Exhibit 10.90


 






 


RADIATION THERAPY INVESTMENTS, LLC


 


A Delaware Limited Liability Company


 






 


SECOND AMENDED AND RESTATED


 


LIMITED LIABILITY COMPANY AGREEMENT


 


Dated as of March 25, 2008


 


THE
COMPANY INTERESTS REPRESENTED BY THIS SECOND AMENDED AND RESTATED LIMITED
LIABILITY COMPANY AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY OTHER APPLICABLE SECURITIES
LAWS. SUCH INTERESTS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED
OF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR
EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON
TRANSFERABILITY SET FORTH HEREIN.


 


THE
COMPANY INTERESTS REPRESENTED BY THIS SECOND AMENDED AND RESTATED LIMITED LIABILITY
COMPANY AGREEMENT ARE ALSO SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER
SPECIFIED IN THE AMENDED AND RESTATED SECURITYHOLDERS AGREEMENT, DATED AS OF
THE DATE HEREOF, BY AND AMONG THE COMPANY AND CERTAIN INVESTORS, AS AMENDED OR
MODIFIED FROM TIME TO TIME, AND THE COMPANY RESERVES THE RIGHT TO REFUSE THE
TRANSFER OF SUCH INTERESTS UNTIL SUCH TRANSFER IS IN COMPLIANCE WITH SUCH
SECURITYHOLDERS AGREEMENT. A COPY OF THE AMENDED AND RESTATED SECURITYHOLDERS
AGREEMENT SHALL BE FURNISHED BY THE COMPANY TO THE HOLDER OF SUCH INTERESTS
UPON WRITTEN REQUEST AND WITHOUT CHARGE.


 

















 


TABLE OF CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE I DEFINITIONS

  	
  2

  
	
   

  	
  Section
  1.1

  	
  Definitions

  	
  2

  
	
   

  	
  Section
  1.2

  	
  Terms
  Generally

  	
  16

  
	
  ARTICLE II GENERAL PROVISIONS

  	
  17

  
	
   

  	
  Section
  2.1

  	
  Formation

  	
  17

  
	
   

  	
  Section
  2.2

  	
  Name

  	
  17

  
	
   

  	
  Section
  2.3

  	
  Term

  	
  17

  
	
   

  	
  Section
  2.4

  	
  Purpose;
  Powers

  	
  17

  
	
   

  	
  Section
  2.5

  	
  Foreign
  Qualification

  	
  18

  
	
   

  	
  Section
  2.6

  	
  Registered
  Office; Registered Agent; Principal Office; Other Offices

  	
  18

  
	
   

  	
  Section
  2.7

  	
  No
  State-Law Partnership

  	
  18

  
	
  ARTICLE III CAPITALIZATION;
  REDEMPTION RIGHTS

  	
  18

  
	
   

  	
  Section
  3.1

  	
  Units;
  Initial Capitalization; Schedules

  	
  18

  
	
   

  	
  Section
  3.2

  	
  Authorization
  and Issuance of Additional Units

  	
  19

  
	
   

  	
  Section
  3.3

  	
  Issuance
  of Class B Units and Class C Units; Service Providers

  	
  19

  
	
   

  	
  Section
  3.4

  	
  Capital
  Accounts

  	
  21

  
	
   

  	
  Section
  3.5

  	
  Negative
  Capital Accounts

  	
  21

  
	
   

  	
  Section
  3.6

  	
  No
  Withdrawal

  	
  21

  
	
   

  	
  Section
  3.7

  	
  Loans
  From Unitholders

  	
  21

  
	
   

  	
  Section
  3.8

  	
  No
  Right of Partition

  	
  21

  
	
   

  	
  Section
  3.9

  	
  Non-Certification
  of Units; Legend; Units Are Securities

  	
  22

  
	
  ARTICLE IV DISTRIBUTIONS

  	
  22

  
	
   

  	
  Section
  4.1

  	
  Distributions;
  Priority

  	
  22

  
	
   

  	
  Section
  4.2

  	
  Priority
  over Form of Consideration

  	
  24

  
	
   

  	
  Section
  4.3

  	
  Successors

  	
  24

  
	
   

  	
  Section
  4.4

  	
  Tax
  Distributions

  	
  24

  
	
   

  	
  Section
  4.5

  	
  Catch-up
  Distributions to Class B Unitholders and Class C Unitholders

  	
  25

  
	
   

  	
  Section
  4.6

  	
  Security
  Interest and Right of Set-Off

  	
  25

  
	
   

  	
  Section
  4.7

  	
  Certain
  Distributions

  	
  25

  
	
  ARTICLE V ALLOCATIONS

  	
  26

  
	
   

  	
  Section
  5.1

  	
  Allocations

  	
  26

  
	
   

  	
  Section
  5.2

  	
  Special
  Allocations

  	
  26

  
	
   

  	
  Section
  5.3

  	
  Tax
  Allocations

  	
  27

  
	
   

  	
  Section
  5.4

  	
  Unitholders’
  Tax Reporting

  	
  28

  
	
   

  	
  Section
  5.5

  	
  Indemnification
  and Reimbursement for Payments on Behalf of a Unitholder

  	
  28

  
	
  ARTICLE VI MANAGEMENT

  	
  28

  
	
   

  	
  Section
  6.1

  	
  The
  Board of Managers; Delegation of Authority and Duties

  	
  28

  
	
   

  	
  Section
  6.2

  	
  Establishment
  of Board of Managers

  	
  30

  
	
   

  	
  Section
  6.3

  	
  Board
  of Managers Meetings

  	
  32

  
	
   

  	
  Section
  6.4

  	
  Chairman

  	
  33

  



 


i

















 


	
   

  	
  Section
  6.5

  	
  Approval
  or Ratification of Acts or Contracts

  	
  33

  
	
   

  	
  Section
  6.6

  	
  Action
  by Written Consent

  	
  33

  
	
   

  	
  Section
  6.7

  	
  Meetings
  by Telephone Conference or Similar Measures

  	
  34

  
	
   

  	
  Section
  6.8

  	
  Officers

  	
  34

  
	
   

  	
  Section
  6.9

  	
  Management
  Matters

  	
  35

  
	
   

  	
  Section
  6.10

  	
  Consent
  Rights

  	
  35

  
	
   

  	
  Section
  6.11

  	
  Securities
  in Subsidiaries

  	
  38

  
	
   

  	
  Section
  6.12

  	
  Liability
  of Unitholders

  	
  38

  
	
   

  	
  Section
  6.13

  	
  Indemnification
  by the Company

  	
  39

  
	
   

  	
  Section
  6.14

  	
  Investment
  Representations of Unitholders

  	
  39

  
	
  ARTICLE VII WITHDRAWAL;
  DISSOLUTION; TRANSFER OF MEMBERSHIP INTERESTS; ADMISSION OF NEW MEMBERS

  	
  39

  
	
   

  	
  Section
  7.1

  	
  Unitholder
  Withdrawal

  	
  39

  
	
   

  	
  Section
  7.2

  	
  Dissolution

  	
  40

  
	
   

  	
  Section
  7.3

  	
  Transfer
  by Unitholders

  	
  40

  
	
   

  	
  Section
  7.4

  	
  Admission
  or Substitution of New Members

  	
  41

  
	
   

  	
  Section
  7.5

  	
  Compliance
  with Law

  	
  42

  
	
  ARTICLE VIII BOOKS AND RECORDS;
  FINANCIAL STATEMENTS AND OTHER INFORMATION; TAX MATTERS

  	
  42

  
	
   

  	
  Section
  8.1

  	
  Books
  and Records; Management Interviews

  	
  42

  
	
   

  	
  Section
  8.2

  	
  Financial
  Statements and Other Information

  	
  43

  
	
   

  	
  Section
  8.3

  	
  Fiscal
  Year; Taxable Year

  	
  45

  
	
   

  	
  Section
  8.4

  	
  Certain
  Tax Matters

  	
  45

  
	
  ARTICLE IX MISCELLANEOUS

  	
  46

  
	
   

  	
  Section
  9.1

  	
  Schedules

  	
  46

  
	
   

  	
  Section
  9.2

  	
  Governing
  Law

  	
  46

  
	
   

  	
  Section
  9.3

  	
  Successors
  and Assigns

  	
  47

  
	
   

  	
  Section
  9.4

  	
  Confidentiality

  	
  47

  
	
   

  	
  Section
  9.5

  	
  Amendments

  	
  47

  
	
   

  	
  Section
  9.6

  	
  Notices

  	
  47

  
	
   

  	
  Section
  9.7

  	
  Counterparts

  	
  48

  
	
   

  	
  Section
  9.8

  	
  Power
  of Attorney

  	
  49

  
	
   

  	
  Section
  9.9

  	
  Entire
  Agreement

  	
  49

  
	
   

  	
  Section
  9.10

  	
  Arbitration

  	
  49

  
	
   

  	
  Section
  9.11

  	
  Waiver
  of Jury Trial

  	
  50

  
	
   

  	
  Section
  9.12

  	
  Severability

  	
  50

  
	
   

  	
  Section
  9.13

  	
  Creditors

  	
  50

  
	
   

  	
  Section
  9.14

  	
  Waiver

  	
  50

  
	
   

  	
  Section
  9.15

  	
  Further
  Action

  	
  50

  
	
   

  	
  Section
  9.16

  	
  Delivery
  by Facsimile or Email

  	
  50

  



 


ii

















 


SCHEDULES
AND EXHIBITS


 


	
  Schedule
  A

  	
  —

  	
  Schedule
  of Units

  	
   

  
	
  Schedule
  B

  	
  —

  	
  Schedule
  of Members

  	
   

  



 


iii

















 


SECOND AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

RADIATION THERAPY INVESTMENTS, LLC

A Delaware Limited Liability Company


 


This
SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of Radiation
Therapy Investments, LLC, dated and effective as of March 25, 2008 (this “Agreement”),
by and among Radiation Therapy Investments, LLC, a Delaware limited liability
company (the “Company”), Vestar Capital Partners V, L.P., a Delaware
limited partnership (“Vestar V”), Vestar Capital Partners V-A, L.P., a
Cayman Islands exempted limited partnership, Vestar Executive V, L.P., a Cayman
Islands exempted limited partnership, Vestar Holdings V, L.P., a Cayman Islands
exempted limited partnership, Vestar/Radiation Therapy Investments, LLC, a
Delaware limited liability company (“Vestar/RTS” and, together with
Vestar V, Vestar Capital Partners V-A, L.P., Vestar Executive V, L.P. and
Vestar Holdings V, L.P., “Vestar”). TCW/Crescent Mezzanine Partners V,
L.P., a Delaware limited partnership, TCW/Crescent Mezzanine Partners VB, L.P.,
a Delaware limited partnership, TCW/Crescent Mezzanine Partners VC, L.P., a
Delaware limited partnership, MAC Equity Holdings, LLC, a Delaware limited
liability company, New York Life Investment Management Mezzanine Partners II,
LP, a Delaware limited partnership, NYLIM Mezzanine Partners II Parallel Fund,
LP, a Delaware limited partnership, the persons set forth on the signature pages
hereto as Management Members and each other Person who at any time becomes a
Member in accordance with the terms of this Agreement and the Act, is approved
and adopted by the Board of Managers of the Company on the date hereof without
consent of the Members in accordance with Section 9.5 of the Original Agreement
(as defined below). Any reference in this Agreement to Vestar or any other
Member shall include such Member’s Successors in Interest, to the extent such
Successors in Interest have become Substituted Members in accordance with the
provisions of this Agreement.


 


WHEREAS,
the Company was formed as a limited liability company pursuant to the Act by
the filing of its Certificate of Formation with the Secretary of State of the
State of Delaware on October 9, 2007;


 


WHEREAS,
the Company executed and delivered that certain Limited Liability Company
Agreement of the Company on October 10,2007;


 


WHEREAS,
on February 21, 2008, pursuant to that certain Agreement and Plan of Merger
(the “Merger Agreement”), dated as of October 19, 2007, by and among
Radiation Therapy Services, Inc., a Delaware corporation (“RTS”),
Radiation Therapy Services Holdings, Inc., a Delaware corporation and a
wholly-owned subsidiary of the Company (“Parent”), RTS MergerCo, Inc., a
Florida corporation and wholly owned subsidiary of Holdings (“Merger Sub”),
and the Company (solely for purpose of Section 7.2 thereof), (i) Merger Sub
merged with and into RTS, with RTS surviving as a direct wholly-owned Subsidiary
of the Parent, and (ii) certain Management Members either contributed common
stock of RTS to the Company or invested cash in the Company, in each case, in
exchange for Preferred Units and Class A Units of the Company pursuant to
certain Management Stock Contribution and Unit Subscription Agreements (the “Contribution
Agreements”).


 

















 


WHEREAS,
in connection with the consummation of the transactions contemplated by the
Merger Agreement, the Company and its Members entered into an Amended and
Restated Limited Liability Company Agreement on February 21, 2008 (the “Original
Agreement”);


 


WHEREAS,
under the Company’ s 2008 Unit Award Plan, the Board of Managers of the Company
or any person designated by the Board of Managers may grant the right to purchase
Class B Units and Class C Units of the Company to participants in the plan, in
each case pursuant to those certain incentive unit subscription agreements (the
“Management Grant Agreements”),;


 


WHEREAS,
in connection with the issuance of Units to certain lenders who are providing
mezzanine financing to RTS, the Board of Managers desires to amend and restate
the Original Agreement in accordance with Section 9.5 of the Original
Agreement; and


 


WHEREAS,
concurrent with the execution of this Agreement, the parties hereto are
entering into that certain Amended and Restated Securityholders Agreement (the “Securityholders
Agreement”), setting forth certain rights, powers and obligations of the
Members with respect to the Company and their membership interests therein.


 


NOW
THEREFORE, in consideration of the mutual covenants and agreements contained
herein, the parties hereto, each intending to be legally bound, agree that the
Original Agreement is hereby amended and restated in its entirety as follows:


 


ARTICLE I

DEFINITIONS


 


Section
1.1 Definitions.


 


Unless
the context otherwise requires, the following terms shall have the following
meanings for purposes of this Agreement:


 


“Act”
means the Delaware Limited Liability Company Act, 6 Del. L. Sections 18-101 et seq., as it may be amended from time to
time, and any successor to the Act.


 


“Additional
Member” means any Person that has been admitted to the Company as a Member
pursuant to Section 7.4 by virtue of having received its Membership
Interest from the Company and not from any other Member or Assignee.


 


“Adjusted
Capital Account Deficit” means, with respect to any Person’s Capital
Account as of the end of any taxable year, the amount by which the balance in
such Capital Account is less than zero. For this purpose, such Capital Account
balance shall be (i) reduced for any items described in Regulations Section l.704-1(b)(2)(ii)(d)(4), (5) and (6), and (ii) increased for any amount such Person is
obligated to contribute or is treated as being obligated to contribute to the
Company pursuant to Regulations Section 1.704-l(b)(2)(ii)(c) (relating to partner liabilities to a
partnership) or Regulations Sections 1.704-2(g)(l) and 1.704-2(i) (relating to
minimum gain).


 


2

















 


“Affiliate”
when used with reference to another Person means any Person (other than the
Company), directly or indirectly, through one or more intermediaries,
controlling, controlled by, or under common control with, such other Person. In
addition, Affiliates of a Member shall include all partners, officers,
directors, employees and former partners, officers and employees of, all
consultants or advisors to, and all other Persons who directly or indirectly
receive compensation from, such Member.


 


“Agreement”
has the meaning set forth in the preamble hereto.


 


“Assignee”
means any Transferee to which a Member or another Assignee has Transferred all
or any portion of its interest in the Company in accordance with the terms of
this Agreement, but that is not a Member.


 


“Assumed
Tax Rate” means, for any taxable year, the highest marginal effective rate
of federal, state and local income tax applicable to an individual resident in
New York, New York (or, if higher, a corporation doing business in New York,
New York), taking account of any differences in rates applicable to ordinary
income, dividends and capital gains and any allowable deductions in respect of
such state and local taxes in computing a Member’s liability for federal income
tax; provided that the Assumed Tax Rate for ordinary income initially
shall be set at 45 percent, with the right of the Vestar Majority Holders to
request, by written notice to the Company, a recomputation of the Assumed Tax
Rate, which recomputation shall remain in effect until such time as the Vestar
Majority Holders request a subsequent recomputation.


 


“Bankruptcy”
means, with respect to any Person, the occurrence of any of the following
events: (i) the filing of an application by such Person for, or a consent to,
the appointment of a trustee or custodian of such Person’s assets; (ii) the
filing by such Person of a voluntary petition in Bankruptcy or the seeking of
relief under Title 11 of the United States Code, as now constituted or
hereafter amended, or the filing of a pleading in any court of record admitting
in writing such Person’s inability to pay its debts as they become due; (iii) the
failure of such Person to pay its debts as such debts become due; (iv) the
making by such Person of a general assignment for the benefit of creditors; (v)
the filing by such Person of an answer admitting the material allegations of,
or such Person’s consenting to, or defaulting in answering, a Bankruptcy
petition filed against him in any Bankruptcy proceeding or petition seeking
relief under Title 11 of the United States Code, as now constituted or as
hereafter amended; or (vi) the entry of an order, judgment or decree by any
court of competent jurisdiction adjudicating such Person a bankrupt or
insolvent or for relief in respect of such Person or appointing a trustee or
custodian of such Person’s assets and the continuance of such order, judgment
or decree unstayed and in effect for a period of 60 consecutive calendar days.


 


“Board
of Managers” means the Board of Managers established pursuant to Section
6.2.


 


“Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks in New York, New York are authorized or required to close.


 


“Capital
Account” has the meaning set forth in Section 3.5(a).


 


3

















 


“Capital
Contributions” means the amount of any cash or cash equivalents, or the
Fair Market Value of other property, that a Member contributes to the Company
with respect to any Unit or other Equity Securities issued pursuant to Article
III (net of liabilities assumed by the Company or to which such property is
subject).


 


“Catch-up
Account” has the meaning set forth in Section 4.5.


 


“Catch-up
Amount” has the meaning set forth in Section 4.5.


 


“CEO”
means the Chief Executive Officer of the Company.


 


“Certificate”
has the meaning set forth in Section 2.1.


 


“CFO”
means the Chief Financial Officer of the Company.


 


“Change
of Control” has the meaning set forth in Section 6.10(b)(i).


 


“Class
A Members” means the Members holding Class A Units.


 


“Class
A Unitholders” means the Unitholders holding an Economic Interest in Class A
Units.


 


“Class
A Units” means the Units having the rights and obligations specified with
respect to Class A Units in this Agreement.


 


“Class
B Fraction” means, as of any date of determination, the lesser of (A) one
and (B) a fraction, the numerator of which is the number of Class B Units
outstanding at the date of any such determination (provided that, as to any
portion of a distribution in which a particular Class B Unit does not
participate, by reason of the proviso to Section 4.1(d), relating to the Floor
Amount for that Class B Unit, such Class B Unit shall not be considered to be
outstanding for this purpose) and the denominator of which is the number of Class
B Units authorized at the date of any such determination, as each of the
numerator and denominator may be adjusted in the event of a recapitalization,
split, dividend or other reclassification affecting the Class B Units.


 


“Class
B Members” means the Members holding Class B Units.


 


“Class
B Unitholders” means the Unitholders holding an Economic Interest in Class B
Units.


 


“Class
B Units” means the Units having the rights and obligations specified with
respect to Class B Units in this Agreement.


 


“Class
C Fraction” means, as of any date of
determination, the lesser of (A) one and (B) a fraction, the numerator of which
is the number of Class C Units outstanding at the date of any such
determination (provided that, as to any portion of a distribution in which a particular
Class C Unit does not participate, by reason of the proviso to Section 4.1(d),
relating to the Floor Amount for that Class C Unit, such Class C Unit shall not
be considered to be outstanding for this purpose) and the denominator of which
is the number of Class C Units authorized at the date


 


4

















 


of
any such determination, as each of the numerator and denominator may be
adjusted in the event of a recapitalization, split, dividend or other
reclassification affecting the Class C Units.


 


“Class
C Members” means the Members holding Class C Units.


 


“Class
C Unitholders” means the Unitholders holding an Economic Interest in Class C
Units.


 


“Class
C Units” means the Units having the rights and obligations specified with
respect to Class C Units in this Agreement.


 


“Code”
means the United States Internal Revenue Code of 1986, as amended from time to
time, or any successor statute. Any reference herein to a particular provision
of the Code shall mean, where appropriate, the corresponding provision in any
successor statute.


 


“Company”
has the meaning set forth in the preamble hereto.


 


“Company
Minimum Gain” has the meaning set forth for the term “partnership minimum
gain” in Regulations Section 1.704-2(d).


 


“Company
Sale” shall mean the dissolution of the Company in accordance with this
Agreement or the consummation of a transaction, whether in a single transaction
or in a series of related transactions that are consummated contemporaneously
(or consummated pursuant to contemporaneous agreements), with any other Person
or group of related Persons (other than Vestar) on an arm’s-length basis,
pursuant to which such Person or group of related Persons (i) acquires (whether
by merger, stock purchase, recapitalization, reorganization, redemption,
issuance of capital stock or otherwise) more than 50 percent of (A) the Company’s
Units or (B) the total number of shares of RTS or Parent’s common stock
outstanding (in each case assuming that all Equity Securities convertible into
or exercisable for the Company’s Units or for shares of common stock of RTS or
Parent have been so converted or exercised), or (ii) acquires assets
constituting all or substantially all of the assets of the Company’s
Subsidiaries on a consolidated basis; provided that in no event shall a
Company Sale be deemed to include any transaction effected for the purpose of (x)
changing, directly or indirectly, the form of organization or the
organizational structure of the Company or any of its Subsidiaries or (y) contributing
equity securities to entities controlled by the Company.


 


“Compensation
Committee” means the compensation committee of the Board of Managers, if
any. For the avoidance of doubt, if no Compensation Committee has been formed
by the Board of Managers (or if the Compensation Committee has been dissolved
by the Board of Managers), then all actions and decisions permitted or required
to be taken by the Compensation Committee hereunder shall be taken by the Board
of Managers.


 


“Control”
means, when used with reference to any Person, the power to direct the
management or Policies of such Person, directly or indirectly, by or through
stock or other equity ownership, agency or otherwise, or pursuant to or in
connection with an agreement, arrangement or other understanding (written or
oral); the terms “controlling” and “controlled” shall have meanings correlative
to the foregoing.


 


5














 


“Contribution
Agreements” has the meaning set forth in the recitals hereof.


 


“Controlled
Affiliate” of a Person means any Affiliate of such Person for which such
Person either (i) owns in excess of 50% of the voting securities of such
Affiliate, or (ii) has the right to designate a majority of the members of
the board of directors (or similar governing body) of such Affiliate.


 


“Current
Preferred Return” with respect to each holder of Preferred Units, means
such Unitholder’s Preferred Return for the current quarterly period that has
accrued but has not yet compounded (in accordance with the definition of
Preferred Return).


 


“Depreciation”
means, for each Fiscal Year or other period, an amount equal to the
depreciation, amortization or other cost recovery deduction allowable for
federal income tax purposes with respect to an asset for such year or other
period, except that if the Gross Asset Value of an asset differs from its
adjusted basis for federal income tax purposes at the beginning of such year or
other period, then Depreciation shall be an amount that bears the same ratio to
such beginning Gross Asset Value as the federal income tax depreciation,
amortization or other cost recovery deduction for such year or other period
bears to such beginning adjusted tax basis; provided, however,
that if the federal income tax depreciation, amortization or other cost
recovery deduction for such year is zero, then Depreciation shall be calculated
with reference to such beginning Gross Asset Value using any reasonable method
selected by the Board of Managers.


 


“Distributable
Assets” means, with respect to any fiscal period, all cash receipts of the
Company (including from any operating, investing and financing activities) and,
if distribution thereof is determined to be necessary or desirable by a
majority of the Board of Managers, other assets of the Company from any and all
sources, reduced by cash operating expenses, contributions of capital to
Subsidiaries of the Company and payments (if any) required to be made in connection
with any loan to the Company and any reserve for contingencies or escrow
required, in each case, as is determined in Good Faith by the Board of
Managers.


 


“Economic
Interest” means a Member’s or Assignee’s share of the Company’s net
profits, net losses and distributions pursuant to this Agreement and the Act,
but shall not include any right to participate in the management or affairs of
the Company, including the right to vote in the election of Managers, vote on,
consent to or otherwise participate in any decision of the Members or Managers,
or any right to receive information concerning the business and affairs of the
Company, in each case, except as expressly otherwise provided in this Agreement
or required by the Act.


 


“Equity
Securities” means, as applicable, (i) any capital stock, membership
interests or other share capital, (ii) any securities directly or
indirectly convertible into or exchangeable for any capital stock, membership
interests or other share capital or containing any profit participation
features, (iii) any rights or options directly or indirectly to subscribe
for or to purchase any capital stock, membership interests, other share capital
or securities containing any profit participation features or to subscribe for
or to purchase any securities directly or indirectly convertible into or
exchangeable for any capital stock, membership interests, other share capital
or securities containing any profit participation features, (iv) any share
appreciation rights,


 


6

















 


phantom
share rights or other similar rights, or (v) any Equity Securities issued
or issuable with respect to the securities referred to in clauses (i) through
(iv) above in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization.


 


“Exempt
Employee Transfer” has the meaning set forth for such term in the
Securityholders Agreement.


 


“Exempt
Individual Transfer” has the meaning set forth for such term in the
Securityholders Agreement.


 


“Exempt
NYLIM Transfer” has the meaning set forth for such term in the
Securityholders Agreement.


 


“Exempt
TCW Transfer” has the meaning set forth for such term in the
Securityholders Agreement.


 


“Expert”
means an independent investment bank, accounting firm or other Person of
national standing having particular expertise in the valuation of businesses
comparable to that of the Company and its Subsidiaries.


 


“Fair
Market Value” means, with respect to any asset or securities, the fair
market value for such assets or securities as between a willing buyer and a
willing seller in an arm’s length transaction occurring on the date of
valuation, taking into account all relevant factors determinative of value, as
is determined in Good Faith by the Board of Managers, and subject to the
approval of the Vestar Majority Holders.


 


“Fiscal
Quarter” means each fiscal quarter of the Company and its Subsidiaries,
ending on the last day of each of March, June, September and December of
any Fiscal Year.


 


“Fiscal
Year” means the fiscal year of the Company and its Subsidiaries, ending on December 31
of each calendar year.


 


“Floor
Amount” means, as to each Class B Unit and Class C Unit, as
applicable, the excess, if any, as of the date of issuance of such Unit, of (i) the
aggregate Fair Market Value of all of the equity of the Company, over (ii) the
sum of (A) the aggregate Unpaid Preferred Return, including Current
Preferred Return, with respect to all Preferred Units, (B) the aggregate
Unreturned Preferred Capital with respect to all Preferred Units, (C) the
aggregate Unreturned Class A Capital with respect to all Class A
Units, (D) the aggregate Unreturned Class B Capital with respect to
all Class B Units and (E) the aggregate Unreturned Class C
Capital with respect to all Class C Units. The Floor Amount may be
expressed as an amount per outstanding Unit (taking into account any existing
Floor Amount for the outstanding Units), such that, pursuant to the proviso to Section 4.
l(d), a newly-issued Class B Unit or Class C Unit shall begin to
share in distributions under Section 4.1(d) from and after the
point at which the aggregate distributions made pursuant to Section 4.1(d),
after the date of issuance of the newly-issued Class B Unit or Class C
Unit and with respect to the Units that were outstanding immediately prior to
the issuance of the newly-issued Class B Unit or Class C Unit, is
equal to the Floor Amount. The Floor Amount for each Class B Unit and Class C
Unit issued on February 21, 2008 is equal to zero.


 


7

















 


“GAAP”
means accounting principles generally accepted in the United States of America,
consistently applied and maintained throughout the applicable periods.


 


“Good
Faith” shall mean a Person having acted in good faith and in a manner such
Person reasonably believed to be in or not opposed to the best interests of the
Company, and, with respect to a criminal proceeding, having had no reasonable
cause to believe such Person’s conduct was unlawful.


 


“Governmental
Entity” means the United States of America or any other nation, any state
or other political subdivision thereof, or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of government,
including any court, in each case, having jurisdiction over the Company or any
of its Subsidiaries or any of the property or other assets of the Company or
any of its Subsidiaries.


 


“Gross
Asset Value” means, with respect to any asset, the asset’s adjusted basis
for federal income tax purposes, except as follows:


 


(i) The initial Gross Asset Value of any asset
contributed by a Unitholder to the Company shall be the gross Fair Market Value
of such asset on the date of the contribution.


 


(ii) The Gross Asset Values of all Company assets
shall be adjusted to equal their respective gross Fair Market Values as of the
following times:


 


(A) the acquisition of an additional interest in
the Company after February 21, 2008 by a new or existing Unitholder in
exchange for more than a de minimis Capital
Contribution, if the Board of Managers reasonably determines that such
adjustment is necessary or appropriate to reflect the relative Economic
Interests of the Unitholders in the Company;


 


(B) the grant of an interest in the Company
(other than a de minimis interest)
as consideration for the provision of services to or for the benefit of the
Company by an existing or a new Member acting in a partner capacity or in
anticipation of becoming a partner;


 


(C) the distribution by the Company to a
Unitholder of more than a de minimis amount
of Company property as consideration for an interest in the Company, if the
Board of Managers reasonably determine that such adjustment is necessary or
appropriate to reflect the relative Economic Interests of the Unitholders in
the Company;


 


(D) the liquidation of the Company within the
meaning of Regulations Section 1.704-1 (b)(2)(ii)(g); and


 


(E) such other times as the Board of Managers
shall reasonably determine to be necessary or advisable in order to comply with
Regulations promulgated under Subchapter K of Chapter 1 of the Code.


 


8

















 


(iii) The Gross Asset Value of any Company asset
distributed to a Unitholder shall be the gross Fair Market Value of such asset
on the date of distribution.


 


(iv) The Gross Asset Values of Company assets
shall be increased (or decreased) to reflect any adjustments to the adjusted
basis of such assets pursuant to Section 734(b) or Section 743(b) of
the Code, but only to the extent that such adjustments are taken into account
in determining Capital Accounts pursuant to Regulations Section 1.704-l(b)(2)(iv)(M); provided, however, that
Gross Asset Values shall not be adjusted pursuant to this subparagraph (iv) to
the extent that the Board of Managers determine that an adjustment pursuant to
subparagraph (ii) of this definition of Gross Asset Value is necessary or
appropriate in connection with a transaction that would otherwise result in an
adjustment pursuant to this subparagraph (iv).


 


(v) With respect to any asset that has a Gross
Asset Value that differs from its adjusted tax basis, Gross Asset Value shall
be adjusted by the amount of Depreciation rather than any other depreciation,
amortization or other cost recovery method.


 


“HSR
Act” has the meaning set forth in Section 7.2(f).


 


“Income”
means individual items of Company income and gain determined in accordance with
the definitions of Net Income and Net Loss.


 


“Indebtedness”
shall mean, for any Person at the time of any determination, without duplication,
the following obligations, contingent or otherwise: (i) all obligations
for borrowed money, (ii) all obligations evidenced by notes, bonds,
debentures, acceptances or instruments, or arising out of letters of credit or
bankers’ acceptances issued for such Person’s account, (iii) all
obligations, whether or not assumed, secured by any Lien or payable out of the
proceeds or production from any property or assets now or hereafter owned or
acquired by such Person other than a Permitted Lien, (iv) the capitalized
portion of lease obligations under capitalized leases, (v) all obligations
arising from installment purchases of property or representing the deferred
purchase price of property or services in respect of which such person is
liable, contingently or otherwise, as obligor or otherwise (other than trade
payables and other current liabilities incurred in the Ordinary Course of
Business), (vi) all obligations of such Person upon which interest charges
are customarily paid or accrued and (vii) any other obligations,
contingent or otherwise, of such Person that, in accordance with GAAP, should
be classified upon the balance sheet of such Person as indebtedness (other than
trade payables or current liabilities incurred in the Ordinary Course of
Business).


 


“Initial
Capital Contribution” means any Capital Contribution made by a Member or
other Person in connection with the issuance of new units or other securities
of the Company.


 


“Initial
Issuance Date” means February 21,2008.


 


“Lien”
means any mortgage, pledge, security interest, encumbrance, lien or charge of
any kind (including any conditional sale or other title retention agreement or
lease in the nature thereof), any sale of receivables with recourse against the
Company or any of its Subsidiaries, any filing or agreement to file a financing
statement as a debtor under the Uniform


 


9

















 


Commercial
Code or any similar statute other than to reflect ownership by a third party of
property leased to the Company or any of its Subsidiaries under a lease that is
not in the nature of a conditional sale or title retention agreement.


 


“Loss”
means individual items of Company loss and deduction determined in accordance
with the definitions of Net Income and Net Loss.


 


“Management
Grant Agreements” has the meaning set forth in the recitals hereof.


 


“Management
Member” means any Member that is an employee of the Company or any of its
Subsidiaries.


 


“Managers”
has the meaning set forth in Section 6.2(a).


 


“Member”
means Vestar, the other Persons listed on Schedule B attached hereto and
each other Person who is hereafter admitted as a Member in accordance with the
terms of this Agreement and the Act. The Members shall constitute the “members”
(as such term is defined in the Act) of the Company. Except as otherwise set
forth herein or in the Act, the Members shall constitute a single class or
group of members of the Company for all purposes of the Act and this Agreement.


 


“Member
Minimum Gain” means minimum gain attributable to Member Nonrecourse Debt
determined in accordance with Regulations Section 1.704-2(i).


 


“Member
Nonrecourse Debt” has the meaning set forth for the term “partner
nonrecourse debt” in Regulations Section 1.704-2(b)(4).


 


“Member
Nonrecourse Deduction” has the meaning set forth for the term “partner
nonrecourse deduction” in Regulations Section 1.704-2(i)(2).


 


“Membership
Interest” means, with respect to each Member, such Member’s Economic
Interest and rights as a Member.


 


“Merger
Agreement” has the meaning set forth in the recitals hereof.


 


“Net
Income” or “Net Loss” means, for each Fiscal Year or other period,
an amount equal to the Company’s taxable income or loss for such Fiscal Year or
other period, determined in accordance with Section 703(a) of the
Code (for this purpose, all items of income, gain, loss or deduction required
to be stated separately pursuant to Section 703(a)(l) of the Code
shall be included in such taxable income or loss), with the following
adjustments:


 


(i) any income of the Company that is exempt from
federal income tax and not otherwise taken into account in computing Net Income
or Net Loss pursuant to this definition of Net Income or Net Loss shall be
added to such taxable income or loss;


 


(ii) any expenditures of the Company described in
Section 705(a)(2)(B) of the Code or treated as Section 705(a)(2)(B) of
the Code expenditures


 


10

















 


pursuant
to Regulations Section 1.704-l(b)(2)(iv)(i),
and not otherwise taken into account in computing Net Income or Net Loss
pursuant to this definition of Net Income or Net Loss shall be subtracted from
such taxable income or loss;


 


(iii) in the event the Gross Asset Value of any
Company asset is adjusted pursuant to subparagraph (ii) or (iii) of
the definition of Gross Asset Value, the amount of such adjustment shall be
taken into account as gain (if the adjustment increases the Gross Asset Value
of the asset) or loss (if the adjustment decreases the Gross Asset Value of the
asset) from the disposition of such asset for purposes of computing Net Income
or Net Loss;


 


(iv) gain or loss resulting from any disposition
of property with respect to which gain or loss is recognized for federal income
tax purposes shall be computed by reference to the Gross Asset Value of the
property disposed of, notwithstanding that the adjusted tax basis of such
property differs from its Gross Asset Value;


 


(v) in lieu of the depreciation, amortization,
and other cost recovery deductions taken into account in computing such taxable
income or loss, Depreciation shall be taken into account for such Fiscal Year
or other period;


 


(vi) to the extent an adjustment to the adjusted
tax basis of any Company asset pursuant to Section 734(b) or 743 (b) of
the Code is required pursuant to Regulations Section 1.704-l(b)(2)(iv)(m) to be taken into account in
determining Capital Accounts as a result of a distribution other than in
liquidation of a Unitholder’s interest in the Company, the amount of such
adjustment shall be treated as an item of gain (if the adjustment increases the
basis of the asset) or loss (if the adjustment decreases the basis of the
asset) from the disposition of the asset and shall be taken into account for
purposes of computing Net Income or Net Loss; and


 


(vii) notwithstanding any other provision of this
definition of Net Income or Net Loss, any items that are specially allocated
pursuant to Section 5.2 shall not be taken into account in
computing Net Income or Net Loss. The amounts of the items of Income or Loss
available to be specially allocated pursuant to Section 5.2 shall
be determined by applying rules analogous to those set forth in this
definition of Net Income or Net Loss.


 


“Nonrecourse
Deductions” has the meaning set forth for the term “nonrecourse deductions”
in Regulations Section 1.704-2(c).


 


“Notice”
has the meaning set forth in Section 3.3(c).


 


“Officer”
means each Person designated as an officer of the Company pursuant to and in
accordance with the provisions of Section 6.8, subject to any
resolution of the Board of Managers appointing such Person as an officer or
relating to such appointment.


 


“Ordinary
Course of Business” means the ordinary course of the business of the
Company and its Subsidiaries consistent with past custom and practice
(including with respect to quantity, quality and frequency).


 


11

















 


“Original
Agreement” has the meaning set forth in the recitals hereof.


 


“Other
Business” has the meaning set forth in Section 6.2(b)(iii).


 


“Parent”
has the meaning set forth in the recitals hereof.


 


“Permitted
Liens” means:


 


(i) Liens
securing Indebtedness permitted to be incurred under Section 6.10(b)(v);


 


(ii) Liens
with respect to taxes, assessments and other governmental charges or levies not
yet due and payable;


 


(iii) deposits
or pledges made in the Ordinary Course of Business in connection with, or to
secure payment of, utilities or similar services, workers’ compensation,
unemployment insurance, old age pensions or other social security, governmental
insurance and governmental benefits, or to secure the performance of tenders,
statutory obligations, surety and appeal bonds, bids, leases, government
contracts, performance and return of money bonds and similar obligations;


 


(iv) purchase
money Liens in any property acquired by the Company or any of its Subsidiaries
in the Ordinary Course of Business to the extent permitted by this Agreement;


 


(v) interests
or title of a licensor, licensee, lessor or sublessor under any license or
lease permitted by this Agreement;


 


(vi) Liens
in respect of property of the Company or any of its Subsidiaries imposed by
applicable law which were incurred in the Ordinary Course of Business, such as
warehousemen’s, mechanic’s, statutory landlord’s, materialmen’s, carriers’ or
contractors’ liens or encumbrances or any similar Lien or restriction for
amounts not yet due and payable;


 


(viii) easements,
rights-of-way, restrictions and other similar charges and encumbrances on real
property and minor defects or irregularities in the title thereof that do not (A) secure
obligations for the payment of money or (B) materially impair the value of
such property or its use by the Company or any of its Subsidiaries in the
Ordinary Course of Business; and


 


(ix) Liens
securing Indebtedness under the Senior Credit Agreement.


 


“Person”
means an individual, a partnership (including a limited partnership), a
corporation, a limited liability company, an association, a joint stock
company, a trust, a joint venture, an unincorporated organization, association
or other entity or a Governmental Entity.


 


“Preferred
Return” with respect to each Preferred Unitholder means an amount equal to
12% per annum, accrued on a daily basis and compounded quarterly on March 31,
June 30, September 30 and December 31 of each year (i.e., 3.0%
quarterly), beginning February 21, 2008, from the day on which such
Unitholder makes a Capital Contribution in respect of its


 


12

















 


Preferred
Units through the date of distribution, of the excess, if any, of (i) such
Unitholder’s aggregate Capital Contributions in respect of its Preferred Units
plus the aggregate amount compounded pursuant to this definition through the
end of the previous quarter on each day during such period over (ii) the
aggregate amount of all distributions made on or prior to such day to such
Unitholder in respect of its Preferred Units, other than Tax Distributions and
distributions with respect to Current Preferred Return. For purposes of
computing the Preferred Return, each Capital Contribution shall be treated as
having been made on the last day of the calendar month in which such Capital
Contribution is received by the Company (except for the Initial Capital
Contribution, which shall be deemed to have been made on the date of
contribution), and distributions shall be deemed to have been made on the last
day of the month in which they are made. The Preferred Return shall be computed
based on a 360-day year consisting of 12 equal months.


 


“Preferred
Members” means the Members holding Preferred Units.


 


“Preferred
Unitholders” means the Unitholders holding an Economic Interest in
Preferred Units.


 


“Preferred
Units” means the Units having the rights and obligations specified with
respect to Preferred Units in this Agreement..


 


“Proceeding”
has the meaning set forth in Section 6.13.


 


“Management
Agreement” means, that certain Management Agreement, dated as of February 21,
2008, by and among Vestar Capital Partners, the Company, Parent and RTS.


 


“Public
Offering” has the meaning set forth for such term in the Securityholders
Agreement.


 


“RTS”
has the meaning set forth in the recitals hereof.


 


“Regulations”
means the regulations, including temporary regulations, promulgated by the
United States Treasury Department under the Code, as such regulations may be
amended from time to time (including corresponding provisions of succeeding
regulations).


 


“Regulatory
Allocations” has the meaning set forth in Section 5.2(e).


 


“Securities”
means any debt securities or Equity Securities of any issuer, including common
and preferred stock and interests in limited liability companies (including
warrants, rights, put and call options and other options relating thereto or
any combination thereof), notes, bonds, debentures, trust receipts and other
obligations, instruments or evidences of indebtedness, other property or
interests commonly regarded as securities, interests in real property, whether
improved or unimproved, interests in oil and gas properties and mineral
properties, short-term investments commonly regarded as money market
investments, bank deposits and interests in personal property of all kinds,
whether tangible or intangible.


 


“Securityholders
Agreement” has the meaning set forth in the recitals hereof.


 


13

















 


“Senior
Credit Agreement” means RTS’ principal senior credit facility, which shall
initially be that certain Credit Agreement, dated February 21, 2008, by
and among Radiation Therapy Services Holdings, Inc., a Delaware
corporation, RTS, Merger Sub, the several banks and other financial
institutions or entities from time to time parties to this Credit Agreement and
Wachovia Bank, National Association, as administrative agent, issuing bank and
swingline lender, and any successor principal credit facility in replacement
thereof.


 


“Subsidiary”
means, with respect to any Person, any corporation, limited liability company,
partnership, association or business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by that Person or one or more of the other Subsidiaries
of that Person or a combination thereof, or (ii) if a limited liability
company, partnership, association or other business entity (other than a
corporation), a majority of partnership or other similar ownership interest
thereof is at the time owned or controlled, directly or indirectly, by any
Person or one or more Subsidiaries of that Person or a combination thereof. For
purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity (other than a corporation) if such Person or Persons
shall be allocated a majority of limited liability company, partnership,
association or other business entity gains or losses or shall be or control any
managing director or general partner of such limited liability company,
partnership, association or other business entity. For purposes hereof,
references to a “Subsidiary” of any Person shall be given effect only at such
times that such Person has one or more Subsidiaries and, unless otherwise
indicated, the term “Subsidiary” refers to a Subsidiary of the Company.


 


“Substituted
Member” means any Person that has been admitted to the Company as a Member
pursuant to Section 7.4 by virtue of such Person receiving all or a
portion of a Membership Interest from a Member or its Assignee and not from the
Company.


 


“Successor
in Interest” means any (i) trustee, custodian, receiver or other
Person acting in any Bankruptcy or reorganization proceeding with respect to, (ii) assignee
for the benefit of the creditors of, (iii) trustee or receiver, or current
or former officer, director or partner, or other fiduciary acting for or with
respect to the dissolution, liquidation or termination of, or (iv) other
executor, administrator, committee, legal representative or other successor or
assign of, any Unitholder, whether by operation of law or otherwise.


 


“Tax
Distribution” has the meaning set forth in Section 4.4.


 


“Tax
Distribution Amount” has the meaning set forth in Section 4.4.


 


“Tax
Matters Member” has the meaning set forth in Section 8.4(d).


 


“Transaction
Documents” means, collectively, this Agreement, the subscription agreements
between the Company and the Members, the Securityholders Agreement, the Merger
Agreement, the Management Agreement, the Management Grant Agreements, the
Senior Credit Agreement and all other agreements to which the Company is a
party arising out of or in


 


14

















 


connection
with the transactions contemplated under the Merger Agreement, the subscription
agreements and the Senior Credit Agreement.


 


“Transfer”
means any sale, transfer, assignment, pledge, mortgage, exchange,
hypothecation, grant of a security interest or other direct or indirect
disposition or encumbrance of an interest (whether with or without
consideration, whether voluntarily or involuntarily or by operation of law).
The terms “Transferee.” “Transferor,” “Transferred.” and
other forms of the word “Transfer” shall have the correlative meanings.


 


“Unit”
has the meaning set forth in Section 3.1(a).


 


“Unitholder”
means a Member or Assignee that holds an Economic Interest in any of the Units.


 


“Unpaid
Preferred Return” with respect to each Preferred Unitholder means the
excess, if any, of (i) such Unitholder’s Preferred Return as of the
date of any such determination, over (ii) the aggregate amount of
all distributions made to such Unitholder pursuant to or in accordance with Section 4.1(c)(A).


 


“Unreturned
Class A Capital” means, with respect to each Class A Unitholder, the
excess, if any, of (i) such Unitholder’s aggregate Capital
Contributions made in exchange for or on account of its Class A Units,
over (ii) the aggregate amount of all distributions made to such
Unitholder pursuant to Section 4.1(b).


 


“Unreturned
Class B Capital” means, with respect to each Class B Unitholder, the
excess, if any, of (i) such Unitholder’s aggregate Capital
Contributions made in exchange for or on account of its Class B Units,
over (ii) the aggregate amount of all distributions made to such
Unitholder pursuant to Section 4.l(c)(B).


 


“Unreturned
Class C Capital” means, with respect to each Class C Unitholder, the
excess, if any, of (i) such Unitholder’s aggregate Capital
Contributions made in exchange for or on account of its Class C Units,
over (ii) the aggregate amount of all distributions made to such
Unitholder pursuant to Section 4.1(c)(C).


 


“Unreturned
Preferred Capital” means, with respect to each Preferred Unitholder, the
excess, if any, of (i) such Unitholder’s aggregate Capital
Contributions made in exchange for or on account of its Preferred Units, over
(ii) the aggregate amount of all distributions made to such Unitholder
pursuant to or in accordance with Section 4.1(a).


 


“Vestar”
has the meaning set forth in the preamble hereto.


 


“Vestar
Group” means, collectively, Vestar V, Vestar/RTS and their respective
Affiliates.


 


“Vestar
Group Majority” means the holders of a majority of the Units then held by
members of the Vestar Group.


 


15














 


“Vestar
Majority Holders” means, at any time, the Members holding a majority of the
Units then held by the Vestar Unitholders.


 


“Vestar
Unitholders” means the Unitholders holding an Economic Interest in any
Units initially issued to Vestar.


 


Section
1.2 Terms Generally. In this Agreement, unless otherwise specified or
where the context otherwise requires:


 


(a) the headings of particular provisions of this
Agreement are inserted for convenience only and will not be construed as a part
of this Agreement or serve as a limitation or expansion on the scope of any
term or provision of this Agreement;


 


(b) words importing any gender shall include other
genders;


 


(c) words importing the singular only shall include
the plural and vice versa;


 


(d) the words “include,” “includes” or “including”
shall be deemed to be followed by the words “without limitation”;


 


(e) the words “hereof,” “herein” and “herewith” and
words of similar import shall, unless otherwise stated, be construed to refer
to this Agreement as a whole and not to any particular provision of this
Agreement;


 


(f) references to “Articles,” “Exhibits,” “Sections”
or “Schedules” shall be to Articles, Exhibits, Sections or Schedules of or to
this Agreement;


 


(g) references to any Person include the successors and
permitted assigns of such Person;


 


(h) the use of the words “or,” “either” and “any”
shall not be exclusive;


 


(i) wherever a conflict exists between this Agreement
and any other agreement, this Agreement shall control but solely to the extent
of such conflict;


 


(j) references to “$” or “dollars” means the lawful
currency of the United States of America;


 


(k) references to any agreement, contract or schedule,
unless otherwise stated, are to such agreement, contract or schedule as
amended, modified or supplemented from time to time in accordance with the
terms hereof and thereof; and


 


(l) the parties hereto have participated jointly in
the negotiation and drafting of this Agreement; accordingly, in the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties


 


16

















 


hereto,
and no presumption or burden of proof shall arise favoring or disfavoring any
party hereto by virtue of the authorship of any provisions of this Agreement.


 


ARTICLE II

GENERAL PROVISIONS


 


Section
2.1 Formation. The Company was formed as a Delaware limited liability
company on October 9, 2007 by the execution and filing of a Certificate of
Formation (the “Certificate”) by an authorized person under and pursuant
to the Act. The Members agree to continue the Company as a limited liability
company under the Act, upon the terms and subject to the conditions set forth
in this Agreement. The rights, powers, duties, obligations and liabilities of
the Members shall be determined pursuant to the Act and this Agreement. To the
extent that the rights, powers, duties, obligations and liabilities of any
Member are different by reason of any provision of this Agreement than they would
be in the absence of such provision, this Agreement shall, to the extent
permitted by the Act, control.


 


Section
2.2 Name. The name of the Company is “Radiation Therapy Investments,
LLC,” and all Company business shall be conducted in that name or in such other
names that comply with applicable law as the Board of Managers may select from
time to time. The Board of Managers may change the name of the Company at any
time and from time to time. Prompt notification of any such change shall be
given to all Members.


 


Section
2.3 Term. The term of the Company commenced on the date the Certificate
was filed with the office of the Secretary of State of the State of Delaware
and shall continue in existence perpetually until termination or dissolution in
accordance with the provisions of Section 7.2.


 


Section
2.4 Purpose; Powers.


 


(a) General Powers. The nature of the business
or purposes to be conducted or promoted by the Company is to engage in any
lawful act or activity for which limited liability companies may be organized
under the Act. The Company may engage in any and all activities necessary,
desirable or incidental to the accomplishment of the foregoing. Notwithstanding
anything herein to the contrary, nothing set forth herein shall be construed as
authorizing the Company to possess any purpose or power, or to do any act or
thing, forbidden by law to a limited liability company organized under the laws
of the State of Delaware.


 


(b) Company Action. Subject to the provisions
of this Agreement and except as prohibited by applicable law, (i) the Company
may, with the approval of the Board of Managers, enter into and perform any and
all documents, agreements and instruments, all without any further act, vote or
approval of any Member and (ii) the Board of Managers may authorize any Person
(including any Member or Officer) to enter into and perform any document on
behalf of the Company.


 


(c) Merger. Subject to the provisions of this
Agreement, the Company may, with the approval of the Board of Managers and
without the need for any further act, vote or approval of any Member, merge
with, or consolidate into, another limited


 


17

















 


liability
company (organized under the laws of Delaware or any other state), a
corporation (organized under the laws of Delaware or any other state) or other
business entity (as defined in Section 18-209(a) of the Act), regardless of
whether the Company is the survivor of such merger or consolidation.


 


Section
2.5 Foreign Qualification. Prior to the Company’s conducting business in
any jurisdiction other than the State of Delaware, the Board of Managers shall
cause the Company to comply, to the extent procedures are available and those
matters are reasonably within the control of the Officers, with all
requirements necessary to qualify the Company as a foreign limited liability
company in that jurisdiction.


 


Section
2.6 Registered Office; Registered Agent: Principal Office; Other Offices.
The registered office of the Company required by the Act to be maintained in
the State of Delaware shall be the office of the initial registered agent named
in the Certificate or such other office (which need not be a place of business
of the Company) as the Board of Managers may designate from time to time in the
manner provided by law. The registered agent of the Company in the State of
Delaware shall be the initial registered agent named in the Certificate or such
other Person or Persons as the Board of Managers may designate from time to
time in the manner provided by law. The principal office of the Company shall
be at such place as the Board of Managers may designate from time to time,
which need not be in the State of Delaware, and the Company shall maintain
records at such place. The Company may have such other offices as the Board of
Managers may designate from time to time.


 


Section
2.7 No State-Law Partnership. The Unitholders intend that the Company
shall not be a partnership (including a limited partnership) or joint venture,
and that no Unitholder, Manager or Officer shall be a partner or joint venturer
of any other Unitholder, Manager or Officer by virtue of this Agreement, for
any purposes other than as is set forth in the last sentence of this Section
2.7, and this Agreement shall not be construed to the contrary. The
Unitholders intend that the Company shall be treated as a partnership for
federal and, if applicable, state or local income tax purposes, and each
Unitholder and the Company shall file all tax returns and shall otherwise take
all tax and financial reporting positions in a manner consistent with such
treatment.


 


ARTICLE III

CAPITALIZATION; REDEMPTION RIGHTS


 


Section
3.1 Units; Initial Capitalization; Schedules.


 


(a) Units; Initial Capitalization. Each Member’s
interest in the Company, including such Member’s interest, if any, in the
capital, income, gain, loss, deduction and expense of the Company and the right
to vote, if any, on certain Company matters as provided in this Agreement shall
be represented by units of limited liability company interest (each a “Unit”).
The Company initially shall have four authorized classes of Units, designated
Preferred Units, Class A Units, Class B Units and Class C Units, with
527,521.8175 Preferred Units, 10,000,000.0000 Class A Units, 526,262.5000 Class
B Units and 967,848.8492 Class C Units authorized for issuance. On the date
hereof, the issued and outstanding Units consist of 527,521.8175 Preferred
Units,


 


18

















 


10,000,000.0000
Class A Units, 505,212.0000 Class B Units and 913,407.3514 Class C Units. The
ownership by a Unitholder of Units shall entitle such Unitholder to allocations
of profits and losses and other items and distributions of cash and other
property as is set forth in Article IV and Article V. The Company
may not issue any fractional Units.


 


(b) Schedule of Units: Schedule of Members. The
aggregate number of Units of each class and the aggregate amount of cash
Capital Contributions that have been made by the Members and the Fair Market
Value of any property other than cash contributed by the Members with respect
to the Units (including, if applicable, a description and the amount of any
liability assumed by the Company or to which contributed property is subject)
shall be set forth on Schedule A attached hereto. The Fair Market Value
of any property contributed by any Management Member with respect to any Units
issued on the Initial Issuance Date shall be equal to the amounts set forth in
such Management Member’s Contribution Agreement as the consideration for the
issuance of the relevant Units. The name and address of each Member shall be
set forth on Schedule B attached hereto. Schedules A and B
shall remain strictly confidential and shall only be disclosed by the Company
to Vestar and the CEO.


 


Section
3.2 Authorization and Issuance of Additional Units. Subject to the
provisions of Section 6.10, the Board of Managers shall have the right
to cause the Company to issue and/or create and issue at any time after the
date hereof, and for such amount and form of consideration as the Board of
Managers may determine, additional Units or other Equity Securities of the
Company (including issuing additional Class B Units or Class C Units or
creating other classes or series of Units or other Equity Securities having
such powers, designations, preferences and rights as may be determined by the
Board of Managers). The Board of Managers shall have the power to make such
amendments to this Agreement in order to provide for such powers, designations,
preferences and rights as the Board of Managers in its discretion deems
necessary or appropriate to give effect to such additional authorization or
issuance; provided that any such amendment shall not reasonably be
expected to have a material and adverse effect on any Unitholder, in its
capacity as such, that would be borne disproportionately by such Unitholder
relative to other Unitholders holding Units of the same class under this
Agreement (unless such Unitholder consents in writing thereto).


 


Section
3.3 Issuance of Class B Units and Class C Units; Service Providers.


 


(a) Authorization of Class B Units and Class C
Units. Subject to Section 6.10(b), the Class B Units and Class C
Units are authorized and reserved for issuance to employees, officers,
directors and other service providers of or to the Company and its
Subsidiaries, and the Board of Managers or the Compensation Committee from time
to time may establish such vesting, forfeiture and repurchase criteria, and
such Floor Amount, for any Class B Units and Class C Units as the Board of
Managers or the Compensation Committee in its discretion determines (and as may
be set forth in the applicable Management Grant Agreement). Any Class B Unit or
Class C Unit that is forfeited by any Person pursuant to the provisions of the
applicable agreement between such Person and the Company shall be deemed to
have been acquired by the Company and may, subject to Section 6.10(b),
be re-issued to employees, officers,


 


19

















 


directors
or other service providers of or to the Company and its Subsidiaries at such
time and upon such terms and subject to such conditions as the Board of
Managers or the Compensation Committee determines.


 


(b) Profits Interests. Each Person receiving Class
B Units and/or Class C Units shall make a timely election under Section 83(b) of
the Code with respect to such Units upon their issuance, in a manner reasonably
prescribed by the Company. The Company and each Person receiving Class B Units
and/or Class C Units hereby acknowledges and agrees that each Person’s Class B
Units and/or Class C Units, and the rights and privileges associated with such Class
B Units and/or Class C Units, collectively are intended to constitute a “profits
interest” in the Company within the meaning of Revenue Procedure 93-27, 1993-2
C.B. 343, or any successor Internal Revenue Service or Treasury Department
regulation or other pronouncement applicable at the date of issuance of Class B
Units and/or Class C Units. For so long as Revenue Procedure 2001-43, 2001-2
C.B. 343, is effective, the Company and each Person who receives Class B Units
and/or Class C Units hereby agrees (i) that all such Persons will be treated as
Unitholders and as partners for federal income tax purposes immediately upon
issuance of such Units and (ii) to comply with the provisions of Revenue
Procedure 2001-43, and neither the Company nor any such Person shall perform
any act or take any position inconsistent with the application of Revenue
Procedure 2001-43.


 


(c) Authorization of Safe Harbor Election. By
executing this Agreement, each Member authorizes and directs the Company to
elect to have the “safe harbor” described in the proposed Revenue Procedure set
forth in Internal Revenue Service Notice 2005-43, 2005-24 I.R.B. 1221 (the “Notice”),
apply to any interest in the Company Transferred to a service provider by the
Company on or after the effective date of such Revenue Procedure in connection
with services provided to the Company (and, to the extent that then-applicable
guidance permits, in connection with services provided to any Subsidiary). For
purposes of making such safe harbor election, the Tax Matters Member is hereby
designated as the “partner who has responsibility for federal income tax
reporting” by the Company and, accordingly, for execution of a “safe harbor
election” in accordance with Section 3.03(1) of the Notice. The Company and
each Member hereby agree to comply with all requirements of the safe harbor
described in the Notice, including the requirement that each Member shall
prepare and file all federal income tax returns reporting the income tax
effects of each safe harbor partnership interest issued by the Company in a
manner consistent with the requirements of the Notice.


 


(d) Amendment by Tax Matters Member. Each
Member authorizes the Tax Matters Member to amend this Section 3.3 to
the extent necessary to achieve substantially the same tax treatment with
respect to any profits interest in the Company Transferred to a service
provider by the Company in connection with services provided to the Company
(and, to the extent that then applicable guidance permits, in connection with
services provided to any Subsidiary) as is set forth in, as applicable, Revenue
Procedure 93-27, Revenue Procedure 2001-43 or Section 4 of the Notice e.q.,  to reflect changes from the rules set
forth in the Notice in subsequent Internal Revenue Service or Treasury
Department guidance), provided that such amendment is not materially
adverse to any Member (as compared with the after-tax consequences that would
result if the provisions


 


20

















 


of
the Notice applied to all profits interests in the Company Transferred to a
service provider by the Company in connection with services provided to the
Company or any of its Subsidiaries).


 


Section
3.4 Capital Accounts.


 


(a) The Company shall maintain a separate capital
account for each Unitholder according to the rules of Regulations Section 1.704-l(b)(2)(iv)
(each a “Capital Account”). The Capital Account of each Unitholder shall
be credited initially with an amount equal to such Unitholder’s cash
contributions and the Fair Market Value of property contributed to the Company
by the Unitholder (net of any liabilities securing such contributed property
that the Company is considered to assume or take subject to).


 


(b) The Capital Account of each Unitholder shall (i) be
credited with all Income allocated to such Unitholder pursuant to Section 5.1
and Section 5.2, and with the amount equal to such Unitholder’s cash
contributions and the Fair Market Value of property contributed to the Company
by the Unitholder (net of any liabilities securing such contributed property
that the Company is considered to assume or take subject to) and (ii) be
debited with all Loss allocated to such Unitholder pursuant to Section 5.1
or Section 5.2, and with the amount of cash and the Gross Asset Value of
any property (net of liabilities assumed by such Unitholder and liabilities to
which such property is subject) distributed by the Company to such Unitholder.


 


(c) The Company may, upon the occurrence of the events
specified in Regulation Section 1.704-1 (b)(2)(iv)(f), increase or decrease the Capital Accounts of the
Unitholders in accordance with the rules of such Regulation and Regulation Section
1.704-1(b)(2)(iv)(g) to reflect a
revaluation of Company property.


 


Section
3.5 Negative Capital Accounts. No Unitholder shall be required to pay to
any other Unitholder or the Company any deficit or negative balance that may
exist from time to time in such Unitholder’s Capital Account (including upon
and after dissolution of the Company).


 


Section
3.6 No Withdrawal. No Person shall be entitled to withdraw any part of
such Person’s Capital Contributions or Capital Account or to receive any
distribution from the Company, except as expressly provided herein.


 


Section
3.7 Loans From Unitholders. Loans by Unitholders to the Company shall
not be considered Capital Contributions. If any Unitholder shall loan funds to
the Company, then the making of such loans shall not result in any increase in
the Capital Account balance of such Unitholder. The amount of any such loans
shall be a debt of the Company to such Unitholder and shall be payable or
collectible in accordance with the terms and conditions upon which such loans
are made.


 


Section
3.8 No Right of Partition. No Unitholder shall have the right to seek or
obtain partition by court decree or operation of law of any property of the
Company or any of its Subsidiaries or the right to own or use particular or
individual assets of the Company or any


 


21

















 


of
its Subsidiaries, or, except as expressly contemplated by this Agreement, be
entitled to distributions of specific assets of the Company or any of its
Subsidiaries.


 


Section
3.9 Non-Certification of Units; Legend; Units Are Securities.


 


(a) Units shall be issued in non-certificated form; provided
that the Board of Managers may cause the Company to issue certificates to a
Member representing the Units held by such Member. If any Unit certificate is
issued, then such certificate shall bear a legend as is set forth in Section 9.2
of the Securityholders Agreement and also substantially in the following form:


 


This
certificate evidences a [Preferred] [Class [A][B][C]] Unit representing an
interest in Radiation Therapy Investments, LLC and shall be a security within
the meaning of Article 8 of the Uniform Commercial Code.


 


The
interest in Radiation Therapy Investments, LLC represented by this certificate
is subject to restrictions on transfer set forth in (i) the Second Amended and
Restated Limited Liability Company Agreement of Radiation Therapy Investments,
LLC, dated as of March 25, 2008, by and among Radiation Therapy Investments,
LLC and each of the members from time to time party thereto, as the same may be
amended from time to time and the (ii) the Amended and Restated Securityholders
Agreement of Radiation Therapy Investments, LLC dated as of March 25, 2008 by
and among Radiation Therapy Investments, LLC and some or all of the members
from time to time party thereto, as the same may be amended from time to time.


 


(b) The Company hereby irrevocably elects that all
Units shall be “securities” governed by Article 8 of the Uniform Commercial
Code as in effect from time to time in the State of Delaware or analogous
provisions in the Uniform Commercial Code in effect in any other jurisdiction.
This Section 3.9(b) shall not be amended without the prior written
consent of all of the Members, and any purported amendment to this Section 3.9(b)
in violation of the foregoing shall be null and void.


 


ARTICLE IV

DISTRIBUTIONS


 


Section
4.1 Distributions; Priority. Distributable Assets will be distributed at
such times as are determined by the Board of Managers, subject to Section 4.4,
in the order and priority set forth below:


 


(a) first, 100% of the Distributable Assets
shall be distributed to the Preferred Unitholders pro rata in accordance
with each such Unitholder’s Unreturned Preferred Capital, until each such Unitholder’s
Unreturned Preferred Capital has been reduced to zero;


 


22

















 


(b) second, after the required distributions
pursuant to subparagraph (a) above, 100% of the Distributable Assets shall be
distributed to the Class A Unitholders, pro rata in accordance with each
such Unitholder’s Unretumed Class A Capital, until each such Unitholder’s
Unretumed Class A Capital has been reduced to zero;


 


(c) third, (A) after the required distributions
pursuant to subparagraphs (a) and (b) above, 100% of the Distributable Assets
shall be distributed to the Preferred Unitholders, (i) pro rata in
accordance with the aggregate amount of such Unitholders’ Current Preferred
Return, until each such Unitholder’s Current Preferred Return has been reduced
to zero; and (ii) thereafter, pro rata in accordance with each such
Unitholder’s remaining Unpaid Preferred Return, until each such Unitholder’s
Unpaid Preferred Return has been reduced to zero; (B) after the required
distributions pursuant to subparagraph (A) of this Section 4.1(c), 100% of the
Distributable Assets shall be distributed to the Class B Unitholders, pro
rata in accordance with each such Unitholder’s Unretumed Class B Capital,
until each such Unitholder’s Unretumed Class B Capital has been reduced to
zero; and (C) after the required distributions pursuant to subparagraphs (A) and
(B) of this Section 4.1(c), 100% of the Distributable Assets shall be
distributed to the Class C Unitholders, pro rata in accordance with each
such Unitholder’s Unretumed Class C Capital, until each such Unitholder’s
Unretumed Class C Capital has been reduced to zero; and


 


(d) fourth, after the required distributions
pursuant to subparagraphs (a), (b) and (c) above, all remaining Distributable
Assets shall be distributed as follows:


 


(i) eighty-seven percent (87%) to the Class A
Unitholders, ratably among such Unitholders based on the aggregate number of Class
A Units held by each such Unitholder immediately prior to such distribution;


 


(ii) a percentage, equal to the product of (x) five
percent (5.00%) multiplied by (y) the Class B Fraction, to the Class B
Unitholders, pro rata in accordance with the number of Class B Units held by
each such Unitholder immediately prior to such distribution, and (ii) a
percentage equal to the product of (x) five percent (5.00%) multiplied by (y) one
minus the Class B Fraction, to the Class A Unitholders, pro rata in accordance
with the number Class A Units held by each such Unitholder immediately prior to
such distribution; and


 


(iii) a percentage, equal to the product of (x) eight
percent (8.00%) multiplied by (y) the Class C Fraction, to the Class C
Unitholders, pro rata in accordance with the number of Class C Units held by
each such Unitholder, and (ii) a percentage equal to the product of (x) eight
percent (8.00%) multiplied by (y) one minus the Class C Fraction, to the Class A
Unitholders, pro rata in accordance with the number of Class A Units held by
each such Unitholder immediately prior to such distribution;


 


provided, however, that any Class B Unit or Class C Unit shall share in
distributions pursuant to this Section 4.1(d) only from and after the
point at which the aggregate


 


23

















 


amount
of distributions to the Unitholders pursuant to this Section 4. l (d) after
the date of issuance of the Class B Unit or Class C Unit is equal to the Floor
Amount for such Class B Unit or Class C Unit.


 


Section
4.2 Priority over Form of Consideration. Notwithstanding any other provision
in this Agreement, if the Company makes a distribution pursuant to Section 4.1
that includes more than one kind of asset (e.g., cash, equity or debt
securities or any combination thereof), then the assets available for
distribution shall be distributed ratably among all Unitholders entitled to
participate in such distribution; provided that, to the extent cash is
included in such assets, such cash shall first be distributed to the Preferred
Unitholders if they so elect by vote of holders of a majority of the Preferred
Units.


 


Section
4.3 Successors. For purposes of determining the amount of distributions
under Section 4.1, each Unitholder shall be treated as having made the
Capital Contributions and as having received the distributions made to or
received by its predecessors with respect to any of such Unitholder’s Units.


 


Section
4.4 Tax Distributions. Subject to the Act and to any restrictions
contained in any agreement to which the Company is bound and notwithstanding
the provisions of Section 4.1, no later than the tenth day of each
April, June and September of any calendar year and January of the following
calendar year, the Company shall, to the extent of available cash of the
Company, make a distribution in cash (each, a “Tax Distribution”) to
each Unitholder in an amount equal to the excess of (a) the product of (i) the
cumulative taxable income allocated by the Company to the Unitholder through
the end of the month immediately preceding the distribution date, in excess of
the cumulative taxable loss allocated by the Company to such Unitholder for
that period, to the extent that such taxable loss would be available (without
regard to any other Tax item of the Unitholder) to offset such taxable income,
in each case based upon (x) the information returns filed by the Company, as
amended or adjusted to date, and (y) estimated amounts, in the case of periods
for which the Company has not yet filed information returns, and (ii) the
Assumed Tax Rate applicable to each period, over (b) all prior distributions
pursuant to Section 4.1(d) and this Section 4.4. All distributions made
to a Unitholder pursuant to this Section 4.4 shall be treated as advance
distributions under Section 4.1(d) and shall be taken into account in
determining the amount subsequently distributable to a Unitholder under Section
4.1(d). In particular, if, at the time that the Company makes any
distribution under Section 4. l (d). any Unitholder has received a share
of the aggregate distributions made pursuant to Section 4. l (d) and Section
4.4 that is less than the share that it would have received if all such
distributions had been made pursuant to Section 4.1(d) without regard to
Section 4.4, then, notwithstanding Section 4.1(d), distributions
first shall be made 100 percent to the Unitholders having such a shortfall in
such amounts as are required so that each Unitholder has received its
appropriate share, determined under Section 4.1(d), of all distributions
made by the Company under Section 4.l (d) and this Section 4.4.
For the avoidance of doubt, Tax Distributions shall be made only with respect
to income of the Company allocated to the Unitholders (as opposed to income
recognized by any Member with respect to the issuance or vesting of such Member’s
Units). For the purpose of determining the amount of distributions under Section
4.4, each Unitholder shall be treated as having been allocated the cumulative
taxable income and received the distributions made to or received by its
predecessors with respect to any of such Unitholder’s Units.


 


24

















 


Section
4.5 Catch-up Distributions to Class B Unitholders and Class C Unitholders.
Notwithstanding any other provision in this Agreement, if, after taking into
account distributions made pursuant to Section 4.4, the Company
otherwise would make a distribution pursuant to Section 4.1 (d) to
holders of unvested Class B Units and/or Class C Units, then the Company shall
instead promptly deposit, to the extent of available cash, into a
non-segregated bank account held in the name of the Company or any of its
Subsidiaries (the “Catch-up Account”) an amount equal to the
distributions that would have been made to the holders of such unvested Class B
Units and/or Class C Units (as to each unvested Class B Unit or Class C Unit, a
“Catch-up Amount”). Upon the vesting of any Class B Unit or Class C Unit
in accordance with the terms of the applicable Management Grant Agreement or
lapsing of other repurchase criteria established pursuant to Section 3.3(a),
the Company shall make a distribution from the Catch-up Account to the holder
of such vested Unit in an amount equal to the aggregate Catch-up Amounts with
respect to such Unit (together with any amounts earned on such Catch-up Amounts
from the respective dates of deposit in the Catch-up Account). If the Company
does not have a sufficient amount of available cash in the Catch-up Account to
satisfy such Catch-up Amount, then, notwithstanding any other provision in this
Agreement, any distribution made pursuant to Section 4.1(d) shall be
distributed, first, to the holder of such vested Unit in an amount equal
to such shortfall, until the Catch-up Amount in respect of such vested Unit is
equal to zero, and, second, in the order and priority set forth in Section
4.l (d). If any unvested Class B Unit or Class C Unit is forfeited or
repurchased by the Company in accordance with the provisions of the applicable
Management Grant Agreement or other repurchase criteria established pursuant to
Section 3.3(a), then the Catch-up Amount with respect to such forfeited
Unit (the “Forfeited Amount”), if any, shall be distributed to the Class
A Unitholders, ratably among such Unitholders based on the aggregate number of Class
A Units held by such Unitholder immediately prior to such distribution. If, at
any time, a Catch-up Amount is payable with respect to more than one Class B
Unit and/or Class C Unit, then the amount available in the Catch-up Account or
to be distributed under Section 4.1(d), as applicable, shall be allocated pro
rata among such Units based on their relative Catch-up Amounts until the
full Catch-up Amount for each such Unit has been distributed.


 


Section
4.6 Security Interest and Right of Set-Off. As security for any
liability or obligation to which the Company may be subject as a result of any
act or status of any Unitholder, or to which the Company may become subject
with respect to the interest of any Unitholder, the Company shall have (and
each Unitholder hereby grants to the Company) a security interest in all Distributable
Assets distributable to such Unitholder to the extent of the amount of such
liability or obligation. Whenever the Company is to pay any sum to any
Unitholder or any Affiliate or related Person thereof pursuant to the terms of
this Agreement, any amounts that such Unitholder or such Affiliate or related
Person owes to the Company may be deducted from that sum before payment.


 


Section
4.7 Certain Distributions. For purposes of this Article IV, a
distribution to a Member of property (other than cash) shall be treated as a
Tax Distribution pursuant to Section 4.4 (rather than as, for example, a
distribution pursuant to Section 4.1 (a), (b) or (c)), in an amount equal to
the hypothetical amount of tax that the Member would pay, at the Assumed Tax
Rate, if (i) such property were not treated as a distribution of money pursuant
to Section 731(c)(2) of the Code (to the extent that Section 731(c)(2) otherwise
applies) and (ii) the Member sold the property immediately after receiving such
distribution.


 


25

















 


ARTICLE V

ALLOCATIONS


 


Section
5.1 Allocations. Except as otherwise provided in Section 5.2, Net
Income and Net Loss (and, if necessary, individual items of Income and Loss)
shall be allocated annually (and at such other times as the Board of Managers
determines) to the Unitholders in such manner that the Capital Account balance
of each Unitholder shall, to the greatest extent possible, be equal to the
amount, positive or negative, that would be distributed to such Unitholder (in
the case of a positive amount) or for which such Unitholder would be liable to
the Company under this Agreement (in the case of a negative amount), if (a) the
Company were to sell the assets of the Company for their Gross Asset Values, (b)
all Company liabilities were satisfied (limited with respect to each
nonrecourse liability to the Gross Asset Values of the assets securing such
liability), (c) the Company were to distribute the proceeds of sale pursuant to
Section 4.1 (including to the holders of unvested Class B Units and Class
C Units that are treated as Unitholders pursuant to Section 3.3) and (d) the
Company were to dissolve pursuant to Article VII, minus such Unitholder’s
share of Company Minimum Gain and Member Minimum Gain, computed immediately
prior to the hypothetical sale of assets.


 


Section
5.2 Special Allocations.


 


(a) Loss attributable to Member Nonrecourse Debt shall
be allocated in the manner required by Regulations Section 1.704-2(i). If there
is a net decrease during a taxable year in Member Minimum Gain, Income for such
taxable year (and, if necessary, for subsequent taxable years) shall be
allocated to the Unitholders in the amounts and of such character as is
determined according to Regulations Section 1.704-2(i)(4). This Section 5.2(a)
is intended to be a “partner nonrecourse debt minimum gain chargeback”
provision that complies with the requirements of Regulations Section 1.704-2(i)(4),
and shall be interpreted in a manner consistent therewith.


 


(b) Except as otherwise provided in Section 5.2(a),
if there is a net decrease in Company Minimum Gain during any taxable year,
each Unitholder shall be allocated Income for such taxable year (and, if
necessary, for subsequent taxable years) in the amounts and of such character as
is determined according to Regulations Section 1.704-2(f). This Section 5.2(b)
is intended to be a “minimum gain chargeback” provision that complies with the
requirements of Regulations Section 1.704-2(f), and shall be interpreted in a
manner consistent therewith.


 


(c) If any Unitholder that unexpectedly receives an
adjustment, allocation or distribution described in Regulations Section 1.704-l(b)(2)(ii)(d)(4),
(5) or (6) has an Adjusted
Capital Account Deficit as of the end of any taxable year, computed after the
application of Section 5.2(a) and Section 5.2(b) but before the
application of any other provision of this Article V, then Income for
such taxable year shall be allocated to such Unitholder in proportion to, and
to the extent of, such Adjusted Capital Account Deficit. This Section 5.2(c)
is intended to be a “qualified income offset” provision as described in
Regulations Section 1.704-1 (b)(2)(ii)(d) and shall be interpreted in a manner
consistent therewith.


 


26














 


(d) Income and Loss described in clause (iv) of
the definition of Gross Asset Value shall be allocated in a manner consistent
with the manner that the adjustments to the Capital Accounts are required to be
made pursuant to Regulations Section 1.704-l(b)(2)(iv)(m).


 


(e) The allocations set forth in Section 5.2(a) through
Section 5.2(d) inclusive (the “Regulatory Allocations”)
are intended to comply with certain requirements of Section 1.704-l(b) and
1.704-2 of the Regulations. The Regulatory Allocations may not be consistent
with the manner in which the Unitholders intend to allocate Income and Loss of
the Company or to make distributions. Accordingly, notwithstanding the other
provisions of this Article V, but subject to the Regulatory
Allocations, items of Income and Loss of the Company shall be allocated among
the Unitholders so as to eliminate the effect of the Regulatory Allocations and
thereby cause the respective Capital Account balances of the Unitholders to be
in the amounts (or as close thereto as possible) they would have been if Income
and Loss had been allocated without reference to the Regulatory Allocations. In
general, the Unitholders anticipate that this will be accomplished by specially
allocating other Income and Loss among the Unitholders so that the net amount
of Regulatory Allocations and such special allocations to each such Unitholder
is zero.


 


(f) Income and Loss of the Company shall be
allocated in the manner required by proposed Regulations Section 1.704(b)-l(b)(4)(xii)(c) (or any successor guidance dealing
with so-called “forfeiture allocations”) from and after the time permitted by
applicable final or temporary guidance.


 


Section 5.3 Tax Allocations.


 


(a) The income, gains, losses and deductions of
the Company shall be allocated for federal, state and local income tax purposes
among the Unitholders in accordance with the allocation of such income, gains,
losses and deductions among the Unitholders for purposes of computing their
Capital Accounts; except that if any such allocation is not permitted by the
Code or other applicable law, then the Company’s subsequent income, gains,
losses and deductions for tax purposes shall be allocated among the Unitholders
so as to reflect as nearly as possible the allocation set forth herein in
computing their Capital Accounts.


 


(b) Items of Company taxable income, gain, loss
and deduction with respect to any property contributed to the capital of the
Company shall be allocated among the Unitholders in accordance with Section 704(c) of
the Code so as to take account of any variation between the adjusted basis of
such property to the Company for federal income tax purposes and its Gross
Asset Value, using the “remedial method” under Regulation Section 1.704-3(d),
unless otherwise agreed in writing by the Vestar Majority Holders.


 


(c) If the Gross Asset Value of any Company asset
is adjusted pursuant to the requirements of Regulations Section 1.704-l(b)(2)(iv)(e) or (f), subsequent allocations of items of taxable income, gain,
loss and deduction with respect


 


27

















 


to
such asset shall take account of any variation between the adjusted basis of
such asset for federal income tax purposes and its Gross Asset Value in the
same manner as under Section 704(c) of the Code using such method or
methods as the Vestar Group Majority may direct.


 


(d) In addition to the consent rights set forth
in Section 6.10(b), the Vestar Group Majority shall have the sole
and exclusive right to determine the method used by the Company or any of its
Subsidiaries to make allocations pursuant to Section 704(c) of the
Code (including any so-called “reverse” Section 704(c) allocations).


 


(e) Tax credits, tax credit recapture and any
items related thereto shall be allocated to the Unitholders according to their
interests in such items as reasonably determined by the Board of Managers
taking into account the principles of Regulations Sections 1.704-1 (b)(4)(ii) and
1.704-1 T(b)(4)(xi).


 


(f) Allocations pursuant to this Section 5.3
are solely for the purposes of federal, state and local taxes and shall not
affect, or in any way be taken into account in computing, any Unitholder’s
Capital Account or share of Income, Loss, distributions or other Company items
pursuant to any provision of this Agreement.


 


Section 5.4
Unitholders’ Tax Reporting. The Unitholders acknowledge and are aware of
the income tax consequences of the allocations made pursuant to this Article V
and, except as may otherwise be required by applicable law or regulatory
requirements, hereby agree to be bound by the provisions of this Article V
in reporting their shares of Company income, gain, loss, deduction and credit
for federal, state and local income tax purposes.


 


Section 5.5
Indemnification and Reimbursement for Payments on Behalf of a Unitholder.
If the Company is required by law to make any payment to a Governmental Entity
that is specifically attributable to a Unitholder or a Unitholder’s status as
such (including federal withholding taxes, state or local personal property taxes
and state or local unincorporated business taxes), then such Unitholder shall
indemnify the Company in full for the entire amount paid (including interest,
penalties and related expenses). The Board of Managers may offset distributions
to which a Person is otherwise entitled under this Agreement against such
Person’s obligation to indemnify the Company under this Section 5.5.
A Unitholder’s obligation to indemnify the Company under this Section 5.5
shall survive termination, dissolution, liquidation and winding up of the
Company, and for purposes of this Section 5.5, the Company shall be
treated as continuing in existence. The Company may pursue and enforce all
rights and remedies it may have against each Unitholder under this Section 5.5,
including instituting a lawsuit to collect such indemnification, with interest
calculated at a rate equal to 10 percent (but not in excess of the highest rate
per annum permitted by law).


 


ARTICLE VI

MANAGEMENT


 


Section 6.1
The Board of Managers; Delegation of Authority and Duties.


 


(a) Members and Board of Managers. The
Members shall possess all rights and powers as provided in the Act and
otherwise by applicable law. Except as


 


28

















 


otherwise
expressly provided for herein, the Members hereby consent to the exercise by
the Board of Managers of all such powers and rights conferred on them by the
Act with respect to the management and control of the Company. Notwithstanding
the foregoing and except as explicitly set forth in this Agreement, if a vote,
consent or approval of the Members is required by the Act or other applicable
law with respect to any act to be taken by the Company or matter considered by
the Board of Managers, each Member agrees that it shall be deemed to have
consented to or approved such act or voted on such matter in accordance with a
vote of the Board of Managers on such act or matter. Each Class A
Unitholder shall have one vote for each Class A Unit held by such
Unitholder. Holders of Preferred Units, Class B Units and Class C
Units shall not have the right to vote on any matter unless such right is
expressly provided herein. If a vote, consent or approval of the Members is
required by this Agreement, only the Class A Members shall be entitled to
vote, consent or approve unless a right to vote, consent or approve is
expressly provided herein to any other Member. Unless otherwise set forth in
this Agreement, any vote, consent or approval of any class of Units required by
this Agreement shall require a majority of the voting power of the applicable
Units. No Member, in its capacity as a Member, shall have any power to act for,
sign for or do any act that would bind the Company. The Members, acting through
the Board of Managers, shall devote such time and effort to the affairs of the
Company as they may deem appropriate for the oversight of the management and
affairs of the Company. Each Member acknowledges and agrees that no Member
shall, in its capacity as a Member, be bound to devote all of such Member’s business
time to the affairs of the Company, and that each Member and such Member’s
Affiliates do and will continue to engage for such Member’s own account and for
the account of others in other business ventures.


 


(b) Delegation by Board of Managers. The
Board of Managers shall have the power and authority to delegate to one or more
other Persons the Board of Managers’ rights and powers to manage and control
the business and affairs of the Company, including to delegate to agents and
employees of a Member, a Manager or the Company (including Officers), and to
delegate by a management agreement or another agreement with, or otherwise to,
other Persons. The Board of Managers may authorize any Person (including any
Member, Officer or Manager) to enter into and perform under any document on
behalf of the Company.


 


(c) Committees. With the consent of at
least one Manager designated by the Vestar Group Majority, the Board of
Managers may, from time to time, designate one or more committees (including
the Compensation Committee), each of which shall be comprised of at least two
Managers. Any such committee, to the extent provided in the enabling resolution
and until dissolved by the Board of Managers, shall have and may exercise any
or all of the authority of the Board of Managers. At every meeting of any such
committee, unless otherwise provided in the enabling resolution, the presence
of a majority of all the Managers thereof shall constitute a quorum, and the
affirmative vote of a majority of the Managers present shall be necessary for
the adoption of any resolution. The Board of Managers may dissolve any
committee at any time, unless otherwise provided in the Certificate or this
Agreement.


 


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Section 6.2
Establishment of Board of Managers.


 


(a) Managers. There shall be established a
board of managers (the “Board of Managers”) composed of such number of
persons as is determined by the Vestar Group Majority consistent with Section 2.1
of the Securityholders Agreement, all of whom shall be individuals as
determined pursuant to the Securityholders Agreement (“Manager”) who
shall be elected by a majority vote of the holders of the Class A Units,
voting together as a single class, and each such Unitholder shall have one vote
for each Unit held by such Member. The size of the Board of Managers may from
time to time be changed with the prior written consent of the Vestar Group
Majority in a manner consistent with Section 2.1 of the Securityholders
Agreement. Each Manager shall be a “manager” (as such term is defined in the
Act) of the Company but, notwithstanding the foregoing, no Manager shall have
any rights or powers beyond the rights and powers granted to such Manager in
this Agreement. Any Manager may be removed from the Board of Managers at any
time by the holders of a majority of the Class A Units in a manner
consistent with Section 2.1 of the Securityholders Agreement. Each Manager
shall remain in office until his or her death, resignation or removal, and in
the event of death, resignation or removal of a Manager, the holders of a
majority of the total voting power of the outstanding Units shall fill the
vacancy created.


 


(b) Duties; Investment Opportunities;
Conflicts of Interest.


 


(i) A Manager shall be personally liable to the
Company and the other Members for any loss incurred by such Person for acts or
omissions in the management of the Company only in the case of gross
negligence, willful misconduct, bad faith or breach of fiduciary duty as
provided below by such Manager; but a Manager shall not be personally liable to
the Company or any Member for any other acts or omissions, including the
negligence, strict liability or other fault or responsibility (short of gross
negligence, willful misconduct, bad faith or breach of fiduciary duty as
provided below) by such Manager. The Board of Managers and any member or
committee thereof may consult with counsel and accountants in respect of
Company affairs and, provided the Board of Managers (or such member or
committee, as the case may be) acts in good faith reliance upon the advice or
opinion of such counsel or accountants, the Board of Managers (or such member
or committee, as the case may be) shall not be liable for any loss suffered by
the Members or the Company in reliance thereon. Notwithstanding any other
provision of this Agreement or any duty otherwise existing at law or in equity,
the parties hereby agree that the Managers, in their capacities as Managers,
shall, to the maximum extent permitted by law, including Section 18-1101 (c) of
the Act, owe no fiduciary duties to the Company, the Members or any other
Person bound by this Agreement; provided, however, that the
Managers shall act in accordance with the implied contractual covenant of good
faith and fair dealing. Any amendment or modification of the provisions of this
Section 6.2(b) shall not adversely affect any rights or
protections of a Manager at the time of such amendment or modification. Except
as stated in the preceding sentence and the other duties as may be expressly
set forth in this Agreement, a Manager shall not be subject to any duties in
the management of the Company. And, for the avoidance of doubt, in the event
that there is a Company Sale and the Board of Managers or any particular
Manager, in such capacity, takes any action to


 


30

















 


implement,
undertake or facilitate such Company Sale at the request of Vestar, then such
action shall not be subject to the standards set forth in this Section 6.2(b),
but instead shall be considered actions taken to implement the contractual
agreements of the parties to this Agreement and not in a fiduciary capacity to
the Members.


 


(ii) In performing such Person’s duties, each of
the Managers and the officers of the Company shall be entitled to rely in good
faith on the provisions of this Agreement and on information, opinions, reports
or statements (including financial statements and information, opinions,
reports or statements as to the value or amount of the assets, liabilities,
profits or losses of the Company or any facts pertinent to the existence and
amount of assets from which distributions to Unitholders might properly be
paid), of the following other Persons or groups: (A) one or more officers
or employees of the Company or any of its Subsidiaries; (B) any attorney,
independent accountant or other Person employed or engaged by the Company or
any of its Subsidiaries; or (C) any other Person who has been selected
with reasonable care by or on behalf of the Company or any of its Subsidiaries,
in each case, as to matters which such relying Person reasonably believes to be
within such other Person’s professional or expert competence. The preceding
sentence shall in no way limit any Person’s right to rely on information to the
extent provided in Section 18-406 of the Act.


 


(iii) The Members expressly acknowledge that (A) Vestar
and its respective Affiliates are permitted to have, and may presently or in
the future have, investments or other business relationships with entities other
than through the Company or any of its Subsidiaries (an “Other Business”),
(B) Vestar and its respective Affiliates may have or may develop a
strategic relationship with an Other Business, (C) none of Vestar and its
respective Affiliates will be prohibited by virtue of its investment in the
Company or any of its Subsidiaries or, if applicable, its service on the Board
of Managers from pursuing and engaging in any such activities with Other
Businesses, (D) none of Vestar and its respective Affiliates shall be
obligated to inform the Company or any of its Subsidiaries of any such
opportunity, relationship or investment relating to Other Businesses, (E) the
other Members will not acquire or be entitled to any interest or participation
in any Other Business except as provided in any agreement with the Company or
Subsidiary as a result of the participation therein of Vestar or any of its
respective Affiliates, and (F) the involvement of any equityholder of a
Member or its Affiliates in any Other Business except as provided in any
agreement with the Company or Subsidiary will not constitute a conflict of
interest by such Persons with respect to the Company or its Members or any of
its Subsidiaries. Nothing in the preceding sentence shall limit the confidentiality
obligations of Section 9.4 or, other than as described in this Section 6.2(b)(iii) any
fiduciary obligations of the Managers.


 


(c) Absence. A Manager may designate a
Person to act as his or her substitute and in his or her place at any meeting
of the Board of Managers. Such Person shall have all power of the absent
Manager, and references herein to a “Manager” at a


 


31

















 


meeting
shall be deemed to include his or her substitute. Notwithstanding anything in
this Agreement to the contrary, Managers, in their capacities as such, shall
not be deemed to be “members” (as such term is defined in the Act) of the
Company.


 


(d) No Individual Authority. No Manager
has the authority or power to act for or on behalf of the Company, to do any
act that would be binding on the Company or to make any expenditures or incur
any obligations on behalf of the Company or authorize any of the foregoing,
other than acts that are expressly authorized by the Board of Managers.


 


(e) Conflict. Each provision of this Section 6.2
is subject to the terms and provisions of the Securityholders Agreement, and to
the extent any such provisions apply, they are then to be construed as being
incorporated in this Agreement and made a part hereof.


 


(f) Compensation of Directors; Expense
Reimbursement. Managers that are also employees or officers of the Company
or any of its Subsidiaries shall not receive any stated salary for services in
their capacity as Managers; provided, however, that, subject to Section 6.10(b),
nothing herein contained shall be construed to preclude any Manager from
serving the Company or any Subsidiary in any other capacity and receiving
compensation (including Class B Units or Class C Units) therefor.
Managers that are not also employees or officers of the Company or any of its
Subsidiaries may receive equity based compensation and/or a stated salary for
their services as Managers, in each case, as is determined from time to time by
the Board of Managers. Managers shall be reimbursed for any reasonable
out-of-pocket expenses related to attendance at each regular or special meeting
of the Board of Managers (or any committee thereof), subject to the Company’s
requirements with respect to reporting and documentation of such expenses.


 


Section 6.3
Board of Managers Meetings.


 


(a) Quorum and Voting. A majority of the
total number of Managers (including at least one Manager designated by the
Vestar Group Majority) shall constitute a quorum for the transaction of
business of the Board of Managers and, except as otherwise provided in this
Agreement or Section 2.3 of the Securityholders Agreement, the act of a
majority of the Managers present at a meeting of the Board of Managers at which
a quorum is present shall be the act of the Board of Managers. A Manager who is
present at a meeting of the Board of Managers at which action on any matter is
taken shall be presumed to have assented to the action unless his dissent shall
be entered in the minutes of the meeting or unless he shall file his written
dissent to such action with the Person acting as secretary of the meeting
before the adjournment thereof or shall deliver such dissent to the Company
immediately after the adjournment of the meeting. Such right to dissent shall
not apply to a Manager who voted in favor of such action.


 


(b) Place and Waiver of Notice. Meetings
of the Board of Managers may be held at such place or places as shall be
determined from time to time by resolution of the Board of Managers. At all
meetings of the Board of Managers, business


 


32

















 


shall
be transacted in such order as shall from time to time be determined by
resolution of the Board of Managers. Attendance of a Manager at a meeting shall
constitute a waiver of notice of such meeting, except where a Manager attends a
meeting for the express purpose of objecting to the transaction of any business
on the ground that the meeting is not lawfully called or convened.


 


(c) Regular Meetings. Regular meetings of
the Board of Managers may be held as from time to time shall be determined by
the Board of Managers. After there has been such determination, and notice
thereof has once been given to each Manager, regular meetings of the Board of
Managers may be held without further notice being given. Such notice need not
state the purpose or purposes of, nor the business to be transacted at, such
meeting, except as may otherwise be required by applicable law or provided for
in this Agreement.


 


(d) Special Meetings. Special meetings of
the Board of Managers may be called on at least 24 hours notice to each Manager
by any two Managers. Such notice need not state the purpose or purposes of, nor
the business to be transacted at, such meeting, except as may otherwise be
required by applicable law or provided for in this Agreement.


 


(e) Notice. Notice of any special meeting
of the Board of Managers or other committee may be given personally, by mail,
facsimile, courier or other means and, if other than personally, shall be
deemed given when written notice is delivered to the office of the Manager at
the address of the Manager in the books and records of the Company.


 


Section 6.4
Chairman. The Board of Managers shall designate a Manager to serve as
chairman. The chairman shall preside at all meetings of the Board of Managers.
If the chairman is absent at any meeting of the Board of Managers, a majority
of the Managers present shall designate another Manager to serve as interim
chairman for that meeting. The chairman shall have no independent authority or
power to act for or on behalf of the Company, to do any act that would be
binding on the Company or to make any expenditure or incur any obligations on
behalf of the Company or authorize any of the foregoing. The chairman shall not
have exclusive power to establish the agenda for any meeting. Any matter
proposed for consideration and seconded by at least one Manager other than the
proposing Manager shall be deemed properly raised for consideration at any
meeting.


 


Section 6.5
Approval or Ratification of Acts or Contracts. Any act or contract
approved or ratified by the Board of Managers shall be as valid and as binding
upon the Company and upon all the Members (in their capacity as Members) as if
it had been approved or ratified by each Member of the Company.


 


Section 6.6
Action by Written Consent. Any action permitted or required by the Act,
the Certificate or this Agreement to be taken at a meeting of the Board of
Managers or any committee designated by the Board of Managers may be taken
without a meeting if a consent in writing, setting forth the action to be
taken, is signed by a majority of the Managers or representatives of such other
committee, as the case may be, subject to Section 2.3 of the


 


33

















 


Securityholders
Agreement. Such consent shall have the same force and effect as a vote at a
meeting and may be stated as such in any document or instrument filed with the
Secretary of State of the State of Delaware, and the execution of such consent
shall constitute attendance or presence in person at a meeting of the Board of
Managers or any such other committee, as the case may be.


 


Section 6.7
Meetings by Telephone Conference or Similar Measures. Subject to the
requirements of this Agreement for notice of meetings, the Managers, or
representatives of any other committee designated by the Board of Managers, may
participate in and hold a meeting of the Board of Managers or any such other
committee, as the case may be, by means of a conference telephone or similar
communications equipment by means of which all Persons participating in the
meeting can hear each other, and participation in such meeting shall constitute
attendance and presence in person at such meeting, except where a Person
participates in the meeting for the express purpose of objecting to the
transaction of any business on the ground that the meeting is not lawfully
called or convened.


 


Section 6.8
Officers.


 


(a) Designation and Appointment. The Board
of Managers may, from time to time, employ and retain Persons as may be
necessary or appropriate for the conduct of the Company’s business (subject to
the supervision and control of the Board of Managers), including employees,
agents and other Persons (any of whom may be a Member or Manager) who may be
designated as Officers of the Company, with such titles as and to the extent
authorized by the Board of Managers. Any number of offices may be held by the
same Person. In its discretion, the Board of Managers may choose not to fill
any office for any period as it may deem advisable. Officers need not be
residents of the State of Delaware or Members. Any Officers so designated shall
have such authority and perform such duties as the Board of Managers may from
time to time delegate to them. The Board of Managers may assign titles to
particular Officers. Each Officer shall hold office until his successor shall
be duly designated and shall qualify or until his death or until he shall
resign or shall have been removed in the manner hereinafter provided. The
salaries or other compensation, if any, of the Officers of the Company shall be
fixed from time to time by the Board of Managers.


 


(b) Resignation and Removal. Any Officer
may resign as such at any time. Such resignation shall be made in writing and
shall take effect at the time specified therein, or if no time is specified, at
the time of its receipt by the Board of Managers. The acceptance of a
resignation shall not be necessary to make it effective, unless expressly so
provided in the resignation. Any Officer may be removed as such, either with or
without cause at any time by the Board of Managers. Designation of an Officer
shall not of itself create any contractual or employment rights.


 


(c) Duties of Officers Generally. The
Officers, in the performance of their duties as such, shall owe to the Company
duties of loyalty and due care of the type owed by the officers of a
corporation to such corporation and its stockholders under the laws of the
State of Delaware.


 


34

















 


Section 6.9
Management Matters.


 


(a) Transfer of Property. All property
owned by the Company shall be registered in the Company’s name, in the name of
a nominee or in “street name” as the Board of Managers may from time to time
determine. Any corporation, brokerage firm or transfer agent called upon to
Transfer any Securities to or from the name of the Company shall be entitled to
rely on instructions or assignments signed or purported to be signed by any
Officer or Manager without inquiry as to the authority of the Person signing or
purporting to sign such instructions or assignments or as to the validity of
any Transfer to or from the name of the Company. At the time of any such
Transfer, any such corporation, brokerage firm or transfer agent shall be
entitled to assume that (i) the Company is then in existence and (ii) that
this Agreement is in full force and effect and has not been amended, in each
case, unless such corporation, brokerage firm or transfer agent shall have
received written notice to the contrary.


 


(b) Existence and Good Standing. The Board
of Managers may take all action which may be necessary or appropriate (i) for
the continuation of the Company’s valid existence as a limited liability
company under the laws of the State of Delaware (and of each other jurisdiction
in which such existence is necessary to enable the Company to conduct the
business in which it is engaged) and (ii) for the maintenance,
preservation and operation of the business of the Company in accordance with
the provisions of this Agreement and applicable laws and regulations. The Board
of Managers may file or cause to be filed for recordation in the office of the
appropriate authorities of the State of Delaware, and in the proper office or
offices in each other jurisdiction in which the Company is formed or qualified,
such certificates (including certificates of limited liability companies and
fictitious name certificates) and other documents as are required by the
applicable statutes, rules or regulations of any such jurisdiction or as
are required to reflect the identity of the Members and the amounts of their
respective capital contributions.


 


(c) Investment Company Act. The Board of
Managers shall use its best efforts to assure that the Company shall not be subject
to registration as an investment company pursuant to the Investment Company Act
of 1940, as amended.


 


Section 6.10
Consent Rights.


 


(a) Consent Rights of the Managers. The
prior written consent of at least one Manager designated by the Vestar Group Majority
or any Vestar Manager (as defined in the Securityholders Agreement) shall be
required at any time for the Board of Managers, any such other comparable body
or any such committee (i) to adopt the annual budget of the Company and
its Subsidiaries, (ii) to adopt any annual incentive compensation plan and
(iii) to hire or terminate the Chief Executive Officer, the Chief
Financial Officer, the Chief Operating Officer (if any) or any President of the
Company or any of its Subsidiaries.


 


(b) Consent Rights of the Vestar Group
Majority Unitholders. Notwithstanding any other provision of this
Agreement, the Company and the Board of


 


35

















 


Managers
shall not, and shall take all action possible to ensure that each Subsidiary of
the Company shall not, without the prior written consent of the Vestar Group
Majority Holders, do, or cause to be done, or agree to do or cause to be done,
any of the following:


 


(i) any transaction that results in any third
party or group of third parties acquiring (A) Equity Securities of the
Company possessing the voting power under normal circumstances to elect a
majority of the Managers (whether by merger, consolidation or sale or Transfer
of the Company’s Equity Securities) or (B) all or substantially all of the
Company’s and its Subsidiaries’ assets, determined on a consolidated basis
(each transaction described in clause (A) or (B), a “Change of Control”):


 


(ii) any merger or consolidation involving the
Company or any of its Subsidiaries, other than (A) a merger or
consolidation of any Subsidiary of the Company with and into the Company, or of
two or more Subsidiaries of the Company into one another, or (B) one that
qualifies as a Change of Control or (C) one constituting an acquisition that
does not require consent under subsection (iii) below;


 


(iii) any acquisition, including by merger or
consolidation, of any business, entity, asset or group of related assets, in
any one or a series of related transactions;


 


(iv) the sale, lease, license or other
disposition of, or permitting any Subsidiary to sell, lease, license or
otherwise dispose of, directly or indirectly, in any transaction or series of
related transactions, assets or any business group, unit or line of business of
the Company and/or its Subsidiaries having a Fair Market Value in any one or
more (A) related transactions in excess of $2.5 million in any 12-month
period or (B) unrelated transactions in excess of $5.0 million in any
12-month period;


 


(v) the incurrence by the Company and its
Subsidiaries of Indebtedness (other than intercompany Indebtedness and any
amounts borrowed by the Company and its Subsidiaries as part of the
transactions contemplated by the Transaction Documents), in the aggregate
principal amount, on a consolidated basis, exceeding $10 million;


 


(vi) the authorization, issuance or sale of, or
the granting of permission to any Subsidiary to authorize, any Equity
Securities or rights to acquire any Equity Securities other than issuance of
any additional Class B and Class C Units, but without causing the
total number of all outstanding Class B and Class C Units at any time
to exceed 13% of the aggregate number of Units (other than the Preferred
Units);


 


(vii) transactions with Affiliates (including the
entry into, termination of, or any changes, modifications or amendments to, any
employment or similar agreements between the Company and/or one or more of its


 


36

















 


Subsidiaries,
on the one hand, and any senior executive employee of the Company or any of its
Subsidiaries, on the other hand) other than those transactions undertaken in
compliance with Section 2.4 of the Securityholders Agreement;


 


(viii) directly or indirectly declare or pay any
dividends or make any distributions upon any Units or other Equity Securities
of the Company or any of its Subsidiaries, other than Tax Distributions (Section 4.4);


 


(ix) redeem, purchase or otherwise acquire any
Units or other Equity Securities of the Company or any of its Subsidiaries,
other than the redemption or repurchase of Units by the Company pursuant to any
Management Grant Agreement;


 


(x) make, or permit any Subsidiary to make, any
loan or advance to, guarantee for the benefit of, or investment in, any Person
(other than a wholly-owned or controlled Subsidiary), in each case, in an
amount exceeding $5.0 million individually or $10.0 million in the aggregate;


 


(xi) (A) any material change in the business
of the Company or any Subsidiary (as in effect on the date hereof), (B) any
extension of or entering into a new line of business of the Company or any
Subsidiary or (C) engaging in acts making it impossible to carry on the
business of the Company or any Subsidiary;


 


(xii) make any capital expenditures (including
commitments with respect to capitalized leases, as is determined in accordance
with GAAP) exceeding the approved budget (as adopted pursuant to Section 6.10))
by $5.0 million in the aggregate on a consolidated basis during any 12-month
period;


 


(xiii) become subject to, or permit any of its
Subsidiaries to become subject to (including by way of amendment to or
modification of), any agreement or instrument which by its terms would (under
any circumstances) restrict the Company’s right or ability to perform the
provisions of any of the Transaction Documents; or waive compliance by any
other person of any obligation of such person under any Transaction Document;


 


(xiv) any amendment to the organizational
documents of the Company or any of its Subsidiaries, including the Certificate
and this Agreement;


 


(xv) the entry into, termination of, or any
material changes, modifications or amendments to, any material agreement to
which the Company or any Subsidiary is or will be a party or which otherwise is
or will be binding on the Company or any Subsidiary, including the
Securityholders Agreement and the Management Agreement;


 


(xvi) the declaration of a Bankruptcy (or
acquiescence with respect thereto), dissolution, liquidation, recapitalization
or reorganization in any form of transaction of the Company or its
Subsidiaries;


 


37














 


(xvii) any change of the Company’s or any of its
Subsidiaries’ independent auditors;


 


(xviii) agree to the creation or incurrence of
any Lien other than any Permitted Lien; or


 


(xix) any significant action affecting
allocations made by the Company for Capital Account or tax purposes, Capital
Account balances or any tax item of the Company or its Subsidiaries.


 


(c) Scope of Consent Rights. The Members
hereby acknowledge and agree that the determination of the Vestar Group
Majority Holders as to whether to consent to any of the actions described in Section 6.10(b) shall
be made (i) in the sole discretion of the Vestar Group Majority Holders
acting in their own best interests and (ii) without regard to any
fiduciary duty.


 


(d) Termination. The provisions set forth
in this Section 6.10 shall terminate upon the consummation of an
initial Public Offering.


 


Section 6.11
Securities in Subsidiaries. The Company shall vote, or cause to be
voted, all of the securities it holds in any direct or indirect Subsidiary of
the Company as directed by the Board of Managers, or as required by the
Securityholders Agreement.


 


Section 6.12
Liability of Unitholders.


 


(a) No Personal Liability. Except as
otherwise required by applicable law and as expressly set forth in this
Agreement, no Unitholder shall have any personal liability whatsoever in such
Person’s capacity as a Unitholder, whether to the Company, to any of the other
Unitholders, to the creditors of the Company or to any other third party, for
the debts, liabilities, commitments or any other obligations of the Company or
for any losses of the Company. Each Unitholder shall be liable only to make
such Unitholder’s Capital Contribution to the Company, if applicable, and the
other payments provided for expressly herein.


 


(b) Return of Distributions. In accordance
with the Act and the laws of the State of Delaware, a member of a limited
liability company may, under certain circumstances, be required to return
amounts previously distributed to such member. It is the intent of the Members
that no distribution to any Member pursuant to Article IV shall be
deemed a return of money or other property paid or distributed in violation of
the Act. The payment of any such money or distribution of any such property to
a Member shall be deemed to be a compromise within the meaning of the Act, and
the Member receiving any such money or property shall not be required to return
to any Person any such money or property. However, if any court of competent
jurisdiction holds that, notwithstanding the provisions of this Agreement, any
Member is obligated to make any such payment, such obligation shall be the
obligation of such Member and not of any Manager or other Member.


 


38

















 


Section 6.13
Indemnification by the Company. Subject to the limitations and
conditions provided in this Section 6.13, each Person who was or is
made a party or is threatened to be made a party to or is involved in any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or arbitral (each a “Proceeding”), or any
appeal in such a Proceeding or any inquiry or investigation that could lead to
such a Proceeding, by reason of the fact that he, she or it, or a Person of
which he, she or it is the legal representative, is or was a Unitholder,
Officer or Manager shall be indemnified by the Company to the fullest extent
permitted by applicable law, as the same exists or may hereafter be amended
(but, in the case of any such amendment, only to the extent that such amendment
permits the Company to provide broader indemnification rights than such law
permitted the Company to provide prior to such amendment) against all
judgments, penalties (including excise and similar taxes and punitive damages),
fines, settlements and reasonable expenses (including reasonable attorneys’
fees and expenses) actually incurred by such Person in connection with such
Proceeding, appeal, inquiry or investigation, if such Person acted in Good
Faith. Reasonable expenses incurred by a Person of the type entitled to be
indemnified under this Section 6.13 who was, is or is threatened to
be made a named defendant or respondent in a Proceeding shall be paid by the
Company in advance of the final disposition of the Proceeding upon receipt of
an undertaking by or on behalf of such Person to repay such amount if it shall
ultimately be determined that he or she is not entitled to be indemnified by
the Company. Indemnification under this Section 6.13 shall continue
as to a Person who has ceased to serve in the capacity which initially entitled
such Person to indemnity hereunder. The rights granted pursuant to this Section 6.13
shall be deemed contract rights, and no amendment, modification or repeal of
this Section 6.13 shall have the effect of limiting or denying any
such rights with respect to actions taken or Proceedings, appeals, inquiries or
investigations arising prior to any amendment, modification or repeal. It is
expressly acknowledged that the indemnification provided in this Section 6.13
could involve indemnification for negligence or under theories of strict
liability.


 


Section 6.14
Investment Representations of Unitholders. Each Unitholder hereby
represents, warrants and acknowledges to the Company that: (a) such
Unitholder has such knowledge and experience in financial and business matters
and is capable of evaluating the merits and risks of an investment in the
Company and is making an informed investment decision with respect thereto; (b) such
Unitholder is acquiring interests in the Company for investment only and not
with a view to, or for resale in connection with, any distribution to the
public or public offering thereof; and (c) the execution, delivery and
performance of this Agreement have been duly authorized by such Unitholder.


 


ARTICLE VII

WITHDRAWAL; DISSOLUTION; TRANSFER OF MEMBERSHIP INTERESTS;

ADMISSION OF NEW MEMBERS


 


Section 7.1
Unitholder Withdrawal. No Unitholder shall have the power or right to
withdraw or otherwise resign or be expelled from the Company prior to the
dissolution and winding up of the Company, except pursuant to a Transfer
permitted under this Agreement of all of such Unitholder’s Units to an
Assignee, a Member or the Company.


 


39

















 


Section 7.2
Dissolution.


 


(a) Events. Subject to Section 6.10,
the Company shall be dissolved and its affairs shall be wound up on the first
to occur of (i) the majority vote of the Board of Managers and the consent
of the Vestar Majority Holders, or (ii) the entry of a decree of judicial
dissolution of the Company under Section 18-802 of the Act.


 


(b) Actions Upon Dissolution. When the
Company is dissolved, the business and property of the Company shall be wound
up and liquidated by the Board of Managers or, in the event of the
unavailability of the Board of Managers or if the Board of Managers so
determine, such Member or other liquidating trustee as shall be named by the
Board of Managers.


 


(c) Priority. A reasonable time shall be
allowed for the orderly winding up of the business and affairs of the Company
and the liquidation of its assets pursuant to Section 7.2 to
minimize any losses otherwise attendant upon such winding up. Notwithstanding
the generality of the foregoing, within 120 calendar days after the effective
date of dissolution of the Company, the assets of the Company shall be
distributed in the following manner and order: (i) all debts and
obligations of the Company, if any, shall first be paid, discharged or provided
for by adequate reserves; and (ii) the balance shall be distributed to the
Unitholders in accordance with Section 4.1.


 


(d) Cancellation of Certificate. On
completion of the distribution of Company assets as provided herein, the
Company is terminated, and shall file a certificate of cancellation with the
Secretary of State of the State of Delaware, cancel any other filings made and
take such other actions as may be necessary to terminate the Company.


 


(e) Return of Capital. The liquidators
shall not be personally liable for the return of Capital Contributions or any
portion thereof to the Members (it being understood that any such return shall
be made solely from Company assets).


 


(f) Hart-Scott-Rodino. Notwithstanding any
other provision in this Agreement, in the event the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the “HSR Act”), is applicable to
any Member by reason of the fact that any assets of the Company will be
distributed to such Member in connection with the dissolution of the Company,
the dissolution of the Company shall not be consummated until such time as the
applicable waiting periods (and extensions thereof) under the HSR Act have
expired or otherwise been terminated with respect to each such Member.


 


Section 7.3
Transfer by Unitholders. Any Member who shall Transfer any Units in the
Company shall cease to be a Member of the Company with respect to such Units
and shall no longer have any rights or privileges of a Member with respect to
such Units. Any Member or Assignee who acquires in any manner whatsoever any
Units, irrespective of whether such Person has accepted and adopted in writing
the terms and provisions of this Agreement, shall be deemed by the acceptance
of the benefits of the acquisition thereof to have agreed to be subject to and
bound by all of the terms and conditions of this Agreement that any predecessor
in such Units or other interest in the Company was subject to or by which such
predecessor was bound. No Member shall cease to be a Member upon the collateral
assignment of, or the


 


40

















 


pledging
or granting of a security interest in, its entire interest in the Company. Any
Transfer and any related admission of a Person as a Member in compliance with
the provisions of the Securityholders Agreement and this Agreement shall be
deemed effective on such date that the Transferee or successor in interest
complies with the requirements of the Securityholders Agreement and this
Agreement.


 


Section 7.4
Admission or Substitution of New Members.


 


(a) Admission. The Board of Managers shall
have the right, subject to Section 7.3. to admit as a Substituted
Member or an Additional Member any Person who acquires an interest in the
Company, or any part thereof, from a Member or from the Company; provided
that the Board of Managers shall admit as a Substituted Member, subject to Section 7.4(b),
any Transferee who acquires an interest in the Company pursuant to an Exempt
Employee Transfer, an Exempt TCW Transfer, an Exempt NYLIM Transfer or an
Exempt Individual Transfer. Concurrently with the admission of a Substituted
Member or an Additional Member, the Board of Managers shall forthwith (i) amend
Schedule B hereto to reflect the name and address of such Substituted
Member or Additional Member and to eliminate or modify, as applicable, the name
and address of the Transferring Member with regard to the Transferred Units and
(ii) cause any necessary papers to be filed and recorded and notice to be
given wherever and to the extent required showing the substitution of a Transferee
as a Substituted Member in place of the Transferring Member, or the admission
of an Additional Member, in each case, at the expense, including payment of any
professional and filing fees incurred, of such Substituted Member or Additional
Member, unless otherwise determined by the Board of Managers.


 


(b) Conditions and Limitations. The
admission of any Person as a Substituted Member or an Additional Member shall
be conditioned upon (i) such Person’s written acceptance and adoption of
all the terms and provisions of this Agreement, either by (A) execution
and delivery of a counterpart signature page to this Agreement
countersigned by a Manager on behalf of the Company or (B) any other
writing evidencing the intent of such Person to become a Substituted Member or
an Additional Member and such writing is accepted by the Board of Managers on
behalf of the Company and (ii) (at the request of the Board of Managers)
such Person’s execution and delivery of a counterpart to the Securityholders
Agreement.


 


(c) Prohibited Transfers. Other than
pursuant to a Company Sale, any Transfer of a Unit or an Economic Interest
shall not be permitted (and, if attempted, shall be void ab initio)
if, in the determination of the Board of Managers, (i) such a
Transfer would cause the Company to become ineligible for safe harbor treatment
under Section 7704 of the Code and Regulations Section 1.7704-l(h) or
otherwise would pose a material risk that the Company would be a “publicly
traded partnership” as defined in Section 7704 of the Code, or (ii) such
Transfer would result in 50 percent or more of the Company’s total “partnership
interests” having been “sold or exchanged” in any 12-month period (within the
meaning of Section 708(b)(l)(B) of the Code) and the resulting
termination of the Company pursuant to Section 708(b)(l)(B) would, in
the


 


41

















 


determination
of the Board of Managers, have a more than immaterial adverse effect on the
Company or the Members.


 


(d) Effect of Transfer to Substituted Member.
Following the Transfer of any Unit that is permitted under this Section 7.4,
the Transferee of such Unit shall be treated as having made all of the Capital
Contributions in respect of, and received all of the distributions received in
respect of, such Unit, shall succeed to the Capital Account balance associated
with such Unit, shall receive allocations and distributions under Article IV,
Article V and Section 7.2 in respect of such Unit and
otherwise shall become a Substituted Member entitled to all the rights of a
Member with respect to such Unit.


 


Section 7.5
Compliance with Law. Notwithstanding any other provision hereof to the
contrary, no sale or other disposition of an interest in the Company may be
made except in compliance with all federal, state and other applicable laws,
including federal and state securities laws. Nothing in this Section 7.5
shall be construed to limit or otherwise affect any of the provisions of the
Securityholders Agreement or the Management Grant Agreements, and to the extent
any such provisions apply, they are then to be construed as being incorporated
in this Agreement and made a part hereof.


 


ARTICLE VIII

BOOKS AND RECORDS; FINANCIAL STATEMENTS AND OTHER INFORMATION;

TAX MATTERS


 


Section 8.1
Books and Records; Management Interviews.


 


(a) Books and Records. The Company shall
keep at its principal executive office (i) correct and complete books and
records of account (which, in the case of financial records, shall be kept in
accordance with GAAP), (ii) minutes of the proceedings of meetings of the
Members, the Board of Managers and any committee of the Board of Managers, (iii) a
current list of the Managers, directors and officers of the Company and its
Subsidiaries and their respective residence addresses, and (iv) a record
containing the names and addresses of all Members, the total number and class
of Units held by each Member, and the dates when they respectively became the
owners of record thereof. Any of the foregoing books, minutes or records may be
in written form or in any other form capable of being converted into written
form within a reasonable time.


 


(b) Inspection of Property. The Company
shall permit any representative designated by the Vestar Majority Holders or by
any Member than owns in excess of 1.5% of the aggregate number of the total
Preferred Units and the Class A Units taken together, upon reasonable
notice and during normal business hours and at such other times as such Persons
may reasonably request, for any purpose reasonably related to such Member’s
interest as a member of the Company, to (i) visit and inspect any of the
properties of the Company and its Subsidiaries, (ii) examine any books,
minutes and records of the Company and its Subsidiaries (including business and
financial records) and make copies thereof or extracts therefrom, and (iii) discuss
the affairs, finances and accounts of the Company or any of its Subsidiaries
with the directors, officers, key employees and independent accountants of the
Company and its Subsidiaries, in each


 


42

















 


case,
under such conditions and restrictions (including a confidentiality undertaking
or agreement) as the Board of Managers may reasonably prescribe.


 


Section 8.2
Financial Statements and Other Information.


 


(a) The Company shall, and shall cause each of
its Subsidiaries to, deliver to each Preferred Member and each Class A
Member, for so long as such Member (X) holds more than 1.5% of the
aggregate number of the Preferred Units and the Class A Units taken
together, the items described in this clause (a) or (Y) is an active
employee of the Company, the items described in subclauses (i) - (iii) of
this clause (a):


 


(i) as soon as available, but in any event within
30 calendar days after the end of each calendar month in each Fiscal Year,
unaudited statements of income and cash flows of RTS and each of its
Subsidiaries for such monthly period and for the period from the beginning of
the Fiscal Year to the end of such month, and unaudited balance sheets of RTS
and each of its Subsidiaries as of the end of such monthly period, setting
forth, in each case, comparisons to the annual budget for such Fiscal Year and
to the corresponding period in the preceding Fiscal Year, and all such
statements shall be prepared in accordance with GAAP, subject to the absence of
footnote disclosures and to normal year-end adjustments for recurring accruals;


 


(ii) as soon as available, but in any event
within 45 calendar days after each Fiscal Quarter during each Fiscal Year, unaudited
statements of income and cash flows of RTS and each of its Subsidiaries for
such quarterly period and for the period from the beginning of the Fiscal Year
to the end of such Fiscal Quarter, and unaudited balance sheets of RTS and each
of its Subsidiaries as of the end of such quarterly period, setting forth, in
each case, comparisons to the annual budget for such Fiscal Year and to the
corresponding period in the preceding Fiscal Year, and all such statements
shall be prepared in accordance with GAAP, subject to the absence of footnote
disclosures and to normal year-end adjustments for recurring accruals, and
shall be certified by the CEO and the CFO. In addition, such financial
statements shall be accompanied by a brief written summary prepared by the CEO
and the CFO which summarizes performance highlights, lowlights, variances from
the annual budget for such Fiscal Year and the prior year, and an outlook for
the ensuing period;


 


(iii) as soon as available, but in any event
within 90 calendar days after the end of each Fiscal Year, statements of income
and cash flows of RTS and each of its Subsidiaries for such Fiscal Year, and
balance sheets of RTS and each of its Subsidiaries as of the end of such Fiscal
Year, setting forth, in each case, comparisons to the annual budget for such
Fiscal Year and to the preceding Fiscal Year, all prepared in accordance with
GAAP, and accompanied by an opinion, unqualified as to scope or compliance with
GAAP, of a nationally recognized independent accounting firm reasonably
acceptable to the Vestar Majority Holders, and certified by the CEO and the
CFO;


 


43

















 


(iv) at such time as any draft of the annual
business plan and budget is provided to the Board of Managers for its consideration,
a copy of such draft, and, as soon as practicable before the end of each Fiscal
Year, a copy of the annual budget approved by the Board of Managers, including
projected income statement, cash flow and balance sheet, on a monthly basis for
the ensuing Fiscal Year, together with underlying assumptions and a brief
qualitative description of the Company’s plan by the CEO and the CFO in support
of such budget;


 


(v) promptly, but in any event within 10 calendar
days, after the discovery of any default under any material agreement to which
the Company or any of its Subsidiaries is a party, any condition or event that
could reasonably be expected to result in any material liability under any
federal, state or local statute or regulation relating to public health and
safety, worker health and safety or pollution or protection of the environment
or any other material adverse change, event or circumstance affecting the
Company or any Subsidiary (including the filing of any material litigation
against the Company or any Subsidiary or the existence of any dispute with any
Person that involves any likelihood of such litigation being commenced);


 


(vi) promptly upon receipt thereof, any
additional reports, management letters or other detailed information concerning
material aspects of the Company’s or such Subsidiary’s operations or financial
affairs given to the Company or any Subsidiary by its independent accountants
(and not otherwise contained in other materials provided hereunder);


 


(vii) within 10 calendar days after generation
thereof, copies of any internal valuation memoranda or analyses;


 


(viii) within 10 calendar days after generation
thereof, a copy of the monthly management reporting package delivered to the
Board of Managers;


 


(ix) prior to the transmission thereof to the
public, copies of all press releases and other written statements made
available generally by the Company or any of its Subsidiaries to the public
concerning material developments in the Company’s and its Subsidiaries’
businesses; and


 


(x) with reasonable promptness, such other
information and financial data concerning the Company and its Subsidiaries as
any Person entitled to receive information under this Section 8.2(a) may
reasonably request.


 


(b) The Unitholders shall be supplied with all
other Company information necessary to enable each Unitholder to prepare its
federal, state and local income tax returns.


 


(c) All determinations, valuations and other
matters of judgment required to be made for accounting purposes under this Agreement
shall be made in Good Faith by the Board of Managers and shall be conclusive
and binding on all Unitholders, their Successors in Interest and any other
Person, and to the fullest extent permitted by


 


44

















 


law,
no such Person shall have the right to an accounting or an appraisal of the
assets of the Company or any successor thereto.


 


Section 8.3
Fiscal Year; Taxable Year. Each of the Fiscal Year and the taxable year
of the Company shall end on December 31 of each calendar year; provided
that the taxable year of the Company shall end on a different date if necessary
to comply with Section 706 of the Code.


 


Section 8.4
Certain Tax Matters.


 


(a) Preparation of Returns. The Board of
Managers shall cause to be prepared all federal, state and local tax returns of
the Company for each year for which such returns are required to be filed and
shall cause such returns to be timely filed. Except as other provided herein,
the Board of Managers shall determine the appropriate treatment of each item of
income, gain, loss, deduction and credit of the Company and the accounting
methods and conventions under the tax laws of the United States of America, the
several states and other relevant jurisdictions as to the treatment of any such
item or any other method or procedure related to the preparation of such tax
returns. Except as specifically provided otherwise in this Agreement, the Board
of Managers may cause the Company to make or refrain from making any and all
elections permitted by such tax laws.


 


(b) Consistent Treatment. Each Unitholder
agrees that it shall not, except as otherwise required by applicable law or
regulatory requirements, (i) treat, on its individual income tax returns,
any item of income, gain, loss, deduction or credit relating to its interest in
the Company in a manner inconsistent with the treatment of such item by the
Company as reflected on the Form K-l or other information statement
furnished by the Company to such Unitholder for use in preparing its income tax
returns or (ii) file any claim for refund relating to any such item based
on, or which would result in, such inconsistent treatment.


 


(c) Duties of the Tax Matters Member. In
respect of an income tax audit of any tax return of the Company, the filing of
any amended return or claim for refund in connection with any item of income,
gain, loss, deduction or credit reflected on any tax return of the Company, or
any administrative or judicial proceedings arising out of or in connection with
any such audit, amended return, claim for refund or denial of such claim, (A) the
Board of Managers shall direct the Tax Matters Member to act for, and such
action shall be final and binding upon, the Company and all Unitholders, except
to the extent a Unitholder shall properly elect to be excluded from such
proceeding pursuant to the Code, (B) all expenses incurred by the Tax
Matters Member in connection therewith (including attorneys’, accountants’ and
other experts’ fees and disbursements) shall be expenses of, and payable by,
the Company, (C) no Unitholder other than the Tax Matters Member shall
have the right to (1) participate in the audit of any Company tax return, (2) file
any amended return or claim for refund in connection with any item of income,
gain, loss, deduction or credit (other than items which are not partnership
items within the meaning of Section 6231(a)(4) of the Code or which
cease to be partnership items under Section 623l(b)) of the Code reflected
on any tax return of the Company,


 


45

















 


(3) participate
in any administrative or judicial proceedings conducted by the Company or the
Tax Matters Member arising out of or in connection with any such audit, amended
return, claim for refund or denial of such claim, or (4) appeal, challenge
or otherwise protest any adverse findings in any such audit conducted by the
Company or the Tax Matters Member or with respect to any such amended return or
claim for refund filed by the Company or the Tax Matters Member or in any such
administrative or judicial proceedings conducted by the Company or the Tax
Matters Member and (D) the Tax Matters Member shall keep the Unitholders
reasonably apprised of the status of any such proceeding. Notwithstanding the
previous sentence, if a petition for a readjustment to any partnership item
included in a final partnership administrative adjustment is filed with a
District Court or the Court of Claims and the IRS has elected to assess income
tax against a Member with respect to that final partnership administrative
adjustment (rather than suspending assessments until the District Court or
Court of Claims proceedings become final), such Member shall be permitted to
file a claim for refund within such period of time as to avoid application of
any statute of limitations that would otherwise prevent the Member from having
any claim based on the final outcome of that review.


 


(d) Tax Matters Member. The Company and
each Member hereby designate Vestar V as the initial “tax matters partner” for
purposes of Section 6231(a)(7) of the Code (the “Tax Matters
Member”). The Board of Managers may remove or replace the Tax Matters
Member at any time and from time to time.


 


(e) Certain Filings. Upon the Transfer of
an interest in the Company (within the meaning of the Code), a sale of Company
assets or a liquidation of the Company, the Unitholders shall provide the Board
of Managers with information and shall make tax filings as reasonably requested
by the Board of Managers and required under applicable law.


 


ARTICLE IX

MISCELLANEOUS


 


Section 9.1
Schedules. Without in any way limiting the provisions of Section 8.2,
a Manager may from time to time execute on behalf of the Company and deliver to
the Unitholders schedules that set forth the then current Capital Account
balances of each Unitholder and any other matters deemed appropriate by the
Board of Managers or required by applicable law. Such schedules shall be for
information purposes only and shall not be deemed to be part of this Agreement
for any purpose whatsoever.


 


Section 9.2
Governing Law. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY
CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE
CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. In the event
of a direct conflict between the provisions of this Agreement and any provision
of the Certificate or any mandatory provision of the Act, the applicable
provision of the Certificate or the Act shall control.


 


46

















 


Section 9.3
Successors and Assigns. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective Successors in
Interest; provided that no Person claiming by, through or under a Member
(whether as such Member’s Successor in Interest or otherwise), as distinct from
such Member itself, shall have any rights as, or in respect to, a Member
(including the right to approve or vote on any matter or to notice thereof).


 


Section 9.4
Confidentiality. By executing this Agreement, each Member expressly
agrees to maintain, for so long as such Person is a Member and at all times
thereafter, the confidentiality of, and not to disclose to any Person other than
the Company, another Member or a Person designated by the Company or any of
their respective financial planners, accountants, attorneys or other advisors,
any information relating to the business, financial structure, financial
position or financial results, clients or affairs of the Company, or any
Subsidiary of the Company that shall not be generally known to the public,
except as otherwise required by applicable law or by any regulatory or
self-regulatory organization having jurisdiction and except in the case of any
Member who is employed by any entity controlled by the Company in the ordinary
course of its duties; provided, however, that to the extent
consistent with applicable law, a Member may provide its customary reports to
its stockholders, limited partners, members or other owners, as the case may
be, regarding its investment in the Company. Notwithstanding the provisions of
this Section 9.4 to the contrary, in the event that any Member
desires to undertake any Transfer of its Membership Interest permitted by the
Securityholders Agreement, such Member may, upon the execution of a
confidentiality agreement (in form reasonably acceptable to the Company’s legal
counsel) by the Company and any bona fide potential Transferee, disclose to
such potential Transferee (unless such potential Transferee is a direct
competitor of the Company or its Affiliates) information of the sort otherwise
restricted by this Section 9.4 if such Member reasonably believes
such disclosure is necessary for the purpose of Transferring such Membership
Interest to the bona fide potential Transferee.


 


Section 9.5
Amendments. Subject to Section 6.10, the Board of Managers
may, to the fullest extent allowable under Delaware law, amend or modify this
Agreement; provided that if an amendment or modification (i) changes
the order of priority of distributions to any class of Units relative to any
other class of then outstanding Units, then such class of Members, by majority
vote, must approve such amendment or modification or (ii) changes the
rights of the holders of the same class of Units to share ratably in
distributions of such class, then the Members so differently treated must
approve such amendment or modification. For the avoidance of doubt the Board of
Managers may amend this Agreement without the consent of any class of Members
in order to provide for the creation and/or issuance of, with the consent of
the Vestar Majority Holders, any other class of units or other securities
(whether of an existing or new class), and to make any such other amendments as
it deems necessary or desirable to reflect such additional issuances and to add
parties to this Agreement as contemplated by this Agreement; provided  further
that no amendment shall be effective without the consent of each Member that
would be adversely affected by such amendment if such amendment (a) modifies
the limited liability of a Member, or (b) amends this Section 9.5.


 


Section 9.6
Notices. Whenever notice is required or permitted by this Agreement to
be given, such notice shall be in writing and shall be given to any Member at
such


 


47

















 


Member’s
address or facsimile number shown in the Company’s books and records, or, if
given to the Company, at the following address:


 


Radiation
Therapy Investments, LLC


c/o
Vestar Capital Partners V, L.P.


245
Park Avenue


41st Floor


New
York, NY 10167


Attention:
James L. Elrod, Erin Russell and General Counsel


Facsimile:
(212) 808-4922


 


and


 


Radiation
Therapy Services, Inc.


2234
Colonial Boulevard


Fort
Myers, FL 33907


Attention:
Dr. Dosoretz


Facsimile:
(239) 931-7380


 


with
a copy (which shall not constitute notice to the Company) to:


 


Kirkland &
Ellis LLP


Citigroup
Center


153
East 53rd Street


New
York, NY 10022


Attention:
Michael Movsovich, Esq.


Facsimile:
(212) 446-6460


 


and


 


Shumaker,
Loop & Kendrick, LLP


101
East Kennedy Boulevard


Suite 2800


Tampa,
Florida 33602


Attn:
Darrell C. Smith, Esq.


Facsimile:
(813) 229-1660


 


Each
proper notice shall be effective upon any of the following: (a) personal
delivery to the recipient, (b) when sent by facsimile to the recipient
(with confirmation of receipt), (c) one Business Day after being sent to
the recipient by reputable overnight courier service (charges prepaid) or (d) three
Business Days after being deposited in the mails (first class or airmail
postage prepaid).


 


Section 9.7
Counterparts. This Agreement may be executed simultaneously in two or
more separate counterparts, any one of which need not contain the signatures of
more


 


48

















 


than
one party, but each of which shall be an original and all of which together
shall constitute one and the same agreement binding on all the parties hereto.


 


Section 9.8
Power of Attorney. Each Member hereby irrevocably appoints each Manager
as such Member’s true and lawful representative and attorney-in-fact, each
acting alone, in such Member’s name, place and stead, (a) to make,
execute, sign and file all instruments, documents and certificates which, from
time to time, may be required to set forth any amendment to this Agreement or
which may be required by this Agreement or by the laws of the United States of
America, the State of Delaware or any other state in which the Company shall
determine to do business, or any political subdivision or agency thereof and (b) to
execute, implement and continue the valid and subsisting existence of the
Company or to qualify and continue the Company as a foreign limited liability
company in all jurisdictions in which the Company may conduct business. No
Manager, as representative and attorney-in-fact, however, shall have any
rights, powers or authority to amend or modify this Agreement when acting in
such capacity, except as expressly provided herein. Such power of attorney is
coupled with an interest and shall survive and continue in full force and
effect notwithstanding the subsequent withdrawal from the Company of any Member
for any reason and shall survive and shall not be affected by the disability or
incapacity of such Member.


 


Section 9.9
Entire Agreement. This Agreement, and the other documents and agreements
referred to herein or entered into concurrently herewith embody the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein; provided that such other agreements and
documents shall not be deemed to be a part of, a modification of or an
amendment to this Agreement. There are no restrictions, promises,
representations, warranties, covenants or undertakings, other than those
expressly set forth or referred to herein. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter. Notwithstanding any other provision in this Agreement, wherever a
conflict exists between this Agreement and the Securityholders Agreement, the
provisions of the Securityholders Agreement shall control, but solely to the
extent of such conflict.


 


Section 9.10
Arbitration.


 


(a) Any dispute with regard to this Agreement
that is not resolved by mutual agreement, other than as provided in Section 9.10(b),
shall be resolved by binding arbitration before the American Arbitration
Association (“AAA”) in New York City pursuant to the rules of AAA. The
arbitration shall be governed by the United States Arbitration Act, 9 U.S.C.
§§1-16 and shall be conducted in accordance with the rules and procedures
of AAA. Any judgment upon the reward rendered by the arbitrator may be entered
in any court having jurisdiction thereof. The arbitrator’s decision shall set
forth a reasoned basis for any award of damages or findings of liability. The
arbitrator shall not have the power to award damages in excess of actual
compensatory damages and shall not multiply actual damages or award punitive
damages, and each party hereby irrevocably waives any claim to such damages.
The costs of AAA and the arbitrator shall be borne by the Company. Each party
shall bear its own costs (including, without limitation, legal fees and fees of
any experts) and out-of-pocket expenses.


 


49

















 


(b) The parties hereby agree and stipulate that
in the event of any breach or violation of this Agreement by any other party
hereto, either threatened or actual, the non-breaching parties’ rights shall
include, in addition to any and all other rights available to any such
non-breaching party at law or in equity, the right to seek and obtain any and
all injunctive relief or restraining orders available to it in courts of proper
jurisdiction, so as to prohibit, bar, and restrain any and all such breaches or
violations by any other party hereto. Each of the parties hereto further agrees
that no bond need be filed in connection with any request by any other party
hereto for a temporary restraining order or for temporary or preliminary
injunctive relief.


 


Section 9.11
Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM,
DEMAND, ACTION, OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT OR (B) IN
ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN
EACH CASE, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT,
TORT, EQUITY OR OTHERWISE.


 


Section 9.12
Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable
law, but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.


 


Section 9.13
Creditors. None of the provisions of this Agreement shall be for the
benefit of or enforceable by any creditors of the Company or any of its
Affiliates, and no creditor who makes a loan to the Company or any of its
Affiliates may have or acquire (except pursuant to the terms of a separate
agreement executed by the Company in favor of such creditor) at any time as a
result of making the loan any direct or indirect interest in Company profits,
losses, distributions, capital or property other than as a secured creditor.


 


Section 9.14
Waiver. No failure by any party to insist upon the strict performance of
any covenant, duty, agreement or condition of this Agreement or to exercise any
right or remedy consequent upon a breach thereof shall constitute a waiver of
any such breach or any other covenant, duty, agreement or condition.


 


Section 9.15
Further Action. The parties agree to execute and deliver all documents,
provide all information and take or refrain from taking such actions as may be
necessary or appropriate to achieve the purposes of this Agreement.


 


Section 9.16
Delivery by Facsimile or Email. This Agreement, the agreements referred
to herein, and each other agreement or instrument entered into in connection
herewith or therewith or contemplated hereby or thereby, and any amendments
hereto or thereto, to the extent signed and delivered by means of a facsimile
machine or email with scan or facsimile


 


50

















 


attachment,
shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. At the request
of any party hereto or to any such agreement or instrument, each other party
hereto or thereto shall re-execute original forms thereof and deliver them to
all other parties. No party hereto or to any such agreement or instrument shall
raise the use of a facsimile machine or email to deliver a signature or the
fact that any signature or agreement or instrument was transmitted or
communicated through the use of a facsimile machine or email as a defense to
the formation or enforceability of a contract, and each such party forever
waives any such defense.


 


[END OF PAGE]

[SIGNATURE PAGES FOLLOW]


 


51














 


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


 


	
   

  	
  RADIATION THERAPY INVESTMENTS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Erin L. Russell

  
	
   

  	
   

  	
  Name:
  Erin L. Russell 

  Title:
  Vice President

  



 


[Signature Page to LLC Agreement]


 

















 


	
   

  	
  TCW/CRESCENT MEZZANINE PARTNERS V, L.P.

  
	
   

  	
   

  
	
   

  	
  By: TCW/Crescent Mezzanine Management V, LLC

  
	
   

  	
  Its: Investment Manager

  
	
   

  	
   

  
	
   

  	
  By: TCW Asset Management Company

  
	
   

  	
  Its: Sub-Advisor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  	
  Name:
  

  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  	
  Name:
  

  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TCW/CRESCENT MEZZANINE PARTNERS VB, L.P.

  
	
   

  	
   

  
	
   

  	
  By: TCW/Crescent Mezzanine Management V, LLC

  
	
   

  	
  Its: Investment Manager

  
	
   

  	
   

  
	
   

  	
  By: TCW Asset Management Company

  
	
   

  	
  Its: Sub-Advisor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
  Name:
  

  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  	
  Name:
  

  Title:

  



 


[Signature Page to LLC Agreement]


 

















 


	
   

  	
  TCW/CRESCENT MEZZANINE PARTNERS VC, L.P.

  
	
   

  	
   

  
	
   

  	
  By: TCW/Crescent Mezzanine Management V, LLC

  
	
   

  	
  Its: Investment Advisor

  
	
   

  	
   

  
	
   

  	
  By: TCW Asset Management Company

  
	
   

  	
  Its: Sub-Advisor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  	
  Name:
  

  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  	
  Name:
  

  Title:

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  MAC EQUITY HOLDING, LLC

  
	
   

  	
   

  
	
   

  	
  By: MAC Capital, Ltd.

  
	
   

  	
  Its: Sole Member

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By: TCW Advisors, Inc., as attorney-in-fact

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Julia K. Haramis

  
	
   

  	
   

  	
   

  	
  Name:
  Julia K. Haramis 

  Title:
  Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/
  Scott E. Feldman

  
	
   

  	
   

  	
   

  	
  Name:
  Scott E. Feldman 

  Title:
  Vice President

  



 


[Signature Page to LLC Agreement]


 

















 


	
   

  	
   

  	
  NEW YORK LIFE INVESTMENT MANAGEMENT MEZZANINE PARTNERS II,
  LP

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: NYLIM Mezzanine Partners II GenPar, LP 

  
	
   

  	
   

  	
  Its: General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: NYLIM Mezzanine Partners II GenPar GP, LLC

  
	
   

  	
   

  	
  Its: General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/
  Authorized Signatory

  
	
   

  	
   

  	
   

  	
  Name:
  Steven M. Benevento 

  Title:
  Executive Vice President

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NYLM MEZZANINE PARTNERS II PARALLEL FUND, LP 

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: NYLIM Mezzanine Partners II GenPar, LP 

  
	
   

  	
   

  	
  Its: General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: NYLIM Mezzanine Partners II GenPar GP, LLC

  
	
   

  	
   

  	
  Its: General Partner

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: 

  	
  /s/
  Authorized
  Signatory

  
	
   

  	
   

  	
   

  	
  Name:
  Steven M. Benevento 

  Title:
  Executive Vice President

  



 


[Signature Page to LLC Agreement]


 

















 


SCHEDULE A


RADIATION THERAPY INVESTMENTS, LLC 

SCHEDULE OF UNITS


 


(as of March 25, 2008)


 


	
  Members

  	
   

  	
  Preferred Units

  	
   

  	
  Class A Units

  	
   

  	
  Class B

  Units

  	
   

  	
  Class C

  Units

  	
   

  	
  Aggregate

  Capital

  Contributions

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Vestar Capital Partners V, L.P.

  	
   

  	
  224,728.4227

  	
   

  	
  4,260,078.2606

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  267,329,205.28

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Vestar Capital Partners V-A, L.P.

  	
   

  	
  61,805.5188

  	
   

  	
  1,171,620.1453

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  73,521,720.30

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Vestar Executive V, L.P.

  	
   

  	
  3,732.5095

  	
   

  	
  70,755.5469

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  4,440,064.94

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Vestar Holdings V, L.P.

  	
   

  	
  12,365.0257

  	
   

  	
  234,398.3758

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  14,709,009.48

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Vestar Total

  	
   

  	
  302,631.4767

  	
   

  	
  5,736,852.3286

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  360,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Vestar/ Radiation Therapy Investments, LLC

  	
   

  	
  121,893.2337

  	
   

  	
  2,310,676.6324

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  145,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TCW/Crescent Mezzanine Partners V, L.P.  

  	
   

  	
  6,189.8643

  	
   

  	
  117,338.5452

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  7,363,249.71

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TCW/Crescent Mezzanine Partners VB, L.P.

  	
   

  	
  998.7779

  	
   

  	
  18,933.3952

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  1,188,111.86

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TCW/Crescent Mezzanine Partners VC, L.P.

  	
   

  	
  2,430.7155

  	
   

  	
  46,078.0086

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  2,891,495.57

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MAC Capital, Ltd./MAC Equity Holdings, LLC

  	
   

  	
  468.3582

  	
   

  	
  8,878.4619

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  557,142.86

  	
   

  



 

















 


	
  Members

  	
   

  	
  Preferred Units

  	
   

  	
  Class A Units

  	
   

  	
  Class B

  Units

  	
   

  	
  Class C

  Units

  	
   

  	
  Aggregate

  Capital

  Contributions

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New York Life Investment Management Mezzanine
  Partners II, LP

  	
   

  	
  2,024.1801

  	
   

  	
  38,371.4961

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  2,407,895.10

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  NYLIM Mezzanine Partners II Parallel Fund, LP

  	
   

  	
  497.7488

  	
   

  	
  9,435.6066

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  592,104.90

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  TCW Total

  	
   

  	
  12,609.6449

  	
   

  	
  239,035.5137

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  15,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Daniel E. Dosoretz

  	
   

  	
  37,828.9514

  	
   

  	
  717,106.8598

  	
   

  	
  315,757.5000

  	
   

  	
  423,433.8715

  	
   

  	
  $

  	
  45,100,131.07

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  James Rubenstein

  	
   

  	
  18,704.2960

  	
   

  	
  354,569.1461

  	
   

  	
  12,630.3000

  	
   

  	
  32,664.8987

  	
   

  	
  $

  	
  22,254,778.32

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Howard Sheridan

  	
   

  	
  9,457.2379

  	
   

  	
  179,276.7149

  	
   

  	
  4,210.1000

  	
   

  	
  10,888.2996

  	
   

  	
  $

  	
  11,251,601.94

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Michael Katin

  	
   

  	
  13,450.2963

  	
   

  	
  254,971.3740

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  16,000,010.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Norton Travis

  	
   

  	
  840.6430

  	
   

  	
  15,935.7009

  	
   

  	
  42,101.0000

  	
   

  	
  108,882.9955

  	
   

  	
  $

  	
  1,015,969.40

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  David Watson

  	
   

  	
  126.0964

  	
   

  	
  2,390.3551

  	
   

  	
  12,630.3000

  	
   

  	
  32,664.8987

  	
   

  	
  $

  	
  154,790.82

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Madlyn Dornaus

  	
   

  	
  546.4179

  	
   

  	
  10,358.2056

  	
   

  	
  4,210.1000

  	
   

  	
  10,888.2996

  	
   

  	
  $

  	
  651,596.94

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Daniel Galmarini

  	
   

  	
  2,521.9101

  	
   

  	
  47,806.7442

  	
   

  	
  63,151.5000

  	
   

  	
  163,324.4933

  	
   

  	
  $

  	
  3,023,931.60

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Bruce Nakfoor

  	
   

  	
  2,101.6054

  	
   

  	
  39,839.2124

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  2,499,997.50

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Eduardo Fernandez and Angelica Guckes, tenants by
  the entireties

  	
   

  	
   840.6640  

  	
   

  	
   15,936.0993  

  	
   

  	
   8,420.2000  

  	
   

  	
   21,776.5991  

  	
   

  	
   $1,003,218.88

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Connie Mantz

  	
   

  	
  420.3215

  	
   

  	
  7,967.8505

  	
   

  	
  8,420.2000

  	
   

  	
  21,776.5991

  	
   

  	
  $

  	
  503,193.88

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  James Orr

  	
   

  	
  1,260.9645

  	
   

  	
  23,903.5514

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  1,500,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Hugo Myslicki

  	
   

  	
  92.8911

  	
   

  	
  1,760.8950

  	
   

  	
  6,315.1500

  	
   

  	
  16,332.4493

  	
   

  	
  $

  	
  112,895.41

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Steve Patrice

  	
   

  	
  840.6640

  	
   

  	
  15,936.0993

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  1,000,025.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Quinten Black

  	
   

  	
  109.2836

  	
   

  	
  2,071.6411

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  130,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  John Miksa

  	
   

  	
  126.1133

  	
   

  	
  2,390.6739

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  150,020.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Keith Miller

  	
   

  	
  210.1607

  	
   

  	
  3,983.9252

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
   250,000.00

  	
   

  



 

















 


	
  Members

  	
   

  	
  Preferred Units

  	
   

  	
  Class A Units

  	
   

  	
  Class B

  Units

  	
   

  	
  Class C

  Units

  	
   

  	
  Aggregate

  Capital

  Contributions

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Larry Silverman

  	
   

  	
  68.3022

  	
   

  	
  1,294.7757

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  $

  	
  81,250.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Ricardo Andisco

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  16,840.4000

  	
   

  	
  43,553.1982

  	
   

  	
  $

  	
  6,387.76

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  James Eaton

  	
   

  	
  420.3215

  	
   

  	
  7,967.8505

  	
   

  	
  4,210.1000

  	
   

  	
  10,888.2996

  	
   

  	
  $

  	
  501,596.94

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Andrew Woods

  	
   

  	
  420.3215

  	
   

  	
  7,967.8505

  	
   

  	
  4,210.1000

  	
   

  	
  10,888.2996

  	
   

  	
  $

  	
  501,596.94

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Margarita Suarez

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  2,105.0500

  	
   

  	
  5,444.1498

  	
   

  	
  $

  	
  798.47

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Management Total

  	
   

  	
  90,387.4622

  	
   

  	
  1,713,435.5253

  	
   

  	
  505,212.0000

  	
   

  	
  913,407.3514

  	
   

  	
  $

  	
  107,693,790.87

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Reserve

  	
   

  	
  0.0000

  	
   

  	
  0.0000

  	
   

  	
  21,050.5000

  	
   

  	
  54,441.4978

  	
   

  	
  $

  	
  0

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  527,521.8175

  	
   

  	
  10,000,000.0000

  	
   

  	
  526,262.5000

  	
   

  	
  967,848.8492

  	
   

  	
  $

  	
  627,693,790.87

  	
   

  



 

















 


SCHEDULE B 

SCHEDULE OF MEMBERS


 


(as of March 25, 2008)


 


	
  Name of Member

  	
   

  	
  Address of Member

  
	
   

  	
   

  	
   

  
	
  VESTAR
  CAPITAL PARTNERS V, L.P.

  	
   

  	
  c/o
  Vestar Capital Partners 

  245 Park Avenue, 41st Floor 

  New York, NY 10167 

  Attn: James L. Elrod, Erin Russell and General Counsel 

  Facsimile: (212) 808-4922

  
	
   

  	
   

  	
   

  
	
  VESTAR
  CAPITAL PARTNERS V-A, L.P.

  	
   

  	
  c/o
  Vestar Capital Partners

  245 Park Avenue, 41st Floor 

  New York, NY 10167 

  Attn: James L. Elrod, Erin Russell and General Counsel 

  Facsimile: (212) 808-4922

  
	
   

  	
   

  	
   

  
	
  VESTAR
  EXECUTIVE V, L.P.

  	
   

  	
  c/o
  Vestar Capital Partners 

  245 Park Avenue, 41st Floor 

  New York, NY 10167 

  Attn: James L. Elrod, Erin Russell and General Counsel 

  Facsimile: (212) 808-4922

  
	
   

  	
   

  	
   

  
	
  VESTAR
  HOLDINGS V, LP.

  	
   

  	
  c/o
  Vestar Capital Partners 

  245 Park Avenue, 41st Floor 

  New York, NY 10167 

  Attn: James L. Elrod, Erin Russell and General Counsel

  Facsimile: (212) 808-4922

  
	
   

  	
   

  	
   

  
	
  VESTAR/RADIATION
  THERAPY INVESTMENTS, LLC

  	
   

  	
  c/o
  Vestar Capital Partners 

  245 Park Avenue, 41st Floor 

  New York, NY 10167 

  Attn: James L. Elrod, Erin Russell and General Counsel

  Facsimile: (212) 808-4922

  
	
   

  	
   

  	
   

  
	
  TCW/CRESCENT
  MEZZANINE PARTNERS V, L.P.

  	
   

  	
  11100
  Santa Monica Blvd., Suite 2050 

  Los Angeles, CA 90025

  
	
   

  	
   

  	
   

  
	
  TCW/CRESCENT
  MEZZANINE PARTNERS VB, L.P.

  	
   

  	
  11100
  Santa Monica Blvd., Suite 2050 

  Los Angeles, CA 90025

  
	
   

  	
   

  	
   

  
	
  TCW/CRESCENT
  MEZZANINE PARTNERS VC, L.P.

  	
   

  	
  11100
  Santa Monica Blvd., Suite 2050 

  Los Angeles, CA 90025

  
	
   

  	
   

  	
   

  
	
  NEW
  YORK LIFE INVESTMENT MANAGEMENT MEZZANINE PARTNERS II, L.P.

  	
   

  	
  51
  Madison Avenue 

  16th Floor 

  New York, New York 10010

  
	
   

  	
   

  	
   

  
	
  NYLIM
  MEZZANINE PARTNERS II PARALLEL FUND, L.P.

  	
   

  	
  51
  Madison Avenue 

  16th Floor 

  New York, New York 10010

  



 

















 


	
  ANDISCO, RICARDO

  	
   

  	
  6916
  Erin Marie Ct. 

  Fort Myers, FL 33919

  
	
   

  	
   

  	
   

  
	
  BLACK, QUINTEN C.

  	
   

  	
  816
  Quill Gordon Ct. 

  Biltmore Lake, NC 28715

  
	
   

  	
   

  	
   

  
	
  DORNAUS, MADLYN

  	
   

  	
  18930
  Knoll Landing Dr. 

  Fort Meyers, FL. 33908

  
	
   

  	
   

  	
   

  
	
  DOSORETZ, DANIEL E.

  	
   

  	
  13221
  Ponderosa Way 

  Fort Meyers, FL. 33907

  
	
   

  	
   

  	
   

  
	
  EATON, JAMES

  	
   

  	
  P.O. Box
  1713 

  Tallahassee, Fl. 32301

  
	
   

  	
   

  	
   

  
	
  FERNANDEZ, EDUARDO

  	
   

  	
  4351-NE
  22 Avenue 

  Fort Lauderdale, Fl. 33308

  
	
   

  	
   

  	
   

  
	
  GALMARINI, DANIEL H.

  	
   

  	
  7051
  Pelican Colony Blvd. #1903 

  Bonita Springs, FL. 34134

  
	
   

  	
   

  	
   

  
	
  KATIN, MICHAEL J.

  	
   

  	
  2234
  Colonial Blvd. 

  Fort Meyers, FL. 33907

  
	
   

  	
   

  	
   

  
	
  MANTZ, CONSTANTINE A.

  	
   

  	
  1676
  Morning Glory Court 

  Fort Meyers, FL. 33901

  
	
   

  	
   

  	
   

  
	
  MIKSA, JOHN W.

  	
   

  	
  2071
  SE 28th St. 

  Cape Coral, FL. 33904

  
	
   

  	
   

  	
   

  
	
  MILLER, KEITH L.

  	
   

  	
  12731
  Terebella Way 

  Fort Meyers, FL. 33912

  
	
   

  	
   

  	
   

  
	
  MYSLICKI, HUGO H.

  	
   

  	
  9660
  Falconer Way 

  Estero, FL. 33928

  
	
   

  	
   

  	
   

  
	
  NAKFOOR, BRUCE

  	
   

  	
  340
  Colony Drive 

  Naples, FL. 34108

  
	
   

  	
   

  	
   

  
	
  ORR, JAMES W.

  	
   

  	
  21
  George Town 

  Fort Meyers, FL.

  
	
   

  	
   

  	
   

  
	
  PATRICE, STEPHEN J.

  	
   

  	
  245
  Osprey Point Drive 

  Osprey, FL. 34229

  
	
   

  	
   

  	
   

  
	
  RUBENSTEIN, JAMES

  	
   

  	
  13301
  Ponderosa Way
  Fort Meyers, FL. 33907

  
	
   

  	
   

  	
   

  
	
  SHERIDAN, HOWARD M.

  	
   

  	
  842
  Cal Cove Drive 

  Fort Meyers, FL. 33919

  
	
   

  	
   

  	
   

  
	
  SILVERMAN, LARRY

  	
   

  	
  7691
  Donald Ross Rd W 

  Sarasota, FL. 34240

  
	
   

  	
   

  	
   

  
	
  SUAREZ, MARGARITA

  	
   

  	
  7710
  Ahoy Avenue 

  Naples, FL 34109

  
	
   

  	
   

  	
   

  
	
  TRAVIS, NORTON L.

  	
   

  	
  350
  East 57th Street - Apt. 9A 

  New York, NY. 10022

  
	
   

  	
   

  	
   

  
	
  WATSON, DAVID N.T.

  	
   

  	
  7385
  Stonegate Dr. 

  Naples, FL. 34109

  
	
   

  	
   

  	
   

  
	
  WOODS, ANDREW

  	
   

  	
  12
  Brierleigh Court 

  Lutherville, MD. 21093