subordinated Creditor under this Agreement, change the manner or
place of payment or extend the time of payment of or renew or alter any of the
terms of the Senior Loan, or amend, restate, supplement or otherwise modify in
any manner any Senior Loan Document.


 


3.2.         Modifications
to Subordinated Debt Documents.  At all times prior to the Termination Date,
and notwithstanding anything to the contrary contained in the Subordinated Debt
Documents, neither Subordinated Creditor nor any Loan Party shall, without the
prior written consent of Agent, agree to any amendment, restatement,
modification or supplement to the Subordinated Debt Documents that would (i) be
materially adverse to any Senior Secured Party, (ii) cause or allow the
indebtedness of the Loan Parties to Subordinated Creditor to be increased
beyond the amount due and owing from time to time under the Subordinated Debt
Documents as in effect on the date hereof or (iii) shorten the period or 


 


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increase the frequency of timing of repayment of the
Subordinated Debt from the period and timing set forth under the Subordinated
Debt Documents as in effect on the date hereof. 
Nothing herein, including the provisions of this Agreement pertaining to
subordination of Liens on the Collateral, shall be construed to imply Agent’s
consent to any Subordinated Debt Document which grants a Lien upon any of the
Collateral.


 


4.             Waiver of Certain Rights by Subordinated Creditor.


 


4.1.         Marshaling.  Subordinated Creditor hereby waives any
rights it may have under applicable law to assert the doctrine of marshaling or
to otherwise require Agent to marshal any property of any Loan Party for the
benefit of Subordinated Creditor.


 


4.2.         Rights
Relating to Senior Secured Parties’ Actions with respect to the Collateral.  Subordinated Creditor hereby waives, to the
extent permitted by applicable law, any rights which it may have to enjoin or
otherwise obtain a judicial or administrative order preventing Agent from
taking, or refraining from taking, any action with respect to all or any part
of the Collateral. Without limitation of the foregoing, Subordinated Creditor
hereby agrees (a) that it has no right to direct or object to the manner
in which Agent applies the proceeds of the Collateral resulting from the exercise
by Agent of rights and remedies under the Senior Loan Documents to the Senior
Loan to which Agent is a party, and (b)  that Agent has not assumed any
obligation to act as the agent for Subordinated Creditor with respect to the
Collateral.


 


4.3.         Rights
Relating to Disclosures.  Subordinated Creditor hereby agrees that
Senior Secured Parties have not assumed any obligation or duty to disclose
information regarding any Loan Party or the Senior Loan to Subordinated
Creditor, and no Senior Secured Party shall have a special or fiduciary
relationship to Subordinated Creditor. 
Subordinated Creditor hereby fully waives and releases each Senior
Secured Party from any affirmative disclosures which may be required of such
Senior Secured Party under applicable law.


 


5.             Construction.  The
terms of this Agreement were negotiated among business persons sophisticated in
the area of business finance, and accordingly, in construing the terms of this
Agreement, no rule or law which would require that this instrument be construed
against the party who drafted this instrument shall be given any force or
effect.


 


6.             Modification.  Any
modification or waiver of any provision of this Agreement, or any consent to
any departure by any party from the terms hereof, shall not be effective in any
event unless the same is in writing and signed by Agent and Subordinated
Creditor, and then such modification, waiver or consent shall be effective only
in the specific instance and for the specific purpose given. Any notice to or
demand on any party hereto in any event not specifically required hereunder
shall not entitle the party receiving such notice or demand to any other or
further notice or demand in the same, similar or other circumstances unless
specifically required hereunder.


 


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7.             Further Assurances.  Each party to this Agreement promptly will
execute and deliver such further instruments and agreements and do such further
acts and things as may be reasonably requested in writing by any other party
hereto that may be necessary or desirable in order to effect fully the purposes
of this Agreement.


 


8.             Notices.  Any notice
or other communication required or permitted under this Agreement shall be in
writing and personally delivered, mailed by registered or certified mail
(return receipt requested and postage prepaid), sent by telecopier (with a
confirming copy sent by regular mail), or sent by prepaid overnight courier
service, and addressed to the relevant party at its address set forth below, or
at such other address as such party may, by written notice, designate as its
address for purposes of notice under this Agreement:


 


	
  If
  to Agent at:

  	
   

  	
  General
  Electric Capital Corporation

  
	
   

  	
   

  	
  Two
  Bethesda Metro Center, Suite 600

  
	
   

  	
   

  	
  Bethesda,
  Maryland 20814

  
	
   

  	
   

  	
  Attention:
  General Counsel

  
	
   

  	
   

  	
  Facsimile:
  (301) 664-9890

  
	
   

  	
   

  	
   

  
	
  If
  to Borrower at:

  	
   

  	
  Oncure
  Medical Corp.

  
	
   

  	
   

  	
  188
  Inverness Drive West, #650

  
	
   

  	
   

  	
  Englewood,
  Colorado 80112

  
	
   

  	
   

  	
  Attention:
  Chief Executive Officer

  
	
   

  	
   

  	
  Facsimile:
  (303) 643-6500

  
	
   

  	
   

  	
   

  
	
  If
  to Subordinated Creditor at:

  	
   

  	
  Genstar
  Capital, LLC

  
	
   

  	
   

  	
  4
  Embarcadero Center, Suite 1900

  
	
   

  	
   

  	
  San
  Francisco, California 94111

  
	
   

  	
   

  	
  Attention:
  Robert Weltman, Managing Director

  
	
   

  	
   

  	
  Facsimile:

  



 


If
mailed, notice shall be deemed to be given five (5) days after being sent,
and if sent by personal delivery, telecopier or prepaid courier, notice shall
be deemed to be given when delivered.


 


9.             Successors and Assigns.  This Agreement shall inure to the benefit of,
and shall be binding upon, the respective successors and assigns of Senior
Secured Parties, Subordinated Creditor and the Borrower. Senior Secured Parties
may, from time to time, without notice to Subordinated Creditor, assign or
transfer any or all of the Senior Loan or any interest therein to any Person
and, notwithstanding any such assignment or transfer, or any subsequent
assignment or transfer, the Senior Loan shall, subject to the terms hereof, be
and remain the Senior Loan for purposes of this Agreement, and every permitted
assignee or transferee of any of the Senior Loan or of any interest therein
shall, to the extent of the interest of such permitted assignee or transferee
in the Senior Loan, be entitled to rely upon and be the third party beneficiary
of the subordination provided under this Agreement and shall be entitled to
enforce the terms and provisions hereof to the same extent as if such assignee
or transferee were initially a party hereto.


 


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10.          Relative
Rights.  This
Agreement shall define the relative rights of Senior Secured Parties and
Subordinated Creditor. Nothing in this Agreement shall (a) impair, as
between the Loan Parties and Senior Secured Parties, the obligation of any Loan
Party with respect to the payment of the Senior Loan and the Subordinated Debt
in accordance with their respective terms, or (b) affect the relative rights of
Senior Secured Parties or Subordinated Creditor with respect to any other
creditors of any Loan Party.


 


11.          Miscellaneous.  In the event of any conflict between any term,
covenant or condition of this Agreement and any term, covenant or condition of
any of the Subordinated Debt Documents, the provisions of this Agreement shall
control and govern. The paragraph headings used in this Agreement are for
convenience only and shall not affect the interpretation of any of the
provisions hereof. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument, but in making proof hereof, it shall
only be necessary to produce one such counterpart containing signatures pages signed
by each party. In the event that any provision of this Agreement is deemed to
be invalid, illegal or unenforceable by reason of the operation of any law or
by reason of the interpretation placed thereon by any court or governmental
authority, the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby, and the affected provision shall be modified to the minimum extent
permitted by law so as most fully to achieve the intention of this Agreement.
This Agreement shall be governed by and shall be construed and enforced in
accordance with the internal laws 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.


 


12.          Continuation
of Subordination; Termination of Agreement.  This Agreement shall remain in full force and
effect until Termination Date, after which this Agreement shall terminate
without further action on the part of the parties hereto.


 


13.          CONSENT TO
JURISDICTION.  EACH OF SUBORDINATED CREDITOR, HOLDINGS AND BORROWER
HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED
WITHIN THE COUNTY OF NEW YORK, STATE OF NEW YORK AND IRREVOCABLY AGREES THAT,
SUBJECT TO AGENT’S ELECTION ON OR PRIOR TO THE LOAN TERMINATION DATE, ALL
ACTIONS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LITIGATED
IN SUCH COURTS.  EACH OF SUBORDINATED
CREDITOR AND BORROWER EXPRESSLY SUBMITS AND CONSENTS TO THE JURISDICTION OF THE
AFORESAID COURTS AND WAIVES ANY DEFENSE OF FORUM NON CONVENIENS.  EACH OF SUBORDINATED CREDITOR, HOLDINGS AND
BORROWER HEREBY WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS AND AGREES THAT
ALL SUCH SERVICE OF PROCESS MAY BE MADE UPON IT BY CERTIFIED OR REGISTERED
MAIL, RETURN RECEIPT REQUESTED, ADDRESSED TO SUBORDINATED CREDITOR, HOLDINGS
AND BORROWER AT THEIR RESPECTIVE ADDRESSES SET FORTH IN THIS AGREEMENT AND
SERVICE SO MADE SHALL BE COMPLETE TEN (10) DAYS AFTER THE SAME HAS BEEN
POSTED. IN ANY LITIGATION, TRIAL, ARBITRATION OR OTHER DISPUTE RESOLUTION
PROCEEDING RELATING TO THIS AGREEMENT, ALL DIRECTORS, OFFICERS, 


 


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EMPLOYEES AND AGENTS OF
SUBORDINATED CREDITOR, HOLDINGS, BORROWER OR ANY OF THEIR RESPECTIVE AFFILIATES
SHALL BE DEEMED TO BE EMPLOYEES OR MANAGING AGENTS OF SUBORDINATED CREDITOR OR
BORROWER OR HOLDINGS, AS APPLICABLE, FOR PURPOSES OF ALL APPLICABLE LAW OR
COURT RULES REGARDING THE PRODUCTION OF WITNESSES BY NOTICE FOR TESTIMONY
(WHETHER IN A DEPOSITION, AT TRIAL OR OTHERWISE).  EACH OF SUBORDINATED CREDITOR, HOLDINGS AND
BORROWER IN ANY EVENT WILL USE ALL COMMERCIALLY REASONABLE EFFORTS TO PRODUCE
IN ANY SUCH DISPUTE RESOLUTION PROCEEDING, AT THE TIME AND IN THE MANNER
REQUESTED BY ANY SENIOR SECURED PARTY, ALL PERSONS, DOCUMENTS (WHETHER IN
TANGIBLE, ELECTRONIC OR OTHER FORM) OR OTHER THINGS UNDER ITS CONTROL AND RELATING
TO THE DISPUTE.


 


14.          WAIVER OF
JURY TRIAL.  SUBORDINATED CREDITOR, HOLDINGS, BORROWER AND SENIOR
SECURED PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, ANY OF THE
SUBORDINATED DEBT DOCUMENTS OR ANY OF THE SENIOR LOAN DOCUMENTS. EACH OF
SUBORDINATED CREDITOR, HOLDINGS, BORROWER AND SENIOR SECURED PARTIES
ACKNOWLEDGES THAT THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS
RELATIONSHIP, THAT EACH HAS RELIED ON THE WAIVER IN ENTERING INTO THIS
AGREEMENT AND THE SENIOR LOAN DOCUMENTS AND THAT EACH WILL CONTINUE TO RELY ON
THE WAIVER IN THEIR RELATED FUTURE DEALINGS. EACH OF SUBORDINATED CREDITOR,
HOLDINGS, BORROWER AND SENIOR SECURED PARTIES WARRANTS AND REPRESENTS THAT EACH
HAS HAD THE OPPORTUNITY OF REVIEWING THIS JURY WAIVER WITH LEGAL COUNSEL, AND
THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS.


 


(SIGNATURES APPEAR ON FOLLOWING PAGES)


 


10














 


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


 


 


	
  ADMINISTRATIVE AGENT:

  	
  GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware
  corporation

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Brent Shepherd

  
	
   

  	
   

  	
  Brent
  Shepherd

  
	
   

  	
   

  	
  Duly
  Authorized Signatory

  



 

















 


	
  SUBORDINATED CREDITOR:

  	
  GENSTAR CAPITAL, LLC, a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Robert J. Weltman

  
	
   

  	
  Name:

  	
  Robert
  J. Weltman

  
	
   

  	
  Title:

  	
  Managing
  Director

  



 

















 


	
  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

  



 

















 


EXHIBIT A — LIST OF BORROWERS


 


1.                                      Oncure Medical
Corp., a Delaware corporation


 


2.                                      Fountain Valley &
Anaheim Radiation Oncology Centers, Inc., a California corporation


 


3.                                      FROG Oncure
Southside, L.L.C., a Florida limited liability company


 


4.                                      JAXPET, LLC, a
Florida limited liability company


 


5.                                      JAXPET/Positech,
L.L.C., a Florida limited liability company


 


6.                                      Manatee
Radiation Oncology, Inc., a Florida corporation


 


7.                                      Mica Flo II, Inc.,
a Delaware corporation


 


8.                                      Mission Viejo
Radiation Oncology Medical Group, Inc., a California corporation


 


9.                                      Pointe West
Oncology, LLC, a Delaware limited liability company


 


10.                               Radiation
Oncology Center, LLC, a California limited liability company


 


11.                               U.S. Cancer
Care, Inc., a Delaware Corporation


 


12.                               USCC
Acquisition Corp., a Delaware corporation


 


13.                               USCC Florida
Acquisition Corp., a Delaware corporation


 


14.                               USCC Healthcare
Management Corp., a California corporation


 


15.                               Sarasota
Radiation & Medical Oncology Center, Inc., a Florida corporation


 


16.                               Venice Oncology
Center, Inc., a Delaware corporation


 


17.                               Englewood
Oncology, Inc., a Florida corporation


 


18.                               Charlotte
Community Radiation Oncology, Inc., a Florida corporation


 


19.                               Interhealth
Facility Transport, Inc., a Florida corporation


 


20.                               Sarasota County
Oncology, Inc., a Florida corporation


 


21.                               Coastal
Oncology, Inc., a California corporation


 


22.                               Santa Cruz
Radiation Oncology Management Corp., a California corporation