Exhibit 10.46


 


MANAGEMENT
SERVICES AGREEMENT


 


BY AND AMONG


 


US CANCER CARE, INC.


 


AND


 


COASTAL RADIATION ONCOLOGY
MEDICAL GROUP, INC.


 


 


DATED
AS OF FEBRUARY 16, 2006


 

















 


Table of Contents


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I                                                        DEFINITIONS AND RULES OF CONSTRUCTION

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 1.1

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 1.2

  	
  Rules of Construction

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE II                                                    OBLIGATIONS OF THE COMPANY

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 2.1

  	
  Management Services

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 2.2

  	
  Furniture, Fixtures, Equipment and Supplies

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 2.3

  	
  Financial Planning and Goals

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 2.4

  	
  Business Office Services

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 2.5

  	
  Financial Statements

  	
  14

  
	
   

  	
   

  	
   

  
	
  SECTION 2.6

  	
  Personnel

  	
  15

  
	
   

  	
   

  	
   

  
	
  SECTION 2.7

  	
  Cancer Centers

  	
  16

  
	
   

  	
   

  	
   

  
	
  SECTION 2.8

  	
  Files and Records

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 2.9

  	
  Recruitment of New Physicians

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 2.10

  	
  Expansion of the Practice

  	
  17

  
	
   

  	
   

  	
   

  
	
  SECTION 2.11

  	
  Practice Assessment and Consulting Services

  	
  18

  
	
   

  	
   

  	
   

  
	
  SECTION 2.12

  	
  Managed Care Contracting

  	
  18

  
	
   

  	
   

  	
   

  
	
  SECTION 2.13

  	
  Restrictive Covenants of the Company

  	
  18

  
	
   

  	
   

  	
   

  
	
  SECTION 2.14

  	
  Payment of Operational Expenses

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 2.15

  	
  Company Expenses

  	
  19

  
	
   

  	
   

  	
   

  
	
  ARTICLE III
                                               OBLIGATIONS OF THE PRACTICE

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 3.1

  	
  Required Services and Service Hours

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 3.2

  	
  Professional Standards

  	
  19

  
	
   

  	
   

  	
   

  
	
  SECTION 3.3

  	
  Physician Powers of Attorney

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 3.4

  	
  Restrictive Covenants of the Practice

  	
  20

  
	
   

  	
   

  	
   

  
	
  SECTION 3.5

  	
  Continuing Professional Education

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 3.6

  	
  Initial Physicians

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 3.7

  	
  Additional Physicians

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 3.8

  	
  Termination of Physicians

  	
  22

  
	
   

  	
   

  	
   

  
	
  SECTION 3.9

  	
  Cooperation

  	
  23

  
	
   

  	
   

  	
   

  
	
  SECTION 3.10

  	
  Billing Information and Collection Policy

  	
  23

  



 


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  SECTION 3.11

  	
  Quality and Utilization Management

  	
  23

  
	
   

  	
   

  	
   

  
	
  SECTION 3.12

  	
  Peer Review

  	
  24

  
	
   

  	
   

  	
   

  
	
  SECTION 3.13

  	
  Practice Operational Authority

  	
  24

  
	
   

  	
   

  	
   

  
	
  SECTION 3.14

  	
  Other Obligations of the Practice

  	
  24

  
	
   

  	
   

  	
   

  
	
  SECTION 3.15

  	
  Practice Expenses

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 3.16

  	
  Managed Care Contracting

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV                                              FINANCIAL ARRANGEMENT

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 4.1

  	
  Management Fees

  	
  25

  
	
   

  	
   

  	
   

  
	
  SECTION 4.2

  	
  Retained Amount

  	
  26

  
	
   

  	
   

  	
   

  
	
  SECTION 4.3

  	
  Payments

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 4.4

  	
  Reconciliation

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 4.5

  	
  Review of Financial Arrangements by the Practice

  	
  27

  
	
   

  	
   

  	
   

  
	
  SECTION 4.6

  	
  Collateral Security

  	
  28

  
	
   

  	
   

  	
   

  
	
  SECTION 4.7

  	
  Deposit of Receivables

  	
  32

  
	
   

  	
   

  	
   

  
	
  SECTION 4.8

  	
  Termination of Security Interest

  	
  33

  
	
   

  	
   

  	
   

  
	
  SECTION 4.9

  	
  Offset for Damages

  	
  33

  
	
   

  	
   

  	
   

  
	
  ARTICLE V
                                                   TERM AND TERMINATION

  	
  33

  
	
   

  	
   

  	
   

  
	
  SECTION 5.1

  	
  Term; Renewal Terms

  	
  33

  
	
   

  	
   

  	
   

  
	
  SECTION 5.2

  	
  Termination by the Company

  	
  34

  
	
   

  	
   

  	
   

  
	
  SECTION 5.3

  	
  Termination by the Practice

  	
  35

  
	
   

  	
   

  	
   

  
	
  SECTION 5.4

  	
  [Intentionally omitted]

  	
  37

  
	
   

  	
   

  	
   

  
	
  SECTION 5.5

  	
  Duties And Remedies Upon Expiration Or Termination

  	
  37

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI
                                               REPRESENTATIONS AND WARRANTIES OF THE PRACTICE

  	
  38

  
	
   

  	
   

  	
   

  
	
  SECTION 6.1

  	
  Representations and Warranties of the Practice

  	
  38

  
	
   

  	
   

  	
   

  
	
  SECTION 6.2

  	
  Representations and Warranties of the Company

  	
  40

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII
                                           OTHER OBLIGATIONS OF THE PARTIES

  	
  42

  
	
   

  	
   

  	
   

  
	
  SECTION 7.1

  	
  Covenants of the Practice

  	
  42

  
	
   

  	
   

  	
   

  
	
  SECTION 7.2

  	
  Taxes

  	
  43

  
	
   

  	
   

  	
   

  
	
  SECTION 7.3

  	
  Covenants of the Company

  	
  44

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII
                                       INSURANCE AND INDEMNIFICATION

  	
  44

  
	
   

  	
   

  	
   

  
	
  SECTION 8.1

  	
  Insurance Maintained by the Practice

  	
  44

  
	
   

  	
   

  	
   

  
	
  SECTION 8.2

  	
  Insurance Maintained by the Company

  	
  44

  
	
   

  	
   

  	
   

  
	
  SECTION 8.3

  	
  Requirements as to Insurance

  	
  45

  



 


ii

















 


	
  SECTION 8.4

  	
  Indemnification

  	
  45

  
	
   

  	
   

  	
   

  
	
  SECTION 8.5

  	
  Indemnification Procedure

  	
  46

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX
                                              CONFIDENTIAL INFORMATION; ACCESS TO RECORDS

  	
  47

  
	
   

  	
   

  	
   

  
	
  SECTION 9.1

  	
  Confidential Information and Trade Secrets

  	
  47

  
	
   

  	
   

  	
   

  
	
  SECTION 9.2

  	
  Books and Records

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE X
                                                  ARBITRATION

  	
  48

  
	
   

  	
   

  	
   

  
	
  SECTION 10.1

  	
  Arbitration

  	
  48

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI                                             GENERAL PROVISIONS

  	
  49

  
	
   

  	
   

  	
   

  
	
  SECTION 11.1

  	
  Changes in the Law

  	
  49

  
	
   

  	
   

  	
   

  
	
  SECTION 11.2

  	
  Independent Contractors

  	
  49

  
	
   

  	
   

  	
   

  
	
  SECTION 11.3

  	
  Force Majeure

  	
  50

  
	
   

  	
   

  	
   

  
	
  SECTION 11.4

  	
  Notices and Addresses

  	
  50

  
	
   

  	
   

  	
   

  
	
  SECTION 11.5

  	
  Entire Agreement

  	
  50

  
	
   

  	
   

  	
   

  
	
  SECTION 11.6

  	
  Physician Rights

  	
  50

  
	
   

  	
   

  	
   

  
	
  SECTION 11.7

  	
  Governing Law

  	
  51

  
	
   

  	
   

  	
   

  
	
  SECTION 11.8

  	
  Captions

  	
  51

  
	
   

  	
   

  	
   

  
	
  SECTION 11.9

  	
  Severability

  	
  51

  
	
   

  	
   

  	
   

  
	
  SECTION 11.10

  	
  Waiver

  	
  51

  
	
   

  	
   

  	
   

  
	
  SECTION 11.11

  	
  Counterparts

  	
  51

  
	
   

  	
   

  	
   

  
	
  SECTION 11.12

  	
  Medical Advisory Board

  	
  51

  
	
   

  	
   

  	
   

  
	
  SECTION 11.13

  	
  Amendment and Modification

  	
  51

  
	
   

  	
   

  	
   

  
	
  SECTION 11.14

  	
  Assignment and Delegation

  	
  51

  
	
   

  	
   

  	
   

  
	
  SECTION 11.15

  	
  Open Records

  	
  52

  
	
   

  	
   

  	
   

  
	
  SECTION 11.16

  	
  Binding Effect

  	
  52

  
	
   

  	
   

  	
   

  
	
  SECTION 11.17

  	
  Further Actions

  	
  52

  
	
   

  	
   

  	
   

  
	
  SECTION 11.18

  	
  No Prejudice

  	
  52

  



 


iii

















 


MANAGEMENT SERVICES AGREEMENT


 


THIS MANAGEMENT SERVICES AGREEMENT (this “Agreement”),
dated as of February 16, 2006 (the “Effective Date”), is by and
between U.S. Cancer Care, Inc., a Delaware corporation (“USCC”) and
Coastal Radiation Oncology Medical Group, Inc., a California professional
corporation (the “Practice”).


 


RECITALS


 


A.                                   The Practice is a medical practice that provides Radiation Oncology
Services (as defined herein) in the State of California.


 


B.                                     The Company is in the business of providing certain administrative and
support services to medical practices, and in providing administrative and
clinical staff, space, equipment, furnishings, supplies and inventory to
medical practices in connection therewith.


 


C.                                     The Practice desires to retain the Company to provide, on an exclusive
basis, administrative and support services to the Practice, and administrative
and clinical staff, space, equipment, furnishings, supplies and inventory to
the Practice, so as to permit the Practice to devote its efforts to the
rendering of medical services at the Cancer Centers (as defined herein).


 


NOW, THEREFORE, in consideration of the foregoing and
of the respective covenants and undertakings hereunder and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, intending to be legally bound, the parties hereto do hereby agree
as follows:


 


ARTICLE I

DEFINITIONS AND RULES OF CONSTRUCTION


 


SECTION 1.1                                                  Definitions.  As used in this Agreement, the following
terms have the meanings set forth below.


 


“ACCC” shall mean the Association of Community
Cancer Centers.


 


“Accountants” shall have the meaning set forth
in Section 4.5.


 


“ACR” shall mean the American College of
Radiology.


 


“Administrative Employees” shall have the
meaning in Section 2.6(a).


 


“Affiliate” shall mean (a) with respect to
an individual, any member of such individual’s family residing in the same
household; (b) with respect to an entity: (i) any executive officer,
manager, director, partner or Person that owns ten percent (10%) or more of the
outstanding Capital Stock of or in such entity, or (ii) any brother,
sister, brother-in-law, sister-in-law, lineal descendant or ancestor of any
executive officer, manager, director, partner or Person that owns ten percent
(10%) or more of the outstanding Capital Stock of or in such entity; 


 


1

















 


and (c) with respect to a Person, any Person
which directly or indirectly, through one or more intermediaries, controls, is controlled
by, or is under common control with such Person or entity.  For purposes of this definition, “control”
(including with correlative meanings, the terms “controlling”, “controlled by”
and under “common control with”) means 
the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.  For the purposes of this Agreement, neither
the Practice nor any of the Physicians shall be deemed Affiliates of the
Company.


 


“Agreement” shall mean this Agreement, as
amended, modified or supplemented from time to time in accordance with the
terms hereof, together with any exhibits, schedules or other attachments
thereto.


 


“Annual Budget” shall have the meaning set
forth in Section 2.3.


 


“Billing and Collection Fee” shall have the
meaning set forth in Section 4.1(a)(i).


 


“Business Day” shall mean a day (other than a
Saturday or Sunday), on which commercial banks are open for business in Los
Angeles, California.


 


“Business Office Services” shall have the
meaning set forth in Section 2.4.


 


“Cancer Centers” shall mean: (i) the
cancer centers located at: (a) 1069 Los Palos Drive, Salinas, CA 93901, (b) 314
S. Stratford Ave., Santa Maria, CA 93454, (c) 274 Heather Court, Suite A,
Templeton, CA 93465, (d) 1240 Westlake Blvd., Suite 103, Westlake, CA
91361, (e) 2985 North Sycamore Dr., Simi Valley, CA 93065, (f) 2230
Lynn Road, Suite 103, Thousand Oaks, CA 91360, (g) 2841 Cabrillo Drive,
Ventura, CA 93003, (h) 100 Casa Street, Suite C, San Luis Obispo, CA
93405 and (ii) any future cancer center owned or operated by the Company
that is located in the Communities, or upon which the Parties mutually agree.


 


“Clinical Employees” shall have the meaning set
forth in Section 2.6(a).


 


“CMS” shall mean the Centers for Medicare and
Medicaid Services, an agency of the United States Department of Health and
Human Services, and any successor thereto.


 


“Coastal Group Sellers” shall have the meaning
set forth in the Securities Purchase Agreement.


 


“Collateral” shall have the meaning set forth
in Section 4.6(a).


 


“Communities” shall mean the cities of Salinas,
Santa Maria, Templeton, Westlake, Simi Valley, Thousand Oaks, Ventura, and San
Luis Obispo, and the counties of Monterey, San Luis Obispo, Santa Barbara and
Ventura, each located in the State of California.


 


“Company” shall mean collectively, USCC and
OnCURE Medical Corp., a Delaware corporation.


 


“Company Account” shall have the meaning set
forth in Section 4.7.


 


2

















 


“Company Expense” shall mean any expense of the
Company which is not an Operational Expense or a Practice Expense.  Company Expense shall include, without
limitation, the following:


 


(a)                                  all costs and expenses relating to the acquisition and financing of
medical equipment acquired by the Company under the Securities Purchase
Agreement or required to be purchased pursuant to the terms of this Agreement
(including without limitation all penalties, fees, premiums or similar
amounts);


 


(b)                                 any expenditure relating to the medical equipment used (or to be used)
at the Cancer Centers; provided that such expenditure is contemplated by the
Annual Budget and required to be capitalized under GAAP;


 


(c)                                  all costs and expenses that the Company incurs in connection with
assisting the Practice with the Practice’s efforts to comply with all
appropriate rules and regulations imposed by managed care programs,
Third-Party Payors, governmental agencies and accreditation bodies, including
without limitation, JCAHO, ACR and ACCC;


 


(d)                                 salaries, benefits (including any deferred compensation) and other costs
relating to the employment or engagement by the Company of (i) any
director or executive officer of the Company (or Person serving in a similar
capacity), (ii) any Person who provides Billing and Collection Fee
services; and (iii) any Person who provides accounting, finance, payroll,
human resources, informational technology, and compliance services; and


 


(e)                                  all costs and expenses relating to the provision of Business Office
Services; and


 


(f)                                    such other costs and expenses expressly set forth in the Annual Budget
as Company Expenses.


 


For purposes of this definition, the term “Company”
shall mean, collectively, the Company and its Affiliates.


 


“Company Indemnitees” shall have the meaning
set forth in Section 8.4(a).


 


“Company Lender” shall mean any Person that
makes funds available to the Company or any Affiliate of the Company to borrow
(including, without limitation, Merrill Lynch Capital, MCG Capital Corporation
and Siemens Medical Credit Corp.).


 


“Company Lender Loan” shall mean any loan
agreement between the Company or any Affiliates and a Company Lender.


 


“Company Taxes” shall have the meaning set
forth in Section 7.2(a).


 


“Confidential Information and Trade Secrets”
shall mean (a) the material terms of this Agreement or any other written
agreement between the Parties, and (b) any confidential or secret
information concerning (i) any trade secrets, new product developments,
special or unique processes or methods of the Company or any of its Affiliates
or of the Practice or any of its 


 


3

















 


Affiliates, as the case may be, (ii) any sales,
advertising or other concepts or plans of the Company or any of its Affiliates
or of the Practice or any of its Affiliates, as the case may be, (c) records
(other than patient medical records), patient lists, reports and other
documents pertaining to the Management Services, (d) the systems,
protocols, policies, procedures, manuals, reports, data bases, documents,
instruments and other materials used by the Company or any of its Affiliates or
by the Practice or any of its Affiliates, as the case may be, (e) all
other professional or business information developed by or on behalf of the
Company or any of its Affiliates or by the Practice or any of its Affiliates,
as the case may be, including items produced by the Physicians, and (f) all
financial statements and reports produced by the Company or any of its
Affiliates or by the Practice or any of its Affiliates in connection with this
Agreement.


 


“Damages” shall have the meaning set forth in
the Securities Purchase Agreement.


 


“Depository Bank” shall mean Wells Fargo Bank.


 


“EBITDA” shall mean Net Income before interest
expense, taxes, depreciation and amortization.


 


“Effective Date” shall have the meaning set
forth in the preamble.


 


“Event of Default” shall have the meaning set
forth in Section 5.2.


 


“FF&E” shall have the meaning set forth in Section 2.2(a).


 


“Financial Statements” shall have the meaning
set forth in Section 2.5.


 


“GAAP” shall mean U.S. generally accepted
accounting principles and practices set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such other entity as
may be approved by a majority of the accounting profession that are applicable
to the circumstances as of the date of determination.


 


“General Management Services Fee” shall have
the meaning set forth in Section 4.1(a)(ii).


 


“Government Receivables” shall mean all
accounts receivable generated from services rendered to beneficiaries under the
Medicare, Medicaid and other state and federal programs, which services are
reimbursable under any of such programs.


 


“Governmental Authority” shall mean any (a) federal,
state, city, local or municipal government (or any political subdivision of any
thereof), or (b) governmental or quasi-governmental authority exercising
any statutory, administrative, arbitral, judicial, legislative, police,
regulatory, or taxing authority or power.


 


“HIPAA” shall mean the Health Insurance
Portability and Accountability Act of 1996, as amended.


 


4

















 


“Indemnified Party” shall have the meaning set
forth in Section 8.5.


 


“Indemnifying Party” shall have the meaning set
forth in Section 8.5.


 


“JCAHO” shall mean the Joint Commission on the
Accreditation of Healthcare Organizations.


 


“Law” shall mean any statute, ordinance, code,
rule, regulation or court order enacted, adopted or promulgated by any
Governmental Authority.


 


“Lease” shall have the meaning set forth in Section 2.7.


 


“Lien” shall mean any security agreement,
financing statement (whether or not filed), mortgage, lien (statutory or
otherwise), charge, pledge, hypothecation, conditional sales agreement, adverse
claim, title retention agreement or other security interest, encumbrance, lien,
charge, restrictive agreement, mortgage, deed of trust, indenture, pledge,
option, limitation, exception to or other title defect in or on any interest or
title of any vendor, lessor, lender or other secured party to or of such Person
under any conditional sale, lease, consignment, or bailment given for security
purposes, trust receipt or other title retention agreement with respect to any
property or asset of such Person, whether direct, indirect, accrued or
contingent.


 


“Lockbox Account Agreement” shall have the
meaning set forth in Section 4.7.


 


“Loss” shall have the meaning set forth in Section 8.4(a).


 


“Management Services” shall have the meaning
set forth in Section 2.1.


 


“Material Adverse Effect” shall mean any event,
circumstance or condition that, individually or when aggregated with all other
similar events, circumstances or conditions could reasonably be expected to
have, or has had, a material adverse effect on (a) the business, property,
operations, condition (financial or otherwise), results of operations or
prospects of the Company or the Practice, as applicable; or (b) the
validity or enforceability of (i) this Agreement or (ii) the rights
and remedies of the parties hereunder. 
For purposes of this Agreement, a Material Adverse Effect shall not
include: (A) any change or effect that results from conditions, events or
circumstances generally affecting the industries in which the Company or the
Practice operates or the economy in general; (B) any action or change
specifically permitted or required by the provisions of this Agreement; or (C) the
transactions contemplated by this Agreement or the performance hereof.


 


“Medicaid” shall mean, collectively, the
healthcare assistance program established by Title XIX of the Social Security
Act and any statutes succeeding thereto, and all Laws pertaining to such
program including (a) all federal statutes (whether set forth in Title XIX
of the Social Security Act or elsewhere) affecting such program; (b) all
state statutes and plans for medical assistance enacted in connection with such
program and federal rules and regulations promulgated in connection with
such program; and (c) all applicable provisions of all rules, regulations,
manuals, orders and requirements of all Government Authorities promulgated in
connection with such program (whether or not having the force of Law), in each
case as the same may be amended, supplemented or otherwise modified from time
to time.


 


5














 


“Medical Advisory Board” shall mean the board
made up of physicians providing radiation oncology services at centers operated
by the Company or any of its Affiliates pursuant to the provisions of the
Medical Advisory Board Charter attached hereto as Exhibit A.  Each physician providing radiation oncology
services at one of the Cancer Centers on a full time basis shall be entitled to
be a voting member of the Medical Advisory Board at all times during the Term
of this Agreement.  All costs of the
Medical Advisory Board, including but not limited to all costs for Physicians
to travel to and attend meetings and otherwise participate in the Medical
Advisory Board, shall be Company Expenses.


 


“Medicare” shall mean, collectively, the health
insurance program for the aged and disabled established by Title XVIII of the
Social Security Act and any statutes succeeding thereto, and all Laws
pertaining to such program including (a) all federal statutes (whether set
forth in Title XVIII of the Social Security Act or elsewhere) affecting such
program; and (b) all applicable provisions of all rules, regulations,
manuals, orders and requirements of all Governmental Authorities promulgated in
connection with such program (whether or not having the force of Law), in each
case as the same may be amended, supplemented or otherwise modified from time
to time.


 


“Net Income” shall mean, for any period, an
amount equal to Practice Revenues  minus  Operational Expenses.


 


“New Physician” shall have the meaning set
forth in Section 3.7.


 


“Neuroscience” shall mean Neuroscience Gamma
Knife Center of Southern California, LLC.


 


“Operational Expenses” shall mean, for any
fiscal period, all of the following expenses and costs (other than the Company
Expenses and the Practice Expenses) incurred by the Company in connection with
the provision of Management Services to the Practice pursuant to this
Agreement, determined on an accrual basis of accounting in accordance with
GAAP:


 


(a)           salaries, benefits (including, without limitation, any deferred compensation)
and other costs (including, without limitation, costs pertaining to training
and education) relating to the employment or engagement by the Company of all
Personnel;


 


(b)          obligations of the Company under the leases or subleases for the Cancer
Centers (including, without limitation, the Leases);


 


(c)           medical and office supply expenses;


 


(d)          utility expenses and all other costs relating to the Cancer Centers,
including, without limitation, costs of repairs, maintenance, telephone,
janitorial services and refuse disposal;


 


(e)           the cost and expense of FF&E, Required Improvements and all costs
and expenses associated therewith; provided, however, to the extent that any
such 


 


6

















 


cost and expense is required
to capitalized under GAAP, such cost and expense shall be deemed a Company
Expense;


 


(f)             insurance premiums and deductibles for the insurance described in
Sections 8.1 and 8.2;


 


(g)          cost of all liability insurance, other than medical malpractice liability
insurance;


 


(h)          the Billing and Collection Fee;


 


(i)              depreciation expense with respect to any capital assets acquired by the
Company in connection with the operation of the Cancer Centers after the
Effective Date and in accordance with the Annual Budget, based upon the life of
the asset, all in accordance with GAAP; and


 


(j)              such other costs and expenses expressly set forth in the Annual Budget
as Operational Expenses.


 


“Patients” shall mean all individuals seeking
Radiation Oncology Services from the Practice or any Physician in the
Communities.


 


“Parties” shall mean the Company and the
Practice collectively.


 


“Party” shall mean any party to this Agreement.


 


“Payor Instruction Letter” shall have the
meaning set forth in Section 4.7.


 


“Permits” shall have the meaning set forth in Section 6.1(d)(ii).


 


“Person” shall mean any individual, entity or
group, including, without limitation, any corporation, limited liability
company, limited or general partnership, joint venture, association, joint
stock company, trust, unincorporated organization, or government or any agency
or political subdivision thereof.


 


“Personnel” shall have the meaning set forth in
Section 2.6(a).


 


“Physician” shall mean each individual who (a) is
duly licensed to practice medicine in the State of California and (b) provides
Radiation Oncology Services under the direction of the Practice.


 


“Practice” shall have the meaning set forth in
the preamble.


 


“Practice Area” shall mean that area within a
20 mile radius of each Cancer Center.


 


“Practice Expense” shall mean any cost
or expense of the Practice which is not an Operational Expense or a Company
Expense including, without limitation, the following:


 


7

















 


(a)           all salaries, benefits (including deferred compensation and health
insurance) and other costs relating to the employment or engagement of a
Physician (including physician independent contractors);


 


(b)          all federal, state or local income and employment taxes of the Practice
and the costs of preparing its federal, state or local income and employment
tax returns;


 


(c)           all costs of membership in professional associations and continuing
professional education expenses, including subscriptions, for the Physicians;


 


(d)          all liability judgments (including, without limitation, in connection
with a medical malpractice claim) assessed against the Practice (to the extent
not covered by insurance);


 


(e)           all personal expenses of Physicians, including travel and entertainment
expenses;


 


(f)             licensure fees and board certification fees;


 


(g)          all dues and fees for hospital and medical staff memberships of the
Physicians;


 


(h)          the cost and expense to retain qualified locum tenums to provide
comprehensive Radiation Oncology Services to all Patients seeking such
treatment at the Cancer Centers;


 


(i)              the Practice Review Expense, subject to the provisions of Section 4.5;
and


 


(j)              such other costs and expenses expressly set forth in the Annual Budget
as  Practice Expenses.


 


“Practice Indemnitees” shall have the meaning
set forth in Section 8.4(b).


 


“Practice Lockbox Account” shall have the
meaning set forth in Section 4.7.


 


“Practice Revenues” shall mean, for any fiscal
period, (a) all cash received (net of adjustments, refunds, recoupment
claims, repayments, fines, penalties, assessments, levies, disgorgements,
restitutions or other payments or allowances made to any federal, state or
local governmental  agency or other
payor, and contractual allowances) by or on behalf of the Practice or the
Professional Staff as a result of the provision of Radiation Oncology Services
and (b) all cash received (net of adjustments, refunds, recoupment claims,
repayments, fines, penalties, assessments, levies, disgorgements, restitutions
or other payments or allowances made to any federal, state or local
governmental  agency or other payor, and
contractual allowances) by the Practice or the Professional Staff in their
capacity as employees of the Practice and rendered incident to this Agreement, whether
received in an inpatient or outpatient setting and whether rendered to health
maintenance organizations, preferred provider organizations, Medicare, 


 


8

















 


Medicaid or Patients, including, but not limited to,
payments received under any capitation arrangement.


 


“Practice Review Expense” shall have the
meaning set forth in Section 4.5.


 


“Practice Taxes” shall have the meaning set
forth in Section 7.2(b).


 


“Professional Staff” shall mean the Physicians
together with the Clinical Employees.


 


“Radiation Oncology Services” shall mean all
radiation oncology services, of a routine and emergency nature, presently or
hereafter provided by the Practice or the Professional Staff and the
performance of all services ancillary thereto.


 


“Receivable” shall mean, as of any date of
determination thereof, with respect to the Practice, all accounts and any and
all rights to payment of money or other forms of consideration of any kind now
owned or hereafter acquired (whether classified under the Uniform Commercial Code
as accounts, chattel paper, general intangibles or otherwise) arising out of
the sale or lease of goods or the provision of Radiation Oncology Services
including, but not limited to, accounts receivable, proceeds of any letters of
credit naming the Practice or the Physicians as beneficiary, chattel paper,
insurance proceeds, contract rights, notes, drafts, instruments, documents,
acceptances and all other debts, obligations and liabilities in whatever form
from any other Person.


 


“Recoupment Claim” shall have the meaning set
forth in the Securities Purchase Agreement.


 


“Required Improvement” shall mean all
servicing, repair, cleaning and maintenance and repairs of the FF&E to
ensure it is in good condition and repair and adequate for the provision of Radiation
Oncology Services by the Practice; including, but not limited to, maintenance
of all radiation equipment by adequately trained and licensed professionals in
accordance, in all material respects, with all Laws pertaining to hazardous
materials.


 


“Retained Amount” shall have the meaning set
forth in Section 4.2.


 


“Secured Obligations” shall have the meaning
set forth in Section 4.6(a).


 


“Securities Purchase Agreement” shall mean that
certain Securities Purchase Agreement, dated as February     ,
2006, by and among the Company, Coastal Radiation Oncology Medical Group, Inc.,
and the Coastal Group Sellers.


 


“Seller” shall have the meaning set forth in
the Securities Purchase Agreement.


 


“Senior Debt Documents” shall mean that certain
Amended and Restated Credit Agreement dated of even date herewith (as the same
may be amended, supplemented or otherwise modified from time to time) by and
among OnCURE Medical Corp. (and each of its subsidiaries, including, without
limitation, the Company) and  Merrill
Lynch Capital; and that certain Credit Facility Agreement dated of even date
herewith (as the same may be amended, 


 


9

















 


supplemented or otherwise modified from time to time)
by and among OnCURE Medical Corp. (and each of its subsidiaries, including,
without limitation, the Company) and MCG Capital Corporation, as administrative
agent for the lenders named therein.


 


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


 


“Third-Party Payors” shall mean any governmental
entity, insurance company, health maintenance organization, preferred provider
organization employer or other Person or similar entity that is obligated to
make payments with respect to a Receivable.


 


“Uniform Commercial Code” shall mean the
Uniform Commercial Code as the same may be in effect from time to time in the
State of California; provided that if, by reason of applicable Law, the
validity or perfection of any security interest in any Collateral granted under
this Agreement is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than California, then as to the validity or perfection, as
the case may be, of such security interest, “Uniform Commercial Code” shall
mean the Uniform Commercial Code as in effect from time to time in such other
jurisdiction.


 


“USCC Indemnitees” shall have the meaning set
forth in the Securities Purchase Agreement.


 


SECTION 1.2                 Rules of Construction.  Unless the context otherwise requires:


 


(a)           “or” is not exclusive;


 


(b)           words in the singular include the
plural, and words in the plural include the singular;


 


(c)           the words “include” and “including”
shall be deemed to mean “include, without limitation,” and “including, without
limitation”;


 


(d)           “herein,” “hereof,” “hereto,” “hereunder”
and other words of similar import refer to this Agreement as a whole and not to
any particular article, section, paragraph or clause where such terms may
appear;


 


(e)           references to sections mean
references to such section in this Agreement, unless stated otherwise; and


 


(f)            the use of any gender shall be
applicable to all genders.


 


ARTICLE II

OBLIGATIONS OF THE COMPANY


 


SECTION 2.1                 Management Services.  The Company shall provide to the Practice the
management services, Personnel, office space, equipment and supplies as set out
in this Article II (referred to collectively as the “Management Services”).


 


10

















 


SECTION 2.2                 Furniture, Fixtures,
Equipment and Supplies.


 


(a)           The Company agrees to provide to the
Practice those supplies and items of furniture, fixtures and equipment as are
sufficient in nature, quality and quantity for the proper delivery of Radiation
Oncology Services to Patients at the Cancer Centers and which are necessary
and/or appropriate for the Practice’s operations at the Cancer Centers during
the Term, or as are reasonably requested by the Practice, and in each case as
are contemplated by the Annual Budget (all such items of furniture, fixtures,
equipment and supplies are collectively referred to hereinafter as the “FF&E”).  Title to the existing, additional and
replacement FF&E shall be in the name of the Company, any Affiliate of the
Company, or any of their respective nominees or a leasing company.  The Company shall be responsible for ensuring
that all (x) Required Improvements and (y) capital improvements to
the FF&E that are contemplated by the Annual Budget, are promptly made as
may be necessary to maintain the FF&E in good working condition and
repair.  The cost and expense of such
Required Improvements shall be deemed an Operational Expense.


 


(b)           The Practice shall not, and shall
cause each Physician not to, make any changes, alterations or additions to the
FF&E without the prior written consent of the Company, which consent shall
not be unreasonably withheld, conditioned or delayed.


 


SECTION 2.3                 Financial Planning and Goals.  At least thirty (30) days before the
beginning of each calendar year during the Term, the Company will prepare, in
consultation with the Practice, an annual budget (the “Annual Budget”)
for the Cancer Centers, reflecting in reasonable detail anticipated revenues
and expenses, sources and uses of capital for the Cancer Centers, anticipated
Personnel staffing and support services arrangements and anticipated ancillary
services for the upcoming calendar year, which budget shall also include an
appropriate adjustment for a short calendar year if the Parties anticipate the
Term will expire during the calendar year. 
The parties acknowledge and agree that the initial Annual Budget for the
period commencing on the Effective Date and ending on December 31, 2006 is
attached hereto as Exhibit B. 
Each Annual Budget thereafter shall be subject to review and approval of
the Practice.  In the event that the
Company and the Practice are unable to approve any Annual Budget within 15 days
before the beginning of the calendar year to which such Annual Budget relates,
such dispute shall be settled by the Medical Advisory Board and the Annual
Budget in respect of the preceding calendar year shall be annualized, if
necessary, and deemed the Annual Budget for such new calendar year pending the
determination of the Medical Advisory Board. 
Neither Party shall be permitted to make any expenditure that is: (a) not
included in the Annual Budget if such expenditure is greater than $50,000
individually or in the aggregate with all other expenditures that were not
included in the Annual Budget and all other expenditures that exceed their
identified amount in the Annual Budget (but only to the extent of such excess);
or (b) set forth in the Annual Budget if such expenditure is greater than
$50,000 of the amount approved for such expenditure in the Annual Budget
individually or in the aggregate with all other expenditures that exceed their
identified amount in the Annual Budget (but only to the extent of such excess)
and all other expenditures that where not included in the Annual Budget.  The Annual Budget for any fiscal year may be
amended or modified only by a written agreement executed by each of the
Parties.


 


SECTION 2.4                 Business Office Services.  Provided that the Practice will at all times
be responsible for the medical care of Patients, the Practice appoints the
Company as its sole and exclusive manager and administrator of all business
functions and services related to the 


 


11

















 


operation
of, and the Radiation Oncology Services provided at, the Cancer Centers during
the Term, including, but not limited to, all computer, bookkeeping, billing and
collection services, accounts receivable and accounts payable management
services, janitorial and cleaning services and management services
(collectively, the “Business Office Services”). 
The Company hereby is expressly authorized to perform the Business
Office Services on behalf of the Practice and shall perform such Business
Office Services in a reasonably competent, professional and ethical manner, as
necessary, to meet the day-to-day requirements of the non-medical business and
non-medical Radiation Oncology Services functions of the Cancer Centers;
provided, that the costs associated with providing such services are consistent
with the Annual Budget.  Without limiting
the generality of the foregoing, the Company shall perform the following
functions:


 


(a)           Accounting, bookkeeping and accounts
payable processing.


 


(b)           Materials management, including
purchase and stocking of office and medical supplies at levels reasonably
necessary for the provision of Radiation Oncology Services.


 


(c)           Human resources management, including
recruitment of any necessary additional Clinical Employees and Administrative
Employees that are contemplated by the Annual Budget or as mutually agreed by
the Parties.


 


(d)           Provide qualified support sufficient
to assure the proper and efficient functioning of all hardware and software
components of the information systems, and medical equipment utilized in
connection with the Cancer Centers.


 


(e)           Provide financial auditing services
reasonably necessary for billing purposes and for compliance with Medicare and
Medicaid, managed care contracts, and other federal, state, or private payor
reimbursement programs or plans.


 


(f)            Evaluate, negotiate and administer
all managed care contracts and other third-party payor contracts on behalf of
the Practice, all such contracts being subject to approval by the Practice.


 


(g)           Provide ongoing assessment of
business activity including outcomes monitoring and patient satisfaction.


 


(h)           Order and purchase all medical and
office supplies required in the day-to-day operation of the Practice at the
Cancer Centers and contemplated by the Annual Budget or as mutually agreed by
the Parties.


 


(i)            Provide a computer management
information system, including on-site and off-site computer hardware and
software license and support costs, for the provision of Billing and Collection
Services.


 


(j)            Provide such other services as are
reasonably necessary for the Practice to assure the efficient delivery of
Radiation Oncology Services.


 


12

















 


(k)           Recognizing the Practice will be
responsible for the ultimate decisions regarding coding and billing procedures,
bill and collect all professional fees for services furnished to Patients.  The Practice hereby irrevocably appoints the
Company its lawful attorney-in-fact, with full authority in the place and stead
of the Practice and in the name of the Practice, the Company or otherwise, and
with full power of substitution in the premises (which power of attorney, being
coupled with an interest, is irrevocable for so long as this Agreement shall be
in effect), for the following purposes:


 


(i)                                     to bill patients on behalf of the Practice in the name of any Cancer
Center and/or the Practice, and in the name of and on behalf of any Physician;


 


(ii)                                  to bill on behalf of the Practice in the name of any Cancer Center
and/or the Practice, and in the name of and behalf of any Physician, all claims
for reimbursement or indemnification from insurance companies, Medicare and
Medicaid, and all other Third-Party Payors or fiscal intermediaries for all
goods and services provided by the Practice or the Professional Staff;


 


(iii)                               to collect Receivables on behalf of the Practice in the name of any
Cancer Center and/or the Practice, and in the name of and on behalf of any
Physician, (provided that collecting such Receivables is not prohibited by
Law);


 


(iv)                              to settle, compromise or release in whole or in part any amounts owing
on the Receivables;


 


(v)                                 to receive, on behalf of any Cancer Center, the Practice and any
Physician, payments from patients, insurance companies and all other payors
with respect to services rendered by the Practice and Professional Staff, and
the Practice shall forward any such payments received by it or any Physician to
the Company for deposit;


 


(vi)                              other than with respect to Government Receivables where applicable, to
take possession of and endorse, in the name of any Cancer Center, the Practice
or any Physician, any notes, checks, money orders, insurance payments and any
other instruments received as payment of such Receivable;


 


(vii)                           to direct all Third-Party Payors, other than Medicare or Medicaid, to
deposit all payments with respect to 


 


13

















 


Receivables
in the Company Account by wire transfer; and


 


(viii)                        to initiate (subject to the approval of the Practice) and pursue legal
proceedings in the name of the Cancer Centers and Practice, to collect any
accounts and moneys owed to the Cancer Centers and Practice or any Physician,
to enforce the rights of the Cancer Centers and Practice as creditor under any
contract or in connection with the rendering of any service, and to contest
adjustments and denials by Governmental Agencies (or their fiscal
intermediaries) as third-party payors.


 


The Practice, and only the Practice, will perform all
of the medical functions associated with the provision of the Radiation
Oncology Services at the Cancer Centers. The Company will have no authority,
directly or indirectly, to perform, and will not perform, any medical function.  The Company may, however, advise the Practice
as to the relationship (if any) between its performance of medical functions
and the overall administrative and business functioning of its practice.  To the extent that any Clinical Employees
assist the Practice in performing medical functions, such Clinical Employees
shall be subject to the professional direction and supervision of the Practice
and, in the performance of such medical functions, shall not be subject to any
direction or control by the Company, except as may be specifically authorized
in writing by the Practice.


 


SECTION 2.5                 Financial Statements.  The Company shall promptly prepare in
accordance with GAAP, and deliver to the Practice monthly financial statements,
within 45 days after the end of each month and year-end financial statements
within 90 days after the end of each fiscal year, which fully and accurately
reflect, in all material respects, the business operations of each of the
Cancer Centers, including but not limited to Net Income, Practice Revenues,
Operational Expenses and EBITDA for such period.  Such year-end financial statements shall be
the audited consolidated financial statements of OnCURE Medical Corp. and its
subsidiaries (the “Financial Statements”). 
The Financial Statements shall include information prepared in
accordance with GAAP that will allow the Practice in a reasonable manner to
determine the ongoing financial viability of USCC and that both USCC and OnCURE
remain solvent, going concerns.  The
Practice shall be entitled to audit such financial reports and any and all
supporting documentation at any time, at its own cost; provided, however, in
the event that the audit reveals a discrepancy of five percent (5%) or more in
any amounts payable under this Agreement, the Company shall pay the Practice’s
expenses in connection with such audit. 
The Company shall also prepare and deliver with such financial
statements, a report setting forth: (i) billing and collections by
patient, (ii) Receivables, aging reports broken down by payor and patient,
(iii) billings and census reports broken down by referring physician,
treating physician and provider codes, and (v) such other financial
information as shall be mutually agreed to by the Practice and the Company.


 


14

















 


SECTION 2.6                 Personnel.


 


(a)           Subject to the provisions of Section 2.6(d) below,
the Company shall employ and provide to the Cancer Centers and Practice
all  personnel (other than the
Physicians) (i) as are sufficient in number and ability for the proper
operation of the Cancer Centers and (ii) whose salaries, benefits
(including deferred compensation) and other costs of employment are
contemplated by the Annual Budget, including, without limitation: (1) all
nurses, therapists, physicists, medical records personnel and other medical
support personnel  (referred to
collectively as the “Clinical Employees”); (2) all business office
personnel (i.e., clerical, secretarial, bookkeeping
and revenue collection personnel) as are necessary for the maintenance of
patient records, scheduling of Radiation Oncology Services, collection of
Receivables and maintenance of the financial records of the Cancer Centers to
the extent directly related to the provision of Radiation Oncology Services at
the Cancer Centers (referred to collectively as the “Administrative
Employees”); and (3) an office administrator to manage and administer,
subject to the terms and conditions hereof, all of the day-to-day routine
business functions and services of the Cancer Centers (collectively, the “Personnel”).  The Company shall not unreasonably withhold,
condition or delay its consent to requests by the Practice for additional
Personnel.  The Company shall determine
the salaries and fringe benefits of all such Personnel provided under this Section consistent
with the Annual Budget. Schedule 2.6(a) sets forth as of the
Effective Date a complete and correct list of each of the initial
Personnel.  The Parties agree that the
Personnel shall consist of no less than the staff positions described in
Schedule 2.6(a) at all times during the Term, absent the closing of one or
more Cancer Centers.


 


(i)                                     The Clinical Employees shall constitute and be treated as leased
employees of the Practice under Chapter 15, Section 60.1(B) of the Medicare
Benefits Policy Manual (CMS Pub. 100-2), as amended from time to time, and the
Practice shall have, and agrees to exercise, such supervision and control over
the Clinical Employees as may be required by CMS (including without limitation
by the provisions of Section 2050.1C of the Medicare Carriers Manual, as
amended from time to time) so that the Practice may bill Medicare for the
services of the Clinical Employees under the Physicians’ or the Practice’s, as
the case may be, Medicare provider number(s).


 


(ii)                                  The Company shall use all commercially reasonable efforts to ensure
that, at all times during the Term, each Clinical Employee shall be (1) appropriately
licensed, certified or registered, as the case may be, by the State of
California or , as appropriate, to assist the Physicians in the provision of
Radiation Oncology Services; (2) qualified by virtue of their training
and/or experience to assist the Physicians in the provision of Radiation
Oncology Services; and (3) if the Practice reasonably determines,
individually credentialed by one or more hospitals in the Community.


 


15






 


 










 


(b)                                 The Company shall be responsible for the assignment of all such
Personnel to perform services at the Cancer Centers; provided, however, that
the Company shall, at the Practice’s reasonable request, reassign or replace
any Personnel who are not, in the Practice’s judgment, adequately performing
the required services or in the event the Practice determines, reasonably and
in good faith, that such individual should no longer work on behalf of the
Practice.  Neither the Practice nor the
Company shall discriminate against such Personnel on the basis of race,
religion, age, sex, disability or national origin in violation of any
applicable Law.


 


(c)                                  Notwithstanding anything to the contrary contained herein, at all times
during the Term, the Personnel shall be deemed employees or independent
contractors of the Company and not the Practice.


 


(d)                                 The Practice and the Company shall mutually agree upon the hiring and
termination of the Personnel.  The
Company shall seek the advice and input of the Practice on an ongoing basis (in
no event less than annually) concerning the disciplining and performance of,
and the determination of salary increases and/or bonuses for, the Personnel,
and the Company shall respect the opinion of the Practice as to all such
matters whenever possible, recognizing that the efficient operation of the
Practice depends in large part upon the close relationship of the Physicians
and the Personnel.


 


(e)                                  The Company shall be responsible for the provision of all record
keeping, payroll accounting, payroll taxes, workers compensation insurance,
unemployment insurance, retirement plans, group insurance benefits, and any
other payroll or benefit program provided to the Personnel.  Notwithstanding anything to the contrary set
forth herein, absent the prior written approval of the Practice, the employee
benefits provided by the Company to the Personnel shall, throughout the Term of
this Agreement, be equal to or greater than those employee benefits set forth
in Schedule 2.6(c), which employee benefits shall be available to the
Personnel as of the Effective Date.  It
is hereby acknowledged that the employee benefits to be provided by the Company
to the Personnel employed on the Effective Date will be different than the
employee benefits that had been provided to such Personnel immediately prior to
the Effective Date; provided, however, that for the one year period following
the Effective Date, the amount of the contributions required to be made by any
of the Personnel for their employee benefits shall not exceed the amount of the
contributions that a similarly situated employee of Coastal Oncology, Inc., a
California corporation (formerly operated as Coastal Radiation Oncology Medical
Group, Inc., a California professional corporation) was required to make for
the same or similar employee benefits immediately prior to the Effective Date.


 


SECTION
2.7                                        Cancer Centers.  The Company hereby grants the Practice an
exclusive license, in conjunction with the Company, during the Term, to use the
Cancer Centers, subject to the terms and conditions of the Cancer Center leases
(each individually, a “Lease”, and collectively, the “Leases”),
for the provision of Radiation Oncology Services.  The Company covenants that it will use all
commercially reasonable efforts not to default in any material respect under
any Lease.  The Practice shall not, and
shall cause each of the Physicians not to, make any changes, alterations or
additions to the Cancer Centers without the prior written consent of the
Company, which shall not be unreasonably withheld, conditioned or delayed.  The Practice shall use and occupy the Cancer
Centers (a) subject to the terms and conditions of the 


 


16

















 


Leases,
(b) exclusively for the provision of Radiation Oncology Services and ancillary
services, such as imaging, laboratory, cyclotron, and support services, and (c)
in compliance, in all material respects with all applicable Laws.  It is expressly acknowledged by the Parties
that the medical practice or practices conducted at the Cancer Centers shall be
conducted solely by Physicians associated with the Practice, and no other
physician or medical practitioner shall be permitted to use or occupy the
Cancer Centers without the prior written consent of the Company, which consent
shall not be unreasonably withheld, conditioned or delayed.  The license granted under this Section 2.7
shall terminate with respect to any Cancer Center on the date that the Lease
pertaining to such Cancer Center has expired or been terminated, or this
Agreement has expired or been terminated.


 


SECTION
2.8                                        Files and Records.


 


(a)                                  Subject to the succeeding paragraph, the Company shall maintain all
files and records relating to the operation of the Cancer Centers and Practice,
including, but not limited to, customary financial records and Patient
files.  The Company shall use its best
efforts to manage all files and records in material compliance with all
applicable Laws (including state and federal laws concerning confidentiality of
such records), which files and records shall be located so that they are
readily accessible for Patient care, consistent with ordinary records
management practices.  The Practice shall
have full access to such records during the Term.  Upon termination or expiration of this
Agreement, if the Practice or a Physician shall request copies of medical files
and records relating to Patients, the Company shall promptly furnish a copy of
such files and records.


 


(b)                                 The Practice shall supervise the preparation of, and direct the contents
of, patient medical records, all of which shall be and remain confidential and
the property of the Practice. The Practice shall establish and enforce
reasonable procedures to ensure that the Professional Staff properly prepare
and complete medical records for all Patients in material compliance with all
applicable Laws, the medical staff bylaws, rules and regulations of the
Company, and the rules and regulations of any Third-Party Payors with which the
Company may contract or affiliate from time to time.  All such patient records shall be maintained
for the periods required by, and in material compliance with, applicable
Laws.  The Company shall have reasonable
access to such records and, subject to applicable Laws and accreditation policies,
the Company shall be permitted to retain true and complete copies of such
records.


 


SECTION
2.9                                        Recruitment of New Physicians.  At the request of the Practice, the Company
shall perform administrative services relating to the recruitment of physicians
for the Practice.  The Company’s role in
recruitment is not to be construed as direct employment by the Company, but an
acknowledgement that any financial commitment made to a Physician during
recruitment will affect the performance of both the Company and the Practice
under this Agreement.


 


SECTION
2.10                                  Expansion of the Practice.  The Company shall assist the Practice in
evaluating and adding additional office space, new Cancer Centers, new
office-based procedures and services, and new or additional ancillary or other
professional services, as provided for in the Annual Budget or otherwise
approved by the Company and the Practice. 
The Company and the 


 


17

















 


Practice
hereby pledge their mutual intention and support for such reasonable expansion
of the Practice.


 


SECTION
2.11                                  Practice Assessment and Consulting Services.  The Company shall assess the
Practice’s performance including outcomes monitoring and patient
satisfaction.  The Company shall develop
systems to track revenues, expenses, utilization, quality improvement, Practice
and Physician productivity and patient satisfaction.  The Company shall arrange for or provide
business and financial management consultation and advice reasonably requested
by the Practice and directly related to the operations of the Practice pursuant
to this Agreement.


 


SECTION
2.12                                  Managed Care Contracting.


 


(a)                                  The Company shall review all proposed managed care contracts and provide
recommendations to the Practice regarding whether the participation in such
managed care contracts is consistent with the Annual Budget.  The Practice shall execute only such managed
care contracts as may be consistent with the Annual Budget (unless otherwise
approved by the Company) and shall (and shall cause the Professional Staff to)
abide by the terms of any such contract. 
Notwithstanding the foregoing, no Party shall execute a managed care
contract pertaining to Radiation Oncology Services to be provided at the Cancer
Centers without the other Party’s prior written consent (which consent shall
not be unreasonably withheld, conditioned or delayed).  The Company agrees to provide all ancillary
and supportive services, equipment, and personnel which may be required of the
Practice and the Cancer Centers from time to time by any of the Practice’s
managed care contracts, payors, and accreditation bodies; provided, however,
that the cost of  the foregoing shall be
deemed an Operational Expense.


 


SECTION
2.13                                  Restrictive Covenants of the Company.


 


(a)                                  Neither the Company nor any of its Affiliates shall provide space,
furnishings, facilities, equipment, supplies, services or personnel similar to
those provided to the Practice under this Agreement, directly or indirectly, to
any Person or entity (other than the Practice) in connection with the provision
of Radiation Oncology Services to patients in the Practice Area or the
Communities, without providing the Practice with appropriate prior written
notice and the opportunity to provide such Radiation Oncology Services on terms
no less favorable than those proposed to be offered to such Person.  In the event the Practice elects to provide
Radiation Oncology Services at any such new medical facility, then such
facility shall be deemed a Cancer Center hereunder.


 


(b)                                 The Company shall not take any action to disparage or criticize the
Physicians, the Practice or any of its employees, officers, directors, owners
or customers.


 


(c)                                  Each Party hereby agrees that the provisions of this Section 2.13 are
independent of all other covenants or agreements between the Parties and shall
remain enforceable regardless of any claim or determination with respect to, or
breach of, any other agreement between the Parties.


 


(d)                                 Each Party hereby acknowledges that in the event of any breach or
threatened breach by the Company of any of the provisions of this Section 2.13,
the Practice would not have an adequate remedy at Law and could suffer
substantial and irreparable damage.  


 


18

















 


Accordingly, the Company
hereby agrees that, in such event, the Practice shall be entitled, and
notwithstanding any election by the Practice to claim damages, to obtain a
temporary and/or permanent injunction (without proving a breach therefor) to
restrain any such breach or threatened breach or to obtain specific performance
of any such provisions, all without prejudice to any and all other remedies
that the Practice may have at Law or in equity. The Company hereby waives any
requirement that the Practice post a bond in connection with any claim for
relief under this Section 2.13.


 


(e)                                  Any term or provision of this Section 2.13 that is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Section 2.13 or affecting the validity or enforceability of any of the terms
and provisions of this Section 2.13 in any other jurisdiction.  Each of the Parties hereby agrees that the
provisions set forth in this Section 2.13 are reasonable under the
circumstances, and further agrees that, if in the opinion of any court of
competent jurisdiction any provision herein is determined to be excessively
broad as to duration, activity, subject or otherwise incompatible with
applicable Law, said court is authorized and requested to modify such provision
so as to cause it to be not excessively broad or incompatible with applicable
Law, and to enforce such provision as modified.


 


(f)                                    For purposes of this Section 2.13, the term “Practice” shall mean,
collectively, the Practice and its Affiliates.


 


SECTION
2.14                                  Payment of Operational Expenses.  As more fully set forth in Article IV, each
Operational Expense shall be paid out of Practice Revenues and the Company
shall have the authority to pay each such Operational Expense from the Company
Account.


 


SECTION
2.15                                  Company Expenses.  The Company shall be solely responsible for
the payment of all Company Expenses.


 


ARTICLE
III

OBLIGATIONS OF THE PRACTICE


 


SECTION
3.1                                        Required Services and Service Hours.  Unless otherwise agreed to by each of the
Parties, at all times during the Term, the Practice shall ensure that: (a) a
Physician is readily available to provide comprehensive Radiation Oncology
Services at the Cancer Centers during normal business hours, as reasonably
established by the Practice (the Practice may retain, at its sole cost and
expense, qualified locum tenens to provide such services); (b) each Patient
seeking Radiation Oncology Services at the Cancer Centers is treated in a
timely manner; and (c) a Physician shall be readily available at the Cancer
Centers, at all times, when a Patient is being treated.


 


SECTION
3.2                                        Professional Standards.


 


(a)                                  The professional services provided by the Practice and the Professional
Staff shall be performed solely by or under the supervision of a Physician
licensed to practice medicine in the State of California or, as appropriate,
and shall at all times be provided in a professional and ethical manner, in
accordance with prevailing standards of medical practice, and 


 


19

















 


in compliance with all Laws
governing the practice of medicine or the provision of Radiation Oncology
Services at the Cancer Centers.  The
Practice shall, with the assistance of the Company if so requested, resolve in
a reasonable manner any utilization management or quality improvement issues
(as described more fully in Section 3.11) which may arise in connection with
the Practice.


 


(b)                                 If any disciplinary actions or professional liability actions are
initiated against the Practice or any Professional Staff, the Practice shall
promptly inform the Company of such action and the underlying facts and
circumstances and provide the Company with copies of all documents received by
the Practice or any Professional Staff with respect to any such action, within
five Business Days of receipt thereof. 
The Company shall similarly inform the Practice of any such disciplinary
actions or professional liability actions initiated against the Practice or any
Professional Staff, of which it first becomes aware and provide the Practice,
promptly upon receipt thereof but in any event within five Business Days, with
copies of all documents received by the Company with respect to any such
action.


 


(c)                                  The Practice shall establish and maintain procedures to assure the
consistency and quality of all professional medical services provided by the
Practice, and the Company shall render administrative assistance to the
Practice as requested in furtherance thereof. 
The Practice and the Company shall in good faith cooperate with
inspections and on-site surveys of the Practice or the Cancer Centers as may be
conducted by any Governmental Authority, accrediting organization or other
Third-Party Payor.


 


SECTION
3.3                                        Physician Powers of Attorney.  The Practice shall require all Physicians to
execute and deliver to the Practice powers of attorney, reasonably satisfactory
in form and substance to the Company, appointing the Practice as
attorney-in-fact for each such Physician for the purposes set forth in Section
2.4(k).


 


SECTION
3.4                                        Restrictive Covenants of the Practice.


 


(a)                                  The Practice acknowledges and agrees that the services to be provided by
the Company hereunder are feasible only if the Practice operates a viable
medical practice to which the Physicians devote their full time, attention and
reasonable best efforts.  Accordingly,
the Practice agrees that it shall not, without the prior written consent of the
Company, during the Term and for a period of one year following the termination
of this Agreement (except as a result of a termination by the Practice pursuant
to Section 5.3(a) through (g)), other than pursuant to this Agreement, on its
behalf or on behalf of any other Person, directly or indirectly,


 


(i)                                     solicit, recruit or employ any Person who has been employed or otherwise
retained by the Company at any time during the 12 months immediately preceding
such solicitation or recruitment or cause or seek to cause such Person to leave
the employ of the Company, or


 


(ii)                                  solicit any supplier, lender, lessor or any other Person which has a
business relationship with the Company 


 


20

















 


with
a view to cause, or seek to cause, such Person to take action which is intended
to or could reasonably likely adversely affect the Company’s relationship with
such Person.


 


(b)                                 The Practice shall not take any action to disparage or criticize the
Company or, as applicable, any of its employees, officers, directors, owners or
customers.


 


(c)                                  The Practice shall cause each Seller and shall use its reasonable best
efforts to cause each Physician that is not a Seller (other than any locum
tenens engaged by the Practice) to enter into an agreement concerning the
restrictions set forth in this Section 3.4; provided, however,
that notwithstanding the foregoing, no Physician shall be prohibited from
employing any Person who has been employed or otherwise retained by the Company
to physically work in an area outside of the Practice Area or the Communities
if such Person requested to be employed by such Physician and was not solicited
or recruited by such Physician.


 


(d)                                 Each Party hereby agrees that the provisions of this Section 3.4 are
independent of any and all other covenants or agreements by and among such
Parties and shall remain enforceable regardless of any claim or determination
with respect to, or breach of, any other agreement between such Parties.


 


(e)                                  Each Party hereby acknowledges that in the event of any breach or
threatened breach by the Practice of any of the provisions of this Section 3.4,
the Company would not have an adequate remedy at Law and could suffer
substantial and irreparable damage. 
Accordingly, the Practice hereby agrees that, in such event, the Company
shall be entitled, and notwithstanding any election by the Company to claim
damages, to obtain a temporary and/or permanent injunction (without proving a
breach therefor) to restrain any such breach or threatened breach or to obtain
specific performance of any such provisions, all without prejudice to any and
all other remedies which the Company may have at Law or in equity.  The Practice hereby waives any requirement
that the Company post a bond in connection with any claim for relief under this
Section 3.4


 


(f)                                    Any term or provision of this Section 3.4 which is invalid or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without rendering
invalid or unenforceable the remaining terms and provisions of this Section 3.4
or affecting the validity or enforceability of any of the terms and provisions
of this Section 3.4 in any other jurisdiction. 
Each of the Parties hereby agrees that the provisions set forth in this
Section 3.4 are reasonable under the circumstances, and further agrees that if
in the opinion of any court of competent jurisdiction any provision herein is
determined to be excessively broad as to duration, activity, subject or otherwise
incompatible with applicable Law, said court is authorized and requested to
modify such provision so as to cause it to be not excessively broad or
incompatible with applicable Law, and to enforce such provision as modified.


 


(g)                                 For purposes of this Section 3.4, the term “Company” shall mean,
collectively, the Company and its Affiliates.


 


21

















 


(h)                                 Notwithstanding the generality of the foregoing, the Practice shall
cause each Seller and each full-time Physician (other than locum tenens engaged
by the Practice) to agree (i) to provide Radiation Oncology Services
exclusively for the Company at the Cancer Centers, (ii) not to provide any
Radiation Oncology Services at any outpatient treatment facility that is not
owned or operated by the Company, and (c) not to compete with any of the Cancer
Centers, within the Practice Area, unless with the prior written consent of the
Company.  Notwithstanding the foregoing,
but subject to Section 10.05  of
the Securities Purchase Agreement, nothing in this Agreement shall prohibit or
restrict the Practice or the Physicians from providing medical services,
including but not limited to Radiation Oncology Services, (1) outside the
Practice Area, or (2) through Neuroscience, provided that Neuroscience does not
provide any radiation oncology services other than gamma knife surgery.  All such services shall not be governed by
this Agreement, and any revenue arising from such services shall not be
included in the calculation of Practice Revenues.


 


SECTION
3.5                                        Continuing Professional Education.  The Practice shall ensure that each Physician
maintains competence in, and remains currently well-informed as to recent
developments about, radiation oncology clinical protocols.   Accordingly, subject to the Practice at all
times providing sufficient Physicians to care for the needs of Patients, the
Physicians shall undertake all reasonable activities, including attending
seminars, keeping current with journals and other reasonable measures, to
remain proficient in the practice of radiation oncology.  All seminars necessary to maintain licensure
or competence shall be the responsibility of the Practice and the individual
Physicians. At a minimum, the Practice shall ensure that each Physician
participates in such continuing medical education as is necessary for the
Physician to remain licensed.


 


SECTION
3.6                                        Initial Physicians.  The initial Physicians of the Practice shall
be Drs. Chan, Fishburn, Fogel, Hesselgesser, Longo, Miller, Rodnick, Stella,
Schweitzer, Scharlach, and 3 associate doctors who shall provide Radiation
Oncology Services at the Cancer Centers, for a period of at least 24 months
from the Effective Date, subject in each case to the earlier death or
disability of the applicable initial Physician. 
Notwithstanding the foregoing, it is acknowledged and agreed that Drs.
Fishburn and Chan are expected to retire within 2 years and are practicing
pursuant to reduced schedules as of the Effective Date.


 


SECTION
3.7                                        Additional Physicians.  The decision to employ or engage an
additional Physician (“New Physician”) shall be made by the Practice
(after consultation with the Company) and the terms of any employment contract
or similar agreement between the Practice and such New Physician shall be
determined by the Practice.  The Practice
has the authority and responsibility to hire New Physicians for any of the
Cancer Centers, as the Practice sees fit, in its sole discretion, provided that
the cost to employ or engage any such New Physician shall be a Practice
Expense.  Each New Physician shall be an
employee or independent contractor of the Practice.


 


SECTION
3.8                                        Termination of Physicians.  The Practice shall consult with the Medical
Advisory Board prior to terminating the employment or engagement of any
Physician; provided, however, that all decisions with respect to removing
Physicians shall be made by the Practice, in its sole and absolute
discretion.  Each Physician’s right to
treat Patients or otherwise 


 


22

















 


provide
services at the Cancer Centers shall automatically terminate upon the
termination of such Physician’s employment or engagement with the Practice.


 


SECTION
3.9                                        Cooperation.  The Practice shall, and shall request the
Physicians to, cooperate with and assist the Company to control all costs and
expenses relating to the operation of the Cancer Centers without sacrificing
professional standards or patient care. 
The Practice shall, and shall require Physicians to, exercise due care
to ensure that, when being used by the Physicians, medical equipment utilized
by the Practice is being used in a safe and efficient manner, and shall timely
report any unsafe or unsatisfactory equipment of which the Practice, or any of
the Physicians, is aware. The Parties acknowledge that the Practice retains
full authority and responsibility for patient care and that the Company’s
policies and procedures referenced herein are not to interfere with the
Practice’s authority with respect to patient care issues.  The Practice also agrees to cooperate with,
and participate in, any patient satisfaction surveys and/or outcomes management
surveys or programs instituted or implemented by the Company as reasonable in
the medical industry, subject to prior approval by the Practice (such approval
not to be unreasonably withheld or delayed). 
In the event that the Practice reasonably objects to any policy or
procedure implemented by the Company, such objection shall be referred to the Medical
Advisory Board, the decision of which shall be advisory only and not binding on
any Party.  In the event that the Medical
Advisory Board shall be unable to resolve any such dispute, such dispute shall
be submitted to arbitration in accordance with Article X.


 


SECTION
3.10                                  Billing Information and Collection Policy.


 


(a)                                  The Practice shall promptly provide the Company with all billing
information requested by the Company (including, but not limited to,
appropriate provider numbers, the name of the Patient, the date of service, and
the nature and extent of services provided) and any supporting medical
information necessary to enable the Company to bill and collect the Cancer
Centers and Practice’s charges pursuant hereto. The Practice shall cause each
Physician to provide the Company with billing codes and complete descriptions
supporting all procedures performed by such Physician, and shall comply with
all reasonable requests by the Company to supplement such coding or
descriptions for billing purposes.


 


(b)                                 All professional fee schedules for services shall be mutually agreed to
by the Practice and the Company.  No
discount, fee reduction, writeoff, delivery of a patient bill to outside
collection services, or other waiver of the agreed fees shall be made by the
Company without the prior written authorization of the Practice on a per-case
basis, which authorization shall not be unreasonably withheld. The Company
shall be liable to reimburse the Practice in full for any writeoff or fee
reduction not expressly authorized in advance by the Practice.


 


SECTION
3.11                                  Quality and Utilization Management.  The Practice acknowledges and agrees that a
quality and utilization management program for determining the medical
necessity and appropriateness of care rendered by the Practice provides
controls and protections that help prevent potential overutilization with any
fee-for-service arrangement including, but not limited to, those reimbursable
under federal health insurance programs and also provides essential data to the
Practice and the Company for the purposes of managing the Cancer Centers and
negotiating, administering and maintaining Third-Party Payor contracts.  The Practice and the Company agree to develop
and implement a quality and utilization management program in 


 


23

















 


accordance
with recommendations made by the Company, the Practice, or the Medical Advisory
Board or as required under Third-Party Payor contracts.  The Company is authorized by the Practice to
prepare and distribute, after review and approval by Practice (which approval
shall not be unreasonably withheld, conditioned, or delayed), reports of such
program activities to employees of, and consultants to the Practice and the
Company, to Third-Party Payors, and to such other Persons as are appropriate
for the Company to carry out its obligations hereunder.


 


SECTION
3.12                                  Peer Review.  The Practice and the Company shall cooperate
to develop, from time-to-time, peer review procedures for the Professional
Staff providing services to the Patients. 
The Practice shall provide the Company with prompt notice of any
material quality of care concerns relating to the Physicians providing services
on behalf of the Practice.  The Practice
shall implement such corrective actions that the Practice, after consultation
with the Medical Advisory Board, determines are necessary or appropriate to
comply with the then current peer review procedures, community standards, and
Laws.  The Practice and the Physicians
will also comply with, and participate in, peer review programs reasonably
required by the Company, and any entity with whom the Company and the Practice
contracts with respect to the provision of Radiation Oncology Services at the
Cancer Centers, including, but not limited to, Third-Party Payors.


 


SECTION
3.13                                  Practice Operational Authority.  The Practice shall have exclusive authority
and control over day-to-day operations and Cancer Center staff decisions
subject to the requirement that the Practice shall, at all times use its best
efforts to comply with and follow: (a) the human resources policies of the
Company and its Affiliates, (b) all employment Laws, (c) the Annual Budget, (d)
all reimbursement rules of Medicare and all other Third-Party Payors and (e)
all Laws as to which non-compliance would be materially detrimental to the
Company, its Affiliates and/or the Practice.


 


SECTION
3.14                                  Other Obligations of the Practice.  At all times during the Term, the Practice
shall also be responsible for: (a) the scheduling of Physician coverage to
ensure that coverage is being provided at the Cancer Centers during reasonable
business hours; (b) maintaining an adequate internal mechanism for selecting,
disciplining and removing Physicians; (c) assisting the Company  in interviewing, screening, selecting,
reviewing and disciplining the Clinical Employees; (d) exerting its reasonable
best efforts to effectively and efficiently resolve (with the cooperation of
the Company) any complaints or problems of Patients or Professional Staff
concerning the provision of Radiation Oncology Services; (e) causing no less
than one representative of the Practice to be present at the regular meetings
of the Medical Advisory Board to discuss the delivery of Radiation Oncology
Services and the operation of the Cancer Centers; (f) cooperating with the
reasonable efforts of the Company to obtain and/or maintain accreditations by
ACR and JCAHO, as well as all appropriate and necessary federal and state
licenses and certifications, provided that the Parties mutually agree to obtain
or maintain such accreditations; (g) assisting the Company in the development
and implementation of all marketing plans and efforts in connection with the
Cancer Centers, and causing the Physicians to be available on a reasonable
basis to support these marketing activities (which may include, for example,
speaking engagements at cancer conferences, public forums, support groups,
participation on tumor boards, and meetings with referring physicians); (h)
maintaining a number of Physicians sufficient for the Practice to be able to
accept and treat all new Patients equally, without regard to any factors other
than medical condition (including, without limitation, Patients 


 


24

















 


of
Medicare and Medicaid, as well as insured and uninsured Patients); (i)
providing a reasonable amount of indigent care in the Community; (j) causing
the Physicians to maintain staff privileges at major hospitals and health plans
in the Community; and (k) ensuring that the Professional Staff are familiar and
comply with (i) all Laws governing the practice of medicine or the provision of
Radiation Oncology Services, (ii) all policies, rules and regulations and
bylaws of those hospitals where they have staff privileges, (iii) all
applicable professional standards, including, without limitation, the standards
of the American Medical Association and (iv) all requirements of Medicare,
Medicaid, the Health Insurance Portability and Accountability Act, managed care
contracts, and any other federal, state or private payor reimbursement programs
and plans participated in by the Cancer Centers.


 


SECTION
3.15                                  Practice Expenses.  The Practice shall be solely responsible for
the payment of all Practice Expenses.


 


SECTION
3.16                                  Managed Care Contracting.  The Practice shall ensure that: (i) each
Physician participates (without interruption or suspension) in Medicare,
Medicaid, TRICARE, workers’ compensation, other federal and state reimbursement
programs, and the payment plan of any commercial insurer, health maintenance
organization, preferred provider organization, or other health benefit plan or
program with which the Practice may contract or affiliate from time to time and
(ii) the Professional Staff complies with appropriate utilization control and
review mechanisms and quality improvement policies implemented by the Company
or by appropriate managed care programs, Third-Party Payors, governmental
agencies and accreditation bodies, including without limitation, JCAHO, ACR and
ACCC.


 


ARTICLE
IV

FINANCIAL ARRANGEMENT


 


SECTION
4.1                                        Management Fees.


 


(a)                                  As compensation for the provision by the Company of the Management
Services, the Practice shall pay the Company:


 


(i)                                     an annual (on a calendar year basis, but adjusted for the period from
the Effective Date to December 31, 2006) fee equal to the actual cost of the
billing and collection services set forth in Section 2.4(k) at the Cancer
Centers (the “Billing and Collection Fee”) up to a maximum of three
percent (3%) of Practice Revenues.  All
such costs shall be consistent with the Annual Budget and shall be Operational
Expenses; and


 


(ii)                                  subject to Section 4.2, an annual (on a calendar year basis, but
adjusted for the period from the Effective Date to December 31, 2006) fee
(General Management Services Fee”) equal to 60% of the EBITDA of the Cancer
Centers.


 


25














 


(b)           The amounts to be paid to the Company pursuant to the Billing and
Collection Fee and the General Management Services Fee shall be prorated and
payable monthly during the Term of this Agreement within 20 days after the end
of each calendar month.


 


(c)           Payment of the Billing and Collection Fee and the General Management
Services Fee is not intended to permit the Company to share in the Practice’s
fees, but is acknowledged as the Parties’ negotiated agreement as to the
reasonable fair market value of the equipment, support services, Personnel,
office space, management, administration and other items and services furnished
by Company pursuant to this Agreement, considering the nature and volume of the
services required and the respective risks assumed by the Company and the
Practice.  Payment of the Billing and
Collection Fee and the General Management Services Fee is not intended to be,
and shall not be interpreted to constitute, the payment of remuneration for
referrals.


 


SECTION 4.2                 Retained Amount.


 


(a)           Throughout the Term, the Practice shall retain an annual amount equal to
40% of the EBITDA or the Minimum Retained Amount (as defined in Section 4.2(b),
below), whichever is greater (the “Retained Amount”).  The Retained Amount is payable in monthly
installments within 20 days after the end of each calendar month, and shall be
paid from the Company Account.  The
Retained Amount for any partial period shall be prorated.


 


(b)           The Retained Amount shall be no less than the amounts set forth below in
Sections 4.2(b)(i)-(ii) (collectively, the “Minimum Retained Amount”).  In no event shall the Minimum Retained Amount
be construed to reduce the amount of the Retained Amount otherwise due the
Practice.  For purposes of calculating
the Minimum Retained Amount, the twelve-month period commencing on the
Effective Date and ending on the first anniversary of the Term shall be
referred to as “Year One,” the subsequent year ending on the second anniversary
of the Term shall be referred to as “Year Two,” and so on.


 


(i)            During Year One through Year Three, the Minimum Retained Amount shall be
Four Hundred Twenty-Five Thousand Dollars ($425,000) multiplied by an initial
factor of 13 Physicians, for an aggregate annual payment not to exceed
$5,525,000.


 


(ii)           During Year Four through Year Ten, the Minimum Retained Amount shall be
Four Hundred Fifty Thousand Dollars ($450,000) multiplied by an initial factor
of 13 Physicians, for an aggregate annual payment not to exceed $5,850,000.


 


(c)           Notwithstanding the foregoing, in the event that Practice Revenues in
any annual period (adjusted for the period from the Effective Date to December 31,
2006) are less than $24,000,000, the Retained Amount in the subsequent period
shall be reduced by the following formula, not to exceed $50,000 per Physician
or $650,000 in the aggregate (whichever sum is less) in any individual year:


 


$ 30,000 X ($24,000,000 minus actual Practice
Revenues) / $ 1,000,000 = Reduction of Retained Amount.


 


26

















 


(d)           The Minimum Retained Amount may be increased by the mutual agreement of
the Parties in the event the Practice opens new Cancer Centers.


 


SECTION 4.3                 Payments.


 


(a)           The Company shall deliver the Financial Statements which shall support
the calculation of the payments to be made pursuant to Section 4.1 and
4.2; provided, however, that the payments shall be paid monthly based on
estimates set forth in the Annual Budget. 
The Company and the Practice may, from time to time by their mutual
agreement, modify the estimate of revenues and expenses on a monthly basis in
accordance with the Annual Budget, and adjust the actual results on a quarterly
basis.


 


(b)           In the event that Practice Revenues are insufficient to pay all of the
Operational Expenses for any period, all Operational Expenses other than the
Billing and Collection Fee shall be paid in full prior to the payment of the
Billing and Collection Fee, the Retained Amount and the General Management
Services Fee.  Thereafter the priority of
payments shall be as follows: (1) the Billing and Collection Fee, (2) the
Retained Amount, and (3) the General Management Services Fee.


 


(c)           Any amounts due to the Practice under this Agreement that are not paid
within 10 days of when such payment is due will have an one and one-half
percent (1 1⁄2%) per month finance charge assessed against the unpaid balance
from the date due until the date of payment.


 


SECTION 4.4                 Reconciliation.  Adjustments to any payments made to the
Company or the Practice pursuant to this Agreement shall be made to reconcile
actual amounts due under this Agreement within 90 days after the end of each
calendar year (pro-rated for any year for which this Agreement has been in
effect less than the entire year) or earlier in accordance with the provisions
of Section 4.3(a) above.  At
such intervals, the Company shall determine the actual amounts due to each
Party pursuant to this Agreement for such period and shall notify the Practice
of the amount of payments, if any, owed by or due to each Party as a result of
the reconciliation.  If payment is owed
by any Party, such amount shall be paid to such Party within 10 Business Days
of such notification.


 


SECTION 4.5                 Review of Financial Arrangements by the Practice.  The Practice shall have the
right, at its own cost and expense, to review the Company’s calculations of all
payments, fees and expenses owed by or due to any Party or a third party under
this Agreement (such costs and expenses to review the Company’s calculations
are referred to herein as the “Practice Review Expense”); provided,
however, that in the event the audit reveals a discrepancy of five percent (5%)
or more in any amounts payable under this Agreement, Company shall pay the
Practice Review Expense.  Upon reasonable
notice to the Company, the Practice shall have the right to review the Company’s
calculations or allocation of any such payments, fees or expenses and the
Company shall provide the Practice, with all documents, reports, records and
supporting materials used in determining such amounts.  Such documents shall be delivered to the
Practice within a reasonable period of time after such request, but in any
event within 15 Business Days.  Not later
than 20 Business Days following the delivery of such documents to the Practice,
the Practice may furnish the Company with written notification of any dispute 


 


27

















 


concerning
any items shown thereon or omitted therefrom, together with a detailed
explanation in support of the Practice’s position in respect thereof.  The Company and the Practice shall consult to
resolve any dispute for a period of 15 Business Days following such
notification to the Company.  If such 15
Business Day consultation period expires and the dispute has not been fully
resolved, the matter shall be referred to any accounting firm which has not
provided accounting services to any Party or its Affiliates within the prior
three years and is chosen by the Medical Advisory Board (the “Accountants”),
which shall resolve the dispute and render its decision (together with a brief
explanation of the basis therefor) to the Practice and the Company not later
than 20 Business Days following submission of the dispute to it.  The decision of such Accountants shall be a
final determination of such amounts.  In
the event that the Accountants resolve all disputes presented to it in the
manner proposed by one of the Parties, the fees and expenses of the Accountants
relating to the resolution of such dispute shall be paid by the other
Party.  In all other events, the fees and
expenses of the Accountants shall be shared in the same proportion that the
Company’s position, on the one hand, and the Practices’ position, on the other,
initially presented to the Accountants bears to the final resolution as
determined by the Accountants.


 


SECTION 4.6                 Collateral Security.


 


(a)           Grant of Security Interest.  To the extent permitted by applicable Law, as
collateral security for the prompt and complete payment when due of all (i) Operational
Expenses (including, without limitation, Operational Expenses advanced or paid
by the Company), (ii) Damages which any of the USCC Indemnitees are
entitled to indemnification under the Securities Purchase Agreement in
connection with a Recoupment Claim, (iii) the General Management Services Fees
and (iv) the Billing and Collection Fee (referred to herein collectively
as, the “Secured Obligations”), the Practice hereby sells, assigns, mortgages,
hypothecates, conveys and transfers to the Company, and hereby grants to the
Company a continuing security interest (subordinate only to any security
interest of Third Party Payors in Receivables owed by such payor) in all of the
Practice’s rights, title and interest in, to and under the Receivables (other
than the Governmental Receivables) which may be created or arise during the
Term, together with any and all proceeds (as defined in the Uniform Commercial
Code) and products thereof, accessions thereto and substitutions and additions
therefor, regardless of the manner in which the entitlement to payment for such
Receivables shall exist, whether as accounts, accounts receivable, notes
receivable or other evidence of entitlement to the Receivables, and all of the
Practice’s rights, title and interest (including its right to control the
same), if any, in, to and under the Practice Lockbox Account and the sums on
deposit therein (referred to collectively as the “Collateral”).


 


(b)           Remedies. If an Event of Default
shall have occurred and be continuing, the Company shall be entitled to
exercise in respect of the Collateral all of its rights, powers and remedies
provided for herein or otherwise available to it by Law, in equity or
otherwise, including all rights and remedies of a secured party under the
Uniform Commercial Code, and shall be entitled in particular, but without
limitation of the foregoing, to exercise the following rights, which the
Practice agrees to be commercially reasonable: to sell, resell, assign and
deliver, in its sole discretion, all or any of the Collateral, at public or
private sale, at the Company’s main office or elsewhere, for cash, upon credit
or for future delivery, at such time or times and at such price or prices and
upon such other terms as the Company may deem 


 


28

















 


satisfactory.  If any of the Collateral is sold by the
Company upon credit or for future delivery, the Company shall not be liable for
the failure of the purchaser to purchase or pay for the same and, in the event
of any such failure, the Company may resell such Collateral.  In no event shall the Practice be credited
with any part of the proceeds of sale of any Collateral until and to the extent
cash payment in respect thereof has actually been received by the Company.  Each purchaser at any such sale shall hold
the property sold absolutely, free from any claim or right of whatsoever kind,
including any equity or right of redemption of the Practice, and the Practice
hereby expressly waives all rights of redemption, stay or appraisal, and all
rights to require the Company to marshal any assets in favor of the Practice or
any other party or against or in payment of any or all of the Secured
Obligations, that it has or may have under any rule of Law now existing or
hereafter adopted. No demand, presentment, protest, advertisement or notice of
any kind (except any notice required by Law, as referred to below), all of
which are hereby expressly waived by the Practice, shall be required in
connection with any sale or other disposition of any part of the Collateral.  If any notice of a proposed sale or other
disposition of any part of the Collateral shall be required under applicable
Law, the Company shall give the Practice at least ten Business Days’ prior
notice of the time and place of any public sale and of the time after which any
private sale or other disposition is to be made. The Company shall not be
obligated to make any sale of Collateral if it shall determine not to do so,
regardless of the fact that notice of sale may have been given.  The Company may, without notice or publication,
adjourn any public or private sale or cause the same to be adjourned from time
to time by announcement at the time and place fixed for sale, and such sale
may, without further notice, be made at the time and place to which the same
was so adjourned. Upon each public sale and, to the extent permitted by
applicable Law, upon each private sale, the Company may purchase all or any of
the Collateral being sold, free from any equity, right of redemption or other
claim or demand, and may make payment therefor by endorsement and application
(without recourse) of the Secured Obligations in lieu of cash as a credit on
account of the purchase price for such Collateral.


 


(c)           Application of Proceeds.
All proceeds collected by the Company upon any sale, other disposition of or
realization upon any of the Collateral, together with all other moneys received
by the Company hereunder, shall be applied as follows: (i) first, to the
payment of all reasonable and necessary costs and expenses of such sale,
disposition or other realization, including the reasonable costs and expenses
of the Company and the reasonable fees and expenses of its agents and counsel
and all amounts advanced by the Company for the account of the Practice; (ii) second,
after payment in full of the amounts specified in clause (i) above, to the
ratable payment of all other Secured Obligations owing to the Company; and (iii) third,
after payment in full of the amounts specified in clauses (i) and (ii) above,
and following the termination of this Agreement, to the Practice or any other
Person lawfully entitled to receive such surplus. The Practice shall remain
liable to the extent of any deficiency between the amount of all proceeds
realized upon sale or other disposition of the Collateral pursuant to this
Agreement and the aggregate amount of the sums referred to in clauses (i) and
(ii) above. Upon any sale of any Collateral hereunder by the Company
(whether by virtue of the power of sale herein granted, pursuant to judicial
proceeding, or otherwise), the receipt of the Company or the officer making the
sale shall be a sufficient discharge to the purchaser or purchasers of the
Collateral so sold, and such purchaser or purchasers shall not be obligated to
see to the application of any part of the purchase money paid over to the
Company or such officer or be answerable in any way for the misapplication
thereof.


 


29

















 


(d)           Waivers.  The Practice, to the greatest extent not
prohibited by applicable Law, hereby (i) agrees that it will not invoke,
claim or assert the benefit of any rule of Law now or hereafter in effect
(including, without limitation, any right to prior notice or judicial hearing
in connection with the Company’s possession, custody or disposition of any
Collateral or any appraisal, valuation, stay, extension, moratorium or
redemption Law), or take or omit to take any other action, that would or could
reasonably be expected to have the effect of delaying, impeding or preventing
the exercise of any rights and remedies in respect of the Collateral, the
absolute sale of any of the Collateral or the possession thereof by any
purchaser at any sale thereof, and waives the benefit of all such Laws and
further agrees that it will not hinder, delay or impede the execution of any
power granted hereunder to the Company, but that it will permit the execution
of every such power as though no such Laws were in effect, (ii) waives all
rights that it has or may have under any rule of Law now existing or
hereafter adopted to require the Company to marshal any Collateral or other
assets in favor of the Practice or any other party or against or in payment of
any or all of the Secured Obligations, and (iii) waives all rights that it
has or may have under any rule of Law now existing or hereafter adopted to
demand, presentment, protest, advertisement or notice of any kind (except
notices expressly provided for herein); provided, however, at no time shall the
Practice be required to undertake any action that endangers the health or
safety of its Patients.


 


(e)           The Company; Standard of Care.
The Company will hold all items of the Collateral at any time received under
this Agreement in accordance with the provisions hereof.  The obligations of the Company as holder of
the Collateral and interests therein and with respect to the disposition
thereof, and otherwise under this Agreement, are only those expressly set forth
in this Agreement.  The powers conferred
on the Company hereunder are solely to protect its interest in the Collateral,
and shall not impose any duty upon it to exercise such powers.  Except for treatment of the Collateral in its
possession in a manner substantially equivalent to that which the Company
accords its own property of a similar nature, and the accounting for moneys
actually received by it hereunder, the Company shall have no duty as to any
Collateral or as to the taking of any necessary steps to preserve rights
against prior parties or any other rights pertaining to the Collateral.  The Company shall not be liable to the
Practice (i) for any loss or damage sustained by the Practice as a result
of the Company’s lawful exercise of its remedies against the Collateral, or (ii) for
any loss, damage, depreciation or other diminution in the value of any of the
Collateral that may occur as a result of or in connection with or that is in
any way related to any exercise by the Company of any right or remedy under
this Agreement, any failure to demand, collect or realize upon any of the
Collateral or any delay in doing so, or any other act or failure to act on the
part of the Company, except to the extent that the same is caused by its own
gross negligence or willful misconduct.


 


(f)            Further Assurances; Attorney-in-Fact.
The Practice agrees that it will join with the Company to execute and, at the
Company’s expense, file and refile under the Uniform Commercial Code such
financing statements, continuation statements and other documents and
instruments in such offices as the Company may reasonably deem necessary or
appropriate, and wherever required or permitted by Law, in order to perfect and
preserve the Company’s security interest in the Collateral, and hereby
authorizes the Company to file financing statements and amendments thereto
relating to all or any part of the Collateral without the signature of the
Practice where permitted by Law, and agrees to do such further acts and things
(including, without limitation, making any notice filings with state tax or
revenue authorities required to be 


 


30

















 


made by account creditors in
order to enforce any Receivables) and to execute and deliver to the Company
such additional conveyances, assignments, agreements and instruments as the
Company may reasonably require or deem advisable to perfect, establish, confirm
and maintain the security interest and Lien provided for herein, to carry out
the purposes of this Agreement or to further assure and confirm unto the
Company its rights, powers and remedies hereunder.


 


In addition to the powers set forth in Section 2.4(k),
the Practice hereby irrevocably appoints the Company its lawful
attorney-in-fact, with full authority in the place and stead of the Practice
and in the name of the Practice, the Company or otherwise, and with full power
of substitution in the premises (which power of attorney, being coupled with an
interest, is irrevocable for so long as this Agreement shall be in effect),
from time to time in the Company’s discretion after the occurrence and during
the continuance of an Event of Default (except for the actions described in
clause (i) below, which may be taken by the Company without regard to
whether any such a default has occurred) to take any action and to execute any
instruments that the Company may deem necessary or advisable to accomplish the
purpose of carrying out the provisions of the Company’s security interest in
the Receivables, including, without limitation: (i) to sign the name of
the Practice on any financing statement, continuation statement, notice or
other similar document that, in the Company’s opinion, should be made or filed
in order to perfect or continue perfected the security interest granted under
this Agreement; (ii) to ask, demand, collect, sue for, recover, compound,
receive and give acquittance and receipts for moneys due and to become due
under or in respect of any of the Collateral; (iii) to receive, endorse
and collect any checks, drafts, instruments, chattel paper and other orders for
the payment of money made payable to the Practice representing any interest or
other amount payable in respect of any of the Collateral and to give full
discharge for the same; (iv) to pay or discharge taxes, Liens or other
encumbrances levied or placed on or threatened against the Collateral, the
legality or validity thereof and the amounts necessary to discharge the same to
be determined by the Company in its sole discretion, any such payments made by
the Company to become Secured Obligations of the Practice to the Company, due
and payable immediately and without demand; (v) to file any claims or take
any action or institute any proceedings that the Company may deem necessary or
advisable for the collection of any of the Collateral or otherwise to enforce
the rights of the Company with respect to any of the Collateral; and (vi) to
use, sell, assign, transfer, pledge, make any agreement with respect to or
otherwise deal with any and all of the Collateral as fully and completely as
though the Company were the absolute owner of the Collateral for all purposes,
and to do from time to time, at the Company’s option and the Practices’
expense, all other acts and things deemed necessary by the Company to protect,
preserve or realize upon the Collateral and to more completely carry out the
purposes of this Agreement.


 


If the Practice fails to perform any covenant or
agreement contained in this Agreement after written request to do so by the
Company (provided that no such request shall be necessary at any time after the
occurrence and during the continuance of an Event of Default), the Company may
itself perform, or cause the performance of, such covenant or agreement and may
take any other action that it deems necessary and appropriate for the
maintenance and preservation of the Collateral or its security interest
therein, and the reasonable expenses so incurred in connection therewith shall
be payable by the Practice.


 


31

















 


(g)           Expenses of the Company.  All reasonable expenses (including, without
limitation, attorneys’ fees and disbursements) incurred by the Company in
connection with the failure by the Practice to perform or observe any provision
of this Section 4.6, and the exercise or enforcement of any rights of the
Company under this Section 4.6, or any other action taken by the Company
hereunder shall be deemed an obligation of the Practice and constitute a
Secured Obligation and the Company may apply the Collateral to the payment of
or reimbursement of itself for such liability.


 


(h)           Company Lender Loans.  Notwithstanding anything to the contrary
contained in this Section 4.6, to the extent that any Company Lender Loan
may be outstanding, then the Company’s security interest in the Collateral
granted hereby may be subordinate to, and only to, any security interest of
such Company Lender in such Collateral.


 


(i)            Assignment.  To the extent permitted by applicable Law,
the Company may assign all of its rights and interests under this Agreement as
security for loans and other financing arrangements obtained by the Company
from any other Person or entity, whether now existing or hereafter
arising.  Any such assignee shall have
all of the Company’s rights and remedies, but none of the Company’s
obligations, under this Agreement.  The
Practice shall cooperate with the Company and execute all necessary documents
in connection with the assignment of the Collateral to the Company or, at the
Company’s option, any assignee.


 


SECTION 4.7                 Deposit of Receivables.  Promptly upon the request of the Company, the
Practice shall provide the Company with an accurate and complete list of all
Third-Party Payors.  The Company shall
have the right (but not the obligation) to deliver a letter, substantially in
the form as attached hereto as Exhibit C, to all Third-Party Payors
(the “Payor Instruction Letter”) or otherwise notify such Third-Party
Payors of the contents thereof.  The
Payor Instruction Letter shall direct payments on the Receivables to be
deposited into a bank account at the Depository Bank designated by the Company,
(the “Company Account”).   For Receivables
for services rendered to patients who participate in the Medicare program, the
Medicaid program, other government health care programs, and any other Third
Party Payors that will not allow the Practice’s Receivables to be deposited
into the Company Account, the Practice shall establish a bank account at the
Depository Bank (the “Practice Lockbox Account”) and the Practice shall
enter into an agreement with the Depository Bank that sets forth a standing
order from the Practice to transfer or remit all cash proceeds, if any, on a
daily basis from the Practice Lockbox Account to the Company Account (the “Lockbox
Account Agreement”).  To the extent
that the Practice receives any payments contrary to the terms of the Payor
Instruction Letter or receives any payments directly (including, without
limitation, any amounts received directly from Patients at the time medical
services are rendered or otherwise), the Practice agrees to deposit all such
payments received by the Practice into the Practice Lockbox Account. The
Company is hereby granted full power and authority to pay and shall pay in a
timely manner, out of the funds in the Company Account, the Retained Amount,
the General Management Services Fee, all Operational Expenses (including,
without limitation, all Billing and Collection Fees), and all other
disbursements described in Section 4.6(a) and to reimburse itself,
out of the funds in the Company Account, for all Operational Expenses advanced
or paid by it.  The instructions set
forth in the Payor Instruction Letter and the Lockbox Account Agreement shall
be revocable by the Practice; provided, however, that if the Practice revokes
such instructions or agreement during the Term, such revocation shall
constitute an Event of 


 


32

















 


Default
on the part of the Practice and the Company shall be entitled to seek an order
from a court of competent jurisdiction for specific performance to “sweep” the
Practice Lockbox pursuant to this Agreement; provided, however, in the event
the Company takes the foregoing actions, the Practice shall still be entitled
to retain the amounts to which it is entitled under this Agreement.  Following termination or expiration of the
Term, the Company shall immediately take all action and execute all instruments
as the Practice may reasonably request in order to notify the Third-Party
Payors of such termination. The Practice shall not: (a) close the Practice
Lockbox Account or establish a replacement account or (b) amend, modify,
supplement, extend, renew, restate, replace or terminate the Lockbox Account
Agreement, in each case, without the prior written consent of the Company
(which consent shall not be unreasonably withheld, conditioned or delayed).


 


SECTION 4.8                 Termination of Security Interest.  Notwithstanding anything to the contrary
contained herein, in the event that this Agreement is terminated by the
Practice pursuant to Section 5.3 (a) through (g), then the Practice
shall have the right to revoke the instructions in any Payor Instruction Letter
regarding the remittance of funds into the Company Account and revoke or modify
any instructions to the Depository Bank regarding the transfer or remittance of
funds to the Company Account; in each case to ensure that all Receivables are
remitted directly to the Practice.  For
the avoidance of doubt, in the event that the Practice takes any of the
foregoing actions, the Practice shall still be obligated to pay to the Company
the amounts to which the Company is entitled under this Agreement.


 


SECTION 4.9                 Offset for Damages.  Notwithstanding anything to the contrary
contained herein, to the extent that any USCC Indemnitee incurs any Damages in
connection with a Recoupment Claim, the Practice agrees that the amounts to be
retained by, and disbursed to, the Practice under this Agreement (including,
without limitation, the Retained Amount) shall be offset by the amount of such
Damages and paid each month directly to such USCC Indemnitee, in lieu of being
disbursed to the Practice, at 40% of all such sums due the Practice (the “Offset
Amount”), until such Damages are paid in full; and the Practice hereby
agrees that to the extent that any Damages in connection with a Recoupment
Claim are outstanding during any month, the Practice shall have no right to
retain, or any claim against the Company or otherwise for, any amounts
otherwise due under this Agreement (including, without limitation, the Retained
Amount), subject to the requirement that the Practice pay no more than 40% of
all such sums due the Practice each month. 
Notwithstanding the foregoing, if any Person that is a stockholder of
the Practice is not a Seller or an Affiliate of a Seller then the Offset Amount
payable to such USCC Indemnitee shall be equal to the Offset Amount multiplied
by the percentage of the outstanding shares of capital stock of the Practice
held directly or indirectly by the Sellers or their respective Affiliates
(including, without limitation, the shares of Capital Stock of the Practice
that the Sellers or their respective Affiliates have the right to acquire,
control, vote or hold).


 


ARTICLE V

TERM AND TERMINATION


 


SECTION 5.1                 Term; Renewal Terms.  This Agreement shall commence on the
Effective Date and shall expire on the tenth anniversary of the Effective Date,
unless earlier terminated as provided for in Sections 5.2 and 5.3  hereof (“Term”).  The
Term of this Agreement 


 


33

















 


shall
automatically renew for up to two successive five year terms, unless either
Party gives written notice to the other not less than 60 days prior to the end
of the then current Term that it does not desire to extend the Term.


 


SECTION 5.2                 Termination by the Company.  Upon written notice to the Practice, the
Company may terminate this Agreement and have no further liability or
obligation hereunder (except as expressly provided herein) upon the occurrence
of any of the following events (each an “Event of Default”):


 


(a)           The Practice is involuntarily suspended, excluded or terminated (or
involuntarily withdraws) from participation in the Medicare or Medicaid
programs or the Practice voluntarily withdraws from any such program as a
result of a regulatory investigation, so long as such suspension, exclusion,
termination or involuntary withdrawal is not the result of actions or omissions
of the Company.


 


(b)           The Practice is excluded from entering into healthcare provider
agreements with any material portion of the managed care or healthcare
insurance industry and such exclusion has a material adverse impact (financial
or otherwise) on the operations at the Cancer Centers.


 


(c)           A majority of the members of the Medical Advisory Board reasonably
determines that the Practice or any Physician has materially breached
professional standards in a way that compromises the health or safety of any
Patient or employee engaged to work at the Cancer Centers and the Practice
fails, after 60 days notice from the Medical Advisory Board, to take action
which the Medical Advisory Board reasonably deems acceptable and is consistent
with applicable community standards.


 


(d)           If the Practice shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar Law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part
of its property, or shall consent to any such relief or to the appointment of
or taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall take any corporate action to authorize any of
the foregoing.


 


(e)           An involuntary case or other proceeding shall be commenced against the
Practice seeking liquidation, reorganization or other relief with respect to it
or its debts under any bankruptcy, insolvency or other similar Law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part
of its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of forty-five (45) days; or an order for
relief shall be entered against the Practice under the federal bankruptcy Laws
as now or hereafter in effect.


 


(f)            The Practice ceases to perform its duties and responsibilities hereunder
or breaches any material term or condition of this Agreement (including,
without limitation, Section 3.4) and, in the reasonable opinion of the
Company, such cessation or breach remains uncured 


 


34

















 


for a period of 60 days
after the Practice’s receipt of a written notice specifying such breach; except
to the extent such cessation or breach reasonably requires longer than sixty
(60) days to cure, and the Practice has commenced a cure within sixty (60)
days, and thereafter continues to diligently proceed to complete said cure.


 


(g)           The Practice revokes any instructions to a Third Party Payor related to
the Payor Instruction Letter or revokes or modifies any instructions to the
Depository Bank in connection with the Practice Lockbox Agreement as set forth
in Section 4.7, except as specifically permitted by the provisions of Section 4.7.


 


(h)           The Practice ceases to engage or employ at least one Physician to
provide Radiation Oncology Services at each of the then existing Cancer Centers
in accordance with Section 3.1 of this Agreement.


 


(i)            Any representation and warranties made by the Practice in this Agreement
prove to be untrue or incorrect in any material respect as of the date of this
Agreement or any representations or warranties of a continuing nature made by
the Practice cease to be true and correct at any future date in any material
respect and, in each case, the Company has notified the Practice of the breach,
and the breach has continued without cure for a period of 30 days after such
notice.


 


SECTION 5.3                 Termination by the Practice.  Upon written notice to the Company, the
Practice may terminate this Agreement and have no further liability or
obligation hereunder (except as expressly provided herein) upon the occurrence
of any of the following events:


 


(a)           If the Company shall commence a voluntary case or other proceeding
seeking liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar Law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part
of its property, or shall consent to any such relief or to the appointment of
or taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall take any corporate action to authorize any of
the foregoing.


 


(b)           An involuntary case or other proceeding shall be commenced against the
Company seeking liquidation, reorganization or other relief with respect to it
or its debts under any bankruptcy, insolvency or other similar Law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part
of its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of forty-five (45) days; or an order for
relief shall be entered against the Company under the federal bankruptcy Laws
as now or hereafter in effect.


 


(c)           The Company fails to make two (2) consecutive payments (or any two (2) payments
in a twelve (12) month period) within ten (10) days of when such payments
are due to the Practice hereunder and such failure continues for more than five
(5) days after the Company’s receipt of a written notice specifying such
breach.


 


35














 


(d)           Except as provided in Section 5.3(c),
the Company ceases to perform its duties and responsibilities hereunder or
breaches any material term or condition of this Agreement (including, without
limitation, Section 2.13 or the Company fails to provide the Practice with
the space reasonably necessary to conduct its professional medical services as
required under this Agreement) and, in the reasonable opinion of the Practice,
such cessation or breach remains uncured for a period of 60 days after the
Company’s receipt of a written notice specifying such breach; except to the
extent such cessation or breach reasonably requires longer than sixty (60) days
to cure, and the Company has commenced a cure within sixty (60) days, and
thereafter continues to diligently proceed to complete said cure.


 


(e)           The Company is involuntarily
suspended, excluded or terminated (or involuntarily withdraws) from
participation in the Medicare or Medicaid programs or the Company voluntarily
withdraws from any such program as a result of a regulatory investigation, so
long as such suspension, exclusion, termination or withdrawal is not the result
of actions or omissions of the Practice.


 


(f)            The Company is excluded from
entering into healthcare provider agreements with a material portion of the
managed care or healthcare insurance industry and such exclusion has a material
adverse impact (financial or otherwise) on the operations at the Cancer
Centers.


 


(g)           Any lender (including, without
limitation, any Company Lender or lender under any Company Lender Loan) to
which the Company has pledged all or any material portion of the Accounts
Receivable or Practice Revenues (i) accelerates the indebtedness under its
loan agreement with the Company after such lender has exhausted the cure period
set forth in such loan agreement (if any) and such acceleration has a material
adverse impact (financial or otherwise) on the operations at the Cancer
Centers; or (ii) takes any action against the FF&E or the Accounts
Receivable or Practice Revenues, other than collecting the Accounts Receivable
and Practice Revenues in the ordinary course of business and applying the
proceeds thereof to the payment of the indebtedness under the loan agreement,
and such action has a material adverse impact (financial or otherwise) on the
operations at the Cancer Centers.


 


(h)           Any representation and warranties
made by the Company in this Agreement prove to be untrue or incorrect in any
material respect as of the date of this Agreement or any representations or
warranties of a continuing nature made by the Company cease to be true and
correct at any future date in any material respect and, in each case, the
Practice has notified the Company of the breach, and the breach has continued
without cure for a period of 30 days after such notice.


 


(i)            The Company breaches any material
term or condition of any Lease causing a material default to occur and such
default is not cured by the Company within 30 days; except to the extent such
breach reasonably requires longer than 30 days to cure, and the Company has
commenced a cure within 30 days, and thereafter continues to diligently proceed
to complete said cure.


 


(j)            The Company breaches any material
term or condition of any Company Lender Loan that is secured by the FF&E or
the Collateral, which breach causes a default that 


 


36

















 


has a material adverse
impact (financial or otherwise) on the operations at the Cancer Centers,
provided that such default is not cured within 30 days, except in the event
such breach reasonably requires longer than 30 days to cure, and the Company
has commenced a cure within 30 days and thereafter continues to diligently
proceed to complete said cure.


 


SECTION 5.4         [Intentionally omitted].


 


SECTION 5.5         Duties And Remedies Upon Expiration
Or Termination.


 


(a)           Except as necessary to provide care
to any Patient undergoing treatment at any Cancer Centers at the time of the
expiration or earlier termination of this Agreement, upon the expiration or
earlier termination of this Agreement, the Practice and the Company hereby
agree to perform, in addition to their obligations provided for elsewhere in
this Agreement and continuing after such expiration or termination of this
Agreement, such steps as are otherwise customarily and reasonably required to
wind up their relationship under this Agreement in as orderly a manner as
possible.  Except
as specifically set forth herein, upon the expiration or earlier termination of
this Agreement, neither Party shall have any further obligation hereunder with
the exception of obligations accruing prior to the date of such expiration or
earlier termination and obligations, promises and covenants contained herein
which extend beyond the terms hereof including, without limitation, any indemnities,
restrictive covenants and access to books and records.  Upon the expiration or earlier termination of
this Agreement, the financial arrangements set forth in Article IV shall
be pro-rated between the Parties to reflect any partial fiscal year and the
Practice and the Company shall be paid any amounts owed to them from and to the
extent of available funds (if any) in the Company Account, the Practice Lockbox
and from collections of Receivables. From and after any expiration or earlier
termination, each Party shall provide the other with reasonable access to books
and records then owned or controlled by it to permit such requesting Party to
satisfy legal reporting and contractual obligations which may be required of
it.


 


(b)           In addition to the foregoing, upon
termination of this Agreement by the Company pursuant to Section 5.2, the
Practice shall immediately (i) quit and surrender the Cancer Centers in as
good condition as reasonable use and wear thereof will permit and (ii) remove
from the Cancer Centers all personal property of the Practice and of any
Physician and shall, at its own expense, repair any damage caused to the Cancer
Centers by reason of such removal.  If
the Practice shall fail to do so, the Company may, without notice and without
prejudice to any other remedy available, enter and take possession of the
Cancer Centers and remove such personal property without being liable to
prosecution or any claim for damage suffered by the Practice or the Physicians.


 


(c)           Upon termination of this Agreement by
the Practice pursuant to Section 5.3(a) through (g), the Company
shall immediately (i) quit and surrender the Cancer Centers in as good
condition as reasonable use and wear thereof will permit and (ii) remove
from the Cancer Centers all personal property of the Company and shall, at its
own expense, repair any damage caused to the Cancer Centers by reason of such
removal.  If the Company shall fail to do
so, the Practice may, without notice and without prejudice to any other remedy
available, enter and take possession of the Cancer Centers and remove such
personal property without being liable to prosecution or any claim for damage
suffered by the Company. If the Company remains 


 


37

















 


in possession or control of
any Cancer Centers beyond the expiration or termination of this Agreement in
violation of this Section 5.5(c), without the written consent of the
Practice, such possession or control shall not be deemed to create any rights
whatsoever in the Company.


 


(d)           If a Party remains in possession or
control of any Cancer Center beyond the expiration or termination of this
Agreement, without the written consent of the remaining Party, such possession
or control shall not be deemed to create any rights whatsoever in the Cancer
Center.


 


ARTICLE VI


REPRESENTATIONS
AND WARRANTIES OF THE PRACTICE


 


SECTION 6.1         Representations and Warranties of
the Practice.  The Practice hereby
represents and warrants to the Company as follows:


 


(a)           Organization and
Qualification.  The
Practice is a corporation duly organized, validly existing and in good standing
under the Laws of the State of California, and has all corporate power and
authority to own, lease and operate its properties and assets and to carry on
its business as currently being conducted and as proposed to be conducted.


 


(b)           Authority.  The Practice has the requisite corporate
power and authority to execute and deliver this Agreement and all other
instruments or agreements to be executed in connection herewith, and to
consummate the transactions contemplated hereby.  The execution, delivery and performance of
this Agreement, and the consummation of the transactions contemplated hereby,
have been duly authorized by all necessary action on the part of the Practice,
and no other proceedings on the part of the Practice are necessary to authorize
this Agreement or to consummate the transactions contemplated hereby.  This Agreement has been duly executed and
delivered by the Practice and, assuming this Agreement constitutes a valid and
binding obligation of the Company, constitutes a valid and binding obligation
of the Practice enforceable against it in accordance with its terms.


 


(c)           Consents and Approvals; No
Violations.  Neither the
execution, delivery or performance of this Agreement by the Practice, nor the
consummation by the Practice of the transactions contemplated hereby nor
compliance by the Practice with any of the provisions hereof will (i) conflict
with or result in any breach of any provision of the organizational documents
of the Practice, (ii) require any filing with, or consent of a
Governmental Authority, agency or court or other Person or entity by the
Practice, (iii) (with or without the giving or receipt of notice or
passage of time or both) result in a violation or breach of, or constitute a
default or give rise to any right of termination, amendment, cancellation or
acceleration under, any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, lease, license, contract, agreement or other
instrument or obligation to which the Practice is a party (or becomes a party)
or by which any of its properties or assets may be bound or subject, other than
such violations, breaches, defaults, terminations, amendments, cancellations,
or accelerations that would not reasonably be expected to have a Material
Adverse Effect, or (iv) violate any writ, injunction or decree applicable
to the Practice or any of its properties or assets.


 


38

















 


(d)           Compliance With Laws;
Licenses.


 


(i)            To the knowledge of the Practice (without independent
investigation or inquiry) and except for those matters that would not
individually or in the aggregate constitute a Material Adverse Effect, the
conduct of the operations of the Practice (including the conduct of any
Physician or any other Practice employee) has not violated, and as presently
conducted does not violate, in any material respect any Laws, including, but
not limited to, the Clinical Laboratories Improvements Act of 1988, or any
other promulgations of any court or Governmental Authority or agency,
including, but not limited to, the Occupational Safety and Health
Administration, the CMS or any medical industry standards, nor has the Practice
received any notice of any such violation which remains outstanding.


 


(ii)           To the knowledge of the Practice (without independent
investigation or inquiry), the Practice has all licenses, certificates,
permits, approvals, franchises, notices and authorizations (“Permits”)
which are reasonably necessary for the conduct of its operations as currently
conducted and as proposed to be conducted (including, without limitation,
accreditations and certifications as a provider of healthcare services eligible
to receive payment and compensation and to participate under Medicare and
Medicaid), except for Permits that the failure to hold would not have a
Material Adverse Effect.  To the Practice’s
knowledge (without independent investigation or inquiry), all of such Permits
are in full force and effect, the Practice has not engaged in any activity
which would cause or permit revocation, modification, cancellation or
suspension of any such Permit, and no action or proceeding looking to or
contemplating the revocation, modification, cancellation or suspension of any
such Permit is pending or threatened. 
The Practice has no knowledge of any default or claimed or purported or
alleged default or state of facts which, with or without the giving or receipt
of notice or the passage of time or both, would constitute a default by the
Practice under, or give rise to a right of revocation, modification,
cancellation or suspension of, any such Permit.


 


(iii)          The Practice qualifies as (and will continue to qualify
during the Term as) a “group practice” as defined in the federal physician self
referral law at 42 USC § 1395nn, the applicable regulations and any
similar state laws.


 


(e)           Litigation; Investigations.  Except as set forth on Schedule 6.1(e), and
except for those matters that would not individually or in the aggregate
constitute a Material Adverse Effect, (i) there are no suits, claims,
proceedings, investigations or reviews which are pending or, to the knowledge
of the Practice, threatened against or affecting the Practice, any Physician,
any director or officer (in their capacity as such) of the Practice or any
properties or assets used by the Practice in conducting its businesses; (ii) to
the knowledge of the Practice (without independent investigation or inquiry),
no investigation or review by any Governmental Authority, agency or court or
other regulatory body with respect to either the Practice or any Physician or
other practice employee is pending, nor has any Governmental Authority, agency
or court or other regulatory body (including trade associations) indicated to
the Practice an intention to conduct the same; and (iii) to the knowledge
of the Practice (without independent investigation or inquiry), there is no
action, suit or proceeding pending or threatened against or affecting the
Practice or any Physician or other Practice employee, at Law or in equity, or
before any Governmental Authority or other regulatory body.


 


(f)            Professional Liability.  To the knowledge of the Practice (without
independent investigation or inquiry), no Physician or other employee of the
Practice has (i) ever 


 


39

















 


had his or her license to
practice medicine or other profession in any state or his or her Drug
Enforcement Agency Number suspended, relinquished, terminated, restricted or
revoked; (ii) ever been reprimanded, sanctioned or disciplined by any
licensing board, or any federal, state or local society or agency, Governmental
Authority or specialty board; (iii) within the past three years had
entered against him or her final judgment in, or settled without judgment, a
malpractice or similar action for an aggregate award or amount to the plaintiff
in excess of $25,000; or (iv) within the past three years had his or her
medical staff privileges at any hospital or medical facility suspended,
involuntarily terminated, restricted or revoked.


 


(g)           Ownership of Collateral.  The Practice owns, or has valid rights with
respect to, all Collateral purported to be pledged by it hereunder, free and
clear of any Liens except for the Liens granted to the Company pursuant to this
Agreement.  No security agreement,
financing statement or other public notice with respect to all or any part of
the Collateral is on file or of record in any government or public office, and
the Practice has not filed or consented to the fling of any such statement or
notice, except Uniform Commercial Code financing statements naming the Company
as secured party.


 


(h)           Security Interests;
Filings.  This Agreement,
together with the filing of duly completed and executed Uniform Commercial Code
financing statements naming the Practice as debtor, the Company as secured
party, and describing the Collateral, in the State of California, which have
been duly executed and delivered by the Practice and delivered to the Company
for filing, creates, and at all times shall constitute, a valid and perfected
security interest in and Lien upon the Collateral in favor of the Company to
the extent a security interest therein can be perfected by such filings or
possession, as applicable, superior and prior to the rights of all other
Persons therein, and no other or additional filings, registrations, recordings
or actions are or shall be necessary or appropriate in order to maintain the
perfection and priority of such Lien and security interest, other than actions
required with respect to Collateral of the types excluded from Article 9
of the Uniform Commercial Code or from the filing requirements under such Article 9
by reason of Section 9-104 or 9-302 of the Uniform Commercial Code and other
than continuation statements required under the Uniform Commercial Code.


 


(i)            Receivables.  Each Receivable is, or at the time it arises
will be, a bona fide, valid and legally enforceable indebtedness of the account
debtor according to its terms, arising out of or in connection with the sale,
lease or performance of goods or services by the Practice.


 


SECTION 6.2         Representations and Warranties of
the Company.  The Company hereby
represents and warrants to the Practice as follows:


 


(a)           Organization and
Qualification.  The
Company is a corporation duly organized, validly existing and in good standing
under the Laws of the jurisdiction in which it is organized, and has all
corporate power and authority to own, lease and operate its properties and
assets and to carry on its business as currently being conducted and as
proposed to be conducted.


 


(b)           Authority.  The Company has the requisite corporate power
and authority to execute and deliver this Agreement and all other instruments
or agreements to be executed in connection herewith, and to consummate the
transactions contemplated hereby.  The
execution, 


 


40

















 


delivery and performance of
this Agreement, and the consummation of the transactions contemplated hereby,
have been duly authorized by all necessary corporate action on the part of the
Company, and no other proceedings on the part of the Company are necessary to
authorize this Agreement or to consummate the transactions contemplated hereby.  This Agreement has been duly executed and
delivered by the Company and, assuming this Agreement constitutes a valid and
binding obligation of the Practice, constitutes a valid and binding obligation
of the Company enforceable against it in accordance with its terms.


 


(c)           Consents and Approvals; No
Violations.  Neither the
execution, delivery or performance of this Agreement by the Company, nor the
consummation by the Company of the transactions contemplated hereby nor
compliance by the Company with any of the provisions hereof, will (i) conflict
with or result in any breach of any provision of the charter or bylaws of the
Company, (ii) require any filing with, or consent of, a Governmental
Authority, agency or court or other Person or entity by the Company, (iii) (with
or without the giving or receipt of notice or passage of time or both) result
in a violation or breach of, or constitute a default or give rise to any right
of termination, amendment, cancellation or acceleration under, any of the
terms, conditions or provisions of any note, bond, mortgage, indenture, lease,
license, contract, agreement or other instrument or obligation to which the
Company is a party (or becomes a party) or by which any of its properties or
assets may be bound or subject, other than such violations, breaches, defaults,
terminations, amendments, cancellations, or accelerations that would not
reasonably be expected to have a Material Adverse Effect, or (iv) violate
any writ, injunction or decree applicable to the Company or any of its
properties or assets.


 


(d)           Compliance With Laws;
Licenses.


 


(i)            To the knowledge of the Company (without independent
investigation or inquiry) and except for those matters that would not
individually or in the aggregate constitute a Material Adverse Effect, the conduct
of the operations of the Company has not violated, and as presently conducted
does not violate in any material respect any Laws, including, but not limited
to, any promulgation, interpretative advice or guidance of any court or
Governmental Authority or agency, including, but not limited to, the
Occupational Safety and Health Administration, the CMS or any medical industry
standards, nor has the Company received any notice of any such violation that
remains outstanding.


 


(ii)           To the knowledge of the Company (without independent
investigation or inquiry), the Company has all licenses, certificates, permits,
approvals, franchises, notices and authorizations (“Company Permits”) required
for the conduct of its operations as currently conducted, except for such
Company Permits which the failure to obtain would not reasonably be expected to
have a Material Adverse Effect.  To the
Company’s knowledge (without independent investigation or inquiry), all Company
Permits are in full force and effect, the Company has not engaged in any
activity that would cause or permit revocation, modification, cancellation or
suspension of any such Company Permit, and no action or proceeding looking to
or contemplating the revocation, modification, cancellation or suspension of any
such Company Permit is pending or threatened. 
The Company has no knowledge of any default or claimed or purported or
alleged default or state of facts that, with or without the giving or receipt
of notice or the passage of time or both, would constitute a default by the
Company 


 


41

















 


under, or give rise to a right of revocation,
modification, cancellation or suspension of, any Company Permit.


 


(e)           Litigation; Investigations.  Except as provided in Schedule 6.2(e),
and except for those matters that would not individually or in the aggregate
constitute a Material Adverse Effect, there are no suits, claims, proceedings,
investigations or reviews pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its directors or officers
(in their capacity as such) of the Company or any properties or assets used by
the Company in conducting its businesses. 
To the knowledge of the Company (without independent investigation or
inquiry), no investigation or review by any Governmental Authority, agency or
court or other regulatory body (including trade associations) with respect to
the Company or any of its employees is pending or threatened or probable of
initiation, nor has any Governmental Authority, agency or court or other
regulatory body (including trade associations) indicated to the Company an
intention to conduct the same, and, to the knowledge of the Company (without
independent investigation or inquiry), there is no action, suit or proceeding
pending or threatened against or affecting the Company or any of its employees,
at Law or in equity, or before any Governmental Authority or other regulatory
body.


 


ARTICLE VII


OTHER
OBLIGATIONS OF THE PARTIES


 


SECTION 7.1         Covenants of the Practice.  The Practice covenants and agrees that for so
long as this Agreement is in effect:


 


(a)           Certificates.  The Practice will provide, and will use its
reasonable best efforts to cause each Physician to provide, notice to the
Company if any representation or warranty contained herein becomes untrue in
any material respect, from and after the Effective Date because of subsequent
events and to provide from time-to-time, at the reasonable request of the
Company, a certificate stating that the representations and warranties
contained herein are true, or, if they are not true, specifying in reasonable
detail the extent to which they are not true.


 


(b)           Existence.  The Practice will preserve and keep in full
force and effect its corporate existence.


 


(c)           Change of Name, Locations, etc.
The Practice shall not (i) change its name, identity or corporate
structure, (ii) change its chief executive office from 316 South Stratford
Ave., Suite C, Santa Maria, CA 93454 or (iii) change the jurisdiction
of its organization from California (whether by merger or otherwise), unless,
in each case, the Practice has given 20 days prior written notice to the
Company of its intention to do so.


 


(d)           Collateral.  The Practice will not grant any other Lien on
or in, or otherwise encumber, any of the Collateral; provided, however, the
Company acknowledges and agrees that the Practice shall have the right to
pledge and encumber all sums retained or due the Practice hereunder to obtain
operational lines of credit, but any and all Liens shall be subordinate to
Liens on the Collateral placed by the Company Lenders pursuant to the Senior
Debt Documents.


 


42

















 


(e)           Records; Inspection.  Upon the reasonable request of the Company,
the Practice will add a conspicuous written notation or legend, in form and
manner reasonably satisfactory to the Company, onto such books, records and
materials evidencing or relating to the Collateral with an appropriate
reference to the fact that an interest in the Collateral has been assigned to
the Company and that the Company has a security interest therein. The Company
shall have the right to make test verifications of the Receivables in any
reasonable manner and through any reasonable medium, and the Practice agrees to
furnish all such reasonable assistance and information as the Company may
reasonably require in connection therewith.


 


(f)            Compliance with Law.  The Practice will comply, in all material
respects, with all Laws which it reasonably believes are applicable with
respect to the conduct of its businesses and its operations.


 


(g)           Standard of Care.  The Practice will consistently provide
Radiation Oncology Services in a manner that meets or exceeds the prevailing
community standard.


 


(h)           Physicians.  Each Physician will: (i) be duly
licensed and otherwise authorized to render Radiation Oncology Services, (ii) be
duly licensed to practice medicine in the State of California and shall
maintain such licenses in good standing, (iii) have, and will maintain in
good standing, unrestricted federal and state registrations authorizing them to
prescribe controlled substances in the State of California, as appropriate, and
(iv) be board certified or board eligible in radiation oncology, and shall
maintain such certifications in good standing.


 


(i)            Medicare/Medicaid
Enrollment.  The Practice
shall maintain qualification and enrollment as a provider for outpatient
radiation services in the Medicare and Medicaid programs.


 


SECTION 7.2         Taxes.


 


(a)           The Company shall pay (i) all
taxes (if any) assessed and levied against the Company or the Company’s
property and assets located within or associated with the Cancer Centers, and (ii) all
lawful claims that, if unpaid, might become a Lien, including a Lien upon any
of its properties or assets located within or associated with the Cancer
Centers; provided, however, that the Company shall not be required to pay any
such unsecured (or secured, only if secured by operation of Law) tax,
assessment, charge, levy or claim that is being contested in good faith and by
proper proceedings and as to which the Company has maintained adequate reserves
with respect thereto in accordance with GAAP. 
The Company shall be solely responsible for the payment of all such
taxes and claims (referred to as “Company Taxes”) that may be imposed on
the Company with respect to this Agreement.


 


(b)           The Practice shall pay (i) all
taxes (if any) assessed and levied against the Practice’s property and assets
and (ii) all lawful claims that, if unpaid, might become a Lien upon any
of its properties or assets located within or associated with the Cancer
Centers (including, without limitation, the Receivables); provided, however,
that the Practice shall not be required to pay any such unsecured (or secured,
only if secured by operation of Law) tax, assessment, charge, levy or claim
that is being contested in good faith and by proper proceedings and as to 


 


43

















 


which the Practice has
maintained adequate reserves with respect thereto in accordance with GAAP.  The Practice shall be solely responsible for
the payment of all such taxes and claims (referred to as “Practice Taxes”)
that may be imposed on the Practice with respect to this Agreement.


 


SECTION 7.3         Covenants of the Company.  The Company covenants and agrees for so long
as this Agreement is in effect:


 


(a)           Certificates.  The Company shall provide notice to the
Practice if any representation or warranty contained herein becomes untrue as
of a date after the date hereof because of subsequent events and to provide
from time to time, at the reasonable request of the Practice, a certificate
stating that the representations and warranties contained herein are true or,
if they are not true, specifying in reasonable detail the extent to which they
are not true.


 


(b)           Corporate Existence.  The Company shall preserve and keep in full
force and effect its corporate existence.


 


(c)           Compliance with Law.  The Company shall comply, in all material
respects, with all Laws that it reasonably believes are applicable to the
conduct of its businesses and its operations.


 


(d)           Standard of Care.  The Company shall consistently provide the
Management Services in a manner that meets or exceeds the prevailing business
standard.


 


(e)           Other Notice.  In addition to the other notice obligations
of the Company provided for elsewhere in this Agreement, the Company shall
provide notice to the Practice, within five Business Days of receipt of
knowledge thereof by the Company, of any notice from a Third-Party Payor that
alleges a default under or intention to terminate or not perform its
obligations under, or of any other material occurrence under, a managed care
agreement.


 


ARTICLE VIII


INSURANCE
AND INDEMNIFICATION


 


SECTION 8.1         Insurance Maintained by the Practice.  During the Term, the Practice shall provide,
or shall arrange for the provision of, and maintain comprehensive professional
liability insurance on the Practice and each Physician in such reasonable
amounts (and with such insurance companies) as are agreed upon by the Parties,
however, not less than a minimum coverage of $ 1.0 million per occurrence and $
3.0 million in the aggregate annually. 
Each such insurance policy shall name the Company as an additional insured
and by its terms provide that it shall not be amended or modified without the
prior written consent of the Company and shall not be canceled or terminated
unless 30 days’ prior notice thereof is given by the insurer to the
Company.  All payments in respect of the
insurance described in this Section 8.1 shall be deemed Operational
Expenses.


 


SECTION 8.2         Insurance Maintained by the Company.  During the Term, the Company shall provide,
or shall arrange for the provision of, and maintain: (a) comprehensive
professional liability insurance for all Clinical Employees providing services
to the Practice pursuant to this Agreement in such reasonable amounts (and with
such insurance companies) as 


 


44

















 


are
agreed upon by the Parties, however, not less than a minimum coverage of $ 1.0
million per occurrence and $ 3.0 million in the aggregate annually. and (b) comprehensive
general liability and property insurance covering the Cancer Centers premises
and operations in the minimum amount of $1.0 million per occurrence and $3.0
million in the aggregate annually. Each such insurance policy shall name the
Practice as an additional insured and by its terms provide that it shall not be
amended or modified without the prior written consent of the Practice and shall
not be canceled or terminated unless 30 days’ prior notice thereof is given by
the insurer to the Practice.  All
payments in respect of the insurance described in this Section 8.2 shall
be deemed Operational Expenses.


 


SECTION 8.3         Requirements as to Insurance.  At all times during this Agreement, each
Party shall require its insurance carrier(s) to provide the other Party
with a current certificate of insurance evidencing the coverage required by
Sections 8.1 and 8.2. The obligations of each Party to be insured for acts and
occurrences during the Term shall be binding on the Parties and shall survive
the termination or expiration of this Agreement.  In the event any such insurance is written on
a “claims-made” rather than an “occurrence” basis, any necessary reporting
endorsements (“tail insurance”) shall be procured by the responsible Party.


 


SECTION 8.4         Indemnification.  Except to the extent that this Section 8.4
may have the effect of reducing or eliminating any insurance coverage that
would otherwise be available to pay damages suffered by any Party, each of the
Parties shall have the following rights to indemnification.


 


(a)           Indemnification by the
Practice.  The Practice shall
indemnify and hold the Company, its Affiliates and their respective permitted
successors and assigns and any of their respective officers, directors,
employees, representatives and agents (collectively, the “Company Indemnitees”)
harmless from and against any and all losses, obligations, liabilities,
settlement payments, awards, judgments, fines, penalties, damages,
deficiencies, taxes and reasonable expenses and costs, including reasonable
attorneys’, accountants’ and auditors’ fees (and any reasonable experts’ fees)
and court costs (each referred to individually as a “Loss”), incurred by
the Company Indemnitees, arising out of or in any way related to: (i) any
material breach or default by the Practice of any term, condition,
representation or covenant contained in this Agreement; (ii) any sexual
harassment, discrimination, wrongful termination or other similar claim against
the Company as a result of actions taken by the Practice or any Physician; (iii) any
professional malpractice claim arising out of acts committed or omitted by the
Practice or the Physicians; (iv) any claim, arising from any act
prohibited under Medicare or Medicaid alleging that the Practice or any
Physician: (1) made a false statement or representation of a material fact
in any application for any benefit or payment; (2) made a false statement
or representation of a material fact for use in determining rights to any
benefit or payment; or (3) failed to disclose knowledge of the occurrence
of an event affecting the initial or continued right to any benefit or payment
on its behalf or on behalf of another, with intent to secure such benefit or
payment fraudulently; (v) any Practice Taxes; (vi) any act prohibited
under any healthcare Law that was committed or omitted by the Practice; or (vii) any
defects or dangerous conditions at the Cancer Centers or in any FF&E caused
by or which are the responsibility of the Practice, the Physicians or any of
the Practice’s authorized agents. 
Notwithstanding the foregoing, in each case above, to the extent such
Loss arises out of or relates to the negligent, reckless or wrongful acts or
omissions of the Company Indemnitees, the Loss shall be shared by the Parties
in proportion to


 


45






 


 










 


their relative contributions to its occurrence as
determined by arbitration pursuant to Article X. No Company Indemnitee
shall be entitled to indemnification under this Sections 8.4(a), unless and
until the aggregate amount of all Losses incurred by the Company Indemnitees
exceeds $50,000, whereupon, the Company Indemnitees shall be entitled to be
indemnified for all Losses on a dollar-for-dollar basis from the first dollar
of Losses


 


(b)                                 Indemnification by the Company.  The Company shall indemnify and hold the
Practice, its Affiliates and their respective permitted successors and assigns
and any of their officers, directors, employees, independent contractors,
representatives and agents, and the Physicians (collectively, the “Practice
Indemnitees”) harmless from and against any Loss incurred by the Practice
Indemnitees arising out of or in any way related to: (i) any material
breach or default by the Company of any term condition, representation or
covenant contained in this Agreement (including, without limitation, the
failure to provide the Practice with the space reasonably necessary to conduct
its professional medical services as required under this Agreement); (ii) any
sexual harassment, discrimination, wrongful termination or other similar claim
against the Practice or any Physician as a result of actions taken by the
Company or any of the Company’s authorized agents; (iii) any claim,
arising from any act prohibited under Medicare or Medicaid alleging that the
Company: (1) made a false statement or representation of a material fact
in any application for any benefit or payment; (2) made a false statement
or representation of a material fact for use in determining rights to any
benefit or payment; or (3) failed to disclose knowledge of the occurrence
of an event affecting the initial or continued right to any benefit or payment
on its behalf or on behalf of another, with intent to secure such benefit or
payment fraudulently; (iv) any Company Taxes; (v) any defects or
dangerous conditions at the Cancer Centers or in any FF&E caused by or
which are the responsibility of the Company; or (vi) any act prohibited
under any healthcare Law that was committed or omitted by the Company; (vii) any
claim with respect to the Leases as a result of a material breach of the Leases
by USCC or its Affiliates and having a Material Adverse Effect on the
Practice.  Notwithstanding the foregoing,
in each case above, to the extent such Loss arises out of or relate to the
negligent, reckless or wrongful acts or omissions of the Practice, the
Physicians or any of the Practice’s agents, the Loss shall be shared by the
Parties in proportion to their relative contributions to its occurrence as
determined by arbitration pursuant to Article X. No Practice Indemnitee
shall be entitled to indemnification under this Sections 8.4(b), unless and
until the aggregate amount of all Losses incurred by the Practice Indemnitees
exceeds $50,000, whereupon, the Practice Indemnitees shall be entitled to be
indemnified for all Losses on a dollar-for-dollar basis from the first dollar
of Losses.


 


(c)                                  Survival.  The obligations of this Section 8.4
shall survive for a period of 15 months following the expiration or earlier
termination of this Agreement, except for the obligations set forth in Section 8.04
(a) (ii), (iii), (iv) or (v) or Section 8.04 (b) (ii),
(iii) or (iv) shall survive indefinitely (or if indefinite survival
is not permitted by Law, then for the maximum period permitted by applicable
Law).


 


SECTION 8.5                          Indemnification Procedure.  Whenever any claim shall arise for
indemnification hereunder, the Party entitled to indemnification (the “Indemnified
Party”) shall provide written notice to the other Party (the “Indemnifying
Party”) within 10 days after becoming aware of any such claim to indemnification,
and shall state the facts constituting the basis for such claim.  In connection with any claim for
indemnification hereunder resulting from 


 


46

















 


or arising out of any claim or legal proceeding by a
Person who is not a party to this Agreement, the Indemnifying Party, at its
sole cost and expense and upon written notice to the Indemnified Party, may
assume the defense of any such claim or legal proceeding with counsel
reasonably satisfactory to the Indemnified Party, unless such assumption of
defense by the Indemnifying Party is not reasonable under the circumstances.
The Indemnified Party shall be entitled to participate in the defense of any
such action, with its own counsel and at its own expense. If the Indemnifying
Party does not assume the defense of any such claim or litigation resulting
therefrom, the Indemnified Party may defend against such claim or litigation in
such manner as it may deem appropriate, including, but not limited to, settling
such claim or litigation, after giving notice of the same to the Indemnifying
Party, on such terms as the Indemnified Party may deem appropriate but after
consultation with the Indemnifying Party; and no action taken by the
Indemnified Party in accordance with such defense and settlement shall relieve
the Indemnifying Party of its indemnification obligations herein provided with
respect to any Loss resulting therefrom.


 


ARTICLE IX

CONFIDENTIAL INFORMATION; ACCESS TO RECORDS


 


SECTION 9.1                          Confidential Information and Trade Secrets.  All Confidential Information
and Trade Secrets belong to and shall remain the property of the Company and
the Practice, as the case may be. Each Party recognizes and acknowledges that
the Confidential Information and Trade Secrets of the other Party are
proprietary to such Party and are valuable, special and unique assets of such
Party’s business. Each Party therefore covenants and agrees that it will not
(and it will ensure that each of its employees will not), during or after the
Term, disclose any of the other Party’s Confidential Information or Trade
Secrets to any Person or entity for any reason or purpose whatsoever, without
the written consent of the other Party, except (a) as necessary in the
proper performance of its obligations hereunder, (b) for any such
Confidential Information or Trade Secrets that becomes public through no fault
of the disclosing Party, or (c) as may be required by Law.  Each Party hereby acknowledges that if it or
any of its employees or agents engage in activities within the limitations of
this Section 9.1, money damages shall be an inadequate remedy, and shall
be entitled to obtain, in addition to any other remedy provided by Law or
equity, an injunction against the violation of such Party’s obligation
hereunder.


 


SECTION 9.2                          Books and Records.  Each Party shall maintain and make available
to the other Party accurate books, records, and accounts relating to the
services provided by such Party pursuant to this Agreement. Such books and
records shall be available at their place of keeping for inspection by the
other Party or its representative for the purpose of determining whether the
correct amounts have been retained and/or paid in accordance with the terms of
this Agreement and for any other valid purpose. 
Each Party shall have the right to conduct an audit (at such Party’s
expense) upon fifteen (15) days advance written notice, but not more frequently
than twice each calendar year.


 


47

















 


ARTICLE X

ARBITRATION


 


SECTION 10.1                    Arbitration.


 


(a)                                  In the event of any controversy or claim, whether based on contract,
tort, statute, or other legal or equitable theory (including but not limited to
any claim of fraud, misrepresentation, or fraudulent inducement) arising out of
or related to this Agreement (“dispute”) arises and cannot be resolved by
negotiation, the Parties agree to submit the dispute to mediation by a mediator
mutually selected by the Parties.  If the
Parties are unable to agree upon a mediator, then the mediator shall be
appointed by the American Arbitration Association.  In any event, the mediation shall take place
within thirty (30) days of the date that a Party gives the other Party written
notice of its desire to mediate the dispute.


 


(b)                                 If not thus resolved by mediation, the dispute shall be resolved by
arbitration pursuant to this Section 10.1 and the then-current rules and
supervision of the American Arbitration Association, and shall be subject to
binding arbitration in accordance with applicable sections of the California
Code of Civil Procedure.


 


(c)                                  The duties to mediate and arbitrate shall extend to any director,
officer, employee, shareholder, principal, agent trustee in bankruptcy or
otherwise, Affiliate, subsidiary, third-party beneficiary, or guarantor of a
Party making or defending any claim which would otherwise be subject to this Section 10.1.


 


(d)                                 The arbitration shall be held in Santa Barbara County, California,
before a single arbitrator.  The
arbitrator’s decision and award shall be final and binding and may be entered
in any court having jurisdiction thereof.


 


(e)                                  In order to prevent irreparable harm, the arbitrator may grant temporary
or permanent injunctive or other equitable relief for the protection of
property rights.


 


(f)                                    Issues or arbitrability shall be determined in accordance with
substantive and procedural Laws relating to arbitration, and all other aspects
of the Agreement shall be interpreted in accordance with and the arbitrator
shall apply and be found to follow the substantive Laws of the State of
California.  The prevailing party in such
action, in addition to any other award made by the arbitrator, shall be
entitled to an award of reasonable attorneys’ fees and costs incurred in
prosecuting such action and the enforcement of any judgment entered in such
action, all in the amount to be determined by the arbitrator in accordance with
the rules of the American Arbitration Association.


 


(g)                                 If court proceedings to stay litigation or compel arbitration are
necessary, the Party who unsuccessfully opposes such proceedings shall pay all
associated costs, expenses, and attorney’s fees which are reasonably incurred
by the other Party.


 


(h)                                 The arbitrator may order the Parties to exchange copies of nonrebuttal
exhibits and copies of witness lists in advance of the arbitration
hearing.  However, the arbitrator shall
have no other power to order discovery or depositions unless and then only to
the extent that all Parties otherwise agree in writing.


 


(i)                                     Neither a Party, a witness, nor the arbitrator may disclose the facts of
the underlying dispute or the contents or results of any negotiation,
mediation, or arbitration hereunder without prior written consent of all
Parties, unless and then only to the extent required 


 


48

















 


to enforce or challenge the negotiated agreement or
the arbitration award, as required by Law, or as necessary for financial and
tax reports and audits.


 


(j)                                     Notwithstanding anything to the contrary in this Section 10.1, in
the event of alleged violation of a Party’s property or equitable rights
(including but not limited to unauthorized disclosure of confidential
information), that Party may seek temporary injunctive relief from any court of
competent jurisdiction pending appointment of an arbitrator.  The Party requesting such relief shall
simultaneously file a demand for mediation and arbitration of the dispute, and
shall request the American Arbitration Association to proceed under its rules of
expedited procedures.  In no event shall
any such court-ordered temporary injunctive relief continue for more than
thirty (30) days.


 


(k)                                  If any part of this Section 10.1 is held to be unenforceable, it
shall be severed and shall not affect either the duties to mediate and arbitrate
hereunder or any other part of this Section 10.1.


 


ARTICLE XI

GENERAL PROVISIONS


 


SECTION 11.1                    Changes in the Law.  This Agreement shall be subject to all
applicable Laws and all changes and amendments thereto.  Any provision of Law that invalidates, or is
otherwise inconsistent with, the terms of this Agreement, or which would cause
one of the Parties to be in violation of Law, shall automatically supersede the
terms of this Agreement; provided, however, the Parties shall exercise their
best efforts to negotiate an appropriate modification to the terms and
conditions of this Agreement to accommodate such provisions of Law and to
effectuate the existing terms and intent of this Agreement to the greatest
possible extent consistent with the requirements of such Law. In the event that
there shall be a change in the Medicare or Medicaid (or the general
instructions relating thereto), or in other Laws (or the application thereof),
or the adoption of new legislation, or a change in any Third-Party Payor reimbursement
system applicable to the provision of Radiation Oncology Services, any of which
materially and adversely affects the compensation that the Company may receive
for the services furnished to the Practice or if there is any other material
change in the facts, circumstances or assumptions of the Parties that
substantially alters the allocation of risks and rewards intended to be
accomplished herein, the Party so affected may by notice propose to the other
Party a new basis for compensation hereunder or other modification of this
Agreement and the Parties shall negotiate in good faith an equitable amendment
to this Agreement.  If such notice is
given and if the Parties are unable within 60 days to agree upon such
amendment, the Parties shall submit such matter to binding arbitration in
accordance with Article X.


 


SECTION 11.2                    Independent Contractors.  The relationship between the Company and the
Practice is that of independent contractors, and none of the provisions of this
Agreement is intended to create, nor shall be construed to create a
partnership, joint venture or employment relationship between the Parties.  Neither Party, nor any of its respective
officers, members, employees or independent contractors, shall, except as
otherwise expressly provided in this Agreement, be deemed to be the employee or
representative of the other Party by virtue of this Agreement.


 


49

















 


SECTION 11.3                    Force Majeure.  Neither Party shall be liable to the other
for failure to perform any of the services, duties or obligations required of
such Party herein in the event of strikes, lockouts, calamities, acts of God,
unavailability of supplies or other events over which such Party has no control
for so long as such event continues and for a reasonable period of time
thereafter; provided, however, that each Party agrees to use reasonably
diligent efforts to perform such services, duties and obligations required of
such Party herein notwithstanding such events and shall be liable to the other
for the failure to use such reasonable diligent efforts.


 


SECTION 11.4                    Notices and Addresses.  Any notice, demand, request, waiver, or other
communication under this Agreement shall be in writing and shall be deemed to
have been duly given on the date of service, if personally served or sent by
facsimile; on the Business Day after notice is delivered to a courier or mailed
by express mail, if sent by courier delivery service or express mail for next
day delivery; and on the third day after mailing, if mailed to the Party to
whom notice is to be given, by first class mail, registered, return receipt
requested, postage prepaid and addressed as follows:


 


To Company:                                                                        OnCURE Medical Corp.

610 Newport Center Drive, Suite 350

Newport Beach, CA 92660

Attn:  Jeffrey A. Goffman, President 

Fax:                           (949) 721-6541


 


With a copy to:                                                             Dechert, LLP

30 Rockefeller Plaza

New York, NY  10112

Attn:  Scott M. Zimmerman, Esq.


Fax:                           (212) 891-9598


 


To Practice:                                                                                 Coastal Radiation Oncology Medical Group, Inc.


316 South Stratford Ave., Suite C


Santa Maria, CA 93454


Attn:  Jonathan Stella, MD. President


Fax: (805) 541-1653


 


With a copy to:                                                             Andre, Morris & Buttery

1102 Laurel Lane


San Luis Obispo, CA
93401

Attn:  J. Todd Mirolla, Esq.

Fax: (805) 543-0752


 


SECTION 11.5                    Entire Agreement.  This Agreement, including the exhibits and
schedules hereto, sets forth the entire understanding and agreement and
supersedes any and all other understandings, negotiations or agreements between
the Parties.


 


SECTION 11.6                    Physician Rights.  The Parties acknowledge and agree that the
Physicians are third-party beneficiaries of this Agreement and have standing to
enforce their rights hereunder. In addition, the Practice shall require that
each Physician acknowledges and 


 


50

















 


agrees to be bound by all representations, warranties
and covenants expressly applicable to him in this Agreement.


 


SECTION 11.7                    Governing Law.  This Agreement shall be governed by, and
construed and enforced in accordance with, the Laws of the State of California.


 


SECTION 11.8                    Captions.  The captions or headings in this Agreement
are made for convenience and general reference only and shall not be construed
to describe, define or limit the scope or intent of the provisions of this Agreement.


 


SECTION 11.9                    Severability.  The provisions of this Agreement shall be
deemed severable and if any portion shall be held invalid, illegal or
unenforceable for any reason, the remainder of this Agreement shall be
effective and binding upon the parties.


 


SECTION 11.10              Waiver.  Any term or condition of this Agreement may
be waived at any time by the Party that is entitled to the benefit thereof, but
no such waiver shall be effective unless set forth in a written instrument duly
executed by or on behalf of the Party waiving such term or condition.  No waiver by any Party of any term or
condition of this Agreement, in any one or more instances, shall be deemed to
be or construed as a waiver of the same or any other term or condition of this
Agreement on any future occasion.  All
remedies, either under this Agreement or by Law or otherwise afforded, will be
cumulative and not alternative.


 


SECTION 11.11              Counterparts.  This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each
of the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart. 
Delivery of a copy of this Agreement bearing an original signature by
facsimile transmission or by electronic mail in “portable document format”
shall have the same effect as physical delivery of the paper document bearing
the original signature.


 


SECTION 11.12              Medical Advisory Board.  Each Physician providing Radiation Oncology
Services at the Cancer Centers shall have the right to be a member of the
Medical Advisory Board.  The Medical
Advisory Board shall not have any members other than physicians who are owners
or employees of a medical practice providing radiation oncology services at a
center owned or managed by the Company or an Affiliate of the Company.


 


SECTION 11.13              Amendment and Modification.  This Agreement may be amended or modified
only by written agreement executed by all of the Parties hereto.


 


SECTION 11.14              Assignment and Delegation.


 


(a)                                  The Company shall have the right to assign its rights hereunder to (i) any
Affiliate of the Company, provided the net worth of the proposed assignee
equals or exceeds the greater of the Company’s net worth at the Effective Date
or Company’s net worth immediately prior to the proposed assignment, or (ii) to
any Company Lender for security purposes as collateral pursuant to the Senior
Debt Documents.  Upon an assignment
pursuant to clause (i) of the preceding sentence, the Company shall
deliver written notice of the proposed assignment to the Practice at least
sixty (60) days in advance of the effective date.  Such notice shall include the 


 


51

















 


name and legal composition of the proposed assignee
and (1) a current financial statement of the proposed assignee, (2) financial
statements of the proposed assignee covering the preceding three years, if they
exist, and, (3) if available, an audited financial statement of the
proposed assignee for a period ending not more than one (1) year prior to
the proposed effective date of the transfer.


 


(b)                                 Except as set forth in Section 11.14(a), neither the Company nor
the Practice shall have the right to assign their respective rights and
obligations hereunder without the written consent of the other party.  Neither the Company nor the Practice may
delegate any of its duties hereunder, except as expressly contemplated herein;
provided, however, that the Company may delegate some or all of its duties and
obligations hereunder to an Affiliate of Company and the Practice may delegate
(to the extent permitted by Law) some or all of its duties and obligations
hereunder to an Affiliate of the Practice, provided, in each case, that any
assignor shall remain responsible for its obligations hereunder and the
assigning party obtains the prior written consent of the remaining Party (which
consent shall not be unreasonably withheld, delayed or conditioned).


 


SECTION 11.15              Open Records.  Upon the written request of the Secretary of
Health and Human Services or the Comptroller General or any of their duly
authorized representatives, the Company shall make available to the Secretary
of Health and Human Services the contract, books, documents and records that
are necessary to verify the nature and extent of the cost of providing the
Management Services.  No applicable
attorney-client, accountant-client or other legal privilege shall be deemed
waived by virtue of this Agreement.


 


SECTION 11.16              Binding Effect.  Subject to Section 11.14, this Agreement
shall be binding on and shall inure to the benefit of the Parties, and their
successors and permitted assigns.


 


SECTION 11.17              Further Actions.  Each of the Parties agrees (and the Practice
agrees to use its reasonable best efforts to cause the Physicians) to execute
and deliver such further instruments, and do such further acts and things, as
may be reasonably required or useful to carry out the intent and purpose of
this Agreement and as are not inconsistent with the terms hereof.  In addition, the Parties agree to cooperate
with one another in the fulfillment of their respective obligations under this
Agreement.  Furthermore, each of the
Parties agrees (and the Practice agrees to use its reasonable best efforts to
cause the Physicians) to cooperate with the other Party and to assist it in
obtaining all necessary licenses, certificates of need, and other approvals
from regulatory agencies and accrediting bodies.


 


SECTION 11.18              No Prejudice.  This Agreement has been jointly prepared by
the Parties hereto and the terms hereof shall not be construed in favor of or
against any Party on account of its participation in such preparation.


 


52

















 


IN WITNESS WHEREOF, the Parties hereby execute this
Agreement as of the Effective Date.


 


	
   

  	
  US CANCER CARE, INC.  

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey A. Goffman  

  
	
   

  	
  Name:

  	
  Jeffrey A. Goffman  

  
	
   

  	
  Title: 

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  COASTAL RADIATION ONCOLOGY

  MEDICAL GROUP, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jonathan Stella

  
	
   

  	
   

  	
  Jonathan Stella, M.D.

  
	
   

  	
   

  	
  President

  
	
   

  	
  COASTAL RADIATION ONCOLOGY

  MEDICAL GROUP, INC.

  



 


53














 


EXHIBIT “A”


 


MEDICAL ADVISORY BOARD


 


CHARTER


 





 


1

















 


Revised May 2005


 


MEDICAL ADVISORY BOARD


 


I.                                         PURPOSE:


 


The purpose of the Medical Advisory Board (“MAB”) is
to provide all OnCURE Medical Corp. or its affiliated entities (“OnCURE”)
physicians a liaison to the OnCURE Board of Directors (“BOD”) and to the
Administration (CEO, President & CFO).


 


II.                                     MEMBERSHIP:


 


The MAB will be compromised all active physicians
providing radiation oncology services at centers operated by OnCURE.  Each physician providing radiation oncology
services at the OnCURE centers on a full time basis shall be entitled to be a
voting member of the MAB.  The Chairman
will be appointed by the Board of Directors.


 


III.                                 DUTIES:


 


1.               The MAB will meet at least bi-annually with attendance open to all
members, once on the east coast and once on the west coast of the United
States. It will also meet telephonically whenever any issues require its
attention at the request of any physicians, CEO, President or BOD.


 


2.               All issues relating to clinical care including policies &
procedures will be formulated by the MAB.


 


2

















 


3.               All major technical upgrades including medical equipment and its
appropriate use will be reviewed by the MAB.


 


4.               All OnCURE Compliance programs, policies and procedures will be
implemented with the assistance of the MAB.


 


5.               Develop & Administer a Quality Assurance Plan.


 


6.               Assist in the Development and Acquisition of new Centers, including due
diligence on any targets.


 


7.               Serve as a Resource for Clinical Expertise in Aiding Physicians in
Clinical Care.


 


8.               Develop and Implement Clinical Protocols for Research.


 


9.               Report to the BOD & Administration any significant medical
issue.


 


10.         Administer the appropriate Committees to perform all of the necessary
duties (see Committee section).


 


11.         All official meetings with actions will have minutes which will be
reported to the BOD.


 


3

















 


CHAIRMAN OF MEDICAL ADVISORY
BOARD


 


I.                                         SELECTION: The OnCURE Medical Director
will serve as Chairman as appointed by the BOD.


 


II.                                     DUTIES:


 


1.               Organize & Conduct On-going Meetings with All OnCURE
physicians.


 


2.               Help Determine Appropriate Use of New Technologies for each center.


 


3.               Serve as a Resource to Introduce & Implement New Technologies.


 


4.               Develop Policies & Procedures for Major Clinical Areas.


 


5.               Develop a Quality Assurance Plan for the Company.


 


6.               Help Identify, Develop, and Acquire New or Existing Centers.


 


7.               Assist any practice that requests, to recruit New Physicians for OnCURE
Centers for that practice.


 


4

















 


8.               Develop a Network of Medical Resources and Clinical Expertise for the
Centers.


 


9.               Facilitate development and deployment of Clinical Protocols for New
Treatments.


 


10.         Report to Administration & the Board all Significant Medical
Issues.


 


11.         Act as liaison for any and all Physician issues.


 


5

















 


COMMITTTEES


OF THE MEDICAL ADVISORY BOARD


 


I.                                         COMMITTEES: The Chairman will appoint
all necessary committees and the members. There will be six standing committees
which will be the Executive, Clinical Protocols, Quality Assurance, New
Technologies, Acquisition & Recruitment, and Appeals Committees. The
Committees will meet at the request of the Chairman of the MAB. In addition,
the Chairman may appoint an ad hoc committee at any time that a specific issue
requires appropriate action.


 


II.                                     EXCEUTIVE COMMITTEE: The
Executive Committee will be composed of the Chairman of the MAB and Regional
Medical Directors. It will meet as needed to address any clinical or physician
issues and report to the MAB.


 


III.                                 CLINICAL PROTOCOLS:
All clinical protocols utilized will be reviewed by this committee for use by
the OnCURE physicians. It will also facilitate any Center’s participation in
any open national study. All follow-up data will also be tracked and reported
to the MAB as necessary.


 


6

















 


IV.                                 QUALITY ASSURANCE: The Q/A committee
will be responsible for policies and procedures relating to all centers. A plan
for regular Q/A review will be developed for each center. Any issues relating
to quality will be referred to this committee.


 


V.                                     NEW TECHNOLOGIES: Any new technology
or clinical procedure will be researched and reviewed by this Committee and
reported to the MAB for action. The clinical efficacy as well as cost benefit
aspects will be explored in detail.


 


VI.                                 ACQUISITIONS & RECRUITMENT:
This Committee will identify, contact, and help develop any new centers. It
will also assist in recruiting new physician and clinical staff for any new or
existing centers. Last, it will assist in due diligence on any target
acquisitions or developments.


 


VII.                             APPEALS: Any clinical or
professional issue relating to any physician will be referred to this Committee
at the request of such physician or Chairman. A specific review of the issue
will be conducted and reported to the MAB. Any action recommended by the MAB
will be referred to the BOD.


 


7

















 


ONCURE ORGANIZATIONAL CHART


 





 


8

















 


EXHIBIT “B”


 


2006 ANNUAL BUDGET


 


9

















 


EXHIBIT “C”


 


PAYOR INSTRUCTION LETTER


 


[DATE]


 


[Name of Payor]

[Address of Payor]


 


	
   

  	
  Re:

  	
  WOODHOUSE & KARON, A MEDICAL CORPORATION

  
	
   

  	
   

  	
  Federal Tax Identification Number:

  
	
   

  	
   

  	
  Medicare Provider Number:

  
	
   

  	
   

  	
  Medicaid Provider Number:

  
	
   

  	
   

  	
  Unique Provider Identification Number:

  



 


To Whom It May Concern:


 


You are directed to make:


 


	
   

  	
  (1)

  	
  All wire transfers directly to the following
  account:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [NAME OF DEPOSITORY BANK]

                                                              

                                                              

  ABA
  #                                                

  Account
  #                                            
  (Sweeping Account)

  
	
   

  	
   

  	
   

  
	
   

  	
  (2)

  	
  All explanation of benefits, remittance advises, and
  other forms of payment, including checks, to the following address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [DEPOSITORY BANK] as Company Lockbox Bank

  P.O. Box           
  (Practice Lockbox)

                                                                        

                                                                        

  Reference:                                                    

  Account
  #                                        
  (Sweeping Account)

  



 


Thank you for your cooperation in this matter.


 


	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


10