Exhibit 4.01


 


REGISTRATION RIGHTS AGREEMENT


 


by
and among


 


Radiation Therapy Services, Inc.

Guarantors Listed on Schedule I hereto


 


and


 


Wells Fargo Securities, LLC

Barclays Capital Inc.

Banc of America Securities LLC

Daiwa Capital Markets America Inc.

Fifth Third Securities, Inc.


 


Dated
as of April 20, 2010


 

















 


REGISTRATION RIGHTS AGREEMENT


 


This Registration Rights
Agreement (this “Agreement”) is made and entered into as of April 20,
2010, by and among Radiation Therapy Services, Inc., a Florida corporation
(the “Company”), the guarantors named in Schedule I hereto (collectively, the
“Guarantors”), and Wells Fargo Securities, LLC, Barclays Capital Inc., Banc of
America Securities LLC, Daiwa Capital Markets America, Inc. and Fifth
Third Securities, Inc. (collectively, the “Initial Purchasers”), each of
whom has agreed to purchase the Company’s 97/8% Senior
Subordinated Notes due 2017 (the “Initial Notes”) fully and unconditionally
guaranteed by the Guarantors (the “Guarantees”) pursuant to the Purchase Agreement
(as defined below). The Initial Notes and the Guarantees attached thereto are
herein collectively referred to as the “Initial Securities.”


 


This Agreement is made
pursuant to the Purchase Agreement, dated April 9, 2010 (the “Purchase
Agreement”), among the Company, the Guarantors and the Initial Purchasers (i) for
the benefit of the Initial Purchasers and (ii) for the benefit of the
holders from time to time of the Initial Securities, including the Initial
Purchasers. In order to induce the Initial Purchasers to purchase the Initial
Securities, the Company has agreed to provide the registration rights set forth
in this Agreement.


 


The parties hereby agree as
follows:


 


SECTION 1.                            Definitions. As used in
this Agreement, the following capitalized terms shall have the following
meanings:


 


Additional Interest Payment Date: With respect
to the Initial Securities, each Interest Payment Date.


 


Broker-Dealer: Any broker or dealer
registered under the Exchange Act.


 


Business Day: Any day other than a
Saturday, Sunday or U.S. federal holiday or a day on which banking institutions
or trust companies located in New York, New York are authorized or obligated to
be closed.


 


Closing Date: The date of this Agreement.


 


Commission: The Securities and Exchange
Commission.


 


Consummate: A registered
Exchange Offer shall be deemed “Consummated” for purposes of this Agreement
upon the occurrence of (i) the filing and effectiveness under the
Securities Act of the Exchange Offer Registration Statement relating to the
Exchange Securities to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof, and (iii) the
delivery by the Company to the Registrar under the Indenture of Exchange
Securities in the same aggregate principal amount as the aggregate principal
amount of Initial Securities that were tendered by Holders thereof pursuant to
the Exchange Offer.


 

















 


Exchange
Act: The Securities Exchange Act of 1934, as amended.


 


Exchange
Offer: The registration by the Company under the Securities Act of the
Exchange Securities pursuant to a Registration Statement pursuant to which the
Company offers the Holders of all outstanding Transfer Restricted Securities
the opportunity to exchange all such outstanding Transfer Restricted Securities
held by such Holders for Exchange Securities in an aggregate principal amount
equal to the aggregate principal amount of the Transfer Restricted Securities
tendered in such exchange offer by such Holders.


 


Exchange
Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.


 


Exempt
Resales: The transactions in which the Initial Purchasers
propose to sell the Initial Securities to certain “qualified institutional
buyers,” as such term is defined in Rule 144A under the Securities Act and
to certain non-U.S. persons pursuant to Regulation S under the Securities Act.


 


Exchange
Securities: The 97/8% Senior
Subordinated Notes due 2017, of the same series under the Indenture as the
Initial Notes and the Guarantees attached thereto, to be issued to Holders in
exchange for Transfer Restricted Securities pursuant to this Agreement.


 


FINRA: Financial
Industry Regulatory Authority.


 


Holders: As defined in
Section 2(b) hereof.


 


Indemnified
Holder: As defined in Section 8(a) hereof.


 


Indenture: The Indenture,
dated as of April 20, 2010, by and among the Company, the Guarantors and
Wells Fargo Bank, National Association, as trustee (the “Trustee”), pursuant to
which the Securities are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with the terms thereof.


 


Initial
Purchaser: As defined in the preamble hereto.


 


Initial
Notes: As defined in the preamble hereto.


 


Initial
Placement: The issuance and sale by the Company of the Initial
Securities to the Initial Purchasers pursuant to the Purchase Agreement.


 


Initial
Securities: As defined in the preamble hereto.


 


Interest
Payment Date: As defined in the Indenture and the Securities.


 


Person: An individual,
partnership, corporation, trust or unincorporated organization, or a government
or agency or political subdivision thereof.


 


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Prospectus: The prospectus included in
a Registration Statement, as amended or supplemented by any prospectus
supplement and by all other amendments thereto, including post-effective
amendments, and all material incorporated by reference into such Prospectus.


 


Registration Default: As defined in
Section 5 hereof.


 


Registration Statement: Any registration statement
of the Company relating to (a) an offering of Exchange Securities pursuant
to an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement, which is
filed pursuant to the provisions of this Agreement, in each case, including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.


 


Securities Act: The Securities Act of 1933,
as amended.


 


Shelf Filing Deadline: As defined in
Section 4(a) hereof.


 


Shelf Registration Statement: As defined in
Section 4(a) hereof.


 


Transfer Restricted Securities: Each Initial
Security, until the earliest to occur of (a) the date on which such
Initial Security is exchanged in the Exchange Offer for an Exchange Security
entitled to be resold to the public by the Holder thereof without complying
with the prospectus delivery requirements of the Securities Act, (b) the
date on which such Initial Security has been effectively registered under the
Securities Act and disposed of in accordance with a Shelf Registration
Statement and (c) the date on which such Initial Security is distributed
to the public by a Broker-Dealer pursuant to the “Plan of Distribution”
contemplated by the Exchange Offer Registration Statement (including delivery
of the Prospectus contained therein).


 


Trust Indenture Act: The Trust Indenture Act of
1939, as amended.


 


Underwritten Registration or Underwritten Offering: A registration
in which securities of the Company are sold to an underwriter for reoffering to
the public.


 


SECTION 2.                            Securities
Subject to this Agreement.


 


(a)                                 Transfer
Restricted Securities. The securities entitled to the benefits of
this Agreement are the Transfer Restricted Securities.


 


(b)                                 Holders
of Transfer Restricted Securities. A Person is deemed to be a
holder of Transfer Restricted Securities (each, a “Holder”) whenever such
Person owns Transfer Restricted Securities.


 


SECTION 3.                            Registered
Exchange Offer.


 


(a)                                 Unless the
Exchange Offer shall not be permissible under applicable law or Commission
policy (after the procedures set forth in Section 6(a) hereof have
been complied with), each of the Company and the Guarantors shall (i) use
its reasonable best efforts to cause to be filed with the Commission as soon as
practicable after the Closing Date, a Registration Statement


 


3

















 


under the Securities Act relating to the Exchange Securities and the
Exchange Offer, (ii) use its reasonable best efforts to cause such
Registration Statement to become effective at the earliest possible time, (iii) in
connection with the foregoing, file (A) all pre-effective amendments to
such Registration Statement as may be necessary in order to cause such
Registration Statement to become effective, (B) if applicable, a
post-effective amendment to such Registration Statement pursuant to Rule 430A
under the Securities Act and (C) cause all necessary filings in connection
with the registration and qualification of the Exchange Securities to be made
under the state securities or blue sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, and (iv) upon the
effectiveness of such Registration Statement, commence the Exchange Offer, in
each case no later than the Exchange Date (as defined below). The Exchange
Offer shall be on the appropriate form permitting registration of the Exchange
Securities to be offered in exchange for the Transfer Restricted Securities and
to permit resales of Initial Securities held by Broker-Dealers as contemplated
by Section 3(c) hereof.


 


(b)                                 The Company and
the Guarantors shall use their reasonable best efforts to cause the Exchange
Offer Registration Statement to be effective continuously and shall keep the
Exchange Offer open for a period of not less than the minimum period required
under applicable federal and state securities laws to Consummate the Exchange
Offer; provided, however, that in
no event shall such period be less than 30 days after the date notice of the
Exchange Offer is mailed to the Holders. The Company shall cause the Exchange Offer
to comply with all applicable federal and state securities laws. No securities
other than the Exchange Securities shall be included in the Exchange Offer
Registration Statement. The Company shall use its reasonable best efforts to
cause the Exchange Offer to be Consummated on the earliest practicable date
after the Exchange Offer Registration Statement has become effective, but in no
event later than 365 days after the Closing Date (or if such 365th day is not a
Business Day, the next succeeding Business Day) (the “Exchange Date”).


 


(c)                                  The Company
shall indicate in a “Plan of Distribution” section contained in the Prospectus
forming a part of the Exchange Offer Registration Statement that any
Broker-Dealer who holds Initial Securities that are Transfer Restricted
Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Initial Securities pursuant to the Exchange Offer; however, such Broker-Dealer
may be deemed to be an “underwriter” within the meaning of the Securities Act
and must, therefore, deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the Exchange Securities
received by such Broker-Dealer in the Exchange Offer, which prospectus delivery
requirement may be satisfied by the delivery by such Broker-Dealer of the
Prospectus contained in the Exchange Offer Registration Statement. Such “Plan of
Distribution” section shall also contain all other information with respect to
such resales by Broker-Dealers that the Commission may require in order to
permit such resales pursuant thereto, but such “Plan of Distribution” shall not
name any such Broker-Dealer or disclose the amount of Initial Securities held
by any such Broker-Dealer except to the extent required by the Commission as a
result of a change in policy after the date of this Agreement.


 


Each of the Company and the
Guarantors shall use its reasonable best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as


 


4

















 


required by the provisions of Section 6(c) hereof
to the extent necessary to ensure that it is available for resales of Initial
Securities acquired by Broker-Dealers for their own accounts as a result of
market-making activities or other trading activities, and to ensure that it
conforms with the requirements of this Agreement, the Securities Act and the
policies, rules and regulations of the Commission as announced from time
to time, for a period ending on the earlier of (i) 180 days from the date
on which the Exchange Offer Registration Statement is declared effective and
(ii) the date on which a Broker-Dealer is no longer required to deliver a
prospectus in connection with market-making or other trading activities.


 


The Company shall provide
sufficient copies of the latest version of such Prospectus to Broker-Dealers
promptly upon request at any time during such 180-day (or shorter as provided
in the foregoing sentence) period in order to facilitate such resales.


 


SECTION 4.                            Shelf
Registration.


 


(a)                                 Shelf
Registration. If (i) due to any change in law or applicable
interpretations thereof by the Commission’s staff, the Company determines upon
advice of their outside counsel that they are not permitted to effect the
Exchange Offer as contemplated by Section 2 hereof, (ii) for any
reason the Exchange Offer is not Consummated by the Exchange Date, or (iii) prior
to the Exchange Date: (A) the Initial Purchasers request from the Company
with respect to Transfer Restricted Securities not eligible to be exchanged for
Exchange Securities in the Exchange Offer or (B) with respect to any
Holder of Transfer Restricted Securities such Holder notifies the Company that
(i) such Holder is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, (ii) such Holder may not resell the
Exchange Securities acquired by it in the Exchange Offer to the public without
delivering a prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder, or (iii) such Holder is a Broker-Dealer and holds Transfer
Restricted Securities acquired directly from the Company or one of their
affiliates, the Company and the Guarantors shall:


 


(x)                                 cause to be
filed a shelf registration statement pursuant to Rule 415 under the
Securities Act, which may be an amendment to the Exchange Offer Registration
Statement (in either event, the “Shelf
Registration Statement”), on or prior to the 45th day after the date
on which the Company receives such notice from a Holder of Transfer Restricted
Securities or an Initial Purchaser (such date being the “Shelf Filing Deadline”), which Shelf
Registration Statement shall provide for resales of all Transfer Restricted
Securities the Holders of which shall have provided the information required
pursuant to Section 4(b) hereof; and


 


(y)                                 use their
commercially reasonable efforts to cause such Shelf Registration Statement to
be declared effective as promptly as practicable, but no later than (A) 90
days (or if such 90th day is not a Business Day the next succeeding Business
Day), or (B) 60 days if the Shelf Registration Statement is not reviewed
by the Commission (or if such 60th day is not a Business Day, the next
succeeding Business Day), after such time such obligation to file first arises;
provided that the Company and the Guarantors shall not be required to
cause such Shelf Registration Statement to be declared effective earlier than


 


5

















 


the 500th day following the
Closing Date (or if such 500th day is not a Business Day, the next succeeding
Business Day).


 


Each of the Company and the
Guarantors shall use its commercially reasonable efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of Initial
Securities by the Holders of Transfer Restricted Securities entitled to the
benefit of this Section 4(a), and to ensure that it conforms with the
requirements of this Agreement, the Securities Act and the policies, rules and
regulations of the Commission as announced from time to time, from the date on
which the Shelf Registration Statement is declared effective by the Commission
until the expiration of the one-year period referred to in Rule 144
applicable to securities held by non-affiliates under the Securities Act (or
shorter period that will terminate when all the Initial Securities covered by
such Shelf Registration Statement have been sold pursuant to such Shelf Registration
Statement).


 


(b)                                 Provision
by Holders of Certain Information in Connection with the Shelf Registration
Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 20 Business Days after receipt of a request
therefore, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to Additional Interest pursuant to a Registration Default under
clause (ii) of the definition thereof set forth in Section 5 hereof
unless and until such Holder shall have provided all such information. Each
Holder as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such
Holder not materially misleading.


 


(c)                                  Suspension.
Notwithstanding anything to the contrary and subject to the limitation set
forth in the next succeeding paragraph, at any time after the effectiveness of
the Shelf Registration Statement, the Company shall be entitled to suspend its
obligation to file any amendment to the Shelf Registration Statement, furnish
any supplement or amendment to a Prospectus included in the Shelf Registration
Statement, make any other filing with the Commission, cause the Shelf
Registration Statement or other filing with the Commission to remain effective
or take any similar action (collectively, “Registration
Actions”) upon (A) the issuance by the Commission of a stop
order suspending the effectiveness of the Shelf Registration Statement or the
initiation of proceedings with respect to the Shelf Registration Statement
under Section 8(d) or 8(e) of the Securities Act, (B) the
occurrence of any event or the existence of any fact as a result of which the
Shelf Registration Statement would or shall contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, or the related
Prospectus would or shall contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading or (C) the occurrence or existence of any
corporate development that, in the good faith determination of the Board of
Directors of the Company, makes it appropriate to postpone or suspend the
availability of the Shelf Registration Statement and the related Prospectus.


 


6

















 


Upon the occurrence of any of the conditions
described in clause (A), (B) or (C) above, the Company shall give
prompt notice (a “Suspension Notice”)
thereof to the Holders. Upon the termination of such condition, the Company
shall give prompt notice thereof to the Holders and shall promptly proceed with
all Registration Actions that were suspended pursuant to this paragraph.


 


The Company may only suspend
Registration Actions pursuant to the preceding paragraph for one or more
periods (each, a “Suspension Period”)
not to exceed, in the aggregate, (x) forty-five (45) days in any three
month period or (y) ninety (90) days in any twelve month period. Any
Suspension Period will not alter the obligations of the Company to pay
Additional Interest under the circumstances set forth in Section 5 hereof,
if applicable. Each Suspension Period shall be deemed to begin on the date the
relevant Suspension Notice is given to the Holders and shall be deemed to end
on the earlier to occur of (1) the date on which the Company gives the
Holders a notice that the Suspension Period has terminated and (2) the
date on which the number of days during which a Suspension Period has been in
effect exceeds, in the aggregate, (x) forty-five (45) days in any three
month period or (y) ninety (90) days in any twelve month period.


 


SECTION 5.                            Additional
Interest. If (i) the Exchange Offer has not been
Consummated on or prior to the date specified for such consummation in this
Agreement, (ii) any Shelf Registration Statement, if required hereby, has
not been declared effective by the Commission on or prior to the date specified
for such effectiveness in this Agreement or (iii) any Registration
Statement required by this Agreement has been declared effective but ceases to
be effective at any time at which it is required to be effective under this
Agreement (other than during a Suspension Period), as applicable (each such
event referred to in clauses (i) through (iii), a “Registration Default”), the Company hereby
agrees that the interest rate borne by the Transfer Restricted Securities shall
be increased by a per annum rate of 0.25% per annum during the 90-day period
immediately following the occurrence of any Registration Default and shall
increase by 0.25% per annum at the end of each subsequent 90-day period (such
increase, “Additional Interest”)
until such Registration Default has been cured, but in no event shall such
increase exceed a per annum rate of 1.00% per annum. Following the cure of such
Registration Defaults relating to the particular Transfer Restricted Securities
the interest rate borne by the relevant Transfer Restricted Securities will be
reduced to the original interest rate borne by such Transfer Restricted
Securities; provided, however, that, if after any such
reduction in interest rate, a different Registration Default occurs, the
interest rate borne by the relevant Transfer Restricted Securities shall again
be increased pursuant to the foregoing provisions; provided further, that, the Company shall in no event be
required to pay Additional Interest for more than one Registration Default at
any given time.


 


All obligations of the
Company and the Guarantors set forth in the preceding paragraph that are outstanding
with respect to any Transfer Restricted Security at the time such security
ceases to be a Transfer Restricted Security shall survive until such time as
all such obligations with respect to such security shall have been satisfied in
full.


 


7

















 


SECTION 6.                            Registration
Procedures.


 


(a)                                 Exchange
Offer Registration Statement. In connection with the
Exchange Offer, the Company and the Guarantors shall comply with all of the
provisions of Section 6(c) hereof, shall use their commercially
reasonable efforts to effect such exchange to permit the sale of Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and shall comply with all of the following provisions:


 


(i)                                     If in the
reasonable opinion of counsel to the Company there is a question as to whether
the Exchange Offer is permitted by applicable law, each of the Company and the
Guarantors hereby agrees to seek a no-action letter or other favorable decision
from the Commission allowing the Company and the Guarantors to Consummate an
Exchange Offer for such Initial Securities. Each of the Company and the
Guarantors hereby agrees to pursue the issuance of such a decision to the
Commission staff level but shall not be required to take commercially
unreasonable action to gain a favorable decision from the Commission. Each of
the Company and the Guarantors hereby agrees,
however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis prepared by
counsel to the Company setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer should be permitted and (C) diligently
pursue a favorable resolution by the Commission staff of such submission.


 


(ii)                                  As a condition
to its participation in the Exchange Offer pursuant to the terms of this
Agreement, each Holder of Transfer Restricted Securities shall furnish, upon
the request of the Company, prior to the Consummation thereof, a written
representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any Person to participate in, a distribution of the Exchange
Securities to be issued in the Exchange Offer and (C) it is acquiring the
Exchange Securities in its ordinary course of business. In addition, all such
Holders of Transfer Restricted Securities shall otherwise cooperate in the
Company’s preparations for the Exchange Offer. Each Holder hereby acknowledges
and agrees that any Broker-Dealer and any such Holder using the Exchange Offer
to participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on the
date of this Agreement rely on the position of the Commission enunciated in Morgan
Stanley and Co., Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May 13, 1988), as interpreted
in the Commission’s letter to Shearman & Sterling dated July 2,
1993, and similar no-action letters (which may include any no-action letter
obtained pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with a secondary resale transaction and that such a secondary resale
transaction should be covered by an effective registration statement containing
the selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K if the resales are of Exchange Securities
obtained by such Holder in exchange for Initial Securities acquired by such
Holder directly from the Company.


 


8






 










 


(b)           Shelf
Registration Statement. In connection with the
Shelf Registration Statement, each of the Company and the Guarantors shall
comply with all the provisions of Section 6(c) hereof and shall use
its commercially reasonable efforts to effect such registration to permit the
sale of the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof, and pursuant thereto each
of the Company and the Guarantors will as expeditiously as practicable prepare
and file with the Commission a Registration Statement relating to the
registration on any appropriate form under the Securities Act, which form shall
be available for the sale of the Transfer Restricted Securities in accordance
with the intended method or methods of distribution thereof.


 


(c)           General
Provisions. In connection with any Registration Statement and
any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Initial
Securities by Broker-Dealers), each of the Company and the Guarantors shall:


 


(i)            use its commercially reasonable
efforts to keep such Registration Statement continuously effective and provide
all requisite financial statements (including, if required by the Securities
Act or any regulation thereunder, financial statements of the Guarantors for
the period specified in Section 3 or 4 hereof, as applicable; upon the
occurrence of any event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material misstatement or
omission or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the Company
shall file promptly an appropriate amendment to such Registration Statement, in
the case of clause (A), correcting any such misstatement or omission, and, in
the case of either clause (A) or (B), use its commercially reasonable
efforts to cause such amendment to be declared effective as soon as practicable
thereafter;


 


(ii)           prepare and file with the Commission
such amendments and post-effective amendments to the applicable Registration
Statement as may be necessary to keep the Registration Statement effective for
the applicable period set forth in Section 3 or 4 hereof, as applicable,
or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act,
and to comply fully with the applicable provisions of Rules 424 and 430A
under the Securities Act in a timely manner; and comply with the provisions of
the Securities Act with respect to the disposition of all securities covered by
such Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus;


 


(iii)          advise the underwriter(s), if any, and
selling Holders promptly and, if requested by such Persons, to confirm such
advice in writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any Registration
Statement or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the
Registration


 


9

















 


Statement or amendments or
supplements to the Prospectus or for additional information relating thereto,
(C) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Securities Act or of the
suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, (D) of the
existence of any fact or the happening of any event that makes any statement of
a material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes in
the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop
order suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or blue sky laws, each of the
Company and the Guarantors shall use its commercially reasonable efforts to
obtain the withdrawal or lifting of such order at the earliest possible time;


 


(iv)          furnish without charge to each of the
Initial Purchasers, each selling Holder named in any Registration Statement,
and each of the underwriter(s), if any, before filing with the Commission,
copies of any Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or Prospectus
(including all documents incorporated by reference after the initial filing of
such Registration Statement), which documents will be subject to the review and
comment of such Holders and underwriter(s) in connection with such sale,
if any, for a period of at least five Business Days, and the Company will not
file any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus (including all such
documents incorporated by reference) to which an Initial Purchaser of Transfer
Restricted Securities covered by such Registration Statement or the
underwriter(s), if any, shall reasonably object in writing within five Business
Days after the receipt thereof (such objection to be deemed timely made upon
confirmation of telecopy transmission within such period). The objection of an
Initial Purchaser or underwriter, if any, shall be deemed to be reasonable if
such Registration Statement, amendment, Prospectus or supplement, as applicable,
as proposed to be filed, contains a material misstatement or omission;


 


(v)           promptly prior to the filing of any
document that is to be incorporated by reference into a Registration Statement
or Prospectus in connection with such exchange or sale, provide copies of such
document to the Initial Purchasers, each selling Holder named in any
Registration Statement, and to the underwriter(s), if any, make the Company’s
and the Guarantors’ representatives available for discussion of such document
and other customary due diligence matters, and include such information in such
document prior to the filing thereof as such selling Holders or underwriter(s),
if any, reasonably may request;


 


(vi)          make available at reasonable times for
inspection by the Initial Purchasers, the managing underwriter(s), if any,
participating in any disposition pursuant to such


 


10

















 


Registration Statement and
any attorney or accountant retained by such Initial Purchasers or any of the underwriter(s),
all financial and other records and, pertinent corporate documents of each of
the Company and the Guarantors reasonably requested by any such Persons and
cause the Company’s and the Guarantors’ officers, directors and employees to
supply all information reasonably requested by any such Holder, underwriter,
attorney or accountant in connection with such Registration Statement or any
post-effective amendment thereto subsequent to the filing thereof and
prior to its effectiveness and to participate in meetings with investors to the
extent reasonably requested by the managing underwriter(s), if any;


 


(vii)         if requested by any selling Holders or
the underwriter(s), if any, in connection with such exchange or sale, promptly
incorporate in any Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information as such
selling Holders and underwriter(s), if any, may reasonably request to have
included therein, including, without limitation, information relating to the
“Plan of Distribution” of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being sold to
such underwriter(s), the purchase price being paid therefor and any other terms
of the offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is notified
of the matters to be incorporated in such Prospectus supplement or
post-effective amendment;


 


(viii)        use its commercially reasonable efforts
to cause the Transfer Restricted Securities covered by the Registration
Statement to be rated with the appropriate rating agencies, if so requested by
the Holders of a majority in aggregate principal amount of Securities covered
thereby or the underwriter(s), if any;


 


(ix)           furnish to each Initial Purchaser,
each selling Holder and each of the underwriter(s), if any, without charge, at
least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including financial statements and
schedules (without documents incorporated by reference therein or exhibits
thereto, unless requested);


 


(x)            deliver to each selling Holder and
each of the underwriter(s), if any, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; each of the Company
and the Guarantors hereby consents to the use of the Prospectus and any
amendment or supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;


 


(xi)           enter into such customary agreements
(including an underwriting agreement), and make such customary representations
and warranties, and take all such other customary and appropriate actions in
connection therewith in order to expedite or facilitate the disposition of the
Transfer Restricted Securities pursuant to any Registration Statement
contemplated by this Agreement, all to such extent as may be reasonably
requested


 


11

















 


by any Initial Purchaser or
by any Holder of Transfer Restricted Securities or underwriter in connection
with any sale or resale pursuant to any Registration Statement contemplated by
this Agreement; and whether or not an underwriting agreement is entered into
and whether or not the registration is an Underwritten Registration, each of
the Company and the Guarantors shall:


 


(A)          to the extent reasonably requested,
furnish to each Initial Purchaser, each selling Holder and each underwriter, if
any, in such substance and scope as they may request and as are customarily
made by issuers to underwriters in primary underwritten offerings, upon the
date of the Consummation of the Exchange Offer or, if applicable, the
effectiveness of the Shelf Registration Statement:


 


(1)           a certificate, dated the date of
Consummation of the Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, signed by (y) the President or
any Vice President and (z) a principal financial or accounting officer of
each of the Company and the Guarantors, confirming, as of the date thereof, the
matters set forth in paragraphs (d), (e) and (f) of Section 6 of
the Purchase Agreement and such other matters as such parties may reasonably
request;


 


(2)           in connection with an underwritten
registration, obtain opinions of counsel to the Company and the Guarantors and
updates thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any, and the
holders of a majority in principal amount of the Transfer Restricted Securities
being sold) addressed to each selling Holder, Initial Purchaser and the
underwriters, if any, covering the matters customarily covered in opinions
requested in sales of securities or underwritten offerings and such other
matters as may be reasonably requested by such Holders, Initial Purchasers
and underwriters; and


 


(3)           a customary comfort letter, dated the
date of effectiveness of the Shelf Registration Statement, from the Company’s
independent accountants, in the customary form and covering matters of the type
customarily requested to be covered in comfort letters by underwriters in
connection with primary underwritten offerings, and covering or affirming the
matters set forth in the comfort letters delivered pursuant to Section 6(c) of
the Purchase Agreement, without exception;


 


(B)           set forth in full or incorporate by
reference in the underwriting agreement, if any, the indemnification provisions
and procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and


 


(C)           deliver such other documents and
certificates as may be reasonably requested by such parties to evidence
compliance with Section 6(c)(xi)(A) hereof and with any customary
conditions contained in the underwriting agreement or


 


12

















 


other agreement entered into
by the Company or any of the Guarantors pursuant to this Section 6(c)(xi),
if any.


 


If
at any time the representations and warranties of the Company and the
Guarantors contemplated in Section 6(c)(xi)(A)(1) hereof cease to be
true and correct, the Company or the Guarantors shall so advise the Initial
Purchasers and the underwriter(s), if any, and each selling Holder promptly
and, if requested by such Persons, shall confirm such advice in writing;


 


(xii)          prior to any public offering of
Transfer Restricted Securities, use its commercially reasonable efforts to
cooperate with the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification of the
Transfer Restricted Securities under the state securities or blue sky laws of
such jurisdictions as the selling Holders or underwriter(s), if any, may
reasonably request and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities covered by the Shelf Registration Statement; provided, however, that none of the
Company nor the Guarantors shall be required to register or qualify as a
foreign corporation where it is not then so qualified or to take any action
that would subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration Statement, in
any jurisdiction where it is not then so subject;


 


(xiii)         shall issue, upon the request of any
Holder of Initial Securities covered by the Shelf Registration Statement,
Exchange Securities having an aggregate principal amount equal to the aggregate
principal amount of Initial Securities surrendered to the Company by such
Holder in exchange therefor or being sold by such Holder; such Exchange
Securities to be registered in the name of such Holder or in the name of the
purchaser(s) of such Securities, as the case may be; in return, the
Initial Securities held by such Holder, if in certificated form, shall be
surrendered to the Company for cancellation;


 


(xiv)        cooperate with the selling Holders and
the underwriter(s), if any, to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to be sold and not
bearing any restrictive legends; and enable such Transfer Restricted Securities
to be in such denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two Business Days prior to any
sale of Transfer Restricted Securities made by such Holders or underwriter(s);


 


(xv)         use its commercially reasonable efforts
to cause the Transfer Restricted Securities covered by the Registration
Statement to be registered with or approved by such other governmental agencies
or authorities as may be necessary to enable the seller or sellers thereof or
the underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in Section 6(c)(xii) hereof;


 


(xvi)        if any fact or event contemplated by
Section 6(c)(iii)(D) hereof shall exist or have occurred, prepare a
supplement or post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file


 


13

















 


any other required document
so that, as thereafter delivered to the purchasers of Transfer Restricted
Securities, the Prospectus will not contain an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of circumstances under which they were made, not
misleading;


 


(xvii)       provide a CUSIP number for all Securities
not later than the effective date of the Registration Statement covering such
Securities and provide the Trustee under the Indenture with printed
certificates for such Securities which are in a form eligible for deposit with
the Depository Trust Company and take all other action necessary to ensure that
all such Securities are eligible for deposit with the Depository Trust Company;


 


(xviii)      cooperate and assist in any filings
required to be made with FINRA and in the performance of any due diligence
investigation by any underwriter (including any “qualified independent
underwriter”) that is required to be retained in accordance with the rules and
regulations of FINRA;


 


(xix)         otherwise use its commercially
reasonable efforts to comply with all applicable rules and regulations of
the Commission, and make generally available to its security holders, as soon
as practicable, a consolidated earnings statement meeting the requirements of
Rule 158 under the Securities Act (which need not be audited) for the
twelve-month period beginning with the first month of the Company’s first
fiscal quarter commencing after the effective date of the Registration
Statement;


 


(xx)          cause the Indenture to be qualified
under the Trust Indenture Act not later than the effective date of the first
Registration Statement required by this Agreement, and, in connection
therewith, cooperate with the Trustee and the Holders of Securities to effect
such changes to the Indenture as may be required for such Indenture to be so
qualified in accordance with the terms of the Trust Indenture Act; and to
execute and use its commercially reasonable efforts to cause the Trustee to
execute, all documents that may be required to effect such changes and all
other forms and documents required to be filed with the Commission to enable
such Indenture to be so qualified in a timely manner;


 


(xxi)         cause all Securities covered by the
Registration Statement to be listed on each securities exchange or automated
quotation system on which similar securities issued by the Company are then
listed if reasonably requested by the Holders of a majority in aggregate
principal amount of Initial Securities or the managing underwriter(s), if any;
and


 


(xxii)        provide promptly to each Holder upon
request each document filed with the Commission pursuant to the requirements of
Section 13 and Section 15 of the Exchange Act.


 


Each Holder agrees by
acquisition of a Transfer Restricted Security that, upon receipt of any notice
from the Company of (i) the existence of any fact of the kind described in
Section 6(c)(iii)(D) hereof or (ii) the commencement of a
Suspension Period, such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration
Statement until such Holder’s receipt of the copies of the supplemented or
amended Prospectus


 


14

















 


contemplated by Section 6(c)(xvi) hereof,
or until it is advised in writing (the “Advice”) by the Company that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If
so directed by the Company, each Holder will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such
Holder’s possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4
hereof, as applicable, shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) hereof to and including the date when each
selling Holder covered by such Registration Statement shall have received the
copies of the supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof
or shall have received the Advice; provided,
however, that no such extension shall be taken into account in
determining whether Additional Interest is due pursuant to Section 5
hereof or the amount of such Additional Interest, it being agreed that the Company’s
option to suspend use of a Registration Statement pursuant to this paragraph,
other than during a Suspension Period, shall be treated as a Registration
Default for purposes of Section 5 hereof.


 


SECTION 7.           Registration
Expenses.


 


(a)           All expenses incident to the Company’s and the Guarantor’s
performance of or compliance with this Agreement will be borne by the Company
and the Guarantors, jointly and severally], regardless of whether a
Registration Statement becomes effective, including, without limitation: (i) all
registration and filing fees and expenses (including filings made by any
Initial Purchaser or Holder with FINRA (and, if applicable, the fees and
expenses of any “qualified independent underwriter” and its counsel that may be
required by the rules and regulations of FINRA)); (ii) all fees and
expenses of compliance with federal securities and state securities or blue sky
laws; (iii) all expenses of printing (including printing certificates for
the Exchange Securities to be issued in the Exchange Offer and printing of
Prospectuses), messenger and delivery services and telephone; (iv) all
fees and disbursements of counsel for the Company, the Guarantors and, subject
to Section 7(b) hereof, the Holders of Transfer Restricted
Securities; (v) all application and filing fees in connection with listing
the Exchange Securities on a securities exchange or automated quotation system
pursuant to the requirements thereof; and (vi) all fees and disbursements
of independent certified public accountants of the Company and the Guarantors
(including the expenses of any special audit and comfort letters required by or
incident to such performance).


 


Each of the Company and the
Guarantors will, in any event, bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the Company or
the Guarantors.


 


(b)           In connection with any Registration Statement required by
this Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company and the
Guarantors, jointly and severally, will reimburse the Initial Purchasers and
the Holders of Transfer Restricted Securities being tendered in the Exchange
Offer


 


15

















 


and/or resold pursuant to the “Plan of Distribution”
contained in the Exchange Offer Registration Statement or registered pursuant
to the Shelf Registration Statement, as applicable, for the reasonable and
documented fees and disbursements of not more than one counsel, who shall be
Cahill Gordon & Reindel LLP or such other counsel as may be chosen by
the Holders of a majority in principal amount of the Transfer Restricted
Securities for whose benefit such Registration Statement is being prepared.


 


SECTION 8.           Indemnification.


 


(a)           The Company and the Guarantors, jointly and severally,
agree to indemnify and hold harmless (i) each Holder and (ii) each
Person, if any, who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) any Holder (any of the
Persons referred to in this clause (ii) being hereinafter referred to as a
“controlling person”) and (iii) the respective officers and directors of
any Holder or any controlling person (any Person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an “Indemnified
Holder”), to the fullest extent lawful, from and against any and all losses,
claims, damages, liabilities, judgments, actions and expenses (including,
without limitation, and as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing, settling, compromising, paying or defending
any claim or action, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, including the reasonable fees and
expenses of counsel to any Indemnified Holder), joint or several, directly or
indirectly caused by, related to, based upon, arising out of or in connection
with any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement or Prospectus (or any amendment or
supplement thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses are caused by an untrue statement or omission or alleged untrue
statement or omission that is made in reliance upon and in conformity with
information relating to any of the Holders furnished in writing to the Company
by any of the Holders, its directors, officers or controlling persons or any
underwriter expressly for use therein. This indemnity agreement shall be in
addition to any liability which the Company or any of the Guarantors may
otherwise have.


 


In case any action or
proceeding (including any governmental or regulatory investigation or
proceeding) shall be brought or asserted against any of the Indemnified Holders
with respect to which indemnity may be sought against the Company or the
Guarantors, such Indemnified Holder (or the Indemnified Holder controlled by
such controlling person) shall promptly notify the Company and the Guarantors
in writing; provided, however,
that the failure to give such notice shall not relieve any of the Company or
the Guarantors of its obligations pursuant to this Agreement. Such Indemnified
Holder shall have the right to employ its own counsel in any such action and
the fees and expenses of such counsel shall be paid, as incurred, by the
Company and the Guarantors (regardless of whether it is ultimately determined
that an Indemnified Holder is not entitled to indemnification hereunder). The
Company and the Guarantors shall not, in connection with any one such action or
proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) at
any time for such Indemnified Holders, which firm


 


16

















 


shall be designated by the Holders. The Company and
the Guarantors shall be liable for any settlement of any such action or
proceeding effected with the Company’s and the Guarantors’ prior written
consent, which consent shall not be withheld unreasonably, and each of the
Company and the Guarantors agrees to indemnify and hold harmless any
Indemnified Holder from and against any loss, claim, damage, liability or
expense by reason of any settlement of any action effected with the written
consent of the Company and the Guarantors. The Company and the Guarantors shall
not, without the prior written consent of each Indemnified Holder, settle or
compromise or consent to the entry of judgment in or otherwise seek to
terminate any pending or threatened action, claim, litigation or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Holder is a party thereto), unless such
settlement, compromise, consent or termination (i) includes an
unconditional release of each Indemnified Holder from all liability arising out
of such action, claim, litigation or proceeding and (ii) does not include
any statement as to or any findings of fault, culpability or failure to act by
or on behalf of any indemnified party.


 


(b)           Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the Company, the
Guarantors and their respective directors, officers and employees of the
Company and the Guarantors who sign a Registration Statement, and any Person
controlling (within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act) the Company or any of the Guarantors, and
the respective officers, directors, partners, employees, representatives and
agents of each such Person, to the same extent as the foregoing indemnity from
the Company and the Guarantors to each of the Indemnified Holders, but only
with respect to claims and actions based on information relating to such Holder
furnished in writing by such Holder expressly for use in any Registration
Statement. In case any action or proceeding shall be brought against the
Company, the Guarantors or its their respective directors or officers or any
such controlling person in respect of which indemnity may be sought against a
Holder of Transfer Restricted Securities, such Holder shall have the rights and
duties given the Company and the Guarantors, and the Company, the Guarantors,
their respective directors and officers and such controlling person shall have
the rights and duties given to each Holder by the preceding paragraph.


 


(c)           If the indemnification provided for in this Section 8
is unavailable to an indemnified party under Section 8(a) or (b) hereof
(other than by reason of exceptions provided in those Sections) in respect of
any losses, claims, damages, liabilities, judgments, actions or expenses
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities or expenses in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Guarantors, on the one hand,
and the Holders, on the other hand, from the Initial Placement (which in the
case of the Company and the Guarantors shall be deemed to be equal to the total
gross proceeds to the Company and the Guarantors from the Initial Placement),
the amount of Additional Interest which did not become payable as a result of
the filing of the Registration Statement resulting in such losses, claims,
damages, liabilities, judgments actions or expenses, and such Registration
Statement, or if such allocation is not permitted by applicable law, the
relative fault of the Company and the Guarantors, on the one hand, and the
Indemnified Holders, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as


 


17

















 


well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and of the Indemnified Holder
on the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or any of the Guarantors, on the one hand, or the Indemnified
Holders, on the other hand, and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in the second paragraph of
Section 8(a) hereof, any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action
or claim.


 


The Company, the Guarantors
and each Holder of Transfer Restricted Securities agree that it would not be
just and equitable if contribution pursuant to this Section 8(c) were
determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, none of
the Holders (and its related Indemnified Holders) shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the
total discount received by such Holder with respect to the Initial Securities
exceeds the amount of any damages which such Holder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. The Holders’ obligations to contribute pursuant to this
Section 8(c) are several in proportion to the respective principal
amount of Initial Securities held by each of the Holders hereunder and not
joint.


 


SECTION 9.                                Rule 144A. Each of the
Company and the Guarantors hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to permit resales
of such Transfer Restricted Securities pursuant to Rule 144A under the
Securities Act.


 


SECTION 10.                          Participation
in Underwritten Registrations. No Holder may participate
in any Underwritten Registration hereunder unless such Holder (a) agrees
to sell such Holder’s Transfer Restricted Securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all reasonable
questionnaires, powers of attorney, indemnities, underwriting agreements,
lock-up letters and other documents required under the terms of such
underwriting arrangements.


 


18

















 


SECTION 11.                          [Reserved]


 


SECTION 12.                          Miscellaneous.


 


(a)                                  Remedies. Each of the
Company and the Guarantors hereby agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agree to waive the defense in any
action for specific performance that a remedy at law would be adequate.


 


(b)                                 No
Inconsistent Agreements. Each of the Company and the Guarantors will
not on or after the date of this Agreement enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company’s or
any of the Guarantors’ securities under any agreement in effect on the date
hereof.


 


(c)                                  Adjustments
Affecting the Securities. The Company will not take any action, or
permit any change to occur, with respect to the Securities that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer.


 


(d)                                 Amendments
and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless the Company has (i) in
the case of Section 5 hereof and this Section 12(d)(i), obtained the
written consent of Holders of all outstanding Transfer Restricted Securities
and (ii) in the case of all other provisions hereof, obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding any Transfer Restricted Securities held by the
Company or its Affiliates). Notwithstanding the foregoing, a waiver or consent
to departure from the provisions hereof that relates exclusively to the rights
of Holders whose securities are being tendered pursuant to the Exchange Offer
and that does not affect directly or indirectly the rights of other Holders
whose securities are not being tendered pursuant to such Exchange Offer may be
given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered; provided, however, that, with respect to
any matter that directly or indirectly affects the rights of any Initial
Purchaser hereunder, the Company shall obtain the written consent of each such
Initial Purchaser with respect to which such amendment, qualification,
supplement, waiver, consent or departure is to be effective.


 


(e)                                  Notices. All notices
and other communications provided for or permitted hereunder shall be made in
writing by hand-delivery, first-class mail (registered or certified, return
receipt requested), telex, telecopier, or air courier guaranteeing overnight
delivery:


 


(i)                                     if to a Holder,
at the address set forth on the records of the Registrar under the Indenture,
with a copy to the Registrar under the Indenture; and


 


(ii)                                  if to the
Company:


 


Radiation Therapy Services


 


19

















 


2270 Colonial Boulevard


Fort Meyers, Florida 33907


Telecopier No.: (239) 931-7380


Attention: Kerrin E.
Gillespie


 


With a copy to:


 


Kirkland & Ellis
LLP


601 Lexington Avenue


New York, New York 10022


Telecopier No.: (212)
446-4900


Attention: Joshua N. Korff


 


All such notices and
communications shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if telexed; when
receipt acknowledged, if telecopied; and on the next Business Day, if timely delivered
to an air courier guaranteeing overnight delivery.


 


Copies of all such notices,
demands or other communications shall be concurrently delivered by the Person
giving the same to the Trustee at the address specified in the Indenture.


 


(f)                                    Successors
and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including,
without limitation, and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities;
provided, however, that this Agreement shall not inure to the
benefit of or be binding upon a successor or assign of a Holder unless and to
the extent such successor or assign acquired Transfer Restricted Securities
from such Holder. Nothing herein shall be deemed to permit any assignment,
transfer or other disposition of Transfer Restricted Securities in violation of
the terms of the Purchase Agreement or the Indenture.


 


(g)                                 Counterparts. This Agreement
may be executed in any number of counterparts and by the parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.


 


(h)                                 Headings. The headings
in this Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.


 


(i)                                     Governing
Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE CONFLICTS OF LAW RULES
THEREOF.


 


(j)                                     Severability. In the event
that any one or more of the provisions contained herein, or the application
thereof in any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.


 


20






 










 


(k)           Entire
Agreement. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect
of the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.


 


21

















 


IN WITNESS WHEREOF, the
parties have executed this Agreement as of the date first written above.


 


	
   

  	
  RADIATION THERAPY SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Kerrin E. Gillespie

  
	
   

  	
   

  	
  Name:

  	
  Kerrin E. Gillespie

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President and Chief Financial Officer

  



 

















 


	
   

  	
  RADIATION THERAPY SERVICES HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Kerrin E. Gillespie

  
	
   

  	
   

  	
  Name:

  	
  Kerrin E. Gillespie

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President and Chief Financial Officer

  



 

















 


	
   

  	
  21ST CENTURY ONCOLOGY OF ALABAMA, LLC

  
	
   

  	
  ARIZONA RADIATION THERAPY MANAGEMENT SERVICES, INC.

  
	
   

  	
  CALIFORNIA RADIATION THERAPY MANAGEMENT SERVICES, INC.

  
	
   

  	
  21ST CENTURY ONCOLOGY OF JACKSONVILLE, INC.

  
	
   

  	
  DEVOTO CONSTRUCTION OF SOUTHWEST FLORIDA, INC.

  
	
   

  	
  RADIATION THERAPY SERVICES INTERNATIONAL, INC.

  
	
   

  	
  21ST CENTURY ONCOLOGY MANAGEMENT SERVICES, INC.

  
	
   

  	
  JACKSONVILLE RADIATION THERAPY SERVICES, INC.

  
	
   

  	
  FINANCIAL SERVICES OF SOUTHWEST FLORIDA, LLC

  
	
   

  	
  21ST CENTURY ONCOLOGY, LLC

  
	
   

  	
  21ST CENTURY ONCOLOGY OF HARFORD COUNTY MARYLAND, LLC

  
	
   

  	
  BERLIN RADIATION THERAPY TREATMENT CENTER, LLC

  
	
   

  	
  21ST CENTURY ONCOLOGY OF PRINCE GEORGES COUNTY, MARYLAND, LLC

  
	
   

  	
  MARYLAND RADIATION THERAPY MANAGEMENT SERVICES, LLC

  
	
   

  	
  AMERICAN CONSOLIDATED TECHNOLOGIES, LLC

  
	
   

  	
  MICHIGAN RADIATION THERAPY MANAGEMENT SERVICES, INC.

  
	
   

  	
  NEVADA RADIATION THERAPY MANAGEMENT SERVICES, INCORPORATED

  
	
   

  	
  21ST CENTURY ONCOLOGY OF NEW JERSEY, INC.

  
	
   

  	
  NEW YORK RADIATION THERAPY MANAGEMENT SERVICES, INC.

  
	
   

  	
  NORTH CAROLINA RADIATION THERAPY MANAGEMENT SERVICES, LLC

  
	
   

  	
  21ST CENTURY ONCOLOGY OF SOUTH CAROLINA, LLC

  
	
   

  	
  WEST VIRGINIA RADIATION THERAPY SERVICES, INC.

  



 


	
   

  	
  By:

  	
  /s/ Kerrin E. Gillespie

  
	
   

  	
   

  	
  Name:

  	
  Kerrin E. Gillespie

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 

















 


The foregoing Registration
Rights Agreement is hereby confirmed and accepted as of the date first above
written:


 


WELLS FARGO SECURITIES, LLC


BARCLAYS CAPITAL INC.


BANC OF AMERICA SECURITIES LLC


DAIWA CAPITAL MARKETS AMERICA INC.


FIFTH THIRD SECURITIES, INC.


 


	
  By:

  	
  Wells Fargo Securities, LLC

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Authorized
  Signatory

  	
   

  
	
   

  	
  Managing Director

  	
   

  



 

















 


SCHEDULE I


 


GUARANTORS


 


21st Century Oncology of Alabama, LLC, an Alabama
limited liability company


 


Arizona Radiation Therapy Management Services, Inc.,
an Arizona corporation


 


California Radiation Therapy Management Services, Inc.,
a California corporation 


 


21st Century Oncology of Jacksonville, Inc., a
Florida corporation


 


Devoto Construction of Southwest Florida, Inc.,
a Florida corporation


 


Radiation Therapy Services International, Inc.,
a Florida corporation


 


21st Century Oncology Management Services, Inc.,
a Florida corporation


 


Jacksonville Radiation Therapy Services, Inc.,
a Florida corporation


 


Financial Services of Southwest Florida, LLC, a
Florida limited liability company 


 


21st Century Oncology, LLC, a Florida limited
liability company


 


21st Century Oncology of Harford County Maryland,
LLC, a Maryland limited liability company 


 


Berlin Radiation Therapy Treatment Center, LLC, a
Maryland limited liability company


 


21st Century Oncology of Prince Georges County,
Maryland, LLC, a Maryland limited liability company


 


Maryland Radiation Therapy Management Services, LLC,
a Maryland limited liability company 


 


American Consolidated Technologies, LLC, a Michigan
limited liability company


 


Michigan Radiation Therapy Management Services, Inc.,
a Michigan corporation 


 


Nevada Radiation Therapy Management Services, Incorporated,
a Nevada corporation 


 


21st Century Oncology of New Jersey, Inc., a
New Jersey corporation


 


New York Radiation Therapy Management Services, Inc.,
a New York corporation


 


North Carolina Radiation Therapy Management
Services, LLC, a North Carolina limited liability company


 

















 


21st Century Oncology of
South Carolina, LLC, a South Carolina limited liability company


 


West Virginia Radiation
Therapy Services, Inc., a West Virginia corporation


 


Radiation Therapy Services
Holdings, Inc., a Delaware corporation


 


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