Exhibit
10.01


 


EXECUTION
VERSION




 





 


$407,000,000


 


CREDIT AGREEMENT


 


Dated as of February 21,
2008


 


among


 


RADIATION THERAPY SERVICES
HOLDINGS, INC.,


 


RADIATION THERAPY SERVICES, INC.

(as successor to RTS MERGERCO, INC.),


 


as Borrower,


 


The Several Lenders from
Time to Time Parties Hereto


 


and


 


WACHOVIA BANK, NATIONAL
ASSOCIATION,


 


as Administrative Agent,
Collateral Agent, Issuing Bank and Swingline Lender,


 


BNP PARIBAS

and GENERAL ELECTRIC CAPITAL CORPORATION,


 


as Co-Syndication Agents


 


SUMITOMO MITSUI BANKING
CORPORATION

and FIFTH THIRD BANK,


 


as Co-Documentation Agents


 


WACHOVIA CAPITAL MARKETS,
LLC,

BNP PARIBAS SECURITIES CORP.

and SUMITOMO MITSUI BANKING CORPORATION,


 


as Joint Lead Arrangers


 


and

WACHOVIA CAPITAL MARKETS, LLC,

as Sole Bookrunner


 


Cahill Gordon &
Reindel LLP

80 Pine Street

New York, NY 10005




 





 


898922


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SECTION 1

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DEFINITIONS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.1.

  	
   

  	
  Defined Terms

  	
   

  	
  1

  
	
  1.2.

  	
   

  	
  Other Definitional Provisions

  	
   

  	
  35

  
	
  1.3.

  	
   

  	
  UCC Terms

  	
   

  	
  36

  
	
  1.4.

  	
   

  	
  Rounding

  	
   

  	
  36

  
	
  1.5.

  	
   

  	
  References to Agreement and Laws

  	
   

  	
  36

  
	
  1.6.

  	
   

  	
  Times of Day

  	
   

  	
  36

  
	
  1.7.

  	
   

  	
  Timing of Payment or Performance

  	
   

  	
  36

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SECTION 2

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  AMOUNT AND TERMS OF
  COMMITMENTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.1.

  	
   

  	
  Tranche B Term Commitments

  	
   

  	
  36

  
	
  2.2.

  	
   

  	
  Procedure for Tranche B Term Loan Borrowings

  	
   

  	
  37

  
	
  2.3.

  	
   

  	
  Repayment of Tranche B Term Loans

  	
   

  	
  37

  
	
  2.4.

  	
   

  	
  Revolving Commitments

  	
   

  	
  37

  
	
  2.5.

  	
   

  	
  Procedure for Revolving Loan Borrowing

  	
   

  	
  38

  
	
  2.6.

  	
   

  	
  Swingline Commitment

  	
   

  	
  38

  
	
  2.7.

  	
   

  	
  Procedure for Swingline Borrowing; Refunding of Swingline Loans

  	
   

  	
  39

  
	
  2.8.

  	
   

  	
  Commitment Fees, Etc.

  	
   

  	
  40

  
	
  2.9.

  	
   

  	
  Termination or Reduction of Commitments

  	
   

  	
  40

  
	
  2.10.

  	
   

  	
  Optional Prepayments

  	
   

  	
  41

  
	
  2.11.

  	
   

  	
  Mandatory Prepayments

  	
   

  	
  41

  
	
  2.12.

  	
   

  	
  Conversion and Continuation Options

  	
   

  	
  42

  
	
  2.13.

  	
   

  	
  Limitations on Eurodollar Tranches

  	
   

  	
  43

  
	
  2.14.

  	
   

  	
  Interest Rates and Payment Dates

  	
   

  	
  43

  
	
  2.15.

  	
   

  	
  Computation of Interest and Fees

  	
   

  	
  43

  
	
  2.16.

  	
   

  	
  Inability to Determine Interest Rate

  	
   

  	
  44

  
	
  2.17.

  	
   

  	
  Pro Rata Treatment and Payments

  	
   

  	
  44

  
	
  2.18.

  	
   

  	
  Requirements of Law

  	
   

  	
  46

  
	
  2.19.

  	
   

  	
  Taxes

  	
   

  	
  47

  
	
  2.20.

  	
   

  	
  Indemnity

  	
   

  	
  49

  
	
  2.21.

  	
   

  	
  Change of Lending Office

  	
   

  	
  49

  
	
  2.22.

  	
   

  	
  Replacement of Lenders

  	
   

  	
  50

  
	
  2.23.

  	
   

  	
  Incremental Credit Extensions

  	
   

  	
  50

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SECTION 3

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  LETTERS OF CREDIT

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.1.

  	
   

  	
  Letters of Credit

  	
   

  	
  52

  
	
  3.2.

  	
   

  	
  Procedure for Issuance of Letter of Credit

  	
   

  	
  52

  
	
  3.3.

  	
   

  	
  Fees and Other Charges

  	
   

  	
  53

  



 


i

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.4.

  	
   

  	
  L/C Participations 

  	
   

  	
  53

  
	
  3.5.

  	
   

  	
  Reimbursement Obligation of the Borrower

  	
   

  	
  54

  
	
  3.6.

  	
   

  	
  Obligations Absolute

  	
   

  	
  54

  
	
  3.7.

  	
   

  	
  Letter of Credit Payments

  	
   

  	
  55

  
	
  3.8.

  	
   

  	
  Applications

  	
   

  	
  55

  
	
  3.9.

  	
   

  	
  Obligations of Certain Issuing Banks

  	
   

  	
  55

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SECTION 4

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  REPRESENTATIONS AND
  WARRANTIES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.1.

  	
   

  	
  Financial Condition

  	
   

  	
  55

  
	
  4.2.

  	
   

  	
  No Change

  	
   

  	
  56

  
	
  4.3.

  	
   

  	
  Existence; Compliance with Law

  	
   

  	
  56

  
	
  4.4.

  	
   

  	
  Power; Authorization; Enforceable Obligations

  	
   

  	
  56

  
	
  4.5.

  	
   

  	
  No Legal Bar

  	
   

  	
  57

  
	
  4.6.

  	
   

  	
  Litigation

  	
   

  	
  57

  
	
  4.7.

  	
   

  	
  No Default

  	
   

  	
  57

  
	
  4.8.

  	
   

  	
  Ownership of Property; Liens

  	
   

  	
  57

  
	
  4.9.

  	
   

  	
  Licenses, Intellectual Property

  	
   

  	
  57

  
	
  4.10.

  	
   

  	
  Taxes

  	
   

  	
  57

  
	
  4.11.

  	
   

  	
  Federal Regulations

  	
   

  	
  58

  
	
  4.12.

  	
   

  	
  Labor Matters

  	
   

  	
  58

  
	
  4.13.

  	
   

  	
  ERISA

  	
   

  	
  58

  
	
  4.14.

  	
   

  	
  Investment Company Act; Other Regulations

  	
   

  	
  58

  
	
  4.15.

  	
   

  	
  Subsidiaries

  	
   

  	
  58

  
	
  4.16.

  	
   

  	
  Use of Proceeds

  	
   

  	
  59

  
	
  4.17.

  	
   

  	
  Environmental Matters

  	
   

  	
  59

  
	
  4.18.

  	
   

  	
  Accuracy of Information, Etc.

  	
   

  	
  60

  
	
  4.19.

  	
   

  	
  Security Documents

  	
   

  	
  60

  
	
  4.20.

  	
   

  	
  Solvency

  	
   

  	
  60

  
	
  4.21.

  	
   

  	
  Senior Indebtedness

  	
   

  	
  61

  
	
  4.22.

  	
   

  	
  Insurance

  	
   

  	
  61

  
	
  4.23.

  	
   

  	
  Anti-Terrorism Law

  	
   

  	
  61

  
	
  4.24.

  	
   

  	
  Brokers’ Fees

  	
   

  	
  62

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SECTION 5

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  CONDITIONS PRECEDENT

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.1.

  	
   

  	
  Conditions to Initial Extension of Credit

  	
   

  	
  62

  
	
  5.2.

  	
   

  	
  Conditions to Each Extension of Credit

  	
   

  	
  64

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SECTION 6

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  AFFIRMATIVE COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.1.

  	
   

  	
  Financial Statements

  	
   

  	
  65

  
	
  6.2.

  	
   

  	
  Certificates; Other Information

  	
   

  	
  66

  
	
  6.3.

  	
   

  	
  Payment of Taxes

  	
   

  	
  67

  



 


ii

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.4.

  	
   

  	
  Maintenance of Existence; Compliance

  	
   

  	
  67

  
	
  6.5.

  	
   

  	
  Maintenance of Property; Insurance

  	
   

  	
  68

  
	
  6.6.

  	
   

  	
  Inspection of Property; Books and Records; Discussions

  	
   

  	
  68

  
	
  6.7.

  	
   

  	
  Notices

  	
   

  	
  69

  
	
  6.8.

  	
   

  	
  Environmental Laws

  	
   

  	
  69

  
	
  6.9.

  	
   

  	
  Additional Collateral, Etc.

  	
   

  	
  70

  
	
  6.10.

  	
   

  	
  Security Interests; Further Assurances

  	
   

  	
  71

  
	
  6.11.

  	
   

  	
  Compliance with ERISA

  	
   

  	
  72

  
	
  6.12.

  	
   

  	
  Use of Proceeds

  	
   

  	
  72

  
	
  6.13.

  	
   

  	
  Interest Rate Contracts

  	
   

  	
  72

  
	
  6.14.

  	
   

  	
  Designation of Subsidiaries

  	
   

  	
  72

  
	
  6.15.

  	
   

  	
  Real Estate Post-Closing Obligations

  	
   

  	
  72

  
	
  6.16.

  	
   

  	
  Post Closing Matters

  	
   

  	
  74

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SECTION 7

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NEGATIVE COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.1.

  	
   

  	
  Financial Condition Covenants

  	
   

  	
  75

  
	
  7.2.

  	
   

  	
  Indebtedness

  	
   

  	
  75

  
	
  7.3.

  	
   

  	
  Liens

  	
   

  	
  78

  
	
  7.4.

  	
   

  	
  Fundamental Changes

  	
   

  	
  81

  
	
  7.5.

  	
   

  	
  Disposition of Property

  	
   

  	
  82

  
	
  7.6.

  	
   

  	
  Restricted Payments

  	
   

  	
  84

  
	
  7.7.

  	
   

  	
  Capital Expenditures

  	
   

  	
  86

  
	
  7.8.

  	
   

  	
  Investments

  	
   

  	
  86

  
	
  7.9.

  	
   

  	
  Optional Prepayments and Modifications of Certain Debt Instruments
  and Material Agreements

  	
   

  	
  88

  
	
  7.10.

  	
   

  	
  Transactions with Affiliates

  	
   

  	
  89

  
	
  7.11.

  	
   

  	
  Sales and Leasebacks

  	
   

  	
  90

  
	
  7.12.

  	
   

  	
  Swap Agreements

  	
   

  	
  90

  
	
  7.13.

  	
   

  	
  Changes in Fiscal Periods

  	
   

  	
  90

  
	
  7.14.

  	
   

  	
  Negative Pledge Clauses

  	
   

  	
  90

  
	
  7.15.

  	
   

  	
  Lines of Business

  	
   

  	
  91

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SECTION 7A

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  PARENT NEGATIVE COVENANTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SECTION 8

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EVENTS OF DEFAULT

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SECTION 9

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THE AGENTS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.1.

  	
   

  	
  Appointment

  	
   

  	
  94

  
	
  9.2.

  	
   

  	
  Delegation of Duties

  	
   

  	
  94

  
	
  9.3.

  	
   

  	
  Exculpatory Provisions

  	
   

  	
  94

  



 


iii

















 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.4.

  	
   

  	
  Reliance by Administrative Agent and Collateral Agent

  	
   

  	
  94

  
	
  9.5.

  	
   

  	
  Notice of Default

  	
   

  	
  95

  
	
  9.6.

  	
   

  	
  Non-Reliance on Agents and Other Lenders

  	
   

  	
  95

  
	
  9.7.

  	
   

  	
  Indemnification

  	
   

  	
  96

  
	
  9.8.

  	
   

  	
  Agent in Its Individual Capacity

  	
   

  	
  96

  
	
  9.9.

  	
   

  	
  Successor Administrative Agent or Collateral Agent

  	
   

  	
  96

  
	
  9.10.

  	
   

  	
  Withholding Tax

  	
   

  	
  97

  
	
  9.11.

  	
   

  	
  Joint Lead Arrangers, Sole Bookrunner, Co-Syndication Agents and Co-Documentation
  Agents

  	
   

  	
  97

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  SECTION 10

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  MISCELLANEOUS

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.1.

  	
   

  	
  Amendments and Waivers

  	
   

  	
  97

  
	
  10.2.

  	
   

  	
  Notices

  	
   

  	
  99

  
	
  10.3.

  	
   

  	
  No Waiver; Cumulative Remedies

  	
   

  	
  100

  
	
  10.4.

  	
   

  	
  Survival of Representations and Warranties

  	
   

  	
  101

  
	
  10.5.

  	
   

  	
  Payment of Expenses

  	
   

  	
  101

  
	
  10.6.

  	
   

  	
  Successors and Assigns; Participations and Assignments

  	
   

  	
  102

  
	
  10.7.

  	
   

  	
  Adjustments; Set-off

  	
   

  	
  105

  
	
  10.8.

  	
   

  	
  Counterparts

  	
   

  	
  105

  
	
  10.9.

  	
   

  	
  Severability

  	
   

  	
  105

  
	
  10.10.

  	
   

  	
  Integration

  	
   

  	
  105

  
	
  10.11.

  	
   

  	
  GOVERNING LAW

  	
   

  	
  105

  
	
  10.12.

  	
   

  	
  Submission to Jurisdiction; Waivers

  	
   

  	
  106

  
	
  10.13.

  	
   

  	
  Acknowledgements

  	
   

  	
  106

  
	
  10.14.

  	
   

  	
  Releases of Guarantees and Liens

  	
   

  	
  107

  
	
  10.15.

  	
   

  	
  Confidentiality

  	
   

  	
  107

  
	
  10.16.

  	
   

  	
  WAIVERS OF JURY TRIAL

  	
   

  	
  108

  
	
  10.17.

  	
   

  	
  USA PATRIOT Act

  	
   

  	
  108

  
	
  10.18.

  	
   

  	
  No Advisory or Fiduciary Responsibility

  	
   

  	
  108

  



 


iv

















 


	
  SCHEDULES:

  
	
   

  	
   

  	
   

  
	
  1.1A

  	
   

  	
  Commitments

  
	
  1.1C

  	
   

  	
  Unrestricted Subsidiaries

  
	
  1.1D

  	
   

  	
  Insurance Subsidiaries

  
	
  4.4

  	
   

  	
  Consents, Authorizations, Filings and Notices

  
	
  4.6

  	
   

  	
  Litigation

  
	
  4.8

  	
   

  	
  Real Property

  
	
  4.9

  	
   

  	
  Licenses

  
	
  4.15(a)

  	
   

  	
  Organizational Structure

  
	
  4.15(b)

  	
   

  	
  Subsidiaries

  
	
  4.19(a)

  	
   

  	
  UCC Filing Jurisdictions

  
	
  4.22

  	
   

  	
  Insurance

  
	
  4.24

  	
   

  	
  Brokers’ Fees

  
	
  5.1(k)(ii)

  	
   

  	
  Local Counsel

  
	
  7.2(d)

  	
   

  	
  Existing Indebtedness

  
	
  7.3(f)

  	
   

  	
  Existing Liens

  
	
  7.8(e)

  	
   

  	
  Existing Investments

  
	
  10.2

  	
   

  	
  Borrower’s Website

  
	
   

  	
   

  	
   

  
	
  EXHIBITS:

  
	
   

  	
   

  	
   

  
	
  A

  	
   

  	
  Form of Assignment and Assumption

  
	
  B

  	
   

  	
  Form of Borrowing Notice

  
	
  C

  	
   

  	
  Form of Interest Election Request

  
	
  D

  	
   

  	
  Form of Guaranty and Collateral Agreement

  
	
  E-1

  	
   

  	
  Form of Revolving Note

  
	
  E-2

  	
   

  	
  Form of Swingline Note

  
	
  E-3

  	
   

  	
  Form of Term Note

  
	
  F

  	
   

  	
  Form of Legal Opinion of Kirkland & Ellis LLP

  
	
  G

  	
   

  	
  Form of Reinvestment Notice

  
	
  H

  	
   

  	
  Form of Compliance Certificate

  
	
  I

  	
   

  	
  Form of United States Tax Compliance Certificate

  
	
  J

  	
   

  	
  Form of Patriot Act Certificate

  
	
  K

  	
   

  	
  Form of Funding Indemnity Letter

  
	
  L

  	
   

  	
  Form of Account Designation Notice

  
	
  M

  	
   

  	
  Form of Mortgage

  



 


v

















 


CREDIT AGREEMENT (as amended, restated, supplemented
or otherwise modified from time to time in accordance with the terms hereof,
this “Agreement”) dated as of February 21, 2008, among Radiation
Therapy Services Holdings, Inc., a Delaware corporation (together with its
successors, “Parent”), RTS MergerCo, Inc., a Florida corporation
that is a wholly owned subsidiary of Parent (to be merged with and into the
Company (as hereinafter defined), “MergerSub”), Radiation Therapy
Services, Inc., a Florida corporation (together with its successors, the “Company”),
the several banks and other financial institutions or entities from time to
time parties to this Agreement (the “Lenders”) and Wachovia Bank,
National Association (“Wachovia”), as administrative agent, collateral
agent, issuing bank and swingline lender.


 


RECITALS


 


WHEREAS, Parent, MergerSub and the Company are
parties to the Transaction Agreement (such term, and other capitalized terms
used but not defined in these recitals, having the meanings hereinafter
specified), pursuant to which MergerSub is merging with and into the Company
(the “Merger”), with the Company being the surviving corporation of the
Merger and a wholly owned subsidiary of Parent;


 


WHEREAS, in connection with the Merger, the Borrower
will pay the Merger Consideration and cause the Debt Discharge to be
consummated; and


 


WHEREAS, in order to finance the Merger
Consideration, the Debt Discharge and the payment of Closing Costs, the parties
are consummating the Financing Transactions, including the execution and
delivery of this Agreement;


 


NOW, THEREFORE, in consideration of the premises and
the agreements hereinafter set forth, the parties hereto hereby agree as
follows:


 


SECTION 1


 


DEFINITIONS


 


1.1.          Defined
Terms. As used in this Agreement, the terms listed in this Section 1.1
shall have the respective meanings set forth in this Section 1.1.


 


“ABR”: shall mean, for any day, a rate per
annum equal to the greater of (a) the Prime Rate in effect on such day and
(b) the Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. For
purposes hereof, “Prime Rate”: shall mean the rate of interest per annum
publicly announced from time to time by Wachovia as its prime rate (the Prime
Rate not being intended to be the lowest or best rate of interest charged by
Wachovia, in connection with extensions of credit to debtors). Any change in
the ABR due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective as of the opening of business on the effective day of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.


 


“ABR Loans”: shall mean Loans the rate of
interest applicable to which is based upon the ABR.


 


“Account Designation Notice”: shall mean the
Account Designation Notice dated as of the Closing Date from the Borrower to
the Administrative Agent in substantially the form attached hereto as Exhibit L.


 

















 


“Acquired EBITDA”: shall mean, with respect
to any Acquired Entity or Business for any period, the amount for such period
of Consolidated EBITDA of such Acquired Entity or Business (determined as if
references to the Borrower and the Subsidiaries in the definition of
Consolidated EBITDA were references to such Acquired Entity or Business and its
Subsidiaries (except to the extent such Acquired Entity or Business or such
Subsidiaries will not constitute Subsidiaries immediately after giving effect
to such acquisition)), all as determined on a consolidated basis for such
Acquired Entity or Business.


 


“Acquired Entity or Business”: shall have the
meaning set forth in the definition of the term “Consolidated EBITDA.”


 


“Acquisition”: shall mean any acquisition of
all or substantially all of the assets or more than 50% of the Capital Stock of
any Person or the acquisition of all or substantially all of a division or line
of business (or any substantial part for which audited financial statements or
other customary financial information is available) of any Person.


 


“Additional Lender”: shall have the meaning
set forth in Section 2.23.


 


“Adjustment Date”: shall have the meaning set
forth in the Pricing Grid.


 


“Administrative Agent”: shall mean Wachovia,
as the administrative agent for the Lenders under this Agreement and the other
Loan Documents, together with any of its successors permitted under Section 9.


 


“Affiliate”: shall mean, as to any Person,
any other Person that, directly or indirectly, is in control of, is controlled
by, or is under common control with, such Person. For purposes of this
definition, “control” of a Person means the power, directly or indirectly to
direct or cause the direction of the management and policies of such Person,
whether through the ability to exercise voting power, by contract or otherwise.


 


“Agents”: shall mean the collective reference
to the Joint Lead Arrangers, the Sole Bookrunner, the Co-Syndication Agents,
the Co-Documentation Agents, the Collateral Agent and the Administrative Agent.


 


“Aggregate Exposure”: shall mean, with respect
to any Lender at any time, an amount equal to (a) until the Closing Date,
the aggregate amount of such Lender’s Commitments at such time and (b) thereafter,
the sum of (i) the aggregate then unpaid principal amount of such Lender’s
Tranche B Term Loans, (ii) the amount of such Lender’s Available Delayed
Draw Commitments and (iii) the amount of such Lender’s Revolving
Commitment then in effect or, if the Revolving Commitments have been
terminated, the amount of such Lender’s Revolving Extensions of Credit then
outstanding.


 


“Aggregate Exposure Percentage”: shall mean,
with respect to any Lender at any time, the ratio (expressed as a percentage)
of such Lender’s Aggregate Exposure at such time to the Aggregate Exposure of
all Lenders at such time.


 


“Agreement”: shall have the meaning set forth
in the preamble.


 


“Applicable Equity Amount”: shall mean, at
any time (any such time, the “Applicable Equity Amount Reference Time”),
an amount equal to, without duplication, the amount of any capital
contributions to Parent made in cash, or any Net Cash Proceeds of any issuance
of Permitted Capital Stock of Parent (other than the Equity Financing or the
Net Cash Proceeds of any issuance of Capital


 


2

















 


Stock required to be used to prepay Tranche B Term Loans pursuant to Section 2.11(b)),
in each case to the extent contributed to the Borrower during the period from
and including the Closing Date through and including the Applicable Equity
Amount Reference Time, minus the sum of (A) the aggregate amount of
Investments made pursuant to Section 7.8(y), (B) the aggregate
amount of Restricted Payments made pursuant to Section 7.6(b)(i)(B) or
Section 7.6(l), (C) the aggregate amount of Excluded Capital
Expenditures made pursuant to clause (iv) of the definition thereof
and (D) the aggregate amount expended pursuant to Section 7.9(a)(i)(B),
in each case on and following the Closing Date and prior to the Applicable
Equity Amount Reference Time; provided
that if the Applicable Equity Amount is used for more than one of such clauses
(A), (B), (C) or (D) above at the same time, all of such uses shall
be deemed to reduce the Applicable Equity Amount.


 


“Applicable Equity Amount Reference Time”:
shall have the meaning given to such term in the definition of “Applicable
Equity Amount.”


 


“Applicable Margin”: shall mean, for each
Type of Loan, the rate per annum set forth under the relevant column heading
below:


 


	
   

  	
   

  	
  ABR Loans

  	
   

  	
  Eurodollar Loans

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Revolving Loans

  	
   

  	
  3.25

  	
  %

  	
  4.25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Tranche B Term Loans

  	
   

  	
  3.25

  	
  %

  	
  4.25

  	
  %

  



 


; provided that, on and
after the first Adjustment Date after the Closing Date, the Applicable Margin
with respect to Revolving Loans only will be determined pursuant to the Pricing
Grid.


 


“Applicable Period”: shall have the meaning
given to such term in the definition of “Pricing Grid”.


 


“Application”: shall mean an application, in
such form as the Issuing Bank may reasonably specify from time to time,
requesting the Issuing Bank to open a Letter of Credit.


 


“Approved Fund”: shall mean any Fund that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender
or (c) an entity or an Affiliate of an entity that administers or manages
a Lender.


 


“Asset Sale”: shall mean any Disposition of
property or series of related Dispositions of property, excluding (i) any
such Disposition permitted by clause (a), (b), (c), (d),
(e), (g), (h), (i) (to the extent such
Disposition is made with respect to property, to the extent the purchase of
which property is then being financed by Borrower or one of its Subsidiaries
with Indebtedness incurred pursuant to Section 7.2(e) as part
of such Disposition transaction), (j), (k), (l), (m),
(n), (o), (p) (to the extent the Investment being
Disposed of was made pursuant to Section 7.8(y)) or (r) of Section 7.5,
and (ii) other Dispositions to the extent that the Net Cash Proceeds to
the Borrower and its Subsidiaries of all such other Dispositions do not exceed
$500,000 for any one such Disposition (or series of related Dispositions) or $2,500,000
in the aggregate for all such Dispositions so in excess of $500,000 in any
fiscal year.


 


“Assignment and Assumption”: shall mean an
Assignment and Assumption, substantially in the form of Exhibit A.


 


“Available Delayed Draw Commitment”: shall
mean, as of any time, an amount equal to the excess, if any, of (a) the
amount of the Delayed Draw Tranche B Term Commitment as of such time


 


3

















 


over (b) the sum of the aggregate principal amount
of all Delayed Draw Tranche B Term Loans made hereunder prior to such time.


 


“Available Revolving Commitment”: shall mean,
as to any Revolving Lender at any time, an amount equal to the excess, if any,
of (a) such Lender’s Revolving Commitment then in effect over (b) such
Lender’s Revolving Extensions of Credit then outstanding.


 


“Benefitted Lender”: shall have the meaning
set forth in Section 10.7(a).


 


“Board”: shall mean the Board of Governors of
the Federal Reserve System of the United States (or any successor).


 


“Board of Directors” shall mean, with respect
to any Person, (i) in the case of any corporation, the board of directors
of such Person, (ii) in the case of any limited liability company, the
board of managers or managing member of such Person, (iii) in the case of
any partnership, the Board of Directors of the general partner of such Person
and (iv) in any other case, the functional equivalent of the foregoing.


 


“Borrower”: shall mean, prior to the Merger,
MergerSub, and from and after the Merger, the Company.


 


“Borrowing Date”: shall mean any Business Day
specified by the Borrower as a date on which the Borrower requests the relevant
Lenders to make Loans hereunder.


 


“Borrowing Notice”: with respect to any
request for a borrowing of Loans hereunder, a notice from the Borrower,
substantially in the form of, and containing the information prescribed by, Exhibit B,
delivered to the Administrative Agent.


 


“Broker Dealer Subsidiary” means any
Subsidiary that is registered as a broker dealer pursuant to Section 15 of
the Exchange Act (as in effect from time to time) or that is regulated as a
broker dealer or underwriter under any foreign securities law.


 


“Business Day”: shall mean a day other than a
Saturday, Sunday or other day on which commercial banks in New York City are
authorized or required by law to close, provided
that, with respect to notices and determinations in connection with, and
payments of principal and interest on, Eurodollar Loans, such day is also a day
for trading by and between banks in Dollar deposits in the interbank eurodollar
market.


 


“Capital Expenditures”: shall mean, for any
period, the aggregate amount incurred that would, in accordance with GAAP, be
included on the consolidated statement of cash flows of the Borrower and its
Subsidiaries for such period as additions to equipment, fixed assets, real
property or improvements or other capital assets (including, without
limitation, Capital Lease Obligations incurred during such period) (other than
Excluded Capital Expenditures)).


 


“Capital Lease Obligations”: shall mean, as
to any Person, the obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, to the extent such obligations are
required to be classified and accounted for as capital leases on a balance
sheet of such Person under GAAP and, for the purposes of this Agreement, the
amount of such obligations at any time shall be the capitalized amount thereof
at such time determined in accordance with GAAP.


 


4














 


“Capital Stock”: shall mean any and all
shares, interests, participations or other equivalents (however designated) of
capital stock of a corporation, any and all equivalent ownership interests in a
Person (other than a corporation) and any and all warrants, rights or options
to purchase any of the foregoing.


 


“Cash Equivalents”: shall mean (a) marketable
direct obligations issued by, or unconditionally guaranteed by, the United
States Government or issued by any agency thereof and backed by the full faith
and credit of the United States (or, in the case of a Foreign Subsidiary, of
the national government in which such Foreign Subsidiary is based), in each
case maturing within one year from the date of acquisition; (b) certificates
of deposit, time deposits, eurodollar time deposits or overnight bank deposits
having maturities of one year or less from the date of acquisition issued by
any Lender that accepts such deposits in the ordinary course of business or by
any commercial bank organized under the laws of the United States or any state
thereof (or, in the case of a Foreign Subsidiary, of the national government in
which such Foreign Subsidiary is based) having combined capital and surplus of
not less than $500,000,000; (c) commercial paper of an issuer rated at
least A-1 by Standard & Poor’s Ratings Services (“S&P”) or
P-1 by Moody’s Investors Service, Inc. (“Moody’s”), or carrying an
equivalent rating by a nationally recognized rating agency, if both of the two
named rating agencies cease publishing ratings of commercial paper issuers
generally, and maturing within one year from the date of acquisition; (d) repurchase
obligations of any Lender or of any commercial bank satisfying the requirements
of clause (b) of this definition, having a term of not more than 30 days,
with respect to securities issued or fully guaranteed or insured by the United
States government; (e) securities with maturities of one year or less from
the date of acquisition issued or fully guaranteed by any state, commonwealth
or territory of the United States, by any political subdivision or taxing
authority of any such state, commonwealth or territory thereof or, in the case
of a Foreign Subsidiary, by any foreign government, the securities of which
state, commonwealth, territory, political subdivision, taxing authority or, in
the case of a Foreign Subsidiary, foreign government (as the case may be) are
rated at least A by S&P or A-2 by Moody’s; (f) securities with
maturities of one year or less from the date of acquisition backed by standby
letters of credit issued by any Lender that issues such standby letters of
credit in the ordinary course of business or any commercial bank satisfying the
requirements of clause (b) of this definition; (g) money market
mutual or similar funds that invest substantially in assets satisfying the
requirements of clauses (a) through (f) of this definition; (h) money
market funds that (i) comply with the criteria set forth in SEC Rule 2a-7
under the Investment Company Act of 1940, as amended and (ii) are rated
AAA by S&P and Aaa by Moody’s; or (i) other short-term investments
utilized by Foreign Subsidiaries in accordance with the normal investment
practices for cash management in investments of a type analogous to the
foregoing.


 


“Cash Management Agreement”: shall mean any
agreement to provide cash management services, including treasury, depository,
overdraft, credit or debit card, electronic funds transfer and other cash
management arrangements.


 


“Cash Management Bank”: shall mean any Person
that, at the time it enters into a Cash Management Agreement, is a Lender or an
Affiliate of a Lender, in its capacity as a party to such Cash Management
Agreement.


 


“Change of Control”: shall mean (a) any
sale, lease, exchange or other transfer (in one transaction or a series of
related transactions) of all or substantially all of the assets of the Borrower
and its Subsidiaries taken as a whole to any Person or group of related Persons
for purposes of Section 13(d) of the Exchange Act (a “Group”)
(whether or not otherwise in compliance with the provisions of this Agreement),
other than to the Sponsor; (b) the approval by the holders of Capital
Stock of the Borrower of any plan or proposal for the liquidation or
dissolution of the Borrower (whether or not otherwise in compliance with the
provisions of this Agreement); (c)(1) for any reason, Parent shall cease
to own, directly


 


5

















 


or indirectly, 100% of the outstanding voting power of all Capital
Stock of the Borrower on a fully diluted basis; or (2) the Borrower
becomes aware (whether by way of a report or any other filing pursuant to Section 13(d) of
the Exchange Act, proxy, vote, written notice or otherwise) that any Person or
Group (other than the Sponsor and any entity formed for the purpose of owning
Capital Stock of the Borrower) is or has become the beneficial owner, directly
or indirectly, of shares representing more than 50% of the aggregate ordinary
voting power represented by the issued and outstanding Capital Stock of
Borrower; or (d) the replacement of a majority of the Board of Directors
of the Borrower over a two-year period from the directors who constituted the
Board of Directors of the Borrower at the beginning of such period, and such
replacement shall not have been approved by a vote of at least a majority of
the Board of Directors of the Borrower then still in office who either were
members of such Board of Directors at the beginning of such period or whose
election as a member of such Board of Directors was previously so approved.


 


“Closing Costs”: shall mean non-recurring
out-of-pocket costs, fees, commissions, bonuses and expenses, including without
limitation attorneys’ costs, fees and expenses, investment banking costs, fees
and expenses; sponsor costs, fees and expenses and non-recurring costs, fees
and expenses payable under the Fee Letter, in each case incurred and paid by
the Sponsor or any of the Loan Parties in connection with the Transactions,
this Agreement and the other Loan Documents and the transactions contemplated
hereby and thereby or incurred in furtherance thereof.


 


“Closing Date”: shall mean the date on which
the conditions precedent set forth in Section 5.1 shall have been
satisfied (or waived in accordance herewith).


 


“Co-Documentation Agents”: shall mean
Sumitomo Mitsui Banking Corporation and Fifth Third Bank, in their capacity as
co-documentation agents hereunder.


 


“Co-Syndication Agents”: shall mean BNP
Paribas and General Electric Capital Corporation, in their capacity as
co-syndication agents hereunder.


 


“Code”: shall mean the Internal Revenue Code
of 1986, as amended from time to time.


 


“Collateral”: shall mean all property of the
Loan Parties, now owned or hereafter acquired, upon which a Lien is purported
to be created by any Security Document.


 


“Collateral Agent”: shall mean Wachovia, as
the collateral agent for the Secured Parties under this Agreement and the other
Loan Documents, together with any of its successors in such capacity.


 


“Commitment”: shall mean, as to any Lender, the
sum of the Tranche B Term Commitment and the Revolving Commitment of such
Lender.


 


“Commitment Fee Rate”: shall mean a rate per
annum equal to 1/2 of 1%; provided
that, on and after the first Adjustment Date after the Closing Date, the
Commitment Fee Rate will be determined pursuant to the Pricing Grid.


 


“Commonly Controlled Entity”: shall mean an
entity, whether or not incorporated, that is under common control with the
Borrower within the meaning of Section 4001 of ERISA or is part of a group
of entities that includes the Borrower and that is treated as a single employer
under Section 414 of the Code.


 


“Company”: shall have the meaning set forth
in the preamble.


 


6

















 


“Company Material Adverse Effect” means any
facts, circumstances, events or changes that are materially adverse to the
business, properties, assets, results of operation, financial condition or
profitability of the Company, its Affiliates (as defined in the Transaction
Agreement) and the Managed Practices (as defined in the Transaction Agreement),
taken as a whole, but shall not include facts, circumstances, events or changes
(a) generally affecting the industries in which the Company, its
Subsidiaries and the Managed Practices (as defined in the Transaction
Agreement) operate in the United States or the economy or the financial or
securities markets in the United States or elsewhere in the world, including
political conditions or developments (including any outbreak or escalation of
hostilities or acts of war or terrorism) or (b) to the extent resulting
from (i) the announcement or the existence of, or compliance with, the
Transaction Agreement or the announcement of the Merger (as defined in the
Transaction Agreement) or any of the other transactions contemplated by the
Transaction Agreement, (ii) changes in applicable Law (as defined in the
Transaction Agreement), changes in GAAP (as defined in the Transaction
Agreement) or accounting standards, or (iii) any actions required under
the Transaction Agreement to obtain any antitrust approval for the consummation
of the transactions contemplated by the Transaction Agreement, provided,
however, that any change, effect, development, event or occurrence
described in the foregoing clause (a) or (b)(ii) above shall not
constitute or give rise to a Company Material Adverse Effect only if and to the
extent that such change, effect, development, event or occurrence does not have
a materially disproportionate effect on the Company and its Affiliates (as defined
in the Transaction Agreement) as compared to other participants in the
industries in which the Company, its Affiliates (as defined in the Transaction
Agreement) and the Managed Practices (as defined in the Transaction Agreement)
operate in the United States; and provided further that in the event the
Company should fail to meet any expected financial or operating performance
targets, the fact of such failure, alone, would not constitute a Company
Material Adverse Effect, it being understood that the facts or occurrences
giving rise to or contributing to such failure, but not otherwise excluded from
the definition of a Company Material Adverse Effect, may be taken into account
in determining whether there has been a Company Material Adverse Effect. Notwithstanding
the foregoing, prior to obtaining Company Shareholder Approval (as defined in
the Transaction Agreement), facts, circumstances, events or changes that have a
materially disproportionate adverse effect on the industries in which the
Company and its Subsidiaries and Managed Practices (as defined in the
Transaction Agreement) operate in the United States shall constitute a Company
Material Adverse Effect.


 


“Compliance Certificate”: shall mean a
certificate duly executed by a Responsible Officer substantially in the form of
Exhibit H.


 


“Consolidated Current Assets”: shall mean, at
any date, all amounts (other than cash and Cash Equivalents and deferred income
taxes) that would, in conformity with GAAP, be set forth opposite the caption “total
current assets” (or any like caption) on a consolidated balance sheet of the
Borrower and its Subsidiaries at such date.


 


“Consolidated Current Liabilities”: shall
mean, at any date, all amounts that would, in conformity with GAAP, be set
forth opposite the caption “total current liabilities” (or any like caption) on
a consolidated balance sheet of the Borrower and its Subsidiaries at such date,
but excluding (a) the current portion of any Indebtedness (including
accrued but unpaid interest) of the Borrower and its Subsidiaries, (b) the
current portion of current and deferred income taxes and (c) without
duplication of clause (a) above, all Indebtedness consisting of Revolving
Loans or Swingline Loans or L/C Exposure to the extent otherwise included
therein.


 


“Consolidated EBITDA”: shall mean, for any
period, Consolidated Net Income for such period plus, without
duplication and to the extent already deducted (and not added back) in arriving
at such Consolidated Net Income (other than with respect to clause (g) below),
the sum of (a) income tax


 


7

















 


expense (and franchise taxes in the nature of income taxes) and foreign
withholding tax expense for such period and any state single business unitary
or similar tax, (b) consolidated interest expense and, to the extent not
reflected in consolidated interest expense, amortization or write-off of debt
discount and debt issuance costs and commissions, discounts and other fees and
charges associated with Indebtedness (including the Loans) and any losses on
hedging obligations or other derivative instruments entered into for the
purpose of hedging interest rate risk, (c) depreciation and amortization
expense, (d) amortization of intangibles (including, but not limited to,
goodwill impairment), (e) Non-Cash Charges, (f) Management Fees paid
in cash or accrued during such period to the extent permitted to be paid
hereunder, (g) proceeds of business interruption insurance received during
such period, (h) charges, losses, or expenses incurred to the extent
covered by indemnification or refunding provisions in any document, including
those pertaining to any acquisition consummated prior to the Closing Date, or
any insurance to the extent reimbursed, (i) any non-compete payment, (j) non-cash
expenses incurred in connection with the issuance of stock options, warrants or
other Permitted Capital Stock by Parent to employees of Parent and its
Subsidiaries and any costs or expenses incurred by the Borrower and its
Subsidiaries pursuant to any management equity plan or stock option plan or any
management or employee benefit plan or agreement or any stock subscription or
shareholder agreement, to the extent such costs or expenses are funded with
cash proceeds contributed to the capital of Parent or Net Cash Proceeds of an
issuance of Permitted Capital Stock of Parent Not Otherwise Applied, (k) any
Transaction Bonuses, (l) unusual or non-recurring losses, expenses,
charges, severance costs and relocation costs, including any costs and expenses
incurred in connection with any litigation related to the Transactions and (m) any
deductions attributable to minority interests (excluding dividends and other
distributions paid or payable in cash to the holders of such minority interests
to the extent such entity in respect of which the minority interests are held
is a Subsidiary Guarantor), and minus (a) without duplication and
to the extent included in the statement of such Consolidated Net Income for
such period, the sum of (i) any unusual or non-recurring income or gains, (ii) income
tax credits (to the extent not netted from income tax expense), (iii) any
other non-cash income and (iv) any interest income and gains on hedging or
other derivative instruments entered into for the purpose of hedging interest
rate risk and (b) any cash payments made during such period in respect of
Non-Cash Charges described in clause (e) which cash payments are made
subsequent to the fiscal quarter in which the relevant Non-Cash Charges were
reflected as a charge in the statement of Consolidated Net Income, but only to
the extent that such cash payments do not exceed such Non-Cash Charges, all as
determined on a consolidated basis. In addition, Consolidated EBITDA shall be
calculated without giving effect to (w) any gains or losses from Asset
Sales, (x) any gain or loss recognized in determining Consolidated Net
Income for such period in respect of post-retirement benefits as a result of
the application of FASB 106, (y) charges, expenses or losses incurred in
connection with puts or calls of equity held by employees or directors (or
former employees, their estates, descendants, spouses or former spouses) and (z) any
gain or loss recognized in determining Consolidated Net Income for such period
resulting from the payment of Earnout Obligations. Furthermore, (A) there
shall be included in determining Consolidated EBITDA for any period, without
duplication, Acquired EBITDA of any Person, property, business or asset
acquired (other than in the ordinary course of business) by the Borrower or any
Subsidiary during such period (but not the Acquired EBITDA of any related
Person, business or assets to the extent not so acquired), to the extent not
subsequently sold, transferred or otherwise disposed of by the Borrower or such
Subsidiary (each such Person, business or asset acquired and not subsequently
so disposed of, an “Acquired Entity or Business”), based on the actual
Acquired EBITDA of such Acquired Entity or Business for such period (including
the portion thereof occurring prior to such acquisition) and the Pro Forma
Adjustments, if any, applicable thereto and (B) there shall be excluded in
determining Consolidated EBITDA for any period the Disposed EBITDA of any
Person, property, business transferred or otherwise disposed of, closed or
classified as discontinued operations by the Borrower or any Subsidiary during
such period (each such Person, property, business so sold or disposed of, a “Sold
Entity or Business”), based on the actual Disposed EBITDA of such Sold
Entity or Business for such period (including the portion thereof occurring
prior to such sale, transfer or disposition). In addition, Consolidated EBITDA
will be adjusted to the extent


 


8

















 


a Subsidiary is designated an Unrestricted Subsidiary or an
Unrestricted Subsidiary shall no longer be an Unrestricted Subsidiary.


 


For the purpose of the definition of Consolidated
EBITDA, “Non-Cash Charges” means (a) any impairment charge or asset
write-off related to intangible assets, long-lived assets, and investments in
debt and equity securities pursuant to GAAP, (b) all non-cash losses from
investments recorded using the equity method, (c) stock-based awards
compensation expense, and (d) other non-cash charges (provided that if any non-cash charges
referred to in this clause (d) represent an accrual or reserve for
potential cash items in any future period, the cash payment in respect thereof
in such future period shall be subtracted from Consolidated EBITDA to such
extent, and excluding amortization of a prepaid cash item that was paid in a
prior period), in each case excluding any non-cash charge in respect of an item
that was included in Consolidated Net Income in a prior period.


 


“Consolidated Interest Expense”: shall mean,
for any period, total cash interest expense (including that attributable to
Capital Lease Obligations), net of cash interest income, of the Borrower and
its Subsidiaries for such period with respect to all outstanding Indebtedness
of the Borrower and its Subsidiaries (including all commissions, discounts and
other fees and charges owed with respect to letters of credit and bankers’
acceptance financing and net costs under Swap Agreements in respect of interest
rates to the extent such net costs are allocable to such period in accordance
with GAAP); provided, however, that (a) Consolidated
Interest Expense shall be determined excluding (to the extent otherwise
included therein) all non-recurring cash interest expense consisting of
liquidated damages for failure to timely comply with registration rights
obligations and financing fees, as calculated on a consolidated basis in
accordance with GAAP, (b) for purposes of determining the Interest
Coverage Ratio (but subject to clause (c) below), Consolidated Interest
Expense for the period of four consecutive fiscal quarters ending (i) on March 31,
2008 shall be deemed to be equal to Consolidated Interest Expense for the
fiscal quarter then ended multiplied by four (with the Consolidated Interest
Expense for the fiscal quarter ending March 31, 2008 for all purposes of
this definition being equal to the product obtained by multiplying (x) the
Consolidated Interest Expense accruing from and including the Closing Date to
and including the last day of the fiscal quarter ending March 31, 2008 times
(y) a fraction, the numerator of which is the number of days in the fiscal
quarter ending March 31, 2008 and the denominator of which is the number
of days in the period from and including the Closing Date to and including the
last day of the fiscal quarter ending March 31, 2008), (ii) on June 30,
2008 shall be deemed to be equal to Consolidated Interest Expense for the two
consecutive fiscal quarters then ended multiplied by two and (iii) on September 30,
2008 shall be deemed to be equal to Consolidated Interest Expense for the three
consecutive fiscal quarters then ended multiplied by 4/3 and (c) for
purposes of determining the Interest Coverage Ratio, if any Indebtedness is
incurred (including pre-existing Indebtedness of any Person that becomes a Subsidiary)
or repaid in connection with the acquisition of an Acquired Entity or Business
or sale or disposition of a Sold Entity or Business, in each case subsequent to
the commencement of the period for which the Interest Coverage Ratio is being
determined, then the Consolidated Interest Expense for such period shall be
determined giving pro forma effect to such incurrence or repayment of
Indebtedness as if such incurrence or repayment had occurred at the beginning
of such period; provided that,
for the purposes of this definition of Consolidated Interest Expense only, to
the extent not otherwise reflected due to the operation of the other provisions
of this definition, Consolidated Interest Expense on the Tranche B Term Loans
shall not be deemed to accrue on the portion of the Tranche B Term Loans that
represents the Discount Amount. For purposes of clause (c) of the
foregoing (i) if any Indebtedness bears a floating rate of interest and is
being given pro forma effect, the interest on such Indebtedness shall be
calculated as if the rate in effect on the date of incurrence had been the
applicable rate for the entire period, (ii) interest on any Indebtedness
under a revolving credit facility computed on a pro forma basis shall be
computed based upon the average daily balance of such Indebtedness during the
applicable period, and (iii) interest on Indebtedness that may optionally
be determined at an interest rate based upon a factor of a prime or similar
rate, a eurocurrency


 


9

















 


interbank offered rate, or other rate, shall be deemed to have been
based upon the rate (including any applicable margin) actually chosen, or, if
none, then based upon such optional rate chosen as the Borrower may designate.


 


“Consolidated Net Income”: shall mean, for
any period, the consolidated net income (or loss) of the Borrower and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP
excluding to the extent otherwise included in such net income, without duplication,
(a) extraordinary items for such period, (b) the cumulative effect of
a change in accounting principles during such period, to the extent included in
such net income (loss), (c) Closing Costs, to the extent incurred on or
prior to December 31, 2008, plus non-recurring costs, fees, commissions
and expenses including, without limitation, attorneys’ costs, fees and expenses
payable pursuant to the requirements of Section 6.9 at any time and
any amortization thereof thereafter, (d) any non-recurring fees and
expenses incurred during such period, or any amortization thereof for such
period, in connection with any acquisition, investment, asset disposition, sale
made by Borrower or any of its Subsidiaries, issuance or repayment of
Indebtedness, issuance of Capital Stock (including in connection with any
registration of securities or exchange offer), refinancing transaction or
amendment or modification of any debt instrument (in each case, including any
such transaction consummated prior to the Closing Date and any such transaction
undertaken but not completed) and any charges or non-recurring merger costs
incurred during such period as a result of any such transaction, (e) the
after-tax effect of any income (or loss) for such period attributable to the
early extinguishment of Indebtedness, (f) the income (or deficit) of any
Person accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with Borrower or any of its Subsidiaries, (g) the income (or
deficit) of any Person (other than a Subsidiary of the Borrower) in which the
Borrower or any of its Subsidiaries has an ownership interest, except to the
extent that any such income is actually received by the Borrower or such
Subsidiary in the form of dividends or similar distributions, and (h) the
undistributed earnings of any Subsidiary (other than a Guarantor) of the
Borrower to the extent that the declaration or payment of dividends or similar
distributions by such Subsidiary is not at the time permitted by the terms of
any Contractual Obligation (other than under any Loan Document) or Requirement
of Law applicable to such Subsidiary, provided,
however, that this clause (h) shall
not apply if such Subsidiary is not prohibited from making intercompany loans
to Borrower or a Subsidiary Guarantor. There also shall be excluded from
Consolidated Net Income for any period (without duplication of the foregoing)
the purchase accounting effects of adjustments to property and equipment, other
intangible assets, deferred revenue, lease contracts and debt line items
required or permitted by GAAP and related authoritative pronouncements
(including the effects of such adjustments pushed down to the Borrower and its
Subsidiaries), as a result of the Transactions, any acquisition consummated
prior to the Closing Date, any Permitted Acquisitions, or the amortization or
write-off of any amounts thereof.


 


“Consolidated Total Debt”: shall mean, at any
date, the excess of (a) the aggregate principal amount of all Indebtedness
of the Borrower and its Subsidiaries within the meaning of clause (a), (c) or
(e) of the definition of Indebtedness at such date, determined on a
consolidated basis minus (b) the aggregate amount of unrestricted
cash and Cash Equivalents of the Borrower and the Subsidiary Guarantors at such
date required to be reflected on a consolidated balance sheet of the Borrower
in accordance with GAAP; provided
that, for the purposes of this definition of Consolidated Total Debt only, to
the extent all or any portion of the Discount Amount is not deducted from the
principal amount of the Tranche B Term Loans due to the operation of the
definition of Indebtedness, then all or such portion of the Discount Amount
shall be deducted from the principal amount of the Tranche B Term Loans in
calculating the aggregate principal amount of Indebtedness for purposes of
clause (a) of this definition (it being understood that the principal
amount of the Tranche B Term Loans shall never be deemed to be less than zero
for this purpose).


 


10

















 


“Consolidated Working Capital”: shall mean,
at any date, the excess of Consolidated Current Assets on such date over
Consolidated Current Liabilities on such date.


 


“Contractual Obligation”: shall mean, as to
any Person, any provision of any security issued by such Person or of any
agreement, instrument or other undertaking to which such Person is a party or
by which it or any of its property is bound.


 


“Covenant Parties”: shall mean the Borrower
and its Subsidiaries.


 


“Credit Increase”: shall have the meaning set
forth in Section 2.23.


 


“Debt Discharge”: shall mean (a) the
payment in full of all loans outstanding under the Existing Credit Agreement
and all accrued and unpaid interest, fees and other amounts owing thereunder,
the termination of all commitments to extend credit thereunder and the release
of all Liens securing obligations thereunder and (b) the payment in full
of all other Indebtedness of the Company and its Subsidiaries outstanding on
the Closing Date and all accrued and unpaid interest, fees and other amounts
owing in respect of such Indebtedness or under any agreements relating thereto,
the termination of all commitments to extend credit in respect of any such
Indebtedness and the release of all Liens securing obligations thereunder; provided that clause (b) above shall
not apply to (i) Indebtedness in respect of the Facilities or the Senior
Subordinated Loans incurred on the Closing Date or (ii) Indebtedness
permitted by clause (b), (c), (d), (i), (j), (n), (o), (q), (r), (s), (t) or
(u) of Section 7.2.


 


“Default”: shall mean any of the events
specified in Section 8, whether or not any requirement for the
giving of notice, the lapse of time, or both as set forth in such Section has
been satisfied.


 


“Defaulting Lender”: shall have the meaning
set forth in Section 2.22(a).


 


“Delayed Draw Availability Period”: shall
mean the period from and including the Closing Date to the earlier of (i) the
third anniversary of the Closing Date and (ii) the date of termination of
the Tranche B Term Commitments pursuant to Section 8.


 


“Delayed Draw Commitment Fee Rate”: shall
mean, with respect to the Available Delayed Draw Commitment applicable to
Lenders with a Delayed Draw Tranche B Term Commitment, (a) on any day from
and including the Closing Date to but excluding the six-month anniversary of
the Closing Date, 50% of the Applicable Margin in effect on the Closing Date
applicable to Tranche B Term Loans that are Eurodollar Loans, (b) on any
day from and including the six-month anniversary of the Closing Date to but
excluding the first anniversary of the Closing Date, 75% of the Applicable
Margin in effect on the Closing Date applicable to Tranche B Term Loans that
are Eurodollar Loans, and (c) on any day from and including the first
anniversary of the Closing Date to but excluding the last day of the Delayed
Draw Availability Period, 100% of the Applicable Margin in effect on the
Closing Date applicable to Tranche B Term Loans that are Eurodollar Loans.


 


“Delayed Draw Tranche B Term Commitment”: shall
mean, as to any Lender, the obligation of such Lender, if any, to make a term
loan to the Borrower in a principal amount not to exceed the amount set forth
under the heading “Delayed Draw Tranche B Term Commitment” opposite such Lender’s
name on Schedule 1.1A, as the same may be reduced pursuant to the terms
hereof. The original aggregate amount of the Delayed Draw Tranche B Term
Commitments is $40,000,000.


 


“Delayed Draw Tranche B Term Facility”: shall
have the meaning set forth in the definition of “Facility.”


 


11

















 


“Delayed Draw Tranche B Term Lender”: shall
mean each Lender that has a Delayed Draw Tranche B Term Commitment or holds a
Delayed Draw Tranche B Term Loan.


 


“Delayed Draw Tranche B Term Loan”: shall
mean a Loan made pursuant to a Delayed Draw Tranche B Term Commitment.


 


“Discount Amount” shall have the meaning set
forth in Section 2.2.


 


“Disposed EBITDA” shall mean, with respect to
any Sold Entity or Business for any period, the amount for such period of
Consolidated EBITDA of such Sold Entity or Business (determined as if
references to the Borrower and the Subsidiaries in the definition of
Consolidated EBITDA were references to such Sold Entity or Business and its
Subsidiaries), all as determined on a consolidated basis for such Sold Entity
or Business.


 


“Disposition”: shall mean, with respect to
any property, any sale, lease, sale and leaseback, assignment (other than an
assignment for security), conveyance, transfer or other disposition thereof.
The terms “Dispose” and “Disposed of” shall have correlative
meanings.


 


“Dollars” and “$”: shall mean dollars
in lawful currency of the United States.


 


“Domestic Subsidiary”: shall mean any
Subsidiary of the Borrower organized under the laws of the United States, any
state thereof or the District of Columbia, other than any such entity that is a
Foreign Subsidiary.


 


“Earnout Obligations”: shall mean those
payment obligations of Borrower and its Subsidiaries to former owners of
businesses which were acquired by Borrower or one of its Subsidiaries pursuant
to an Acquisition which are in the nature of deferred purchase price to the
extent such payment obligations are required to be set forth on a balance sheet
prepared in accordance with GAAP.


 


“ECF Percentage”: shall mean 50%; provided that the ECF Percentage shall be
25% in respect of such Excess Cash Flow Period if the Total Leverage Ratio as
of the last day of such Excess Cash Flow Period is less than 3.50:1.00.


 


“Eligible Assignee”: shall mean (i) any
Lender, (ii) an Affiliate of any Lender, (iii) an Approved Fund and
(iv)(a) if the assignment does not include an assignment of a Revolving
Commitment, any other Person approved by the Administrative Agent and the
Borrower (each such approval not to be unreasonably withheld or delayed) or (b) if
the assignment includes an assignment of a Revolving Commitment, any other
Person approved by the Administrative Agent, the Issuing Bank, the Swingline
Lender and the Borrower (each such approval not to be unreasonably withheld or
delayed); provided that (x) no
approval of the Borrower shall be required during the continuance of an Event
of Default under Section 8(a) or 8(f) and (y) “Eligible
Assignee” shall not include the Parent, the Borrower or any of its Subsidiaries
or any natural person.


 


“Employee Benefit Plan”: shall mean any
employee benefit plan within the meaning of Section 3(3) of ERISA
(other than any Multiemployer Plan) which is maintained or contributed to by
Borrower or any Subsidiary or, solely with respect to an employee benefit plan
subject to Title IV of ERISA, any ERISA Affiliate.


 


“Environment”: shall mean ambient air, indoor
air, surface water, groundwater, land and subsurface strata and natural
resources such as wetlands, flora and fauna.


 


12

















 


“Environmental Laws”: shall mean any and all
foreign, Federal, state, local or municipal laws, rules, orders, regulations,
statutes, ordinances, codes, decrees, requirements of any Governmental
Authority or common law regulating, relating to or imposing liability or
standards of conduct concerning protection of the Environment or of human
health (to the extent relating to exposure to Materials of Environmental
Concern) or employee health and safety, as now or may at any time hereafter be
in effect.


 


“Equity Financing”: shall mean the
contribution of equity contributions indirectly to the Parent (through
Holdings) in an aggregate amount equal to at least $620,000,000; provided that not more than $107,250,000
of any “rollover” equity in Holdings or the Parent issued to members of
management of Holdings or the Parent or any of its Subsidiaries shall be
treated as cash equity contributions for purposes of determining the minimum
cash equity contributions referred to above.


 


“ERISA”: shall mean the Employee Retirement
Income Security Act of 1974, as amended from time to time.


 


“ERISA Affiliate”: shall mean any Person who
together with the Borrower or any Subsidiary is treated as a single employer
within the meaning of Section 414(b), (c), (m) or (o) of the
Code or Section 4001(b) of ERISA.


 


“Eurocurrency Reserve Requirements”: shall
mean, for any day as applied to a Eurodollar Loan, the aggregate (without
duplication) of the maximum rates (expressed as a decimal fraction) of reserve
requirements in effect on such day (including basic, supplemental, marginal and
emergency reserves) under any regulations of the Board or other Governmental
Authority having jurisdiction with respect thereto dealing with reserve
requirements prescribed for eurocurrency funding (currently referred to as “Eurocurrency
Liabilities” in Regulation D of the Board) maintained by a member bank of the
Federal Reserve System.


 


“Eurodollar Base Rate”: shall mean, with
respect to each day during each Interest Period pertaining to a Eurodollar
Loan, the rate per annum determined on the basis of the rate for deposits in
Dollars for a period equal to such Interest Period commencing on the first day
of such Interest Period appearing on Reuters Screen LIBOR01 Page as of
11:00 A.M., London time, two Business Days prior to the beginning of such
Interest Period. In the event that such rate does not appear on Reuters Screen LIBOR01
Page (or otherwise on such screen), the “Eurodollar Base Rate” shall be
determined by reference to such other comparable publicly available service for
displaying eurodollar rates as may be selected by the Administrative Agent or,
in the absence of such availability, by reference to the rate at which the
Administrative Agent is offered Dollar deposits at or about 11:00 A.M.,
two Business Days prior to the beginning of such Interest Period in the
interbank eurodollar market where its eurodollar and foreign currency and
exchange operations are then being conducted for delivery on the first day of
such Interest Period for the number of days comprised therein.


 


“Eurodollar Loans”: shall mean Loans the rate
of interest applicable to which is based upon the Eurodollar Rate.


 


“Eurodollar Rate”: shall mean, with respect
to each day during each Interest Period pertaining to a Eurodollar Loan, a rate
per annum determined for such day in accordance with the following formula
(rounded upward to the nearest 1/100th of 1%):


 


	
   

  	
  Eurodollar Base Rate

  	
   

  
	
   

  	
  1.00 - Eurocurrency
  Reserve Requirements

  	
   

  



 


13

















 


“Eurodollar Tranche”: shall mean the
collective reference to Eurodollar Loans under a particular Facility the then
current Interest Periods with respect to all of which begin on the same date
and end on the same later date (whether or not such Loans shall originally have
been made on the same day).


 


“Event of Default”: shall mean any of the
events specified in Section 8,
provided that any requirement for the giving of notice, the lapse of
time, or both, has been satisfied.


 


“Excess Cash Flow”: shall mean, for any
period, (a) Consolidated Net Income for such period, plus (b) if
there was a net decrease in Consolidated Working Capital during such period,
the amount of such net decrease, plus (c) an amount equal to the
amount of non-cash charges to the extent deducted in arriving at such
Consolidated Net Income, plus (d) non-cash losses from asset sales
for such period (other than from sales in the ordinary course of business) to
the extent deducted in arriving at such Consolidated Net Income, plus (e) proceeds
of business interruption insurance received during such period, minus (f) regularly
scheduled amortization payments of the principal of any Indebtedness during
such period (other than any such payments and prepayments of principal of
Indebtedness made with the proceeds of any issuance of Capital Stock or other
Indebtedness incurred by Borrower or any of its Subsidiaries), but only to the
extent that any such prepaid amounts cannot by their terms be reborrowed or
redrawn and do not occur in connection with a refinancing of all or any portion
of such Indebtedness for such period, minus (g) without duplication
of amounts deducted pursuant to clause (n) below in prior fiscal years,
Capital Expenditures (other than Capital Expenditures financed with
Indebtedness permitted hereunder (other than Revolving Loans) or funded with
the proceeds of Capital Stock or a capital contribution and other Excluded
Capital Expenditures then, minus (h) without duplication of amounts
deducted pursuant to clause (n) below in prior fiscal years, the cash
portion of consideration for Permitted Acquisitions and other Investments
permitted hereunder (other than consideration for Permitted Acquisitions and
other Investments financed with Indebtedness (other than Revolving Loans) or
issuances of Capital Stock permitted hereunder) for such period or payable
within 30 days of the end of such period (provided
that amounts so deducted shall not be deducted in any subsequent period), minus
(i) non-cash gains from asset sales for such period (other than from sales
in the ordinary course of business) to the extent included in arriving at such
Consolidated Net Income, minus (j) if there was a net increase in
Consolidated Working Capital during such period the amount of such net
increase, minus (k) an amount equal to the amount of all non-cash
credits included in arriving at such Consolidated Net Income and cash charges
included in clauses (a) through (e) of the definition of Consolidated
Net Income, minus (l) cash payments by the Borrower and its
Subsidiaries during such period in respect of long-term liabilities of the
Borrower and its Subsidiaries other than Indebtedness (other than cash payments
in respect of claims offset by receivables from insurance companies), minus
(m) the aggregate amount of any premium, make-whole or penalty payments
actually paid in cash by the Borrower and its Subsidiaries during such period
that are required to be made in connection with any prepayment of Indebtedness,
minus (n) without duplication of amounts deducted from Excess Cash
Flow in prior periods, the aggregate consideration (excluding any such
consideration intended to be financed with Indebtedness (other than Revolving
Loans) or issuances of Capital Stock) required to be paid in cash by the
Borrower or any of its Subsidiaries pursuant to binding contracts (the “Contract
Consideration”) entered into prior to or during such period relating to
Permitted Acquisitions or Capital Expenditures to be consummated or made during
the period of two consecutive fiscal quarters of the Borrower following the end
of such period, provided that, to
the extent the aggregate amount of internally-generated cash and proceeds of
Revolving Loans actually utilized to finance such Permitted Acquisitions during
such period of two consecutive fiscal quarters is less than the Contract
Consideration, the amount of such shortfall shall be added to the calculation
of Excess Cash Flow at the end of such period of two consecutive fiscal
quarters, minus (o) cash payments made during such period in
respect of Earnout Obligations, to the extent such Earnout Obligations were not
deducted in calculating Excess Cash Flow for such period or any prior period, minus
(p) cash payments made pursuant to non-compete contracts to the extent not
deducted in arriving at Consolidated Net Income, minus (q) investments


 


14














 


and dividends permitted by this Agreement and made during such period, minus
(r) voluntary prepayments of debt (other than under the Facilities) made
during such period, minus (s) without duplication to the extent
already deducted in calculating Excess Cash Flow, all amounts paid in cash and
added back to Consolidated Net Income pursuant to clauses (c) and (d) thereof.


 


“Excess Cash Flow Application Date”: shall
have the meaning set forth in Section 2.11(d).


 


“Excess Cash Flow Period” shall mean (i) the
period from July 1, 2008 and ending on December 31, 2008 (taken as
one accounting period) and (ii) each fiscal year of the Borrower
thereafter.


 


“Excess Interest”: shall mean any interest
imposed by a relevant taxing authority in excess of underpayment rate described
under Section 6621(a)(2) of the Code or similar provisions under the
state or local tax laws.


 


“Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended from time to time.


 


“Exchange Notes” shall mean any notes that
may be offered in exchange for the Rollover Loans under the Exchange Note
Indenture (as such term is defined in the Senior Subordinated Loan Agreement).


 


“Excluded Capital Expenditures”: shall mean
all Capital Expenditures:


 


(i)            made to restore, replace, develop, maintain, improve,
upgrade or rebuild property to the condition of such property immediately prior
to any damage, loss, destruction or condemnation of such property, to the
extent such expenditure is made with, or subsequently reimbursed out of,
insurance proceeds, indemnity payments, condemnation awards (or payments in
lieu of) or damage recovery proceeds or other settlements relating to any such
damage, loss, destruction or condemnation;


 


(ii)           constituting reinvestment of proceeds (to the extent
permitted herein) from Asset Sales and Recovery Events;


 


(iii)          made by the Borrower or any of its Subsidiaries as a tenant
in leasehold improvements, to the extent reimbursed by the landlords;


 


(iv)          made in an amount not to exceed the Applicable Equity
Amount at such time;


 


(v)           made as payment of the consideration for any Investment
pursuant to Section 7.8(g), (r), (s), (w), (x) or
(y) (including any property, plant and equipment obtained as part
thereof); or


 


(vi)          actually paid for by a third party (excluding any of Parent,
the Borrower or any of its Subsidiaries) and for which none of Parent, the
Borrower or any of its Subsidiaries has provided or is required to provide or
incur, directly or indirectly, any consideration or monetary obligation to such
third party or any other Person (whether before, during or after such period).


 


“Excluded Taxes”: shall mean with respect to
the Administrative Agent or any Lender, (i) Taxes imposed on the
Administrative Agent or such Lender as a result of the recipient being
organized or incorporated in, or having its principal office in, the
jurisdiction of the Governmental Authority imposing


 


15

















 


such Tax or in the case of any Lender, having its applicable lending
office in such jurisdiction, or as a result of any other present or former
connection between the Administrative Agent or such Lender and such
jurisdiction or any political subdivision or taxing authority thereof or
therein (other than any such connection arising solely from the Administrative
Agent’s or such Lender’s having executed, enforced, delivered, performed its
obligations, become a party to or received any payment under this Agreement or
any other Loan Document), provided that, for the avoidance of doubt, a
U.S. federal withholding tax under the current version of sections 871(a),
881(a), 1441 or 1442 of the Code shall not be an Excluded Tax under this clause
(i); (ii) U.S. federal withholding tax imposed on amounts payable to a
Lender pursuant to a law in effect at the time such Lender becomes a party to
this Agreement or designates a new lending office (other than pursuant to Section 2.21),
except to the extent that such Lender or Lender’s assignor (if any) was
entitled, at the time of the designation of a new lending office or assignment,
to receive additional amounts with respect to such Taxes pursuant to Section 2.19(a);
and (iii) any Taxes that are attributable to a Lender’s failure to comply
with the requirements of Section 2.19(e) (i.e., failure to
deliver a form that it is legally entitled to deliver).


 


“Existing Credit Agreement”: shall mean the
Fourth Amended and Restated Credit Agreement dated as of December 16,
2005, as amended to date, among the Borrower, the lenders party thereto, Bank
of America, N.A., as administrative agent and the syndication agent referred to
therein.


 


“Facility”: shall mean each of (a) the
Initial Tranche B Term Commitments and the Initial Tranche B Term Loans made
thereunder (the “Initial Tranche B Term Facility”) (b) the Delayed
Draw Tranche B Term Commitments and the Delayed Draw Tranche B Term Loans made
thereunder (the “Delayed Draw Tranche B Term Facility,” collectively
with the Initial Tranche B Term Facility, the “Tranche B Term Facility”)
and (c) the Revolving Commitments and the extensions of credit made
thereunder (the “Revolving Facility”).


 


“Federal Funds Effective Rate”: shall mean,
for any day, the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day that
is a Business Day, the average of the quotations for the day of such
transactions received by Wachovia, from three federal funds brokers of
recognized standing selected by it.


 


“Fee Letter”: shall mean the amended and
restated fee letter dated February 11, 2008, among the Parent, Wachovia,
Wachovia Investment Holdings, LLC and Wachovia Capital Markets, LLC.


 


“Fee Payment Date”: shall mean (a) the
last Business Day of each March, June, September and December, (b) the
last day of the Revolving Commitment Period or any earlier date on which the
Revolving Commitments are terminated and there is no remaining Revolving
Extension of Credit (in the case of fees payable in respect of the Revolving
Facility or any Revolving Extension of Credit) and (c) the last day of the
Delayed Draw Availability Period.


 


“Financing Transactions”: shall mean (a) the
execution, delivery and performance by each Loan Party of the Loan Documents to
which it is to be a party, the borrowing of Loans, the use of proceeds thereof
and the issuance of Letters of Credit, (b) the execution, delivery and
performance by each Loan Party that is to be a party thereto of the Senior
Subordinated Loan Agreement and the borrowing of the Senior Subordinated Loans
and, in each case, the use of the proceeds thereof and (c) the Equity
Financing.


 


“Foreign Lender”: shall be as defined in Section 2.19(e).


 


16

















 


“Foreign Subsidiary”: shall mean (i) any
Subsidiary of the Borrower that is a “controlled foreign corporation” within
the meaning of Section 957(a) of the Code (“CFC”), (ii) any
Subsidiary of a CFC or (iii) any Subsidiary of the Borrower that has no
material assets other than stock of entities described in clauses (i) or
(ii).


 


“Fund”: shall mean any Person that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business.


 


“Funding Office”: shall mean the office of
the Administrative Agent specified in Section 10.2 or such other
office as may be specified from time to time by the Administrative Agent as its
funding office by written notice to the Borrower and the Lenders.


 


“GAAP”: shall mean generally accepted
accounting principles in the United States as in effect from time to time. In
the event that any “Accounting Change” (as defined below) shall occur
and such change results in a change in compliance with the covenants in this
Agreement, then the Borrower, the Required Lenders and the Administrative Agent
agree to enter into negotiations in order to amend such provisions of this
Agreement so as to reflect equitably such Accounting Changes with the desired
result that the criteria for evaluating the financial condition of the Borrower
and its Subsidiaries shall be the same after such Accounting Changes as if such
Accounting Changes had not been made. Until such time as such an amendment
shall have been executed and delivered by the Borrower, the Administrative
Agent and the Required Lenders, all financial covenants, standards and terms in
this Agreement shall continue to be calculated or construed as if such
Accounting Changes had not occurred. “Accounting Changes” refers to
changes in accounting principles required by the promulgation of any rule,
regulation, pronouncement or opinion by the Financial Accounting Standards
Board of the American Institute of Certified Public Accountants or, if
applicable, the SEC.


 


“Governmental Authority”: shall mean any
nation or government, any state or other political subdivision thereof, any
agency, authority, instrumentality, regulatory body, court, central bank or
other entity exercising executive, legislative, judicial, taxing, regulatory or
administrative functions of or pertaining to government, any securities
exchange and any self-regulatory organization (including the National
Association of Insurance Commissioners).


 


“Governmental Real Property Disclosure
Requirements” shall mean any Requirement of Law of any Governmental
Authority requiring notification of the buyer, lessee, mortgagee, assignee or
other transferee of any Real Property, facility, establishment or business, or
notification, registration or filing to or with any Governmental Authority, in
connection with the sale, lease, mortgage, assignment or other transfer
(including any transfer of control) of any Real Property, facility,
establishment or business, of the actual or threatened presence or Release in
or into the Environment, or the use, disposal or handling of Materials of
Environmental Concern on, at, under or near the Real Property, facility,
establishment or business to be sold, leased, mortgaged, assigned or
transferred.


 


“Group”: shall have the meaning set forth in
the definition of “Change of Control.”


 


“Group Members”: shall mean the collective
reference to the Parent, the Borrower and their respective Subsidiaries.


 


“Guaranty and Collateral Agreement”: shall
mean the Guaranty and Collateral Agreement to be entered into by the Borrower,
the Guarantors and the Collateral Agent, substantially in the form of Exhibit B.


 


17

















 


“Guarantee Obligation”: shall mean, as to any
Person (the “guaranteeing person”), any obligation, including a
reimbursement, counterindemnity or similar obligation, of the guaranteeing
person that guarantees or in effect guarantees, or which is given to induce the
creation of a separate obligation by another Person (including any bank under
any letter of credit) that guarantees or in effect guarantees, any
Indebtedness, leases, dividends or other obligations (the “primary
obligations”) of any other third Person (the “primary obligor”) in
any manner, whether directly or indirectly, including any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (1) for the purchase or
payment of any such primary obligation or (2) to maintain working capital
or equity capital of the primary obligor or otherwise to maintain the net worth
or solvency of the primary obligor, (iii) to purchase property, securities
or services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such
primary obligation or (iv) otherwise to assure or hold harmless the owner
of any such primary obligation against loss in respect thereof; provided, however,
that the term Guarantee Obligation shall not include endorsements of
instruments for deposit or collection in the ordinary course of business. The
amount of any Guarantee Obligation of any guaranteeing person shall be deemed
to be the lower of (a) an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Guarantee Obligation
is made and (b) the maximum amount for which such guaranteeing person may
be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which
such guaranteeing person may be liable are not stated or determinable, in which
case the amount of such Guarantee Obligation shall be such guaranteeing person’s
maximum reasonably anticipated liability in respect thereof as determined by
the Borrower in good faith.


 


“Guarantors”: shall mean the collective
reference to the Parent and the Subsidiary Guarantors.


 


“Holdings”: shall mean Radiation Therapy
Services, LLC, a Delaware limited liability company and its successors.


 


“Immaterial Subsidiary” means on any date,
any Subsidiary (i) to which less than $350,000 of Consolidated EBITDA is
attributable as reflected on the most recent financial statements required to
be delivered pursuant to Section 6.1 on or prior to such date (or,
prior to the first delivery date of such financial statements hereunder, on the
most recently available financial statements of the Company) and (ii) that
has been designated as such by the Borrower in a written notice delivered to
the Administrative Agent (other than any such Subsidiary as to which the
Borrower has revoked such designation by written notice to the Administrative
Agent); provided that at no time
shall the Immaterial Subsidiaries to which Consolidated EBITDA is attributable
(as reflected on the most recent financial statements required to be delivered
pursuant to Section 6.1 on or prior to such date (or, prior to the
first delivery date of such financial statements hereunder, on the most
recently available financial statements of the Company)) in excess of
$1,000,000 in the aggregate (with no Immaterial Subsidiary being deemed to have
Consolidated EBITDA attributable to it of less than zero for purposes of this
proviso). In no event shall a Subsidiary so designated as an Immaterial
Subsidiary be a Subsidiary Guarantor hereunder.


 


“Incremental Amendment”: shall have the
meaning set forth in Section 2.23.


 


“Incremental Facility Closing Date”: shall
have the meaning set forth in Section 2.23.


 


“Incremental OID”: shall have the meaning set
forth in Section 2.23.


 


“Incremental Term Loans”: shall have the
meaning set forth in Section 2.23.


 


18

















 


“Indebtedness”: shall mean, of any Person at
any date, without duplication, (a) all indebtedness of such Person for
borrowed money, (b) all obligations of such Person for the deferred
purchase price of property or services (other than (i) trade payables and
other accrued expenses incurred in the ordinary course of such Person’s
business and (ii) any Earnout Obligation until such obligation appears in
the liabilities section of the balance sheet of such Person in accordance with
GAAP), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or
arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person to the extent of the value of such
property (other than customary reservations or retentions of title under
agreements with suppliers entered into in the ordinary course of business (even
though the rights and remedies of the seller or lender under such agreement in
the event of default are limited to repossession or sale of such property)), (e) all
Capital Lease Obligations of such Person, (f) all reimbursement
obligations of such Person as an account party or applicant under or in respect
of obligations with respect to bankers’ acceptances, letters of credit, surety
bonds or similar arrangements, (g) the liquidation value of all puttable
or mandatorily redeemable Capital Stock of such Person issued to parties other
than one of such Person’s Subsidiaries, if the scheduled put or redemption date
is prior to the Tranche B Maturity Date, (h) all Guarantee Obligations of
such Person in respect of obligations of the kind referred to in clauses (a) through
(g) above, (i) all obligations of the kind referred to in clauses (a) through
(h) above secured by (or for which the holder of such obligation has an
existing right, contingent or otherwise, to be secured by) any Lien on property
(including accounts and contract rights) owned by such Person, whether or not
such Person has assumed or become liable for the payment of such obligation
provided that, if such Person has not assumed or become liable for the payment
of such obligation, the amount of such Indebtedness shall be limited to the
lesser of (i) the principal amount of the obligations being secured and (ii) the
fair market value of the encumbered property, (j) subject to clause (b)(ii) above,
all Earnout Obligations; and (k) for the purposes of Section 8(e) only,
the amount of all obligations of such Person in respect of Swap Agreements
(determined, for this purpose, in respect of any Swap Agreement, based on the
maximum aggregate amount, giving effect to any netting agreements, that such
Person would be required to pay if such Swap Agreement were terminated at the time);
provided that (i) the amount
of Indebtedness which is limited or non-recourse to such Person or for which
recourse is limited to an identified asset shall be equal to the lesser of (1) the
amount of such Indebtedness and (2) the fair market value of such asset as
at the date of determination, (ii) amounts which are reserved by such
Person for payment of insurance premiums due within twelve months of such date
shall not constitute Indebtedness and (iii) Indebtedness shall not include
obligations with respect to deferred compensation, non-compete or consulting
obligations or liabilities resulting from the application of FAS 133 or 150. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person’s ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness expressly provide that such Person is not liable
therefor.


 


“Initial OID”: shall have the meaning set
forth in Section 2.23.


 


“Initial Tranche B Term Commitment”: shall
mean, as to any Lender, the obligation of such Lender, if any, to make an
Initial Tranche B Term Loan to the Borrower in a principal amount not to exceed
the amount set forth under the heading “Initial Tranche B Term Commitment”
opposite such Lender’s name on Schedule 1.1A, as the same may be reduced
pursuant to the terms hereof. The original aggregate amount of the Initial Tranche
B Term Commitments is $307,000,000.


 


“Initial Tranche B Term Facility”: shall have
the meaning set forth in the definition of “Facility”.


 


19

















 


“Initial Tranche B Term Lender”: shall mean
each Lender that has an Initial Tranche B Term Commitment or holds an Initial
Tranche B Term Loan.


 


“Initial Tranche B Term Loan”: shall mean a
Loan made pursuant to an Initial Tranche B Term Commitment.


 


“Insolvency”: shall mean, with respect to any
Multiemployer Plan, the condition that such Multiemployer Plan is insolvent
within the meaning of Section 4245 of ERISA.


 


“Insolvent”: shall mean pertaining to a
condition of Insolvency.


 


“Insurance Subsidiary”: shall mean (i) each
of the Subsidiaries listed on Schedule 1.1D as of the Closing Date and (ii) any
Subsidiary of the Borrower engaged solely in the general liability,
professional liability, health and benefits and workers compensation and such
other insurance business, for the underwriting of insurance policies for the
Borrower and its Subsidiaries and any of its direct or indirect parents thereof
and the respective employees, officers or directors thereof. Notwithstanding
anything else herein to the contrary, no Insurance Subsidiary shall be required
to become a Subsidiary Guarantor hereunder.


 


“Intellectual Property”: shall mean the
collective reference to all rights in intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
copyrights, patents, trademarks, technology, know-how and processes, and all
rights to sue at law or in equity for any infringement or other impairment
thereof, including the right to receive all proceeds and damages therefrom.


 


“Interest Coverage Ratio”: shall mean, for
any period, the ratio of (a) Consolidated EBITDA of the Borrower and its
Subsidiaries for such period to (b) Consolidated Interest Expense of the
Borrower and its Subsidiaries for such period.


 


“Interest Election Request”: a request by the
Borrower to convert or continue a borrowing of Revolving Loans or a borrowing
of Tranche B Term Loans in accordance with Section 2.12,
substantially in the form of Exhibit C.


 


“Interest Payment Date”: shall mean (a) as
to any ABR Loan (including any Swingline Loan), the last day of each March,
June, September and December to occur while such Loan is outstanding
and the Maturity Date of such Loan, (b) as to any Eurodollar Loan, the
last day of each applicable Interest Period and the Maturity Date of such Loan,
and in addition where the applicable Interest Period for a Eurodollar Loan is
greater than three months, then also the respective dates that fall every three
months after the beginning of such Interest Period, and (c) as to any
Loan, the date of any repayment or prepayment made in respect thereof.


 


“Interest Period”: shall mean, as to any
Eurodollar Loan, (a) initially, the period commencing on the borrowing or
conversion date, as the case may be, with respect to such Eurodollar Loan and
ending one, two, three or six (or, if available to all relevant Lenders under
the relevant Facility, nine or twelve) months thereafter, as selected by the
Borrower in its notice of borrowing or notice of conversion, as the case may
be, given with respect thereto; and (b) thereafter, each period commencing
on the last day of the next preceding Interest Period applicable to such
Eurodollar Loan and ending one, two, three or six (or, if available to all
Lenders under the relevant Facility, nine or twelve) months thereafter, as
selected by the Borrower by irrevocable notice to the Administrative Agent not
later than 12:00 Noon, on the date that is the third Business Day prior to the
last day of the then current Interest Period with respect


 


20

















 


thereto; provided that
all of the foregoing provisions relating to Interest Periods are subject to the
following:


 


(i)           if any Interest Period would otherwise end on a day that
is not a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless the result of such extension would be to carry
such Interest Period into another calendar month in which event such Interest
Period shall end on the immediately preceding Business Day;


 


(ii)          the Borrower may not select an Interest Period under a
particular Facility that would extend beyond the Revolving Termination Date or
beyond the date final payment is due on the Tranche B Term Loans, as
applicable; and


 


(iii)         any Interest Period that begins on the last Business Day of
a calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on the
last Business Day of a calendar month.


 


“Interest Rate Contract”: shall mean any
interest rate swap agreement, interest rate cap agreement, interest rate floor
agreement, interest rate collar agreement, interest rate option or any other
agreement regarding the hedging of interest rate risk exposure executed in
connection with hedging the interest rate exposure of any Person and any confirming
letter executed pursuant to such agreement, all as amended, restated,
supplemented or otherwise modified from time to time.


 


“Investments”: shall have the meaning set
forth in Section 7.8.


 


“Issuing Bank”: shall mean Wachovia or any
Affiliate thereof or any other Lender approved by the Administrative Agent.


 


“Joint Lead Arrangers”: shall mean Wachovia
Capital Markets, LLC, BNP Paribas Securities Corp. and Sumitomo Mitsui Banking
Corporation.


 


“Joint Venture”: shall mean, at any date of
determination, (a) each joint venture accounted for as an equity method
investee of the Covenant Parties, determined in accordance with GAAP or (b) a
Person that is at least 50% owned by a Covenant Party that is precluded from
becoming a Subsidiary Guarantor (or, to so become, would require the consent of
a third party who is a holder of the Capital Stock of such Person) by the terms
of such entities’ organizational or related documents.


 


“L/C Commitment”: shall mean $20,000,000.


 


“L/C Disbursement”: shall mean any payment
made by the Issuing Bank pursuant to a Letter of Credit.


 


“L/C Exposure”: shall mean, at any time, an
amount equal to the sum of (a) the aggregate undrawn and unexpired amount
of the then outstanding Letters of Credit and (b) the aggregate amount of
L/C Disbursements that have not then been reimbursed by or on behalf of the
Borrower.


 


“L/C Participant”: shall mean in respect of
any Letter of Credit, the collective reference to all Revolving Lenders other
than the Issuing Bank in respect of such Letter of Credit.


 


“Lenders”: shall have the meaning set forth
in the preamble; provided that,
unless the context otherwise requires, each reference herein to the Lenders
shall be deemed to include the Swingline Lender and the Issuing Bank.


 


21

















 


“Letters of Credit”: shall have the meaning
set forth in Section 3.1(a).


 


“Lien”: shall mean any mortgage, pledge,
hypothecation, collateral assignment, security deposit arrangement, encumbrance
in the nature of a security interest, lien (statutory or other), charge or
other security interest or any preference, priority or other security agreement
or similar preferential arrangement (including any conditional sale or other
title retention agreement and any capital lease having substantially the same
economic effect as any of the foregoing). For the avoidance of doubt, “Lien”
shall not be deemed to include any license or sublicense of Intellectual
Property.


 


“Loan”: shall mean any loan made by any
Lender pursuant to this Agreement.


 


“Loan Documents”: shall mean this Agreement,
the Security Documents, the Notes and any amendment, waiver, supplement or
other modification to any of the foregoing.


 


“Loan Parties”: shall mean each Group Member
that is a party to a Loan Document.


 


“Majority Facility Lenders”: shall mean (a) with
respect to the Tranche B Term Facility, the holders (other than Defaulting
Lenders) of more than 50% of the sum of (x) the aggregate unpaid principal
amount of the Tranche B Term Loans and (y) the Available Delayed Draw
Commitments then in effect, and (b) with respect to the Revolving
Facility, the Majority Revolving Lenders.


 


“Majority Revolving Lenders”: shall mean the
holders (other than Defaulting Lenders) of more than 50% of the Total Revolving
Commitments (or, if the Revolving Commitments have terminated, the holders of
more than 50% of the Total Revolving Extensions of Credit).


 


“Managed Care Plans”: shall mean all health
maintenance organizations, preferred provider organizations, individual
practice associations, competitive medical plans and similar arrangements.


 


“Management Agreement”: shall mean the
management agreement dated the Closing Date, between the Sponsor and the
Borrower, as in effect on the Closing Date and any amendment or replacement
thereof so long as any such amendment or replacement agreement does not raise
the fees or compensation payable thereunder.


 


“Management Fees”: shall mean the amounts set
forth in Section 7.10(ii).


 


“Material Adverse Effect”: shall mean a
material adverse effect on (a) the business, property, operations or
financial condition of the Borrower and its Subsidiaries taken as a whole or (b) the
validity or enforceability of this Agreement, the Notes or any of the other
Loan Documents, the Liens granted thereunder or the rights or remedies of the
Administrative Agent or the Lenders under this Agreement, the Notes or the
other Loan Documents.


 


“Materials of Environmental Concern”: shall
mean any gasoline or petroleum (including crude oil or any fraction thereof) or
petroleum products, polychlorinated biphenyls, infectious, biohazardous and
medical waste, asbestos, pollutants, contaminants, radioactivity and
radioactive materials, and any other substances, materials, chemicals, wastes,
compounds, mixtures or constituents in any form that are regulated pursuant to
or can give rise to liability under any Environmental Law.


 


“Maturity Date”: shall mean (a) as to
Revolving Loans and Swingline Loans, the Revolving Termination Date, and (b) as
to Tranche B Term Loans, the Tranche B Maturity Date.


 


“Merger”: shall have the meaning set forth in
the recitals of this Agreement.


 


22

















 


“Merger Consideration”: shall mean the
aggregate cash consideration payable under the Transaction Agreement, as a
result of the Merger, in respect of the common stock of the Borrower
outstanding immediately prior to the effective time of the Merger.


 


“MergerSub”: shall have the meaning set forth
in the preamble.


 


“Moody’s”: shall have the meaning set forth
in the definition of “Cash Equivalents.”


 


“Mortgaged Properties”: shall mean, each
owned real property as to which the Collateral Agent for the benefit of the
Secured Parties shall be required to be granted a Lien pursuant to Section 6.9,
6.10 or 6.15.


 


“Mortgages”: shall mean all fee mortgages,
assignments of leases, mortgage deeds, deeds of trust, deeds to secure debt,
security agreements, and other similar instruments, executed or to be executed
by any Loan Party (i) which provide the Collateral Agent, for the benefit
of the Secured Parties, a first priority Lien on the Mortgaged Properties
subject to the Liens permitted by each Mortgage, as amended, restated,
modified, extended or supplemented from time to time, substantially in the form
of Exhibit M.


 


“Multiemployer Plan”: shall mean a “multiemployer
plan” as defined in Section 4001(a)(3) of ERISA.


 


“Net Cash Proceeds”: shall mean (a) in
connection with any Asset Sale, Sale Leaseback Transaction or any Recovery
Event, the proceeds thereof in the form of cash and Cash Equivalents (including
any such proceeds received by way of deferred payment of principal pursuant to
a note or installment receivable or purchase price adjustment receivable or
otherwise, but only as and when received), net of attorneys’ fees, accountants’
fees, investment banking fees, commissions, amounts held in escrow (until such
amounts are released), amounts required to be applied to the repayment of
Indebtedness (including, without limitation, principal, interest, premium and
penalties, if any) secured by a Lien expressly permitted hereunder on any asset
that is the subject of such Asset Sale, Sale Leaseback Transaction or Recovery
Event (other than any Lien pursuant to a Security Document) and other related
fees and expenses actually incurred in connection therewith and net of taxes
paid or reasonably estimated to be payable as a result thereof (including any
withholding taxes on any related remittance of funds) and net of (i) any
reasonable reserves established in connection therewith and (ii) reasonable
indemnity obligations relating thereto, and (b) in connection with any
issuance or sale of Capital Stock or any incurrence of Indebtedness, the cash
proceeds received from such issuance or incurrence, net of out-of-pocket
transaction costs directly related thereto, attorneys’ fees, investment banking
fees, accountants’ fees, consultants’ fees, underwriting discounts and
commissions or placement fees and other related fees and expenses actually
incurred in connection therewith.


 


“Non-Cash Charges”: shall have the meaning
assigned to such term in the definition of Consolidated EBITDA.


 


“Non-Excluded Taxes”: shall mean with respect
to the Administrative Agent and any Lender, any Taxes other than Excluded
Taxes.


 


“Non-Profit Entity”: shall mean any entity
duly acquired or formed and organized by the Borrower or any Subsidiary as a
not-for-profit entity under applicable state law in furtherance of the business
needs of Borrower and its Subsidiaries.


 


23

















 


“Non-Wholly-Owned Subsidiary”: shall mean any
Domestic Subsidiary (other than a Non-Profit Entity or an Insurance Subsidiary)
that is not a Wholly-Owned Subsidiary.


 


“Not Otherwise Applied”: shall mean, with
reference to any amount of Net Cash Proceeds of any transaction or event, that
such amount (a) was not required to be applied to prepay the Loans
pursuant to Section 2.11, and (b) was not previously applied
in determining the permissibility of a transaction under the Loan Documents
where such permissibility was (or may have been or concurrently will be)
contingent on receipt of such amount or utilization of such amount for a
specified purpose. The Borrower shall promptly notify the Administrative Agent
of any application of such amount as contemplated by (b) above.


 


“Notes”: shall mean the collective reference
to any Revolving Note, Swingline Note or Tranche B Term Note.


 


“Obligations”: shall mean the unpaid
principal of and interest on (including interest accruing after the maturity of
the Loans and Reimbursement Obligations and interest accruing after the filing
of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans and all other obligations and liabilities of the Borrower to the
Administrative Agent or to any Lender, whether direct or indirect, absolute or
contingent, due or to become due, or now existing or hereafter incurred, which
may arise under this Agreement, any other Loan Document, the Letters of Credit
or any other document made, delivered or given in connection herewith or
therewith, whether on account of principal, interest, reimbursement
obligations, fees, indemnities, costs, expenses (including all fees, charges
and disbursements of counsel to the Administrative Agent or to any Lender that
are required to be paid by the Borrower pursuant hereto) or otherwise.


 


“Other Taxes”: shall mean all present or
future stamp, documentary or any other excise, intangible, mortgage recording
or similar Taxes arising from any payment made hereunder or under any other
Loan Document or from the execution, delivery or enforcement of, or in
connection with any transactions to be performed by the parties pursuant to the
terms of this Agreement or any other Loan Document.


 


“Parent”: shall have the meaning set forth in
the preamble.


 


“Participant”: shall have the meaning set
forth in Section 10.6(d).


 


“PBGC”: shall mean the Pension Benefit
Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA
(or any successor).


 


“Permitted Acquisition”: shall mean an
Acquisition by the Borrower or a Subsidiary Guarantor, subject to the
fulfillment of the following conditions:


 


(a)           all entities in which the Borrower shall own, directly or
indirectly, any Investment as a result of such Acquisition shall, as a result
of such Acquisition, become Subsidiary Guarantors, except to the extent that
the portion of the fair market value of the consideration for such Acquisition
that is attributable to Investments in such entities (whether or not such
entities become Subsidiaries) that do not become Subsidiary Guarantors as a
result of such Acquisition is treated, at the time of such Acquisition, as
Investments in such entities made pursuant to Section 7.8 and are
permitted to be made thereunder at such time other than pursuant to clause (g) thereof
(it being understood that the foregoing is intended to allow a Foreign
Subsidiary, Non-Wholly-Owned Subsidiary, Non-Profit Entity or Insurance
Subsidiary, in each case that becomes


 


24














 


a Subsidiary as a result of such Acquisition, to not
become a Subsidiary Guarantor as otherwise required by this clause, if the
conditions of this clause are otherwise satisfied and such Investment is
permitted by Section 7.8 (other than Section 7.8(g));


 


(b)         no Default or Event of Default shall have occurred and be
continuing or reasonably be expected to result from such Acquisition;


 


(c)          without limiting the generality of the foregoing, after
giving effect to such Acquisition (including any Indebtedness resulting
therefrom or incurred in connection therewith), the Borrower shall be in
compliance with the provisions of Section 7.1, calculated on a pro
forma basis as of the end of the period most recently ended prior to the date
of the consummation of such Acquisition for which financial statements were
required to have been delivered pursuant to Section 6.1(a) or (b) or,
if prior to the first delivery date for such financial statements hereunder, as
of the end of the period for which the most recent financial statements of the
Company are available (calculated as though all Indebtedness resulting from or
incurred in connection with such Permitted Acquisition had been incurred at the
beginning of the relevant four quarter period) and, if the last day of any such
period is prior to the first test date under Section 7.1, the
levels for the first test date under such Section shall be deemed to apply
for this purpose and, unless such Acquisition involves total consideration
(including Indebtedness resulting therefrom pursuant to Section 7.2(g))
of $12,000,000 or less, prior to the closing of such Acquisition, the Borrower
shall provide to the Administrative Agent a certificate signed by a Responsible
Officer demonstrating such compliance in reasonable detail; and


 


(d)         after giving effect to such Acquisition, the Available
Revolving Commitment plus the amount of unrestricted cash and Cash Equivalents
then owned by the Borrower and the Subsidiary Guarantors shall not be less than
$15,000,000.


 


“Permitted Additional Subordinated Debt”:
shall mean Indebtedness incurred in reliance upon clause (m) of Section 7.2.


 


“Permitted Capital Stock”: shall mean (a) common
stock of Parent and (b) any preferred stock of Parent (or any equity
security of Parent that is convertible into or exchangeable for any preferred
stock of Parent), that (x) does not include a dividend payable in anything
other than Permitted Capital Stock and (y) is not mandatorily redeemable
by Parent or any of its Subsidiaries or redeemable at the option of the holder
of such Capital Stock, in each case prior to the sixth month anniversary of the
Tranche B Maturity Date (other than in connection with an asset sale or change
of control or similar event if the Obligations are required to be paid prior to
satisfying such put, redemption, repayment, sinking fund or similar provision),
and to the extent any such preferred stock or equity security does not
otherwise comply with clause (b) hereof, such preferred stock or equity
security is otherwise reasonably satisfactory to Administrative Agent.


 


“Permitted Disposition”: shall mean (i) any
write-off, sale or discount of past due accounts receivable in the ordinary
course of business; (ii) (x) any lease (or sublease) as lessor or
license (or sublicense) as licensor of parcels of real property or items of
personal property (including Intellectual Property) in the ordinary course of
business and (y) any grant of options to purchase, lease or acquire
isolated parcels of real property or items of personal property (including Intellectual
Property) in the ordinary course of business; (iii) any sale or exchange
of isolated specific items of equipment, so long as the purpose of each sale or
exchange is to acquire (and results within 180 days of such sale or exchange in
the acquisition of) replacement items of equipment which are, in the reasonable
business judgment of the Borrower and its Subsidiaries, the functional
equivalent of the item of equipment so sold or exchanged and provided the
Administrative Agent has at all times after such acquisition a perfected Lien
in the replacement


 


25

















 


property with the same priority or better than the equipment being sold
or exchanged, (iv) any sale of Capital Stock in, or Indebtedness or other
securities of, an Unrestricted Subsidiary, (v) any termination or
expiration of any lease or sublease of real property in accordance with its
terms or the applicable license or sublicense or (vi) any surrender or
waiver of contract rights or the settlement, release or surrender of contract,
tort or other litigation claims.


 


“Permitted Liens”: shall have the meaning
assigned to such term in Section 7.3.


 


“Permitted Tax Distributions”: shall mean
cash dividends declared and paid by Borrower to Parent or Holdings (or any
other parent company) in order to pay (x) any income taxes imposed on
Parent or Holdings (or any other parent company) as the common parent of a
consolidated, combined or similar tax group of which Borrower and/or its
Subsidiaries and Unrestricted Subsidiaries are members, up to an amount not to
exceed the amount of any such income taxes that Borrower and its Subsidiaries
would have been required to pay on a separate company (or a stand-alone tax
group) basis (reduced by any income taxes paid directly by Borrower or its
Subsidiaries) and, to the extent of the amount actually received from its
Unrestricted Subsidiaries, in amounts required to pay such taxes attributable
to the income of such Unrestricted Subsidiaries and (y) franchise taxes
and fees, taxes and expenses required to maintain their corporate existence.


 


“Permitted Refinancing Indebtedness”: shall
mean Indebtedness of the Borrower or any Subsidiary issued or incurred
(including by means of the extension or renewal of existing Indebtedness) to
refinance, refund, extend or renew existing Indebtedness (“Refinanced
Indebtedness”); provided that
(a) the principal amount (or accreted value, if applicable) of such
refinancing, refunding, extending or renewing Indebtedness is not greater than
the sum of (i) the principal amount (or accreted value, if applicable) of
such Refinanced Indebtedness plus (ii) an amount equal to unpaid accrued
interest and premium thereon and fees and expenses reasonably incurred in
connection with such refinancing, refunding, extension or renewal, plus (iii) if
the Refinanced Indebtedness was extended under a committed financing
arrangement and any such commitments remain unutilized at the time, the amount
of such unutilized commitments, but only to the extent that Indebtedness could
be incurred thereunder at the time in compliance with the terms thereof and of
this Agreement, (b) such refinancing, refunding, extending or renewing
Indebtedness has a final maturity that is no earlier than the final maturity
of, and a weighted average life to maturity that is no shorter than the
remaining weighted average life of, such Refinanced Indebtedness, (c) if
such Refinanced Indebtedness or any Guarantees thereof are subordinated to the
Obligations, such refinancing, refunding, extending or renewing Indebtedness
and any Guarantees thereof remain so subordinated on terms no less favorable to
the Lenders and (d) such refinancing, refunding, extending or renewing
Indebtedness does not contain mandatory redemption or prepayment rights on the
part of the borrower or issuer of such Indebtedness or redemption or prepayment
rights exercisable by the holder of such Indebtedness, that in either case
would require payment of greater amounts or at earlier dates by the borrower or
issuer of such Indebtedness than the Indebtedness so refinanced, refunded,
extended or renewed; provided further,
however, that Permitted
Refinancing Indebtedness shall not include (i) Indebtedness of the
Borrower or a Subsidiary Guarantor that refinances, refunds, extends or renews
Indebtedness of a Subsidiary that is not a Subsidiary Guarantor or (ii) Indebtedness
of a Subsidiary that is not a Guarantor that refinances, refunds, extends or
renews Indebtedness of the Borrower or a Subsidiary Guarantor. It is understood
that Permitted Refinancing Indebtedness of the Senior Subordinated Loans shall
not refer to the Rollover Loans, the Take Out Debt or the Exchanges Notes.


 


“Person”: shall mean an individual,
partnership, corporation, limited liability company, business trust, joint
stock company, trust, unincorporated association, joint venture, Governmental
Authority or other entity of whatever nature.


 


26

















 


“Plan”: shall mean any employee benefit plan
(other than a Multiemployer Plan) that is covered by Title IV of ERISA or
subject to the minimum funding standard of Section 412 of the Code or Section 302
of ERISA and is maintained or contributed to by the Borrower or a Commonly
Controlled Entity.


 


“Pledged Stock”: shall have the meaning
assigned to such term in the Guaranty and Collateral Agreement.


 


“Pricing Grid”: shall mean the applicable
table set forth below in respect of Revolving Loans, Swingline Loans and the
Commitment Fee Rate for Revolving Commitments:


 


	
  Total

  Leverage Ratio

  	
   

  	
  Applicable Margin

  for Eurodollar Loans

  	
   

  	
  Applicable Margin

  for ABR Loans

  	
   

  	
  Commitment Fee Rate

  for Revolving

  Commitments

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  >4.0:1

  	
   

  	
  4.25

  	
  %

  	
  3.25

  	
  %

  	
  0.500

  	
  %

  
	
  <4.0: 1 and >3.5:1

  	
   

  	
  4.00

  	
  %

  	
  3.00

  	
  %

  	
  0.500

  	
  %

  
	
  <3.5:1 and >3.0:1

  	
   

  	
  3.75

  	
  %

  	
  2.75

  	
  %

  	
  0.375

  	
  %

  
	
  <3.0:1

  	
   

  	
  3.50

  	
  %

  	
  2.50

  	
  %

  	
  0.375

  	
  %

  



 


For the purposes of the Pricing Grid, changes in the
Applicable Margin and Commitment Fee Rate for Revolving Commitments resulting
from changes in the Total Leverage Ratio shall become effective on the date
(the “Adjustment Date”) that is three Business Days after the date on
which financial statements are delivered to the Lenders pursuant to Section 6.1
(commencing on the Adjustment Date in respect of the delivery of financial
statements for the first fiscal quarter ending at least three months after the
Closing Date) and shall remain in effect until the next change to be effected
pursuant to this paragraph. If any financial statements referred to above are
not delivered within the time periods specified in Section 6.1,
then, until the date that is three Business Days after the date on which such
financial statements are delivered, the highest rate set forth in each column
of the Pricing Grid shall apply. Each determination of the Total Leverage Ratio
pursuant to the Pricing Grid shall be made in a manner consistent with the
determination thereof pursuant to Section 7.1.


 


In the event that any financial statement or
Compliance Certificate delivered pursuant to Section 6.1 or Section 6.2(b)(i) is
shown to be inaccurate (regardless of whether this Agreement or the Commitments
are in effect when such inaccuracy is discovered), and such inaccuracy, if
corrected, would have led to a higher Applicable Margin for any period (an “Applicable
Period”) than the Applicable Margin that was actually applied for such
Applicable Period, then (i) the Borrower shall immediately deliver to the
Administrative Agent a corrected Compliance Certificate for such Applicable
Period, (ii) the Applicable Margin shall be determined as if the rates set
forth in each column of the Pricing Grid that would have been applicable based
upon the levels of the Total Leverage Ratio set forth in such corrected
Compliance Certificate were applicable for such Applicable Period and (iii) the
Borrower shall immediately pay to the Administrative Agent the additional
interest owing as a result of such increased Applicable Margin for such
Applicable Period, which payment shall be promptly applied by the
Administrative Agent in accordance with the terms hereof. This paragraph shall
not limit the rights of the Administrative Agent and the Lenders hereunder.


 


“Pro Forma Adjustments”: shall mean, for any
period, the reduction in costs and related adjustments (including, without
limitation, the elimination of physician and shareholder compensation, and the
normalization of rental expense) that (i) were directly attributable to an
acquisition that occurred during the four quarter period or after the end of
the four quarter period and on or prior to the applicable


 


27

















 


calculation date and calculated on a basis that is consistent with
Regulation S-X, (ii) were actually implemented by the business that was
the subject of any such acquisition after the date of the acquisition and prior
to the calculation date that are supportable and quantifiable by the underlying
accounting records of such business or (iii) relate to the business that
is the subject of any such acquisition and that the Borrower reasonably
determines are probable based upon specifically identifiable actions to be
taken within six months of the date of the acquisition and, in the case of each
of (i), (ii) and (iii), are described, as provided below, in an
certificate of the Borrower’s chief financial officer, as if all such reductions
in costs had been effected as of the beginning of such period. Pro Forma
Adjustments described above shall be accompanied by a certificate delivered to
the Administrative Agent from the Borrower’s chief financial officer that
outlines the specific actions taken or to be taken, the net cost savings
achieved or to be achieved from each such action and that, in the case of
clause (iii) above, such savings have been determined to be probable.
Notwithstanding the foregoing, Pro Forma Adjustments in respect of any
Acquisition of an Acquired Entity or Business for which the actual Acquired
EBITDA cannot be determined due to the absence of reliable financial
statements, an adjustment equal to the Acquired EBITDA for such Acquired Entity
or Business for the relevant period preceding the date of such Acquisition, as
estimated in good faith by the chief financial officer of the Borrower based
upon the facts applicable to the Acquired Entity or Business as of the date of
such Acquisition (as though such facts applied during the period preceding such
date), and set forth in a schedule, in detail reasonably acceptable to the
Administrative Agent, identifying the facts (and any relevant assumptions) upon
which such estimate is based and the calculation of such estimate, and
certified by such chief financial officer to be prepared in good faith shall be
permitted.


 


“Pro Forma Financial Statements”: shall have
the meaning set forth in Section 4.1(a).


 


“Properties”: shall have the meaning set
forth in Section 4.17(a).


 


“Qualified Counterparty”: shall mean with
respect to any Swap Agreement, any counterparty thereto that, (a) is a
Lender or an Affiliate of a Lender on the Closing Date or (b) at the time
such Swap Agreement was entered into, was a Lender or an Affiliate of a Lender.


 


“Real Property”: shall mean, collectively,
all right, title and interest (including any leasehold, mineral or other
estate) in and to any and all parcels of or interests in real property owned,
leased or operated by any Person, whether by lease, license or other means,
together with, in each case, all easements, hereditaments and appurtenances
relating thereto, all improvements and appurtenant fixtures and equipment, all
general intangibles and contract rights and other property and rights incidental
to the ownership, lease or operation thereof.


 


“Recovery Event”: shall mean any settlement
of or payment in respect of any property or casualty insurance claim or any
condemnation proceeding relating to any asset of Borrower or any of its
Subsidiaries, in excess of $500,000 individually or $2,500,000 in the aggregate
for all such amounts so in excess of $500,000 in any fiscal year.


 


“Refunded Swingline Loans”: shall have the
meaning set forth in Section 2.7(b).


 


“Register”: shall have the meaning set forth
in Section 10.6(c).


 


“Regulated Entity”: shall mean any existing
and future direct and indirect Subsidiary of the Borrower that is (i) an
insurance company, (ii) a company regulated as an insurance company or (iii) otherwise
subject to regulation by any governmental authority and for which the
incurrence of debt (including guarantees) or the granting of Liens with respect
to its assets would be prohibited or restricted or


 


28

















 


would result in a negative impact on any minimum risk-based capital,
capital or similar requirement applicable to it.


 


“Regulation D”: shall mean Regulation D of
the Board as in effect from time to time.


 


“Regulation S-X”: shall mean Regulation S-X
under the Securities Exchange Act of 1934.


 


“Regulation U”: shall mean Regulation U of
the Board as in effect from time to time.


 


“Reimbursement Obligation”: shall mean the
obligation of the Borrower to reimburse the Issuing Bank pursuant to Section 3.5
for amounts drawn under any Letter of Credit.


 


“Reinvestment Deferred Amount”: shall mean,
with respect to any Reinvestment Event, the aggregate Net Cash Proceeds
received by Borrower or any of its Subsidiaries in connection therewith that
are not applied to prepay the Tranche B Term Loans pursuant to Section 2.11(c) as
a result of the delivery of a Reinvestment Notice.


 


“Reinvestment Event”: shall mean any Asset
Sale or Recovery Event in respect of which the Borrower has delivered a
Reinvestment Notice.


 


“Reinvestment Notice”: shall mean a written
notice executed by a Responsible Officer stating that (a)(x) no Event of
Default has occurred and is continuing or (y) in the case of a Recovery
Event, if the Borrower or one or more of its Subsidiaries shall have then
entered into one or more continuing agreements with a Person not an Affiliate
of any of them for the repair, restoration or replacement of the properties
that were the subject of such Recovery Event, none of the Administrative Agent
or the Collateral Agent shall have commenced any action or proceeding to
exercise or seek to exercise any right or remedy with respect to any Collateral
(including any action of foreclosure, enforcement, collection or execution
pursuant to any type of occurrence referred to in Section 8(f)) and
(b) the Borrower (directly or indirectly through a Subsidiary) intends and
expects to use all or a specified portion of the Net Cash Proceeds of an Asset
Sale or Recovery Event to acquire or repair assets useful in its business or in
connection with a Permitted Acquisition; provided,
however, that to the extent that
any such Net Cash Proceeds are received in respect of assets constituting
Collateral, such Net Cash Proceeds shall be used to acquire or repair assets
that constitute Collateral or to make a Permitted Acquisition of assets that
become Collateral (except that such Net Cash Proceeds may be used to make an
Investment pursuant to Section 7.8(r), (s), (u), (w),
(x) or (y), whether or not any such Investment made pursuant
to any of such Sections shall constitute Collateral).


 


“Reinvestment Prepayment Amount”: shall mean,
with respect to any Reinvestment Event, the Reinvestment Deferred Amount
relating thereto less any amount expended prior to the relevant Reinvestment
Prepayment Date to acquire or repair assets to be used in the Borrower’s or any
Subsidiary’s business (subject to the proviso to the definition of the term “Reinvestment
Notice”).


 


“Reinvestment Prepayment Date”: shall mean,
with respect to any Reinvestment Event, the earlier of (a) the later of (x) the
date occurring 365 days after such Reinvestment Event or (y) in the event
the Borrower (directly or indirectly through a Subsidiary) has committed to
reinvest any such proceeds within 365 days following such Reinvestment Event,
545 days following such Reinvestment Event and (b) the date on which the
Borrower shall have determined not to acquire or repair assets to be used and
useful in the Borrower’s or any Subsidiary’s business with all or any portion
of the relevant Reinvestment Deferred Amount.


 


29

















 


“Release”: shall mean any spilling, leaking,
seepage, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, disposing, depositing, dispersing, emanating or
migrating of any Material of Environmental Concern in, into, onto or through
the Environment, or in, onto or from any building or structure.


 


“Relevant Percentage”: shall have the meaning
set forth in Section 2.2.


 


“Reorganization”: shall mean, with respect to
any Multiemployer Plan, the condition that such plan is in reorganization
within the meaning of Section 4241 of ERISA.


 


“Reportable Event”: shall mean any of the
events set forth in Section 4043(c) of ERISA, other than those events
as to which the thirty day notice period is waived by applicable regulations
under Section 4043 of ERISA.


 


“Required Lenders”: shall mean, at any time,
the holders (other than Defaulting Lenders) of more than 50% of (a) until
the Closing Date, the Commitments then in effect and (b) thereafter, the
sum of (i) the aggregate unpaid principal amount of the Tranche B Term
Loans then outstanding, (ii) the Total Revolving Commitments then in
effect or, if the Revolving Commitments have been terminated, the Total
Revolving Extensions of Credit then outstanding and (iii) the Available
Delayed Draw Commitments then in effect, in each case excluding any Loans or
Commitments held by an Affiliate of the Borrower at such time.


 


“Requirement of Law”: shall mean, as to any
Person, the certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of its
property or to which such Person or any of its property is subject.


 


“Responsible Officer”: shall mean the chief
executive officer, president, vice president, chief financial officer,
treasurer or the chief accounting officer of the Borrower.


 


“Restricted Payments”: shall have the meaning
set forth in Section 7.6.


 


“Revolving Commitment”: shall mean, as to any
Lender, the obligation of such Lender, if any, to make Revolving Loans and
participate in Swingline Loans and Letters of Credit (in each case, whether or
not such Loans or Letters of Credit are actually made, issued or drawn) in an
aggregate principal and/or face amount not to exceed the amount set forth under
the heading “Revolving Commitment” opposite such Lender’s name on Schedule
1.1A or in the Assignment and Assumption pursuant to which such Lender
became a party hereto, as the same may be changed from time to time pursuant to
the terms hereof. The original amount of the Total Revolving Commitments is
$60,000,000.


 


“Revolving Commitment Increase”: shall have
the meaning set forth in Section 2.23.


 


“Revolving Commitment Period”: shall mean the
period from and including the Closing Date to the Revolving Termination Date.


 


“Revolving Extensions of Credit”: shall mean,
as to any Revolving Lender at any time, an amount equal to the sum without
duplication of (a) the aggregate principal amount of all Revolving Loans
held by such Lender then outstanding, (b) such Lender’s Revolving
Percentage of the L/C Exposure at such time and (c) such Lender’s Revolving
Percentage of the aggregate principal amount of Swingline Loans then
outstanding.


 


30

















 


“Revolving Facility”: shall have the meaning
set forth in the definition of “Facility”.


 


“Revolving Lender”: shall mean each Lender
that has a Revolving Commitment or that holds Revolving Extensions of Credit.


 


“Revolving Loans”: shall have the meaning set
forth in Section 2.4(a).


 


“Revolving Note”: shall mean a promissory
note made by the Borrower in favor of a Lender evidencing the Revolving Loans
made by such Lender, substantially in the form of Exhibit E-1, and
any amendments, supplements and modifications thereto, any substitutes
therefor, and any replacements, restatements, renewals or extension thereof, in
whole or in part.


 


“Revolving Percentage”: shall mean, as to any
Revolving Lender at any time, the percentage which such Lender’s Revolving
Commitment then constitutes of the Total Revolving Commitments or, at any time
after the Revolving Commitments shall have expired or terminated, the
percentage which the aggregate principal amount of such Lender’s Revolving
Loans then outstanding constitutes of the aggregate principal amount of the
Revolving Loans then outstanding, provided
that, in the event that the Revolving Loans are paid in full prior to the
reduction to zero of the Total Revolving Extensions of Credit, the Revolving
Percentages shall be determined in a manner designed to ensure that the other
outstanding Revolving Extensions of Credit shall be held by the Revolving
Lenders on a comparable basis.


 


“Revolving Termination Date”: shall mean the
fifth anniversary of the Closing Date, or, if such date is not a Business Day,
the next preceding Business Day.


 


“Rollover Loans”: shall mean the loans into
which the Senior Subordinated Loans are convertible into on the first
anniversary of the Closing Date under the Senior Subordinated Loan Agreement.


 


“S&P”: shall have the meaning set forth
in the definition of “Cash Equivalents”.


 


“Sale Leaseback Transaction”: shall have the
meaning set forth in Section 7.11.


 


“SEC”: shall mean the Securities and Exchange
Commission, any successor thereto and any analogous Governmental Authority.


 


“Secured Parties”: shall mean, collectively,
the Administrative Agent, the Collateral Agent, each other Agent, the Lenders,
each Qualified Counterparty to a Swap Agreement and each Cash Management Bank
with respect to Cash Management Agreements.


 


“Security Documents”: shall mean the
collective reference to the Guaranty and Collateral Agreement, the Mortgages
and all other security documents hereafter delivered to the Administrative
Agent granting a Lien on any property of any Loan Party to secure the
obligations and liabilities of any Loan Party under any Loan Document.


 


“Senior Subordinated Documents”: shall mean
the “Loan Documents” as defined in the Senior Subordinated Loan Agreement and
the “Exchange Note Indenture” referred to therein.


 


“Senior Subordinated Loans”: shall mean
$175,000,000 in aggregate principal amount of senior subordinated loans
extended to the Borrower on the Closing Date pursuant to the Senior
Subordinated Loan Agreement.


 


31

















 


“Senior Subordinated Loan Agreement”: shall
mean the senior subordinated loan agreement dated the Closing Date by and among
the Borrower, Wachovia and the other parties thereto, as amended or modified to
the extent permitted hereby.


 


“Shareholders Agreement” means that certain
Securityholders Agreement, dated as of the Closing Date by and among Radiation
Therapy Investments, LLC and the securityholders party thereto.


 


“Sold Entity or Business”: shall have the
meaning set forth in the definition of the term “Consolidated EBITDA”.


 


“Sole Bookrunner”: shall mean Wachovia
Capital Markets, LLC.


 


“Solvent”: shall mean, with respect to any
Person, that, as of any date of determination, (a) the present fair
salable value taken on a going concern basis of the assets of such Person will,
as of such date, be greater than the amount that will be required to pay the
probable liability of such Person on its debts as such debts become absolute
and matured in the ordinary course of business, (b) such Person will not
have, as of such date, an unreasonably small amount of capital with which to
conduct its business, and (c) such Person will generally be able to pay
its debts as they mature in the ordinary course of business. The amount of
contingent liabilities at any time shall be computed as the amount that can
reasonably be expected to become an actual or matured liability. For purposes
of this definition, (i) “debt” means liability on a “claim,” and (ii) “claim”
means any (x) right to payment, whether or not such a right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, legal, equitable, secured or unsecured or (y) right
to an equitable remedy for breach of performance if such breach gives rise to a
right to payment, whether or not such right to an equitable remedy is reduced
to judgment, fixed, contingent, matured or unmatured, disputed, undisputed,
secured or unsecured.


 


“Specified Change of Control”: shall mean a “Change
of Control” (or any other defined term having a similar purpose) as defined in
the documents governing any of the Senior Subordinated Loans, Rollover Loans,
Exchange Notes, Take Out Debt, Permitted Additional Subordinated Debt and any
Permitted Refinancing Indebtedness in respect of any of the foregoing.


 


“Sponsor”: shall mean each of Vestar Capital
Partners and each of its Affiliates but not including, however, any portfolio
operating companies of any of the foregoing.


 


“Subsidiary”: shall mean, with respect to any
Person, any corporation, partnership, limited liability company or other entity
of which more than 50% of the voting power of shares of stock or other
ownership interests entitled to vote in the election of the Person or Persons
(whether directors, managers, trustees or other Persons performing similar
functions) having the power to direct or cause the direction of the management
and policies 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; provided,
in determining the percentage of ownership interests of any Person controlled
by another Person, no ownership interest in the nature of nominal “qualifying
shares” of the former Person shall be deemed to be outstanding. Notwithstanding
the foregoing, an Unrestricted Subsidiary shall be deemed not to be a
Subsidiary of the Parent, the Borrower or any of their Subsidiaries for all
purposes of this Agreement and the other Loan Documents. For all purposes under
the Loan Documents, unless otherwise qualified or designated, all references to
a “Subsidiary” or to “Subsidiaries” in the Loan Documents shall refer to a
Subsidiary or Subsidiaries of the Borrower, and all references to a “Domestic
Subsidiary” or “Domestic Subsidiaries” or a “Foreign Subsidiary” or “Foreign
Subsidiaries” shall be to a Domestic Subsidiary, Domestic Subsidiaries, a
Foreign Subsidiary or Foreign Subsidiaries of the Borrower.


 


32

















 


“Subsidiary Guarantor”: shall mean each
direct or indirect Subsidiary of the Borrower other than any (a) Foreign
Subsidiary or any Domestic Subsidiary of a Foreign Subsidiary, (b) Non-Wholly-Owned
Subsidiary, to the extent such Non-Wholly-Owned Subsidiary is precluded from
becoming a Subsidiary Guarantor (or, to so become, would require the consent of
a third party that is a holder of Capital Stock of such Subsidiary) by the
terms of such Non-Wholly-Owned Subsidiary’s organizational or related
documents, (c) Subsidiary that is a Non-Profit Entity, (d) Insurance
Subsidiary, (e) Subsidiary that is a Regulated Entity, (f) Immaterial
Subsidiary, (g) Broker Dealer Subsidiary, (h) any Subsidiary that is
prohibited by applicable law from becoming a Subsidiary Guarantor, (i) any
Subsidiary to the extent the burden or cost of such Subsidiary becoming a
Subsidiary Guarantor outweighs the benefit afforded thereby as determined by
the Administrative Agent and the Borrower or (j) for the avoidance of
doubt, an Unrestricted Subsidiary.


 


“Survey”: shall mean a survey of any
Mortgaged Property (and all improvements thereon) which is (a) (i) prepared
by a surveyor or engineer licensed to perform surveys in the jurisdiction where
such Mortgaged Property is located, (ii) dated (or redated) not earlier
than six months prior to the date of delivery thereof unless there shall have
occurred within six months prior to such date of delivery any material exterior
construction on the site of such Mortgaged Property or any easement, right of
way or other interest in the Mortgaged Property has been granted or become
effective through operation of law or otherwise with respect to such Mortgaged
Property which, in either case, can be depicted on a survey, in which events,
as applicable, such survey shall be dated (or redated) after the completion of
such construction or if such construction shall not have been completed as of
such date of delivery, not earlier than 20 days prior to such date of delivery,
or after the grant or effectiveness of any such easement, right of way or other
interest in the Mortgaged Property, (iii) certified by the surveyor (in a
manner reasonably acceptable to the Administrative Agent) to the Administrative
Agent and the Title Company, (iv) complying in all material respects with
the minimum detail requirements of the American Land Title Association as such
requirements are in effect on the date of preparation of such survey and (v) sufficient
for the Title Company to remove all standard survey exceptions from the title
insurance policy (or commitment) relating to such Mortgaged Property and issue
the endorsements of the type required by Section 6.15(iii) or (b) otherwise
reasonably acceptable to the Administrative Agent.


 


“Swap Agreement”: shall mean any agreement
with respect to any swap, forward, future or derivative transaction or option
or similar agreement involving, or settled by reference to, one or more rates,
currencies, commodities, equity or debt instruments or securities, or economic,
financial or pricing indices or measures of economic, financial or pricing risk
or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar
plan providing for payments only on account of services provided by current or
former directors, officers, employees or consultants of the Borrower or any of
its Subsidiaries shall be a “Swap Agreement.”


 


“Swingline Commitment”: shall mean the
obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.6
in an aggregate principal amount at any one time outstanding not to exceed
$10,000,000.


 


“Swingline Lender”: shall mean Wachovia, in
its capacity as the lender of Swingline Loans.


 


“Swingline Loans”: shall have the meaning set
forth in Section 2.6.


 


“Swingline Note”: shall mean a promissory
note made by the Borrower in favor of the Swingline Lender evidencing the
Swingline Loans made by the Swingline Lender, substantially in the form of Exhibit E-2,
and any amendments, supplements and modifications thereto, any substitutes
therefor, and any replacements, restatements, renewals or extension thereof, in
whole or in part.


 


33

















 


“Swingline Participation Amount”: shall have
the meaning set forth in Section 2.7.


 


“Take Out Debt” means any Indebtedness issued
or incurred to refinance all or any portion of the Indebtedness outstanding
under the Senior Subordinated Loans, the Rollover Loans or the Exchange Notes.


 


“Taxes”: shall mean any present or future
income, stamp or other taxes, levies, imposts, duties, charges, fees,
deductions or withholdings (including additions to tax, penalties and
interest), now or hereafter imposed, levied, collected, withheld or assessed by
any Governmental Authority.


 


“Third Party Payor Programs”: shall mean all
third party payor programs in which the Borrower and its Subsidiaries currently
or in the future may participate, including, without limitation, Medicare,
Medicaid, Blue Cross and/or Blue Shield, Managed Care Plans, other private
insurance programs and employee assistance programs.


 


“Title Company”: shall mean any title
insurance company as shall be retained by Borrower and reasonably acceptable to
the Administrative Agent.


 


“Title Policy”: shall have the meaning
assigned to such term in Section 6.15(iii).


 


“Total Leverage Ratio”: shall mean, as at the
last day of any fiscal quarter, the ratio of (a) Consolidated Total Debt of
the Borrower and its Subsidiaries on such day to (b) Consolidated EBITDA
for the four consecutive fiscal quarters of the Borrower and its Subsidiaries
ending on such day.


 


“Total Revolving Commitments”: shall mean, at
any time, the aggregate amount of the Revolving Commitments then in effect.


 


“Total Revolving Extensions of Credit”: shall
mean, at any time, the aggregate amount of the Revolving Extensions of Credit
of the Revolving Lenders outstanding at such time.


 


“Tranche B Maturity Date”: shall mean the
sixth anniversary of the Closing Date, or, if such date is not a Business Day,
the next preceding Business Day.


 


“Tranche B Term Commitment”: shall mean the
collective reference to the Initial Tranche B Term Commitments and the Delayed
Draw Tranche B Term Commitments.


 


“Tranche B Term Facility”: shall have the
meaning set forth in the definition of “Facility.”


 


“Tranche B Term Lender”: shall mean the
collective reference to the Initial Tranche B Term Lenders and the Delayed Draw
Tranche B Term Lenders.


 


“Tranche B Term Loan”: shall mean the
collective reference to the Initial Tranche B Term Loans and the Delayed Draw
Tranche B Term Loans.


 


“Tranche B Term Note”: shall mean a
promissory note made by the Borrower in favor of a Lender evidencing the
portion of the Tranche B Term Loan made by such Lender, substantially in the
form of Exhibit E-3, and any amendments, supplements and
modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extension thereof, in whole or in part.


 


34














 


“Transaction Agreement”: shall mean the
Agreement and Plan of Merger dated as of October 19, 2007, by and among
the Parent, the Borrower, MergerSub and Holdings as amended, restated,
supplemented and/or modified from time to time in accordance with the terms
hereof and thereof.


 


“Transaction Bonuses”: shall mean any bonuses
payable to any officer or employee, physician or employee of such physician, in
each case affiliated with the Borrower or any of its Subsidiaries (including
any Person who becomes an officer or employee, physician or employee of such
physician, in each case affiliated with of the Borrower or any Subsidiary in
connection with an Investment pursuant to Section 7.8(g), (r),
(s), (u), (w), (x) or (y)) in an
aggregate amount not exceeding $3,000,000.


 


“Transactions”: shall mean the Merger, the
payment of the Merger Consideration and the Closing Costs, the Debt Discharge,
the Financing Transactions and the other transactions contemplated by the
Transaction Agreement.


 


“Type”: shall mean, as to any Loan, its
nature as an ABR Loan or a Eurodollar Loan. 


 


“United States”: shall mean the United States
of America.


 


“United States Tax Compliance Certificate”:
shall have the meaning set forth in Section 2.19(e)(iii).


 


“Unrestricted Subsidiary”: shall mean (i) each
Insurance Subsidiary of the Borrower listed on Schedule 1.1C and (ii) any
Insurance Subsidiary of the Borrower designated by the Board of Directors of
the Borrower as an Unrestricted Subsidiary pursuant to Section 6.14
subsequent to the Closing Date. An Unrestricted Subsidiary, for as long as such
Subsidiary remains an Unrestricted Subsidiary, shall be deemed to not be a
Subsidiary or Borrower for all purposes under the Loan Documents.


 


“Wachovia”: shall have the meaning set forth
in the preamble.


 


“Wholly-Owned Subsidiary”: shall mean, as to
any Person, any other Person all of the Capital Stock of which (other than
directors’ qualifying shares required by law) is owned by such Person directly
and/or through other Wholly-Owned Subsidiaries.


 


“Yield Differential”:
shall have the meaning set forth in Section 2.23.


 


1.2.        Other Definitional Provisions.


 


(a)           Unless
otherwise specified therein, all terms defined in this Agreement shall have the
defined meanings when used in the other Loan Documents or any certificate or
other document made or delivered pursuant hereto or thereto.


 


(b)           As
used herein and in the other Loan Documents, and any certificate or other
document made or delivered pursuant hereto or thereto, (i) accounting
terms relating to any Group Member not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not
defined, shall have the respective meanings given to them under GAAP, (ii) the
words “include,” “includes” and “including” shall be deemed to be followed by
the phrase “without limitation,” (iii) the word “incur” shall be construed
to mean incur, create, issue, assume, become liable in respect of or suffer to
exist (and the words “incurred” and “incurrence” shall have correlative
meanings), (iv) the words “asset” and “property” shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, Capital Stock, securities,
revenues, accounts, leasehold interests and contract rights, (v) references
to agreements or other Contractual Obligations shall, unless otherwise


 


35

















 


specified, be deemed to refer to such agreements or Contractual
Obligations as amended, supplemented, restated or otherwise modified from time
to time and (vi) the word “knowledge” when used with respect to Borrower
or any of its Subsidiaries shall be deemed to be a reference to the knowledge
of any Responsible Officer.


 


(c)           The
words “hereof,” “herein” and “hereunder” and words of similar import, when used
in this Agreement, shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Section, Schedule and Exhibit references
are to this Agreement unless otherwise specified.


 


(d)           The
meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.


 


1.3.          UCC
Terms. Terms defined in the UCC in effect on the Closing Date and not otherwise
defined herein shall, unless the context otherwise indicates, have the meanings
provided by those definitions. Subject to the foregoing, the term “UCC”
refers, as of any date of determination, to the UCC then in effect.


 


1.4.          Rounding.
Any financial ratios required to be maintained by the Borrower pursuant to this
Agreement shall be calculated by dividing the appropriate component by the
other component, carrying the result to one place more than the number of
places by which such ratio is expressed herein and rounding the result up or
down to the nearest number (with a rounding-up if there is no nearest number).


 


1.5.          References
to Agreement and Laws. Unless otherwise expressly provided herein, references
to formation documents, governing documents, agreements (including the Loan
Documents) and other contractual instruments shall be deemed to include all
subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not
prohibited by any Loan Document.


 


1.6.          Times
of Day. Unless otherwise specified, all references herein to times of day shall
be references to Eastern time (daylight or standard, as applicable).


 


1.7.          Timing
of Payment or Performance. Unless otherwise specified, when the payment of
any obligation or the performance of any covenant, duty or obligation is stated
to be due or performance required on a day which is not a Business Day, the
date of such payment or performance shall extend to the immediately succeeding
Business Day.


 


SECTION 2


 


AMOUNT AND TERMS OF
COMMITMENTS


 


2.1.          Tranche
B Term Commitments.


 


(a)           Subject
to the terms and conditions hereof, each Initial Tranche B Term Lender with an
Initial Tranche B Term Commitment severally agrees to make the Initial Tranche
B Term Loan to the Borrower on the Closing Date ratably according to its
Initial Tranche B Term Commitment.


 


(b)           Subject
to the terms and conditions hereof, each Delayed Draw Tranche B Term Lender
with a Delayed Draw Tranche B Term Commitment severally agrees to make Delayed
Draw Tranche B Term Loans to the Borrower from time to time during the Delayed
Draw Availability Period in


 


36

















 


an aggregate principal amount not to exceed the pro rata portion of
such Lender’s Delayed Draw Tranche B Term Commitment at such time; provided that any such Loan shall be in a
minimum amount of $10,000,000 before taking into account that the Tranche B
Term Loans shall be made at the Relevant Percentage of principal amount thereof
in accordance with Section 2.2.


 


(c)           Tranche
B Term Loans may from time to time be Eurodollar Loans or ABR Loans, as
determined by the Borrower and notified to the Administrative Agent in
accordance with Sections 2.2 and 2.12.


 


2.2.          Procedure
for Tranche B Term Loan Borrowings. The Borrower shall give the Administrative
Agent irrevocable Borrowing Notice (which notice must be received by the
Administrative Agent prior to (x) a time reasonably acceptable to the
Administrative Agent one Business Day prior to the anticipated Borrowing Date
or (y) in the case of Tranche B Term Loans to be made as Eurodollar Loans,
4 P.M. three Business Days prior to the Borrowing Date) requesting that
the Tranche B Term Lenders make the Tranche B Term Loans to be made on the
Borrowing Date; provided, however, that the Initial Tranche B Term
Loans made on the Closing Date may only consist of ABR Loans unless the
Borrower delivers a funding indemnity letter, substantially in the form of Exhibit I,
reasonably acceptable to the Administrative Agent not less than three (3) Business
Days prior to the Closing Date. Upon receipt of any Borrowing Notice the
Administrative Agent shall promptly notify each applicable Lender thereof. Not
later than 12:00 Noon, on the Borrowing Date, each Tranche B Term Lender shall
make available to the Administrative Agent at the Funding Office an amount in
immediately available funds equal to its new term loan being made as a Tranche
B Term Loan on the Borrowing Date. The Administrative Agent shall credit the
account of the Borrower on the books of such office of the Administrative Agent
with the aggregate of the amounts of Tranche B Term Loans made available on the
Borrowing Date to the Administrative Agent by the Tranche B Term Lenders in
immediately available funds.


 


It is understood and agreed that, notwithstanding
any other provision of the Loan Documents, all Tranche B Term Loans (whether
made on the Closing Date or thereafter) shall be made at 99% (the “Relevant
Percentage”) of the principal amount thereof but for all other purposes of
the Loan Documents (other than to the extent set forth in the definitions of
Consolidated Total Debt and Consolidated Interest Expense) the principal amount
thereof shall be 100% of such principal amount), and the making such Tranche B
Term Loans at the Relevant Percentage of principal amount shall satisfy the
Tranche B Term Loan Commitments relating thereto in full. The difference
between (x) the principal amount of the Tranche B Term Loans upon the
funding thereof and (y) the principal amount of the Tranche B Term Loans
upon the funding thereof times the Relevant Percentage is referred to as the “Discount
Amount”.


 


2.3.          Repayment
of Tranche B Term Loans. The Borrower shall repay the Tranche B Term Loans
in installments on the last Business Day of each March, June, September and
December of each year, commencing with the last Business Day of June,
2008, and ending with the Tranche B Maturity Date, in an aggregate principal
amount equal to (i) in the case of each such installment due prior to the
Tranche B Maturity Date, 0.25% of the aggregate principal amount of Initial
Tranche B Term Loans, plus commencing with the first full fiscal quarter
after any borrowing of Delayed Draw Tranche B Term Loans, 0.25% of the
aggregate principal amount of Delayed Draw Tranche B Term Loans and (ii) in
the case of the installment due on the Tranche B Maturity Date, the entire
remaining balance of the Tranche B Term Loans; provided
that any such installment may be reduced as a result of a prepayment in
accordance with Section 2.17(b).


 


2.4.          Revolving
Commitments.


 


(a)           Subject
to the terms and conditions hereof, each Revolving Lender severally agrees to
make revolving credit loans (“Revolving Loans”) to the Borrower from
time to time during the


 


37

















 


Revolving Commitment Period in an aggregate principal amount at any one
time outstanding which, when added to such Lender’s Revolving Percentage of the
sum of (i) the L/C Exposure at such time and, (ii) the aggregate
principal amount of the Swingline Loans then outstanding, does not exceed the
amount of such Lender’s Revolving Commitment. During the Revolving Commitment
Period the Borrower may use the Revolving Commitments by borrowing, prepaying
the Revolving Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof. The Revolving Loans may from time to time
be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to
the Administrative Agent in accordance with Sections 2.5 and 2.12.


 


(b)           The
Borrower shall repay all outstanding Revolving Loans on the Revolving Termination
Date.


 


2.5.          Procedure
for Revolving Loan Borrowing. The Borrower may borrow under the Revolving Commitments
during the Revolving Commitment Period on any Business Day, provided that the Borrower shall give the
Administrative Agent an irrevocable Borrowing Notice (which notice must be
received by the Administrative Agent prior to 12:00 Noon, (a) three
Business Days prior to the requested Borrowing Date, in the case of Eurodollar
Loans, or (b) on the Business Day of the requested Borrowing Date, in the
case of ABR Loans), specifying (i) the amount and Type of Revolving Loans
to be borrowed, (ii) the requested Borrowing Date and (iii) in the
case of Eurodollar Loans, the respective amounts of each such Type of Loan and
the respective lengths of the initial Interest Period therefor. No Revolving
Loans will be made on the Closing Date in excess of $12,500,000, unless
otherwise agreed by the Sole Book-runner. Each borrowing under the Revolving
Commitments shall be in an amount equal to (x) in the case of ABR Loans,
$500,000 or a whole multiple of $100,000 over such amount (or, if the then
aggregate Available Revolving Commitments are less than $500,000, such lesser
amount) and (y) in the case of Eurodollar Loans, $1,000,000 or a whole
multiple of $100,000 in excess thereof; provided
that the Swingline Lender may request, on behalf of the Borrower, borrowings under
the Revolving Commitments that are ABR Loans in other amounts pursuant to Section 2.7.
Upon receipt of any such notice from the Borrower, the Administrative Agent
shall promptly notify each Revolving Lender thereof. Each Revolving Lender will
make the amount of its pro rata share of each borrowing available to the
Administrative Agent for the account of the Borrower at the Funding Office
prior to 2:00 P.M. on the Borrowing Date requested by the Borrower in
funds immediately available to the Administrative Agent. Such borrowing will
then be made available to the Borrower by the Administrative Agent crediting
the account of the Borrower on the books of such office with the aggregate of
the amounts made available to the Administrative Agent by the Revolving Lenders
and in like funds as received by the Administrative Agent.


 


2.6.          Swingline
Commitment.


 


(a)           Subject
to the terms and conditions hereof, the Swingline Lender agrees to make a
portion of the credit otherwise available to the Borrower under the Revolving
Commitments from time to time during the Revolving Commitment Period by making
swing line loans (“Swingline Loans”) to the Borrower; provided that (i) the aggregate
principal amount of Swingline Loans outstanding at any time shall not exceed
the Swingline Commitment then in effect (notwithstanding that the Swingline
Loans outstanding at any time, when aggregated with the Swingline Lender’s
other outstanding Revolving Loans, may exceed the Swingline Commitment then in
effect) and (ii) the Borrower shall not request, and the Swingline Lender
shall not make, any Swingline Loan if, after giving effect to the making of
such Swingline Loan, the aggregate amount of the Available Revolving
Commitments would be less than zero. During the Revolving Commitment Period,
the Borrower may use the Swingline Commitment by borrowing, repaying and
reborrowing, all in accordance with the terms and conditions hereof. Swingline
Loans shall be ABR Loans only.


 


38

















 


(b)           The
Borrower shall repay to the Swingline Lender the then unpaid principal amount
of each Swingline Loan on the Revolving Termination Date; provided that on each date that a
Revolving Loan is borrowed, the Borrower shall repay all Swingline Loans then
outstanding.


 


2.7.          Procedure
for Swingline Borrowing; Refunding of Swingline Loans.


 


(a)           Whenever
the Borrower desires that the Swingline Lender make Swingline Loans it shall
give the Swingline Lender irrevocable telephonic notice confirmed promptly in
writing (which telephonic notice must be received by the Swingline Lender not
later than 2:00 P.M., on the proposed Borrowing Date), specifying (i) the
amount to be borrowed and (ii) the requested Borrowing Date (which shall
be a Business Day during the Revolving Commitment Period). Each borrowing under
the Swingline Commitment shall be in an amount equal to $100,000 or a whole
multiple of $100,000 in excess thereof. Not later than 3:00 P.M., on the
Borrowing Date specified in a notice in respect of Swingline Loans, the Swingline
Lender shall make available to the Administrative Agent at the Funding Office
an amount in immediately available funds equal to the amount of the Swingline
Loan to be made by the Swingline Lender. The Administrative Agent shall make
the proceeds of such Swingline Loan available to the Borrower on such Borrowing
Date by depositing such proceeds in the account of the Borrower with the
Administrative Agent on such Borrowing Date in immediately available funds.


 


(b)           The
Swingline Lender, at any time and from time to time in its sole and absolute
discretion may, on behalf of the Borrower (which hereby irrevocably directs the
Swingline Lender to act on its behalf), by delivery of a Borrowing Notice given
no later than 10:00 A.M., on any Business Day request each Revolving
Lender to make, and each Revolving Lender hereby agrees to make, a Revolving
Loan, in an amount equal to such Revolving Lender’s Revolving Percentage of the
aggregate amount of the Swingline Loans (the “Refunded Swingline Loans”)
outstanding on the date of such notice, to repay the Swingline Lender. Each
Revolving Lender shall make the amount of such Revolving Loan available to the
Administrative Agent at the Funding Office in immediately available funds, upon
receipt of notice as provided above. The proceeds of such Revolving Loans shall
be immediately made available by the Administrative Agent to the Swingline
Lender for application by the Swingline Lender to the repayment of the Refunded
Swingline Loans. The Borrower irrevocably authorizes the Swingline Lender to
charge the Borrower’s accounts with the Administrative Agent (up to the amount
available in each such account) in order to immediately pay the amount of such
Refunded Swingline Loans to the extent amounts received from the Revolving
Lenders are not sufficient to repay in full such Refunded Swingline Loans.


 


(c)           If
prior to the time a Revolving Loan would have otherwise been made pursuant to Section 2.7(b),
one of the events described in Section 8(f) shall have
occurred and be continuing with respect to the Borrower or if for any other
reason, as determined by the Swingline Lender in its sole discretion, Revolving
Loans may not be made as contemplated by Section 2.7(b), each
Revolving Lender shall, on the date such Revolving Loan was to have been made
pursuant to the notice referred to in Section 2.7(b), purchase for
cash an undivided participating interest in the then outstanding Swingline
Loans by paying to the Swingline Lender an amount (the “Swingline
Participation Amount”) equal to (i) such Revolving Lender’s Revolving
Percentage times (ii) the sum of the aggregate principal amount of
Swingline Loans then outstanding that were to have been repaid with such
Revolving Loans.


 


(d)           Whenever,
at any time after the Swingline Lender has received from any Revolving Lender
such Lender’s Swingline Participation Amount, the Swingline Lender receives any
payment on account of the Swingline Loans, the Swingline Lender will distribute
to such Lender its Swingline Participation Amount (appropriately adjusted, in
the case of interest payments, to reflect the period of time during which such
Lender’s participating interest was outstanding and funded and, in the case of
principal and interest payments, to reflect such Lender’s pro  rata
portion of such payment if such payment is not


 


39

















 


sufficient to pay the principal of and interest on all Swingline Loans
then due); provided, however, that in the event that such
payment received by the Swingline Lender is required to be returned, such
Revolving Lender will return to the Swingline Lender any portion thereof
previously distributed to it by the Swingline Lender.


 


(e)           Each
Revolving Lender’s obligation to make the Loans referred to in Section 2.7(b) and
to purchase participating interests pursuant to Section 2.7(c) shall
be absolute and unconditional and shall not be affected by any circumstance,
including (i) any setoff, counterclaim, recoupment, defense or other right
that such Revolving Lender or the Borrower may have against the Swingline
Lender, the Borrower or any other Person for any reason whatsoever, (ii) the
occurrence or continuance of a Default or an Event of Default or the failure to
satisfy any of the other conditions specified in Section 5, (iii) any
adverse change in the condition (financial or otherwise) of the Borrower, (iv) any
breach of this Agreement or any other Loan Document by the Borrower, any other
Loan Party or any other Revolving Lender or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing; provided that a Revolving Lender shall not
be required to make a Loan referred to in Section 2.7(b) or to
purchase a participation in a Swingline Loan pursuant to Section 2.7(c) if
(x) an Event of Default shall have occurred and was continuing at the time
such Swingline Loan was made and (y) such Revolving Lender shall have
notified the Swingline Lender in writing, not less than one Business Day before
such Swingline Loan was made, that such Event of Default has occurred and that
such Revolving Lender will not refund or participate in any Swingline Loans
made while such Event of Default exists.


 


2.8.          Commitment
Fees, Etc.


 


(a)           The
Borrower agrees to pay to the Administrative Agent for the account of each
Revolving Lender (other than a Defaulting Lender) a commitment fee for the
period from and including the Closing Date to but excluding the last day of the
Revolving Commitment Period, computed at the Commitment Fee Rate on the average
daily amount of the Available Revolving Commitment of such Lender; provided, however,
solely for purposes of this calculation, an amount equal to such Lender’s
Revolving Percentage of the Swingline Loans then outstanding shall not be
deemed to reduce such Lender’s Available Revolving Commitment during the period
for which payment is made, payable quarterly in arrears on each Fee Payment
Date, commencing on the first such date to occur after the Closing Date.


 


(b)           The
Borrower agrees to pay to the Administrative Agent for the account of each
Tranche B Term Lender (other than a Defaulting Lender) a commitment fee for the
period from and including the Closing Date to and including the last day of the
Delayed Draw Availability Period, computed at the Delayed Draw Commitment Fee
Rate on the average daily amount of the Available Delayed Draw Commitment of
such Tranche B Term Lender, payable quarterly in arrears on each Fee Payment
Date, commencing on the first such date to occur after the Closing Date.


 


(c)           The
Borrower agrees to pay to the Administrative Agent the fees in the amounts and
on the dates as set forth in the Fee Letter and to perform any other
obligations contained therein.


 


2.9.          Termination
or Reduction of Commitments.


 


(a)           The
Borrower shall have the right, upon not less than three Business Days’ notice to
the Administrative Agent, to terminate the Revolving Commitments or, from time
to time, to reduce the amount of the Revolving Commitments; provided that no such termination or
reduction of Revolving Commitments shall be permitted if, after giving effect
thereto and to any prepayments of the Revolving Loans and Swingline Loans made
on the effective date thereof, the Total Revolving Extensions of Credit would
exceed the Total Revolving Commitments; provided
further that a notice of termination of the Commitments delivered by
the Borrower may state that such notice is conditioned upon the effectiveness


 


40

















 


of other credit facilities or other debt instruments, in which case
such notice may be revoked by the Borrower (by written notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any such reduction shall be in an amount equal to
$1,000,000, or a whole multiple thereof, and shall reduce permanently the
Revolving Commitments.


 


(b)           The
Initial Tranche B Term Commitments shall terminate upon funding thereof on the
Closing Date. The Delayed Draw Tranche B Term Commitments shall terminate on
the last day of the Delayed Draw Availability Period. Unless previously
terminated, the Revolving Commitments shall terminate on the Revolving
Termination Date.


 


(c)           The
Borrower shall have the right, upon not less than three Business Days’ notice
to the Administrative Agent, to terminate the Delayed Draw Tranche B Term
Commitment.


 


2.10.        Optional
Prepayments. The Borrower may at any time and from time to time prepay the
Loans, in whole or in part, without premium or penalty, upon irrevocable
(unless otherwise agreed by the Administrative Agent) notice delivered to the
Administrative Agent no later than 12:00 Noon, three Business Days prior
thereto, in the case of Eurodollar Loans, and no later than 12:00 Noon, one
Business Day prior thereto, in the case of ABR Loans (or on the same day in the
case of Swingline Loans), which notice shall specify the date and amount of
prepayment and whether the prepayment is of Eurodollar Loans or ABR Loans; provided that if a Eurodollar Loan is
prepaid on any day other than the last day of the Interest Period applicable
thereto, the Borrower shall also pay any amounts owing pursuant to Section 2.20.
Upon receipt of any such notice the Administrative Agent shall promptly notify
each relevant Lender thereof. If any such notice is given, the amount specified
in such notice shall be due and payable on the date specified therein, together
with accrued interest to such date on the amount prepaid. Partial prepayments
of Tranche B Term Loans and Revolving Loans shall be in an aggregate principal
amount of $500,000 or a whole multiple thereof (unless a lesser amount is
required to repay such loan in full); provided
further that a notice of termination of the Commitments delivered by
the Borrower may state that such notice is conditioned upon the effectiveness of
other credit facilities or other debt instruments, in which case such notice
may be revoked by the Borrower (by written notice to the Administrative Agent
on or prior to the specified effective date) if such condition is not
satisfied. Partial prepayments of Swingline Loans shall be in an aggregate
principal amount of $100,000 or a whole multiple thereof.


 


2.11.        Mandatory
Prepayments.


 


(a)           If
Indebtedness shall be issued or incurred by any Group Member (excluding any
Indebtedness incurred in accordance with Section 7.2 (other than
Permitted Additional Subordinated Debt, to the extent that (x) the Net
Cash Proceeds of such Permitted Additional Subordinated Debt are not used to
fund (substantially simultaneously with the incurrence thereof) one or more
Permitted Acquisitions or Investments under Section 7.8(u) or (w) and/or
the fees and expenses payable in connection therewith or (y) such
Permitted Additional Subordinated Debt does not represent Permitted Refinancing
Indebtedness in respect of Indebtedness previously incurred pursuant to Section 7.2(m))
an amount equal to 100% of the Net Cash Proceeds thereof shall be applied not
later than five Business Days after the date such Group Member receives such
Net Cash Proceeds toward the prepayment of the Tranche B Term Loans as set
forth in Section 2.11(e).


 


(b)           If
Capital Stock shall be issued by any Group Member in a publicly registered
offering, an amount equal to 50% of the Net Cash Proceeds thereof (less any
amounts of such Net Cash Proceeds required to prepay Senior Subordinated Loans
under the documentation governing such Senior Subordinated Loans) shall be
applied no later than five Business Days after the date such Group Member
receives


 


41

















 


such Net Cash Proceeds toward the prepayment of the Tranche B Term
Loans as set forth in Section 2.11(e).


 


(c)           If
on any date any Group Member shall receive Net Cash Proceeds from any Asset
Sale or Recovery Event, then, unless a Reinvestment Notice shall be delivered
in respect thereof, such Net Cash Proceeds shall be applied no later than five
Business Days (or, in the case of Net Cash Proceeds from a Recovery Event, 15
Business Days) after the date of receipt thereof toward the prepayment of the
Tranche B Term Loans as set forth in Section 2.11(e); provided that, notwithstanding the
foregoing, on each Reinvestment Prepayment Date, an amount equal to the
Reinvestment Prepayment Amount with respect to the relevant Reinvestment Event
shall be applied toward the prepayment of the Tranche B Term Loans as set forth
in Section 2.11(e).


 


(d)           If,
for any Excess Cash Flow Period, there shall be Excess Cash Flow, the Borrower
shall, on the relevant Excess Cash Flow Application Date, apply an amount equal
to (i) the ECF Percentage of such Excess Cash Flow less (ii) the sum
of (x) the aggregate principal amount of all prepayments of Revolving
Loans and Swingline Loans made during such Excess Cash Flow Period (to the
extent such prepayments were accompanied with corresponding optional reductions
of the Revolving Commitments) and (y) the aggregate principal amount of
all optional prepayments of Tranche B Term Loans made during such Excess Cash
Flow Period, toward the prepayment of the Tranche B Term Loans as set forth in Section 2.11(e),
in each case, other than prepayments funded with the proceeds of Indebtedness
(other than Revolving Loans or Swingline Loans). Each such prepayment shall be
made on a date (an “Excess Cash Flow Application Date”) no later than
five Business Days after the date on which the financial statements of the
Borrower referred to in Section 6.1(a) for the Excess Cash
Flow Period with respect to which such prepayment is made (or, in the case of
the Excess Cash Flow Period ending December 31, 2008, the financial
statements for the year ended December 31, 2008), are required to be
delivered to the Lenders.


 


(e)           The
application of any prepayment of Tranche B Term Loans pursuant to this Section 2.11
shall be made, first, to ABR Loans and, second, to Eurodollar
Loans; provided that, if such
application would be inconsistent with Section 2.17(b), then Section 2.17(b) shall
govern such application. Each prepayment of Tranche B Term Loans under this Section 2.11
shall be accompanied by accrued interest to the date of such prepayment on the
amount prepaid and by any amounts payable pursuant to Section 2.20.


 


2.12.        Conversion
and Continuation Options.


 


(a)           The
Borrower may elect from time to time to convert Eurodollar Loans to ABR Loans
by giving the Administrative Agent an irrevocable Interest Election Request no
later than 12:00 Noon, on the Business Day preceding the proposed conversion
date. The Borrower may elect from time to time to convert ABR Loans to
Eurodollar Loans by giving the Administrative Agent an irrevocable Interest
Election Request no later than 12:00 Noon, on the third Business Day preceding
the proposed conversion date (which notice shall specify the length of the
initial Interest Period therefor), provided
that no ABR Loan under a particular Facility may be converted into a Eurodollar
Loan in excess of one month when any Event of Default under Section 8(a) or
(f) has occurred and is continuing and the Administrative Agent or
the Majority Facility Lenders in respect of such Facility have determined in
its or their sole discretion not to permit such conversions. Upon receipt of
any such notice the Administrative Agent shall promptly notify each relevant
Lender thereof.


 


(b)           Any
Eurodollar Loan may be continued as such upon the expiration of the then
current Interest Period with respect thereto by the Borrower giving irrevocable
notice to the Administrative Agent, in accordance with the applicable
provisions of the term “Interest Period” set forth in Section 1.1,


 


42

















 


of the length of the next Interest Period to be applicable to such
Loans, provided that no
Eurodollar Loan under a particular Facility may be continued as such at the end
of the applicable Interest Period for more than one month when any Event of
Default has occurred and is continuing and the Administrative Agent has or the
Majority Facility Lenders in respect of such Facility have determined in its or
their sole discretion not to permit such continuations, and provided further that if the Borrower
shall fail to give any required notice as described above in this paragraph
such Loans shall be automatically converted to ABR Loans on the last day of
such then expiring Interest Period. Upon receipt of any such notice the
Administrative Agent shall promptly notify each relevant Lender thereof.


 


2.13.        Limitations
on Eurodollar Tranches. Notwithstanding anything to the contrary in this
Agreement, all borrowings, conversions and continuations of Eurodollar Loans
and all selections of Interest Periods shall be in such amounts and be made
pursuant to such elections so that, (a) after giving effect thereto, the
aggregate principal amount of the Eurodollar Loans comprising each Eurodollar
Tranche shall be equal to $1,000,000 or a whole multiple of $100,000 in excess
thereof and (b) no more than ten Eurodollar Tranches shall be outstanding
at any one time.


 


2.14. Interest Rates and Payment Dates.


 


(a)           Each
Eurodollar Loan shall bear interest for each day during each Interest Period
with respect thereto at a rate per annum equal to the Eurodollar Rate
determined for such day plus the Applicable Margin.


 


(b)           Each
ABR Loan, including each Swingline Loan, shall bear interest at a rate per
annum equal to the ABR plus the Applicable Margin.


 


(c)           At
the election of the Required Lenders, upon the occurrence and during the
continuance of an Event of Default, (i) the principal amount of any Loan
or Reimbursement Obligation not paid when due (whether at the state maturity,
by acceleration or otherwise) shall bear interest at a rate per annum equal to (x) in
the case of the Loans, the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this Section 2.14  plus
2% or (y) in the case of Reimbursement Obligations in respect of a
Revolving L/C Disbursement, the rate applicable to ABR Loans under the
Revolving Facility plus 2%, and (ii) any interest payable on any
Loan or Reimbursement Obligation or any fee or other amount payable hereunder
not be paid when due (whether at the stated maturity, by acceleration or
otherwise) shall bear interest at a rate per annum equal to the rate then
applicable to ABR Loans under the relevant Facility plus 2% (or, in the
case of any such other amounts that do not relate to a particular Facility, the
rate then applicable to ABR Loans under the Revolving Facility plus 2%),
in each case, with respect to clauses (i) and (ii) above, from the
date of such non-payment until such overdue amount is paid in full (as well
after as before judgment).


 


(d)           Interest
shall be payable in arrears on each Interest Payment Date, provided that interest accruing pursuant
to Section 2.14(c) shall be payable from time to time on
demand by the Administrative Agent.


 


2.15.        Computation
of Interest and Fees.


 


(a)           Interest
and fees payable pursuant hereto shall be calculated on the basis of a 360-day
year for the actual days elapsed, except that, with respect to ABR Loans the
rate of interest on which is calculated on the basis of the Prime Rate, the
interest thereon shall be calculated on the basis of a 365- (or 366-, as the
case may be) day year for the actual days elapsed. The Administrative Agent
shall as soon as practicable notify the Borrower and the relevant Lenders of
each determination of a Eurodollar Rate. Any change in the interest rate on a
Loan resulting from a change in the ABR or the Eurocurrency


 


43

















 


Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective. The Administrative
Agent shall as soon as practicable notify the Borrower and the relevant Lenders
of the effective date and the amount of each such change in interest rate.


 


(b)           Each
determination of an interest rate by the Administrative Agent pursuant to any
provision of this Agreement shall be conclusive and binding on the Borrower and
the Lenders in the absence of manifest error. The Administrative Agent shall,
at the request of the Borrower, deliver to the Borrower a statement showing the
quotations used by the Administrative Agent in determining any interest rate
pursuant to Section 2.14(a).


 


2.16.        Inability
to Determine Interest Rate. If prior to the first day of any Interest
Period:


 


(a)          the Administrative Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower) that, by
reason of circumstances affecting the relevant market, adequate and reasonable
means do not exist for ascertaining the Eurodollar Rate for such Interest
Period, or


 


(b)         the Administrative Agent shall have received notice from the
Required Lenders that the Eurodollar Rate determined or to be determined for
such Interest Period will not adequately and fairly reflect the cost to such
Lenders (as conclusively certified by such Lenders) of making or maintaining
their affected Loans during such Interest Period,


 


the Administrative Agent shall give telecopy or telephonic notice
thereof to the Borrower and the relevant Lenders as soon as practicable
thereafter. If such notice is given (x) any Eurodollar Loans under the
relevant Facility requested to be made on the first day of such Interest Period
shall be made as ABR Loans, (y) any Loans under the relevant Facility that
were to have been converted on the first day of such Interest Period to
Eurodollar Loans shall be continued as ABR Loans and (z) any outstanding
Eurodollar Loans under the relevant Facility shall be converted, on the last
day of the then-current Interest Period, to ABR Loans. Until such notice has
been withdrawn by the Administrative Agent (which the Administrative Agent
shall withdraw promptly upon obtaining knowledge that the circumstances giving
rise to such inability no longer exist), no further Eurodollar Loans under the
relevant Facility shall be made or continued as such, nor shall the Borrower
have the right to convert Loans under the relevant Facility to Eurodollar
Loans.


 


2.17.        Pro
Rata Treatment and Payments.


 


(a)           Each
borrowing by the Borrower from the Lenders hereunder and any reduction of the
Commitments of the Lenders shall be made pro rata according
to the respective Tranche B Term Commitments or Revolving Commitments as the
case may be, of the relevant Lenders. Each payment by the Borrower on account
of commitment fees hereunder shall be made pro  rata according to
the respective Commitments of the relevant Lenders.


 


(b)           Each
payment (including each prepayment) by the Borrower on account of principal of
and interest on the Tranche B Term Loans shall be made (i) in the case of
principal, pro  rata according to the respective outstanding
principal amounts of the Tranche B Term Loans then held by the Tranche B Term
Lenders, and (ii) in the case of interest, pro  rata
according to the respective amounts of accrued and unpaid interest on the
Tranche B Term Loans then due to the Tranche B Term Lenders. The amount of each
principal prepayment of the Tranche B Term Loans shall be applied to reduce the
then remaining installments of the Tranche B Term Loans as directed by the
Borrower by notice to the Administrative Agent. Amounts prepaid on account of
the Tranche B Term Loans may not be reborrowed.


 


44














 


(c)           Each
payment (including each prepayment) by the Borrower on account of principal of
and interest on the Revolving Loans shall be made (i) in the case of
principal, pro  rata according to the respective outstanding
principal amounts of the Revolving Loans then held by the Revolving Lenders,
and (ii) in the case of interest, pro  rata according to the
respective amounts of accrued and unpaid interest on the Revolving Loans then
due to the Revolving Lenders.


 


(d)           Each
optional prepayment of the Tranche B Term Loans pursuant to Section 2.10
shall be applied to the then remaining installment payments under Section 2.3
as the Borrower may direct in its sole discretion.


 


(e)           Each
mandatory prepayment of the Loans pursuant to Section 2.11 shall be
applied (A) first, to then remaining installment payments under Section 2.3
of the Tranche B Term Loans in direct order of maturity and (B) second, to
the Revolving Loans (without a corresponding reduction of the Total Revolving
Commitments).


 


(f)            All
payments (including prepayments) to be made by the Borrower hereunder, whether
on account of principal, interest, fees or otherwise, shall be made without
setoff or counterclaim and shall be made prior to 2:00 P.M., on the due
date thereof to the Administrative Agent at the Funding Office, in Dollars and
in immediately available funds. The Administrative Agent shall distribute such
payments to the applicable Lenders (or, in the case of amounts payable to them,
to the Swingline Lender or Issuing Bank, or, in the case of amounts payable to
it, retained by the Administrative Agent) promptly upon receipt in like funds
as received. If any payment hereunder (other than payments on the Eurodollar
Loans) becomes due and payable on a day other than a Business Day, such payment
shall be extended to the next succeeding Business Day. If any payment on a
Eurodollar Loan becomes due and payable on a day other than a Business Day, the
maturity thereof shall be extended to the next succeeding Business Day unless
the result of such extension would be to extend such payment into another
calendar month, in which event such payment shall be made on the immediately
preceding Business Day. In the case of any extension of any payment of
principal pursuant to the preceding two sentences, interest thereon shall be
payable at the then applicable rate during such extension.


 


(g)           Unless
the Administrative Agent shall have been notified in writing by any Lender
prior to a borrowing that such Lender will not make the amount that would
constitute its share of such borrowing available to the Administrative Agent,
the Administrative Agent may assume that such Lender is making such amount
available to the Administrative Agent, and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. If such amount is not made available to the Administrative Agent by the
required time on the Borrowing Date therefor, such Lender shall pay to the
Administrative Agent, on demand, such amount with interest thereon, at a rate
equal to the greater of (i) the Federal Funds Effective Rate and (ii) a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation, for the period until such Lender makes
such amount immediately available to the Administrative Agent. A certificate of
the Administrative Agent submitted to any Lender with respect to any amounts
owing under this paragraph shall be conclusive in the absence of manifest
error. If such Lender’s share of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days after such
Borrowing Date, the Administrative Agent shall also be entitled to recover such
amount with interest thereon at the rate per annum applicable to ABR Loans under
the relevant Facility, on demand, from the Borrower. If the Borrower and such
Lender shall pay such interest to the Administrative Agent for the same or an
overlapping period, the Administrative Agent shall promptly remit to the
Borrower the amount of such interest paid by the Borrower for such period. If
such Lender pays its share of the applicable borrowing to the Administrative
Agent, then the amount so paid shall constitute such Lender’s Loan included in
such borrowing. Any payment by the Borrower shall be without prejudice to any
claim the     


 


45

















 


Borrower may have against a Lender that shall have failed to make such
payment to the Administrative Agent.


 


(h)           Unless
the Administrative Agent shall have been notified in writing by the Borrower
prior to the date of any payment due to be made by the Borrower hereunder that
the Borrower will not make such payment to the Administrative Agent, the
Administrative Agent may assume that the Borrower is making such payment, and
the Administrative Agent may, but shall not be required to, in reliance upon
such assumption, make available to the applicable Lenders their respective pro
rata shares of a corresponding amount. If such payment is not made to
the Administrative Agent by the Borrower within three Business Days after such
due date, the Administrative Agent shall be entitled to recover, on demand,
from each Lender to which any amount which was made available pursuant to the
preceding sentence, such amount with interest thereon at the rate per annum
equal to the daily average Federal Funds Effective Rate. Nothing herein shall
be deemed to limit the rights of the Administrative Agent or any Lender against
the Borrower.


 


2.18.        Requirements
of Law.


 


(a)           If
the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof or compliance by any Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the date hereof:


 


(i)            shall legally impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of funds by,
any office of such Lender that is not otherwise included in the determination
of the Eurodollar Rate; or


 


(ii)           shall impose on such Lender any Taxes (other than (A) Non-Excluded
Taxes indemnified by Section 2.19, (B) Excluded Taxes imposed on, or
measured by reference to, net income (including franchise or similar (including
branch profits) Taxes imposed in lieu of net income taxes) or (C) Excluded
Taxes described in clauses (ii) and (iii) of the definition of
Excluded Taxes),


 


and the result of any of the foregoing is to increase the cost to such
Lender, by an amount that such Lender deems to be material, of making,
converting into, continuing or maintaining Eurodollar Loans (or in the case of
clause (ii) above, any Loans) or issuing or participating in Letters of
Credit, or to reduce any amount receivable by such Lender hereunder in respect
thereof, then, in any such case, the Borrower shall promptly and in any event
within five Business Days pay such Lender, upon its written demand, any
additional amounts necessary to compensate such Lender for such increased cost
or reduced amount receivable. If any Lender becomes entitled to claim any
additional amounts pursuant to this paragraph, it shall promptly notify the
Borrower (with a copy to the Administrative Agent) of the event by reason of
which it has become so entitled; provided that the Borrower shall not be
required to compensate a Lender pursuant to this paragraph for any amounts
incurred more than six months prior to the date that such Lender notifies the
Borrower of such Lender’s intention to claim compensation therefor; and provided further
that, if the circumstances giving rise to such claim have a retroactive effect,
then such six-month period shall be extended to include the period of such
retroactive effect.


 


(b)           If
any Lender shall have determined that the adoption of or any change in any Requirement
of Law regarding capital adequacy or in the interpretation or application
thereof or compliance by such Lender or any corporation controlling such Lender
with any request or directive regarding


 


46

















 


capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof shall have the effect
of reducing the rate of return on such Lender’s or such corporation’s capital
as a consequence of its obligations hereunder or under or in respect of any
Letter of Credit to a level below that which such Lender or such corporation
could have achieved but for such adoption, change or compliance (taking into
consideration such Lender’s or such corporation’s policies with respect to
capital adequacy) by an amount reasonably deemed by such Lender to be material
and to the extent reasonably determined such increase in capital to be
allocable to the existence of such Lender’s Commitments or participations in
Letters of Credit hereunder, then, from time to time, after submission by such
Lender to the Borrower (with a copy to the Administrative Agent) of a written
request therefor, the Borrower shall pay to such Lender such additional amount
or amounts as will compensate such Lender or such corporation for such
reduction; provided that the Borrower shall not be required to
compensate a Lender pursuant to this paragraph for any amounts incurred more
than six months prior to the date that such Lender notifies the Borrower of
such Lender’s intention to claim compensation therefor; and provided  further
that, if the circumstances giving rise to such claim have a retroactive effect,
then such six-month period shall be extended to include the period of such
retroactive effect.


 


(c)           A
certificate as to any additional amounts payable pursuant to this Section 2.18
submitted by any Lender to the Borrower (with a copy to the Administrative
Agent) with appropriate detail demonstrating how such amounts were derived
shall be conclusive in the absence of manifest error.


 


2.19.        Taxes.


 


(a)           Except
as required by law (as determined in the good faith discretion of any
applicable withholding agent), all payments made by any Loan Party under this
Agreement and the other Loan Documents shall be made free and clear of, and
without deduction or withholding for or on account of, any Taxes. If any
Non-Excluded Taxes or any Other Taxes are required by law to be withheld (as
determined in the good faith discretion of any applicable withholding agent)
from any amounts payable by any Loan Party to the Administrative Agent or by
any Loan Party or the Administrative Agent to any Lender (which term shall, for
the avoidance of doubt, include, for purposes of this Section 2.19,
the Issuing Lender), the amounts payable by the applicable Loan Party shall be
increased to the extent necessary to yield to the Administrative Agent or such
Lender (after withholding of all Non-Excluded Taxes and Other Taxes, including
Non-Excluded Taxes and Other Taxes attributable to amounts payable under this Section 2.19)
interest or any such other amounts payable hereunder at the rates or in the
amounts the Administrative Agent or Lender would have received had no such
Non-Excluded Taxes or Other Taxes been withheld.


 


(b)           In
addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.


 


(c)           Whenever
any Non-Excluded Taxes or Other Taxes are payable by the applicable Loan Party,
as promptly as possible thereafter the Loan Party shall send to the
Administrative Agent for the account of the Administrative Agent or relevant Lender,
evidence reasonably satisfactory to the Administrative Agent showing payment
thereof.


 


(d)           Without
duplicating any Loan Party’s obligations under clause (a) or (b), the Loan
Parties shall, within 10 days after written demand, indemnify the Administrative
Agent and each Lender for the full amount of any Non-Excluded Taxes and Other
Taxes (including any Non-Excluded Taxes and Other Taxes on amounts payable
under this Section 2.19) payable by the Administrative Agent or
such Lender and any reasonable costs and expenses associated therewith, whether
or not such Non-Excluded Taxes or Other Taxes were correctly or legally
asserted; provided that if a Loan
Party reasonably believes that such Taxes were not correctly or legally
asserted, the Administrative Agent or such


 


47

















 


Lender, as the case may be, will use reasonable efforts to cooperate
with the Loan Party, at such Loan Party’s request and expense, to obtain a
refund of such Non-Excluded Taxes and Other Taxes (which refund, if received,
shall be paid to the Borrower to the extent provided in clause (f) of this
Section 2.19) so long as such efforts, in the reasonable judgment of the
Administrative Agent or such Lender, as the case may be, would not cause the Administrative
Agent or such Lender, as the case may be, to suffer any additional costs,
expenses or risk, or legal or regulatory disadvantage it; provided, further,
that the Loan Parties shall not be obligated to make such payments for
penalties, Excess Interest and expenses to the Administrative Agent or the
Lenders pursuant to this Section, to the extent such penalty and/or expenses
result from the failure of the Administrative Agent or the Lenders to make
written demand for the Non-Excluded Taxes and Other Taxes within 180 days from
the date on which the Administrative Agent or the Lenders have received a
written notice of a claim for any Non-Excluded Taxes or Other Taxes by the
relevant Governmental Authority.


 


(e)           Each
Lender that is a United States person as defined in Section 7701(a)(30) of
the Code shall deliver to the Borrower and the Administrative Agent on or
before the date on which it becomes a party to this Agreement two duly
completed and signed copies of Internal Revenue Service Form W-9 certifying
that such Lender is exempt from United States back up withholding tax. To the
extent it is legally entitled to do so, each Lender that is not a United States
person as defined in Section 7701(a)(30) of the Code (each, a “Foreign
Lender”) shall deliver to the Borrower and the Administrative Agent on or
before the date on which it becomes a party to this Agreement whichever of the
following is applicable


 


(i)           two duly completed copies of Internal Revenue Service Form W-8BEN
claiming eligibility for the benefits of an income tax treaty to which the
United States is a party,


 


(ii)          two duly completed copies of Internal Revenue Service Form W-8ECI,


 


(iii)         in the case of a Foreign Lender claiming the benefits of the
exemption for portfolio interest under Section 881(c) of the Code, (A) a
certificate substantially in the form of Exhibit I (any such certificate
a “United States Tax Compliance Certificate”) and (B) two duly
completed copies of Internal Revenue Service Form W-8BEN, or


 


(iv)        to the extent a Foreign Lender is not the beneficial owner
(for example, where the Foreign Lender is a partnership or participating Lender
granting a participation), Internal Revenue Service Form W-8IMY,
accompanied by a Form W-8ECI, W-8BEN, United States Tax Compliance Certificate,
Form W-9 or Form W-8IMY from each beneficial owner, as applicable.


 


In addition, each Lender shall, at such time as
reasonably requested by the Borrower or the Administrative Agent, provide the
Borrower and the Administrative Agent with any other documentation prescribed
by applicable law, properly completed and executed, as will permit payments
made to such Lender under the Loan Documents to be made without or at a reduced
rate of withholding tax.


 


Each Lender shall deliver to the Borrower and the Administrative
Agent two further copies of any previously delivered form or certification (or
any applicable successor form) on or before the date that any such form or
certification expires or becomes obsolete or inaccurate and promptly after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Borrower or the Administrative Agent, or promptly notify
the Borrower and the Administrative Agent that it is unable to do so. Each
Lender shall promptly notify the Borrower and the Administrative Agent at any
time it determines that it is no longer in a position to provide any previously
delivered form or certification to the Borrower or the Administrative Agent.
Notwithstanding any other provision of this


 


48

















 


paragraph (e), a Lender shall not be required to deliver any form that
such Lender is not legally able to deliver.


 


(f)            If
the Administrative Agent or Lender determines, in its sole discretion exercised
in good faith, that it has received a refund in respect of any Non-Excluded
Taxes or Other Taxes with respect to which the Borrower has paid additional
amounts pursuant to this Section 2.19, it shall promptly notify the
Borrower of such refund and shall within 30 days from the date of receipt of
such refund pay over the amount of such refund without interest (other than any
interest paid or credited by the relevant Governmental Authority with respect
to such refund) to the Borrower (but only to the extent of additional amounts
paid by the Borrower under this Section 2.19 with respect to the
Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or Lender; provided, however,
that the Borrower, upon the written request of the Administrative Agent or
Lender, agrees to repay the amount paid over to the Borrower (plus penalties,
interest or other charges due to the appropriate authorities in connection
therewith) to the Administrative Agent or Lender in the event the
Administrative Agent or Lender is required to repay such refund to such
Governmental Authority. Nothing contained in this paragraph shall interfere
with the right of each of the Administrative Agent and the Lenders to arrange
its tax affairs in whatever manner it thinks fit nor to disclose any
information or any computations relating to its tax affairs.


 


(g)           The
agreements in this Section 2.19 shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.


 


2.20.        Indemnity.
The Borrower agrees to indemnify each Lender for, and to hold each Lender
harmless from, any loss or expense that such Lender may sustain or incur as a
consequence of (a) default by the Borrower in making a borrowing of, conversion
into or continuation of Eurodollar Loans after the Borrower has given a notice
requesting the same in accordance with the provisions of this Agreement, (b) default
by the Borrower in making any prepayment of or conversion from Eurodollar Loans
after the Borrower has given a notice thereof in accordance with the provisions
of this Agreement or (c) the making of a prepayment of Eurodollar Loans on
a day that is not the last day of an Interest Period with respect thereto. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of interest that would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
such Interest Period (or, in the case of a failure to borrow, convert or
continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Loans provided
for herein (excluding, however, the Applicable Margin included therein, if any)
over (ii) the amount of interest (as reasonably determined by such Lender)
that would have accrued to such Lender on such amount by placing such amount on
deposit for a comparable period with leading banks in the interbank eurodollar
market. A certificate as to any amounts payable pursuant to this Section 2.20
submitted to the Borrower by any Lender within 180 days of the incurrence of
any loss or expense covered by this Section with appropriate detail
demonstrating how such amounts were derived shall be conclusive in the absence
of manifest error. This covenant shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder.


 


2.21.        Change
of Lending Office. Each Lender agrees that, upon the occurrence of any
event giving rise to the operation of Section 2.18 or 2.19(a) with
respect to such Lender, it will, if requested by the Borrower, use reasonable
efforts (subject to overall policy considerations of such Lender) to file any
certificate or document reasonably requested by the Borrower or designate
another lending office for any Loans affected by such event with the object of
eliminating or reducing amounts payable pursuant to Section 2.18 or
2.19(a); provided that the
making of such filing or such designation is made on terms that, in the
reasonable judgment of such Lender, cause such Lender and its lending office(s) to
suffer


 


49

















 


no economic, legal or regulatory disadvantage (except to a de  minimis
extent), and provided further
that nothing in this Section 2.21 shall affect or postpone any of
the obligations of the Borrower or the rights of any Lender pursuant to Section 2.18
or 2.19(a).


 


2.22.        Replacement
of Lenders.


 


(a)           The
Borrower shall be permitted to replace any Lender that (A) requests
reimbursement for amounts owing pursuant to Section 2.18 or 2.19(a) or
(B) defaults in its obligation to make Loans hereunder within one Business
Day after the applicable Loan was required, pursuant to the terms hereof, to be
made (a “Defaulting Lender”), with a replacement financial institution; provided that (i) such replacement
does not conflict with any Requirement of Law, (ii) prior to any such
replacement, such Lender shall have taken no action under Section 2.21
that has or will eliminate the continued need for payment of amounts owing
pursuant to Section 2.18 or 2.19(a), (iii) the Borrower
shall be liable to such replaced Lender under Section 2.20 if any
Eurodollar Loan owing to such replaced Lender shall be purchased other than on
the last day of the Interest Period relating thereto, (iv) the replacement
financial institution, if not already a Lender, shall be reasonably satisfactory
to the Administrative Agent, (v) the replaced Lender shall be obligated to
make such replacement in accordance with the provisions of Section 10.6
(provided that the Borrower shall
be obligated to pay the registration and processing fee referred to therein), (vi) until
such time as such replacement shall be consummated, the Borrower shall pay all
additional amounts (if any) required pursuant to Section 2.18 or 2.19(a),
as the case may be, (vii) the applicable replaced Lender will be paid all
principal, interest and fees under Section 2.8 owed to it upon the
consummation of such replacement and (viii) any such replacement shall not
be deemed to be a waiver of any rights that the Borrower, the Administrative
Agent or any other Lender shall have against the replaced Lender.


 


(b)           If,
in connection with any proposed amendment, modification, waiver or termination
pursuant to Section 10.1 (a “Proposed Change”) requiring the
consent of all affected Lenders, the consent of the Required Lenders is
obtained, but the consent of other Lenders whose consent is required is not
obtained (any such Lender whose consent is not obtained as described in this
clause (b) being referred to as a “Non-Consenting Lender”), then,
at the Borrower’s request the Administrative Agent, or a Person or Persons
reasonably acceptable to the Administrative Agent if not already a Lender,
Affiliate of a Lender or Approved Fund, shall have the right (but shall have no
obligation) to purchase all, but not less than all, from such Non-Consenting
Lenders, and such Non-Consenting Lenders agree that they shall, upon the
Administrative Agent’s request, sell and assign to the Administrative Agent or
such Person, all Loans and Commitments of such Non-Consenting Lenders for an
amount equal to the principal balance of all Loans held by the Non-Consenting
Lenders and all accrued interest and fees with respect thereto through the date
of sale, such purchase and sale to be consummated at par pursuant to an
Assignment and Assumption. Any such required sale and assignment shall be
treated as a prepayment for purposes of Section 2.20 and the
Borrower shall be liable for any amounts payable thereunder as a result of such
sale and assignment.


 


2.23.        Incremental
Credit Extensions. The Borrower may at any time or from time to time after
the Closing Date, by notice to the Administrative Agent (whereupon the
Administrative Agent shall promptly deliver a copy to each of the Lenders),
request (a) one or more additional tranches of term loans (the “Incremental
Term Loans”) or (b) one or more increases in the amount of the
Revolving Commitments (each such increase, a “Revolving Commitment Increase”
and, together with any Incremental Term Loans, referred to herein as a “Credit
Increase”); provided
that (i) upon the effectiveness of any Incremental Amendment referred to
below, no Default or Event of Default shall exist or would exist after giving
effect thereto and (ii) as of the Incremental Facility Closing Date, the
Borrower shall be in compliance with the provisions of Section 7.1,
calculated on a pro forma basis after giving effect to the Credit


 


50

















 


Increase to be made on the Incremental Facility Closing Date, as of the
end of the most recent period for which financial statements were required to
have been delivered pursuant to Section 6.1(a) or (b) or,
if prior to the first delivery date for such financial statements hereunder, as
of the end of the period for which the most recent financial statements of the
Company are available and if the last day of any such period is prior to the
first test date under Section 7.1, the levels for the first test
date under Section 7.1 shall be deemed to apply for this purpose.
Each Credit Increase shall be in an aggregate principal amount that is not less
than $15,000,000 (provided that
such amount may be a lesser amount if such amount represents all remaining
availability under the limit set forth in the next sentence and there shall be
no more than four such increases). Notwithstanding anything to the contrary
herein, the aggregate amount of the Credit Increases shall not exceed
$75,000,000. The Incremental Term Loans (A) shall rank pari  passu
in right of payment and of security with the other applicable Facilities, (B) shall
not mature earlier than the Tranche B Maturity Date and shall have a weighted
average life to maturity (pursuant to such amortization schedules as may be
determined by the Borrower and the lenders thereof) that is no shorter than the
then-remaining weighted average life to maturity of the Tranche B Term Loans
(as the aggregate amount thereof may have been reduced and as the scheduled
amortization thereof may have been modified as of such date) and (C) will
accrue interest at rates determined by the Borrower and the lenders providing
such Incremental Term Loans, which rates may be higher or lower than the rates
applicable to the Tranche B Term Loans, provided
that if the initial yield on such Incremental Term Loans (as determined by the
Administrative Agent to be equal to the sum of (1) the interest margins on
such Incremental Term Loans and (2) if such Incremental Term Loans are
initially made at a discount or the Lenders making the same in syndication
thereof receive a fee (in the form of discount or otherwise, but excluding any
underwriting or arrangement fee paid for the account of an underwriter or
arranger and also, for the avoidance of doubt, excluding any financial advisory
fee paid in respect of services rendered in respect of any merger, acquisition
or similar transaction) directly or indirectly from the Parent, the Borrower,
any Subsidiary or Affiliate of the foregoing for doing so (the amount of such
discount or fee, expressed as a percentage of the Incremental Term Loans, being
referred to herein as “Incremental OID,” with the amount of such
Incremental OID being quantified by dividing it by an assumed four year life to
maturity) exceeds (such excess, the “Yield Differential”) the sum of (x) the
interest margin for Initial Tranche B Term Loans as of the Closing Date and (y) if
the Initial Tranche B Term Lenders in syndication thereof received upfront or
similar fees (in the form of discount or otherwise, but excluding any
underwriting or arrangement fee paid for the account of an underwriter or
arranger and also, for the avoidance of doubt, excluding any financial advisory
fee paid in respect of services rendered in respect of any merger, acquisition
or similar transaction) directly or indirectly from the Parent, the Borrower,
any Subsidiary or any Affiliate of the foregoing for making the Initial Tranche
B Term Loans (the amount of such fees, expressed as a percentage of the sum of
the original aggregate amount of the Initial Tranche B Term Commitments, being
referred to herein as “Initial OID”), with the amount of such Initial
OID being quantified by dividing it by an assumed four year life to maturity,
then the Applicable Margin then in effect for any outstanding Tranche B Term
Loans shall automatically be increased by the Yield Differential, effective
upon the making of the Incremental Term Loans; provided
that except as provided in preceding clauses (B) or (C), the terms and
conditions applicable to Incremental Term Loans may be materially different
from those of the Tranche B Term Loans to the extent such differences are
reasonably acceptable to the Administrative Agent. The Revolving Commitment
Increases shall be on the same terms as the Revolving Commitments. Each notice
from the Borrower pursuant to this Section 2.23 shall set forth the
requested amount and proposed terms of the relevant Credit Increases.
Incremental Term Loans may be made, and Revolving Commitment Increases may be
provided, by any existing Lender (and each existing Tranche B Term Lender will
have the right to make a portion of any Incremental Term Loan and each existing
Revolving Lender will have the right to provide a portion of any Revolving
Commitment Increase) or by any other bank or other financial institution (any
such other bank or other financial institution being called an “Additional  Lender”),
provided that the Administrative Agent and, in the case of a
Revolving Commitment Increase, the Issuing Bank shall have consented (not to be
unreasonably withheld) to such Lender’s or Additional


 


51

















 


Lender’s making such Incremental Term Loans or providing such Revolving
Commitment Increases, if such consent would be required under Section 10.6
for an assignment of Tranche B Term Loans or Revolving Credit Commitments, as
applicable, to such Lender or Additional Lender. Commitments in respect of
Credit Increases shall become Commitments (or in the case of a Revolving
Commitment Increase to be provided by an existing Revolving Lender, an increase
in such Lender’s applicable Revolving Commitment) under this Agreement pursuant
to an amendment (an “Incremental Amendment”) to this Agreement and, as
appropriate, the other Loan Documents, executed by Parent, the Borrower, each
Lender agreeing to provide such Commitment, if any, each Additional Lender, if
any, and the Administrative Agent. An Incremental Amendment may, without the
consent of any other Lenders, effect such amendments to this Agreement and the
other Loan Documents as may be necessary or appropriate, in the reasonable
opinion of the Administrative Agent and the Borrower, to effect the provisions
of this Section 2.23 and the use of proceeds of such Credit
Increase. The effectiveness of any Incremental Amendment shall be subject to
the satisfaction on the date thereof (each, an “Incremental Facility Closing
Date”) of each of the conditions set forth in the Incremental Amendment. No
Lender shall be obligated to provide any Credit Increases, unless it so agrees.
Upon each increase in the Revolving Commitments pursuant to this Section 2.23,
the participations held by the Revolving Lenders in the L/C Exposure and
Swingline Loans immediately prior to such increase will be reallocated so as to
be held by the Revolving Lenders ratably in accordance with their respective
Revolving Percentages after giving effect to such Revolving Commitment
Increase. If, on the date of a Revolving Commitment Increase, there are any
Revolving Loans outstanding, the Borrower shall prepay such Revolving Loans in
accordance with this Agreement on the date of effectiveness of such Revolving
Commitment Increase (but the Borrower may finance such prepayment with a
concurrent borrowing of Revolving Loans from the Revolving Lenders in
accordance with their Revolving Percentages after giving effect to such
Revolving Commitment Increase). The Borrower may use the proceeds of each
Credit Increase for any purpose not prohibited by this Agreement unless
otherwise agreed in connection with such Credit Increase.


 


SECTION 3


 


LETTERS OF CREDIT


 


3.1.          Letters
of Credit.


 


(a)           Subject
to the terms and conditions hereof, the Issuing Bank agrees to issue letters of
credit (“Letters of Credit”) for the account of the Borrower on any
Business Day during the Revolving Commitment Period in such form as may be
reasonably approved from time to time by the Issuing Bank; provided that the Issuing Bank shall have
no obligation to issue any Letter of Credit if, after giving effect to such
issuance, the L/C Exposure would exceed the L/C Commitment. Each Letter of
Credit shall (A) be denominated in Dollars and (B) expire no later
than the earlier of (x) the first anniversary of its date of issuance and (y) the
date that is five Business Days prior to the Revolving Termination Date, provided that any Letter of Credit with a
one-year term may provide for the renewal thereof for additional one-year
periods (which shall in no event extend beyond the date referred to in clause (y) above).


 


(b)           The
Issuing Bank shall not at any time be obligated to issue any Letter of Credit
if such issuance would conflict with, or cause the Issuing Bank or any
Revolving Lender to exceed any limits imposed by, any applicable Requirement of
Law.


 


3.2.          Procedure
for Issuance of Letter of Credit. The Borrower may from time to time request
that the Issuing Bank issue a Letter of Credit by delivering to the Issuing
Bank at its address for notices specified herein an Application therefor,
completed to the reasonable satisfaction of the Issuing Bank, and such other
certificates, documents and other papers and information as the Issuing Bank
may


 


52

















 


reasonably request. Upon receipt of any Application, the Issuing Bank
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall the Issuing Bank be required to issue any Letter
of Credit earlier than three Business Days after its receipt of the Application
therefor and all such other certificates, documents and other papers and
information relating thereto) by issuing the original of such Letter of Credit
to the beneficiary thereof or as otherwise may be agreed to by the Issuing Bank
and the Borrower. The Issuing Bank shall furnish a copy of such Letter of
Credit to the Borrower and the Administrative Agent promptly following the
issuance thereof. The Issuing Bank shall promptly furnish to the Administrative
Agent, which shall in turn promptly furnish to the Lenders, notice of the
issuance of each Letter of Credit (including the amount thereof).


 


3.3.          Fees
and Other Charges.


 


(a)           The
Borrower will pay a participation fee on all outstanding Letters of Credit at a
per annum rate equal to the Applicable Margin then in effect with respect to
Eurodollar Loans under the Revolving Facility, shared ratably among the
Revolving Lenders and payable quarterly in arrears on each Fee Payment Date
after the issuance date. In addition, the Borrower shall pay to the Issuing
Bank for its own account a fronting fee of 0.125% per annum on the face amount
of each Letter of Credit issued by the Issuing Bank, payable quarterly in
arrears on each Fee Payment Date after the issuance date.


 


(b)           In
addition to the foregoing fees, the Borrower shall pay the Issuing Bank its
standard fees charged with respect to, and reimburse the Issuing Bank for its
out-of-pocket costs and expenses incurred in connection with, issuing,
negotiating, effecting payment under, amending or otherwise administering any Letter
of Credit issued by the Issuing Bank.


 


3.4.          L/C
Participations. The Issuing Bank irrevocably agrees to grant and hereby grants
to each L/C Participant, and, to induce the Issuing Bank to issue Letters of
Credit, each L/C Participant irrevocably agrees to accept and purchase and
hereby accepts and purchases from the Issuing Bank, on the terms and conditions
set forth below, for such L/C Participant’s own account and risk an undivided
interest equal to such L/C Participant’s Revolving Percentage in the Issuing
Bank’s obligations and rights under and in respect of each Letter of Credit and
the amount of each draft paid by the Issuing Bank thereunder. Each L/C
Participant agrees with the Issuing Bank that, if a draft is paid under any
Letter of Credit issued by the Issuing Bank for which the Issuing Bank is not
reimbursed in full by the Borrower in accordance with the terms of this
Agreement, such L/C Participant shall pay to the Issuing Bank upon demand at
the Issuing Bank’s address for notices specified herein an amount equal to such
L/C Participant’s Revolving Percentage of the amount of such draft, or any part
thereof, that is not so reimbursed. Each L/C Participant’s obligation to pay
such amount shall be absolute and unconditional and shall not be affected by
any circumstance, including (i) any setoff, counterclaim, recoupment,
defense or other right that such L/C Participant may have against the Issuing
Bank, the Borrower or any other Person for any reason whatsoever, (ii) the
occurrence or continuance of a Default or an Event of Default or the failure to
satisfy any of the other conditions specified in Section 5, (iii) any
adverse change in the condition (financial or otherwise) of the Borrower, (iv) any
breach of this Agreement or any other Loan Document by the Borrower, any other
Loan Party or any other L/C Participant or (v) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing.
If any amount required to be paid by any L/C Participant to the Issuing Bank
pursuant to this Section 3.4 in respect of any unreimbursed portion
of any payment made by the Issuing Bank under any Letter of Credit is paid to
the Issuing Bank within three Business Days after the date such payment is due,
such L/C Participant shall pay to the Issuing Bank on demand an amount equal to
the product of (A) such amount, times (B) the daily average Federal
Funds Effective Rate during the period from and including the date such payment
is required to the


 


53

















 


date on which such payment is immediately available to the Issuing
Bank, times (C) a fraction the numerator of which is the number of days
that elapse during such period and the denominator of which is 360. If any such
amount required to be paid by any L/C Participant pursuant to this Section 3.4
is not made available to the Issuing Bank by such L/C Participant within three
Business Days after the date such payment is due, the Issuing Bank shall be
entitled to recover from such L/C Participant, on demand, such amount with
interest thereon calculated from such due date at the rate per annum applicable
to ABR Loans under the Revolving Facility. A certificate of the Issuing Bank
submitted to any L/C Participant with respect to any amounts owing under this Section 3.4
shall be conclusive in the absence of manifest error. Whenever, at any time
after the Issuing Bank has made payment under any Letter of Credit and has
received from any L/C Participant its pro rata share of such payment in
accordance with this Section 3.4, the Issuing Bank receives any
payment related to such Letter of Credit (whether directly from the Borrower or
otherwise, including proceeds of collateral applied thereto by the Issuing
Bank), or any payment of interest on account thereof, the Issuing Bank will
distribute to such L/C Participant its pro rata share thereof; provided, however,
that in the event that any such payment received by the Issuing Bank shall be
required to be returned by the Issuing Bank, such L/C Participant shall return
to the Issuing Bank the portion thereof previously distributed by the Issuing
Bank to it.


 


3.5.          Reimbursement
Obligation of the Borrower. If any draft is paid under any Letter of
Credit, the Borrower shall reimburse the Issuing Bank with respect to such
draft paid by the Issuing Bank for the amount of (a) the draft so paid and
(b) any taxes, fees, charges or other costs or expenses incurred by the
Issuing Bank in connection with such payment, not later than (i) by 12:00
Noon on the Business Day following the day that the Borrower receives notice of
such draft, if such notice is received on such day prior to 1:00 P.M. or (ii) if
clause (i) above does not apply, the Business Day immediately following
the day that the Borrower receives such notice. Each such payment shall be made
to the Issuing Bank at its address for notices referred to herein in Dollars
and in immediately available funds. If any draft is paid under any Letter of
Credit, then, unless the Borrower shall reimburse the Issuing Bank in full on
the same day that such draft is paid, the unpaid amount thereof shall bear
interest for each day from and including the date on which such draft is paid
to but excluding the date that the Borrower makes reimbursement in full, at the
rate per annum then applicable to ABR Loans under the Revolving Facility; provided that, if the Borrower does not
make reimbursement in full on or prior to the second Business Day following the
date of the applicable drawing, then Section 2.14(c) shall
apply.


 


3.6.          Obligations
Absolute. The Borrower’s obligations under this Section 3 shall
be absolute and unconditional under any and all circumstances and irrespective
of any setoff, counterclaim or defense to payment that the Borrower may have or
have had against the Issuing Bank, any beneficiary of a Letter of Credit or any
other Person. The Borrower also agrees with the Issuing Bank that the Issuing
Bank shall not be responsible for, and the Borrower’s Reimbursement Obligations
under Section 3.5 shall not be affected by, among other things, the
validity or genuineness of documents or of any endorsements thereon, even
though such documents shall in fact prove to be invalid, fraudulent or forged,
or any dispute between or among the Borrower and any beneficiary of any Letter
of Credit or any other party to which such Letter of Credit may be transferred
or any claims whatsoever of the Borrower against any beneficiary of such Letter
of Credit or any such transferee. The Issuing Bank shall not be liable for any
error, omission, interruption or delay in transmission, dispatch or delivery of
any message or advice, however transmitted, in connection with any Letter of
Credit, except for errors or omissions found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the Issuing Bank. The Borrower agrees that
any action taken or omitted by the Issuing Bank under or in connection with any
Letter of Credit or the related drafts or documents, if done in the absence of
gross negligence, bad faith or willful misconduct, shall be binding on the
Borrower and shall not result in any liability of the Issuing Bank to the
Borrower.


 


54














 


3.7.         Letter
of Credit Payments. If any draft shall be presented for payment under any Letter
of Credit, the Issuing Bank shall promptly notify the Borrower and the
Administrative Agent of the date and amount thereof. The responsibility of the
Issuing Bank to the Borrower in connection with any draft presented for payment
under any Letter of Credit issued by the Issuing Bank shall, in addition to any
payment obligation expressly provided for in such Letter of Credit, be limited
to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are substantially in
conformity with such Letter of Credit.


 


3.8.         Applications.
To the extent that any provision of any Application related to any Letter of
Credit is inconsistent with the provisions of this Section 3, the
provisions of this Section 3 shall apply.


 


3.9.         Obligations
of Certain Issuing Banks. The Issuing Bank that is not the same Person as
the Person serving as the Administrative Agent shall notify the Administrative
Agent of (a) the amount and expiration date of each Letter of Credit
issued by the Issuing Bank prior to the date of issuance thereof, (b) any
amendment or modification of any such Letter of Credit prior to the time of
such amendment or modification and (c) any termination, surrender,
cancellation or expiry of any such Letter of Credit promptly upon the
occurrence thereof.


 


SECTION 4


 


REPRESENTATIONS AND
WARRANTIES


 


To induce the Administrative Agent and the Lenders
to enter into this Agreement and to make the Loans and issue or participate in
the Letters of Credit, the Borrower and the Subsidiary Guarantors hereby
jointly and severally represent and warrant to the Administrative Agent and
each Lender, as and to the extent required under Section 5.1 (in the case
of the initial extension of credit hereunder) or 5.2 (in the case of all other
extensions of credit hereunder) that:


 


4.1.         Financial
Condition.


 


(a)           The
unaudited pro forma consolidated balance sheet of the Borrower and its consolidated
Subsidiaries as at September 30, 2007, and unaudited pro forma statement
of operations of the Borrower and its consolidated Subsidiaries for the
twelve-month period then ended (including the notes thereto) (the “Pro Forma
Financial Statements”), copies of which have heretofore been furnished to
each Lender, have been prepared giving effect to the Transactions (and such
other adjustments as have been agreed to by the Sole Bookrunner), as if such
transactions had occurred on September 30, 2007 (in the case of such
unaudited pro forma balance sheet) or at the beginning of such twelve-month
period (in the case of such unaudited statement of operations). The Pro Forma
Financial Statements have been prepared in good faith by the Borrower, and
present fairly in all material respects on a pro forma basis the estimated
financial position and results of operations of the Borrower and its
consolidated Subsidiaries taken as a whole as at September 30, 2007,
except that the financial statements and forecasts referred to in this sentence
will be subject to footnotes, explanatory notes and year end closing and audit
adjustments, and for such period then ended, assuming that such transactions
had actually occurred at such date or at the beginning of such period, as the
case may be, it being understood that projections by their nature are uncertain
and no assurance is being given that the results therein will be achieved.


 


(b)           The
audited consolidated balance sheets of the Borrower and its Subsidiaries as at December 31,
2004, December 31, 2005 and December 31, 2006, and the related
consolidated statements of income and of cash flows for the fiscal years ended
on such dates, reported on by and accompanied by an unqualified report from
Ernst & Young LLP, present fairly in all material respects the
consolidated


 


55

















 


financial condition of the Borrower and its Subsidiaries as at such
date, and the consolidated results of its operations and its consolidated cash
flows for the respective fiscal years then ended. The unaudited consolidated
balance sheet of the Borrower and its Subsidiaries as at September 30,
2007, and the related unaudited consolidated statements of income and cash
flows for the nine-month period ended on such date, present fairly in all
material respects the consolidated financial condition of the Borrower and its
Subsidiaries as at such date, and the consolidated results of its operations
and its consolidated cash flows for the nine-month period then ended (subject
to normal year-end audit adjustments). All such financial statements, including
the related schedules and notes thereto, have been prepared in accordance with
GAAP applied consistently throughout the periods involved (except as approved
by the aforementioned firm of accountants and disclosed therein).


 


4.2.         No
Change. Since the Closing Date, there has been no development or event that
has had or could reasonably be expected to have a Material Adverse Effect.


 


4.3.         Existence;
Compliance with Law. Each of Borrower and its Subsidiaries (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization except, other than in the case of the
Borrower, to the extent that the failure to comply therewith could not
reasonably be expected to result in a Material Adverse Effect, (b) has the
power and authority, and the legal right, to own and operate its property, to
lease the property it operates as lessee and to conduct the business in which
it is currently engaged except to the extent that the failure to comply
therewith could not, in the aggregate, reasonably be expected to result in a
Material Adverse Effect, (c) is duly qualified as a foreign corporation or
other organization and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification except to the extent that the failure to
comply therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect and (d) is in compliance with all Requirements of
Law except to the extent that the failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.


 


4.4.         Power;
Authorization; Enforceable Obligations.


 


(a)           Each
Loan Party has the corporate or other organizational power and authority to
make, deliver and perform its obligations under each of the Loan Documents to
which it is a party and, in the case of the Borrower, to obtain extensions of
credit hereunder.


 


(b)           Each
Loan Party has taken all necessary organizational action to authorize the
execution, delivery and performance of the Loan Documents to which it is a
party and, in the case of the Borrower, to authorize the extensions of credit
on the terms and conditions of this Agreement.


 


(c)           No
material consent or authorization of, filing with, notice to or other act by or
in respect of, any Governmental Authority is required in connection with the
Transactions, except (i) consents, authorizations, filings and notices
described in Schedule 4.4, which consents, authorizations, filings and
notices have been obtained or made and are in full force and effect, (ii) the
filings referred to in Section 4.19 and (iii) consents,
authorizations, filings and notices the failure of which to make or obtain, as
the case may be, could not reasonably be expected to result in a Material
Adverse Effect.


 


(d)           Each
Loan Document has been duly executed and delivered on behalf of each Loan Party
thereto.


 


(e)           This
Agreement constitutes, and each other Loan Document upon execution will
constitute, a legal, valid and binding obligation of each Loan Party thereto,
enforceable against each such Loan Party in accordance with its terms, subject
to bankruptcy, insolvency, reorganization, moratorium or


 


56

















 


similar laws affecting the enforcement of creditors’
rights generally and by general equitable principles (whether enforcement is
sought by proceedings in equity or at law) and an implied covenant of good
faith and fair dealing.


 


4.5.         No Legal Bar. The execution and
delivery of this Agreement and the other Loan Documents will not violate any
Requirement of Law or any Contractual Obligation of Borrower or any of its
Subsidiaries and will not result in, or require, the creation or imposition of
any Lien on any of their respective properties or revenues pursuant to any
Requirement of Law or any such Contractual Obligation (other than the Liens
created by the Security Documents) except, in each case to the extent any of
the foregoing could not reasonably be expected to result in a Material Adverse
Effect.


 


4.6.         Litigation. Except as set forth
on Schedule 4.6, no litigation, or, to the knowledge of the Borrower, no
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the best knowledge of the Borrower, threatened by
or against any Covenant Party that could reasonably be expected to have a
Material Adverse Effect.


 


4.7.         No Default. No Default or Event
of Default has occurred and is continuing.


 


4.8.         Ownership of Property; Liens.
Each Covenant Party has marketable title to, or a valid leasehold interest in,
all its real property, and marketable title to, or a valid leasehold interest
in or right to use, all its material other property, and none of such property
is subject to any Lien except Liens permitted by Section 7.3 except
to the extent any of the foregoing could not reasonably be expected to result
in a Material Adverse Effect. As of the date hereof and as of the date of
delivery of the financial statements delivered pursuant to Section 6.1(a) and
as of the date of delivery of the statements for the fiscal quarter ending in
March each year delivered pursuant to Section 6.1(b), set forth
on Schedule 4.8 is a complete and correct list in all material respects
of all real property (including street address) (other than condominiums or
co-ops) located in the United States and owned by any Covenant Party material
to the operation of any Covenant Party or any of its Subsidiaries.


 


4.9.         Licenses, Intellectual Property.
Except as in the aggregate could not reasonably be expected to have a Material
Adverse Effect or as set forth in Schedule 4.9 (all of which items set
forth in Schedule 4.9 in the aggregate could not reasonably be expected
to have a Material Adverse Effect), each Covenant Party has all necessary
licenses, permits, franchises, rights to participate in, or the benefit of
valid agreements to participate in material Third Party Payor Programs and
other rights necessary for the conduct of its business and for the intended use
of its properties and assets to the extent necessary to ensure no material
interruption in cash flow. Each Covenant Party owns, or is licensed or
otherwise has the right to use, all Intellectual Property necessary for the
conduct of its business as currently conducted except to the extent that a
failure could not reasonably be expected to have a Material Adverse Effect. No
material claim against any Covenant Party has been asserted in writing and is
pending by any Person challenging or questioning the use of any Intellectual
Property that is material to the business of the Covenant Parties or the
validity or effectiveness of any such Intellectual Property, nor does the
Borrower have knowledge of any valid basis for any such claim. Except as could
not reasonably be expected to result in a Material Adverse Effect, to the
knowledge of the Borrower, the use of Intellectual Property by each Covenant
Party does not infringe on the rights of any Person in any material respect.


 


4.10.       Taxes. Except as would not
individually or in the aggregate reasonably be expected to result in a Material
Adverse Effect, (i) each Covenant Party has filed or caused to be filed
all federal, state and other Tax returns that are required to be filed and has
paid all Taxes shown to be due and payable on said returns or on any
assessments made against it or any of its property and all other Taxes, fees or
other charges imposed on it or any of its property by any Governmental
Authority and has satisfied its Tax withholding obligations (in each case,
other than any Taxes the validity of which is


 


57

















 


currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have
been provided on the books of the relevant Covenant Party, provided such contest suspends the
enforcement of the Taxes in question); (ii) no tax Lien has been filed
(other than Permitted Liens), and (iii) no claim is being asserted, with
respect to any such tax, fee or other charge.


 


4.11.       Federal Regulations. No part of
the proceeds of any Loans, and no other extensions of credit hereunder, will be
used (a) for “buying” or “carrying” any “margin stock” within the
respective meanings of each of the quoted terms under Regulation U as now and
from time to time hereafter in effect or (b) for any purpose that violates
the provisions of the Regulations of the Board.


 


4.12.       Labor Matters. Except as, in the
aggregate, could not reasonably be expected to have a Material Adverse Effect:
(a) there are no strikes or other labor disputes against any Covenant
Party pending or, to the knowledge of the Borrower, threatened; (b) hours
worked by and payment made to employees of each Covenant Party have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement
of Law dealing with such matters; and (c) all payments due from any
Covenant Party on account of employee health and welfare insurance have been
paid or accrued as a liability on the books of the relevant Covenant Party.


 


4.13.       ERISA. Except as could not
reasonably be expected to have a Material Adverse Effect, (i) neither a
Reportable Event nor an “accumulated funding deficiency” (within the meaning of
Section 412 of the Code or Section 302 of ERISA) or failure to
satisfy the minimum funding standards of Section 412 of the Code has
occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each
Employee Benefit Plan during such five-year period has complied in all material
respects with the applicable provisions of ERISA and the Code, (ii) no
termination of a Plan has occurred, and no Lien in favor of the PBGC or a Plan
has arisen, during such five-year period and (iii) the present value of
all accrued benefits under each Plan (based on those assumptions used to fund
such Plans) did not, as of the last annual valuation date prior to the date on
which this representation is made or deemed made, exceed the value of the
assets of such Plan allocable to such accrued benefits by a material amount.
Neither the Borrower nor any Commonly Controlled Entity has had a complete or
partial withdrawal from any Multiemployer Plan that has resulted or could
reasonably be expected to result in a Material Adverse Effect, and to the
Borrower’s knowledge, neither the Borrower nor any Commonly Controlled Entity
could, except as could not reasonably be expected to result in a Material
Adverse Effect, become subject to any liability under ERISA if the Borrower or
any such Commonly Controlled Entity were to withdraw completely from any
Multiemployer Plan as of the valuation date most closely preceding the date on
which this representation is made or deemed made. To the Borrower’s knowledge,
(i) no such Multiemployer Plan is in Reorganization or Insolvent and
(ii) no nonexempt prohibited transaction (within the meaning of
Section 4795 of the Code or Section 406 of ERISA) has occurred with
respect to a Plan which could reasonably be expected to result in a Material
Adverse Effect.


 


4.14.       Investment Company Act; Other
Regulations. No Covenant Party is required to be registered as an
“investment company,” or a company “controlled” by an “investment company,”
within the meaning of the Investment Company Act of 1940, as amended.


 


4.15.       Subsidiaries. Attached hereto as Schedule
4.15(a) is an organization chart of each Loan Party and its
Subsidiaries as of the Closing Date. Schedule 4.15(b) sets forth
the name, jurisdiction of formation and classification of each Subsidiary and,
as to each such Subsidiary, the percentage of each class of Capital Stock owned
by any Loan Party. There are no outstanding subscriptions, options, warrants,
calls, rights or other agreements or commitments (other than stock options
granted to employees or directors and directors’ qualifying shares) of any
nature relating to any Capital Stock of the Borrower


 


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or, as of the Closing Date, any Subsidiary, except as
created by the Loan Documents or disclosed on Schedule 4.15(b).


 


4.16.       Use of Proceeds. The proceeds of
the Initial Tranche B Term Loans and the Revolving Loans made on the Closing
Date, together with the proceeds of the Equity Financing and the Senior
Subordinated Loans, shall be used only for the payment of the Merger
Consideration, the Debt Discharge, the payment of Closing Costs and to provide
ongoing capital requirements of the Borrower and its Subsidiaries and for
general corporate purposes. The proceeds of the Revolving Loans, the Swingline
Loans, the Letters of Credit and the Delayed Draw Tranche B Term Loans shall be
used for working capital requirements and general corporate purposes of any
Covenant Party (including Permitted Acquisitions and other lawful purposes).


 


4.17.       Environmental Matters. Except as,
in the aggregate, could not reasonably be expected to have a Material Adverse
Effect:


 


(a)         the facilities and properties owned,
leased or operated by any Covenant Party (the “Properties”) do not
contain any Materials of Environmental Concern in amounts or concentrations or
under circumstances that constitute a violation of, or could reasonably be
expected to give rise to liability under, any applicable Environmental Law;


 


(b)         no Covenant Party has received any
written notice of any violation, alleged violation, non-compliance, liability
or potential liability relating to any Environmental Laws, nor does the
Borrower have knowledge or reason to believe that any such notice will be
received or is being threatened;


 


(c)          no Covenant Party has transported or
disposed of from the Properties Materials of Environmental Concern in violation
of, or in a manner or to a location that could reasonably be expected to give
rise to liability under, any Environmental Law, nor has any Covenant Party
generated, treated, stored, handled or used at, on or under any of the
Properties Materials of Environmental Concern in violation of, or in a manner
that could reasonably be expected to give rise to liability under, any
applicable Environmental Law;


 


(d)         no judicial proceeding or governmental
or administrative action is pending or, to the knowledge of the Borrower,
threatened under or based on any Environmental Law, to which any Covenant Party
is or to the knowledge of any Covenant Party will be named as a party, nor is
any Covenant Party a party or subject to any decrees, orders, judgments or
agreements which impose any obligations or liability under any Environmental
Law;


 


(e)          there has been no Release or to the
knowledge of the Borrower threat of Release of Materials of Environmental
Concern at, on, under or from the Properties arising from or related to the
operations of any Covenant Party, in violation of or in amounts or in a manner
that could reasonably be expected to give rise to liability under Environmental
Laws;


 


(f)          the Properties and all operations at
the Properties and of each Covenant Party are in compliance, and for the past
three (3) years have been in compliance, with all applicable Environmental
Laws;


 


(g)          this Section 4.17 contains
the sole and exclusive representations and warranties of the Borrower with
respect to matters arising under Environmental Law.


 


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4.18.       Accuracy of Information, Etc.
No statement or factual information with respect to any Group Member or any of
its Subsidiaries contained in this Agreement, any other Loan Document or any
other factual document, certificate or statement (other than any projections,
pro formas or other estimates with respect to Borrower or any of its
Subsidiaries and other than information of a general economic or industry
nature) furnished by or by Persons directed on behalf of Borrower or any of its
Subsidiaries to the Administrative Agent or the Lenders, or any of them, for
use in connection with the transactions contemplated by this Agreement or the
other Loan Documents, when taken as a whole, contained as of the date such
statement, information, document or certificate was so furnished, any untrue
statement of a material fact or omitted to state a material fact necessary to
make the statements contained herein or therein not materially misleading in
light of the circumstances when such statements were made. The projections and
pro forma financial information contained in the materials referenced above
were, and when delivered, will be, based upon good faith estimates and
assumptions believed by management of Borrower to be reasonable at the time
made, it being recognized by the Administrative Agent and the Lenders that such
projections and financial information as they relate to future events are not
to be viewed as fact and that actual results during the period or periods
covered by such financial information may differ from the projected results set
forth therein by a material amount.


 


4.19.       Security Documents.


 


(a)           The Guaranty and Collateral Agreement
is effective to create in favor of the Collateral Agent, for the benefit of the
Secured Parties, legal, valid and enforceable Lien under U.S. Law (subject to
the effect of bankruptcy, insolvency, reorganization, receivership, moratorium
and other similar laws affecting creditors’ rights) on all right, title and
interest of the respective Loan Parties in the Collateral described therein and
proceeds thereof to the extent required thereby. In the case of the Pledged
Stock described in any of the Security Documents, when stock certificates
representing such Pledged Stock are delivered to and retained by the Collateral
Agent together with the necessary endorsements, and in the case of the other
Collateral described in the Guaranty and Collateral Agreement, when financing
statements and other filings specified on Schedule 4.19(a) in
appropriate form are filed in the offices specified on Schedule 4.19(a),
the Liens created under the Guaranty and Collateral Agreement shall constitute
a fully perfected Lien on, and security interest in, all right, title and
interest of the Loan Parties in such Collateral and the proceeds thereof under
U.S. law, as security for the Obligations to the extent a Lien on such
Collateral (other than the Pledged Stock) can be perfected pursuant to such
financing statements and such other filings, in each case prior and superior in
right to any other Person (except Liens permitted by Section 7.3).


 


(b)           Each of the Mortgages upon execution
is effective to create in favor of the Collateral Agent, for the benefit of the
Secured Parties, a legal, valid and enforceable (subject to the effect of
bankruptcy, insolvency, reorganization, receivership, moratorium and other
similar laws affecting creditors’ rights) first priority Lien on, and security
interests in, the Mortgaged Properties described therein and proceeds thereof
subject to the Liens permitted by such Mortgage, and when the Mortgages are
filed in the appropriate recording offices specified in the local counsel
opinions delivered with respect thereto in accordance with the provisions of 6.9(b) or
Section 6.15), each such Mortgage shall constitute a fully
perfected Lien on, and security interest in, all right, title and interest of
the Loan Parties in the Mortgaged Properties and the proceeds thereof, as
security for the Obligations (as defined in the relevant Mortgage), in each
case prior and superior in right to any other Person (except that the security
interest created in such real property and the Mortgaged Property may be
subject to the liens permitted by such Mortgage).


 


4.20.       Solvency. On the Closing Date, the
Group Members on a consolidated basis are, and after giving effect to the
Transactions and the incurrence of all Indebtedness and obligations being
incurred in connection therewith will be, Solvent.


 


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4.21.       Senior Indebtedness. The Obligations
constitute “Senior Indebtedness” and “Designated Senior Indebtedness” (or any
other terms of similar meaning and import) of the Borrower under and as defined
in the documents governing the Senior Subordinated Loans, the Exchange Notes,
the Rollover Loans, the Take Out Debt (to the extent the concept of Designated
Senior Indebtedness (or similar concept) exists therein), the Permitted
Additional Subordinated Debt (to the extent the concept of Designated Senior
Indebtedness (or similar concept) exists therein) and any Permitted Refinancing
Indebtedness (to the extent the concept of Designated Senior Indebtedness (or
similar concept) exists therein) in respect of any of the foregoing. The
obligations of each Subsidiary Guarantor under the Guaranty and Collateral
Agreement constitute “Senior Indebtedness” and “Designated Senior Indebtedness”
(or any other terms of similar meaning and import) of such Subsidiary Guarantor
under and as defined in the documents governing the Senior Subordinated Loans,
the Exchange Notes, the Rollover Loans, the Take Out Debt (to the extent the
concept of Designated Senior Indebtedness (or similar concept) exists therein),
the Permitted Additional Subordinated Debt (to the extent the concept of
Designated Senior Indebtedness (or similar concept) exists therein) and any
Permitted Refinancing Indebtedness (to the extent the concept of Designated
Senior Indebtedness (or similar concept) exists therein) in respect of any of
the foregoing.


 


4.22.       Insurance. No Mortgage encumbers
improved real property that is located in an area that has been identified by
the Secretary of Housing and Urban Development as an area having special flood
hazards and in which flood insurance has been made available under the National
Flood Insurance Act of 1968, unless flood insurance has been obtained to the
extent required in order to satisfy all applicable Requirements of Law in order
for a Mortgage to be obtained thereon. Schedule 4.22 sets forth a true,
complete and correct description of all insurance maintained by each Covenant
Party as of the Closing Date.


 


4.23.       Anti-Terrorism Law.


 


(a)           No Covenant Party is in violation of
any Requirement of Law in any material respect relating to terrorism or money
laundering (“Anti-Terrorism Laws”), including Executive Order
No. 13224 on Terrorist Financing, effective September 24, 2001 (the “Executive
Order”), and the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law
107-56.


 


(b)           No Covenant Party is any of the
following:


 


(i)           a person that is listed in the annex
to, or is otherwise subject to the provisions of, the Executive Order;


 


(ii)          a person owned or controlled by, or
acting for or on behalf of, any person that is listed in the annex to, or is
otherwise subject to the provisions of, the Executive Order;


 


(iii)         a person with which any Lender is
prohibited from dealing or otherwise engaging in any transaction by any
Anti-Terrorism Law;


 


(iv)        a person that commits, threatens or
conspires to commit or supports “terrorism” as defined in the Executive Order;
or


 


(v)         a person that is named as a “specially
designated national and blocked person” on the most current list published by
the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”)
at its official website or any replacement website or other replacement
official publication of such list.


 


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4.24.     Brokers’ Fees. Except as set
forth on Schedule 4.24, no Covenant Party has any obligation to any
Person in respect of any finder’s, broker’s, investment banking or other
similar fee in connection with any of the transactions contemplated under this
Agreement other than the Fee Letter.


 


SECTION 5


 


CONDITIONS PRECEDENT


 


5.1.         Conditions
to Initial Extension of Credit. The
effectiveness of this Agreement and the agreement of each Lender to make the
initial extension of credit hereunder are subject to the satisfaction or
waiver, prior to or concurrently with the making of such extension of credit on
the Closing Date, of the following conditions precedent:


 


(a)         Credit Agreement; Security Documents. The
Administrative Agent shall have received (i) this Agreement executed and
delivered by the Administrative Agent, Parent, the Borrower and each Lender,
(ii) the Guaranty and Collateral Agreement, executed and delivered by
Parent, the Borrower and each Subsidiary Guarantor, and (iii) an
Acknowledgement and Consent in the form attached to the Guaranty and Collateral
Agreement, executed and delivered by each Issuer (as defined therein), if any,
that is not a Loan Party.


 


(b)         Other Financing Transactions. The Equity Financing
shall have been consummated. The Borrower shall have received $175,000,000 in
gross cash proceeds from the borrowing of the Senior Subordinated Loans.


 


(c)          Merger and Debt Discharge. The Merger shall be
consummated in accordance with the Transaction Agreement in all material
respects substantially simultaneously with the initial extensions of credit
hereunder (and a certificate of a Responsible Officer of Borrower shall be
provided to such effect). No material provision of the Transaction Agreement
shall have been waived, amended, supplemented or otherwise modified in any
respect materially adverse to the Lenders without the consent of the Joint Lead
Arrangers. The Debt Discharge shall be consummated prior to or substantially
simultaneously with the initial extensions of credit hereunder. After giving
effect to the Transactions, Parent and its Subsidiaries shall not have any outstanding
Indebtedness, other than (i) the Facilities, (ii) the Senior
Subordinated Loans and (iii) other Indebtedness referred to in clause (ii) of
the proviso appearing in the definition of the term “Debt Discharge.”


 


(d)         Financial Statements. The Administrative Agent shall
have received the financial statements required to be delivered pursuant to Section 4.1(b).


 


(e)          Pro Forma Financial
Statements. The Administrative Agent shall have received the Pro
Forma Financial Statements.


 


(f)          Ratings. The Borrower shall have used commercially
reasonable efforts to have the Facilities rated by both Moody’s and S&P.


 


(g)          Lien Searches, Etc. The Administrative Agent
shall have received the results of a recent lien search (including a search as
to judgments, pending litigation and tax matters) in each of the jurisdictions
where the Loan Parties are organized or where assets of the Loan Parties are
located, and such search shall reveal no Liens on any of the assets of the Loan
Parties except for Liens permitted by Section 7.3 or discharged on
or prior to the Closing Date.


 


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(h)           Insurance. The Administrative
Agent shall have received a copy of, or a certificate as to coverage under, the
insurance policies required by Section 6.5 and the applicable
provisions of the Security Documents, each of which shall be endorsed or
otherwise amended to include a “standard” or “New York” lender’s loss payable
or mortgagee endorsement (as applicable) and shall name the Collateral Agent,
on behalf of the Secured Parties, as additional insured.


 


(i)            Fees. The Lenders and the
Administrative Agent shall have received all fees required to be paid pursuant
to the Fee Letter, and all expenses for which invoices have been presented
(including the reasonable fees and expenses of Cahill Gordon & Reindel
LLP, counsel to the Joint Lead Arrangers, and one firm of local counsel in each
relevant jurisdiction), on or before the Closing Date. All such amounts will be
paid with proceeds of Loans made on the Closing Date and will be reflected in
the funding instructions given by the Borrower to the Administrative Agent on
or before the Closing Date.


 


(j)            Organizational Documents.
After giving effect to the transactions contemplated hereby, the Administrative
Agent shall have received: (i) a copy of the organizational documents,
including all amendments thereto, of each Loan Party, certified as of a recent
date by the Secretary of State or other applicable Governmental Authority of
its respective jurisdiction of organization; (ii) a certificate of the
Secretary or Assistant Secretary of each Loan Party dated the Closing Date and
certifying (A) that the organizational documents of such Loan Party have
not been amended since the date of the last amendment thereto shown on the
certificate of good standing from its jurisdiction of organization furnished
pursuant to clause (i) above and remains in full force and effect;
(B) that attached thereto is a true and complete copy of the agreement of
limited partnership, operating agreement or by-laws of such Loan Party, as
applicable, as in effect on the Closing Date and at all times since a date
prior to the date of the resolutions described in clause (C) below
or certifying that such by-laws, limited partnership agreement or operating
agreement has not been amended; (C) that attached thereto is a true and
complete copy of resolutions duly adopted by the Board of Directors of such
Loan Party authorizing the execution, delivery and performance of the Loan
Documents to which it is to be a party and, in the case of the Borrower, the
borrowings hereunder, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect; and (D) as to the
incumbency and specimen signature of each officer executing any Loan Document;
and (iii) a certificate of another officer as to the incumbency and
specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to clause (ii) above.


 


(k)           Legal Opinions. The
Administrative Agent shall have received the following executed legal opinions:


 


(i)            the legal opinion of Kirkland &
Ellis LLP, counsel to Parent, the Borrower and its Subsidiaries, substantially
in the form of Exhibit F; and


 


(ii)           the legal opinions of the special
counsel to Parent, the Borrower and its Subsidiaries in the jurisdictions
listed on Schedule 5.1(k)(ii).


 


Each
such legal opinion shall cover such other matters incident to the transactions
contemplated by this Agreement as the Administrative Agent may reasonably require.


 


(l)            Pledged Stock; Stock Powers;
Pledged Notes. The Administrative Agent shall have received (i) the
certificates representing the shares of Capital Stock pledged pursuant to the
Guaranty and Collateral Agreement, together with an undated stock power for
each such certificate executed in blank by a duly authorized officer of the
pledgor thereof and (ii) each promissory


 


63

















 


note (if any) pledged to the
Administrative Agent pursuant to the Guaranty and Collateral Agreement endorsed
(without recourse) in blank (or accompanied by an executed transfer form in
blank) by the pledgor thereof.


 


(m)        Filings, Registrations and Recordings.
The Administrative Agent shall have received each document (including any
Uniform Commercial Code financing statement) required by the Security Documents
or under law to be filed, registered or recorded in order to create in favor of
the Administrative Agent, for the benefit of the Lenders, a perfected first
priority Lien on the Collateral described therein, prior and superior in right
to any other Person (other than with respect to Liens expressly permitted by Section 7.3),
and each such document shall be in proper form for filing, registration or
recordation under the UCC, filings with the United States Patent and Trademark
Office and United States Copyright Office and such other documents under
applicable Requirements of Law in each jurisdiction as may be necessary or
appropriate to perfect the Liens created, or purported to be created, by the
Security Documents.


 


(n)         Projections. The Administrative
Agent shall have received projections prepared by the Borrower’s management of
balance sheets, income statements and cash flow statements of the Borrower and
its Subsidiaries.


 


(o)         Financial Condition. The
Administrative Agent shall have received reasonably satisfactory evidence that
after giving pro  forma effect to the Transactions, the amount of
indebtedness outstanding on the Closing Date shall be such that the Total
Leverage Ratio of the Borrower and its Subsidiaries will not exceed 5.00 to
1.00 for the latest four-quarter period prior to the Closing Date for which
financial statements are available (calculated on a pro forma basis including
Pro Forma Adjustments or other adjustments reasonably acceptable to the Joint
Lead Arrangers).


 


(p)         Account Designation Notice. The
Administrative Agent shall have received the executed Account Designation
Notice.


 


(q)         Patriot Act. At least five (5) Business
Days prior to the Closing Date, the Administrative Agent shall have received a
certificate, substantially in the form of Exhibit H, for the
benefit of itself and the Lenders, provided by the Borrower that sets forth
information required by the Patriot Act including, without limitation, the identity
of the Loan Parties, the name and address of the Loan Parties and other
information reasonably requested by the Administrative Agent that will allow
the Administrative Agent or any Lender, as applicable, to identify the Loan
Parties in accordance with the Patriot Act.


 


(r)          Representations and Warranties; No
Company Material Adverse Effect. (A) On the Closing Date, the
representations and warranties made by the Covenant Parties in Sections 4.4(a) and
(e), 4.11, 4.14 and 4.18 as they relate to the Loan
Parties at such time shall be true and correct in all material respects to the
extent representation or warranty is not already subject to a “materiality” or
“Material Adverse Effect” qualifier and (B) since the date of the
Transaction Agreement, no change, circumstance or effect shall have occurred
that has had or would reasonably be expected to have a Company Material Adverse
Effect, in each case as certified in a certificate of a Responsible Officer of
the Borrower delivered to the Administrative Agent.


 


5.2.         Conditions to Each Extension of Credit. The agreement
of each Lender to make any extension of credit requested to be made by it on
any date (other than the initial extension of credit hereunder) is subject to
the satisfaction or waiver of the following conditions precedent:


 


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(a)          Representations and
Warranties. Each of the representations and warranties made by
any Loan Party in or pursuant to the Loan Documents shall be true and correct
in all material respects to the extent such covenant or other agreement is not
already subject to a “materiality” or “Material Adverse Effect” qualifier on
and as of such date as if made on and as of such date (other than
representations and warranties which speak only as of a certain date, which
representations and warranties shall be made only on such date).


 


(b)         No Default. No Default or
Event of Default shall have occurred and be continuing on such date or after
giving effect to the extensions of credit requested to be made on such date.


 


Each borrowing by and issuance of a Letter of Credit
on behalf of the Borrower hereunder after the Closing Date shall constitute a
representation and warranty by the Borrower as of the date of such extension of
credit that the conditions contained in this Section 5.2 have been
satisfied.


 


SECTION 6


 


AFFIRMATIVE
COVENANTS


 


The Borrower hereby agrees
that, until the expiration or termination of the Commitments, all Letters of
Credit have been terminated (or cash collateralized or backstopped on terms
reasonably acceptable to Administrative Agent and the Issuing Lender) and so
long as any Obligations are owing to any Lender or the Administrative Agent
hereunder (other than contingent indemnification obligations), the Borrower
shall and shall cause each Subsidiary to:


 


6.1.          Financial Statements. Furnish to
the Administrative Agent (and the Administrative Agent shall promptly furnish
to the Lenders, by posting to Syndtrak or otherwise):


 


(a)           not later than 90 days after
the end of each fiscal year of the Borrower, a copy of the audited consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as at the end
of such year and the related audited consolidated statements of income and of
cash flows for such year, setting forth in each case in comparative form the
figures for the previous year, reported on without a “going concern” or like
qualification or exception, or qualification arising out of the scope of the
audit, by Ernst & Young LLP or other “Big Four” independent certified
public accountants or other independent public accountants of nationally
recognized standing reasonably acceptable to the Administrative Agent;


 


(b)           not later than 45 days after
the end of each of the first three quarterly periods of each fiscal year of the
Borrower, the unaudited consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as at the end of such quarter and the related
unaudited consolidated statements of income and of cash flows for such quarter
and the portion of the fiscal year through the end of such quarter, setting
forth in each case in comparative form the figures for the same quarter in the
previous year, certified by a Responsible Officer as being fairly stated in all
material respects (subject to normal year-end audit adjustments and the absence
of footnotes); and


 


(c)           simultaneously with the
delivery of each set of consolidated financial statements referred to in Sections
6.1(a) and 6.1(b) above, the related consolidating
financial statements reflecting the adjustments necessary to eliminate the
accounts of Unrestricted Subsidiaries (if any) from such consolidated financial
statements.


 


65

















 


All such financial
statements shall be complete and correct in all material respects and shall be
prepared in accordance with GAAP applied (except as approved by such
accountants or a Responsible Officer, as the case may be, and disclosed
therein) consistently throughout the periods reflected therein and with prior
periods. With regard to interim financial statements, such interim financial
statements will not include all of the information and footnotes required by
GAAP for complete financial statements and be subject to year end adjustments.


 


Notwithstanding the
foregoing, the obligations in paragraphs (a) and (b) of this Section 6.1
may be satisfied with respect to financial information of the Borrower and its
consolidated Subsidiaries by furnishing the Borrower’s Form 10-K or 10-Q,
as applicable, filed with the SEC; provided
that such Form 10-K or 10-Q contains or is accompanied by the items
required by such paragraphs.


 


The Borrower hereby
acknowledges that (a) the Administrative Agent and/or the Joint Lead
Arrangers will make available to the Lenders materials and/or information
provided by or on behalf of the Borrower hereunder (collectively, “Company
Materials”) by posting the Company Materials on Syndtrak or another similar
electronic system (the “Platform”) and (b) certain of the Lenders
may be “public-side” Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to the Borrower or its securities)
(each, a “Public Lender”). The Borrower hereby agrees that it will
identify that portion of the Company Materials that may be distributed to the
Public Lenders and that (w) all such Company Materials shall be clearly
and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word
“PUBLIC” shall appear prominently on the first page thereof; (x) by
marking Company Materials “PUBLIC,” the Borrower shall be deemed to have
authorized the Administrative Agent, the Joint Lead Arrangers and the Lenders
to treat such Company Materials as not containing any material non-public
information (although it may be sensitive and proprietary) with respect to the
Company or its securities for purposes of United States federal and state
securities laws (provided, however, that to the extent such Company
Materials constitute Information, they shall be treated as set forth in Section 10.15);
(y) all Company Materials marked “PUBLIC” are permitted to be made
available through a portion of the Platform designated “Public Investor”; and
(z) the Administrative Agent and the Arrangers shall be entitled to treat
any Company Materials that are not marked “PUBLIC” as being suitable only for
posting on a portion of the Platform not designated “Public Investor.”


 


6.2.          Certificates; Other
Information. Furnish to the Administrative Agent (and the Administrative
Agent shall promptly furnish to the Lenders, by posting to Syndtrak or
otherwise):


 


(a)           if reasonably requested by
the Administrative Agent, concurrently with the delivery of the financial
statements referred to in Section 6.1(a), a certificate of the
independent certified public accountants reporting on such financial statements
stating that in making the examination necessary therefor no knowledge was
obtained of any Default or Event of Default under Section 7.1 or Section 7.7,
except as specified in such certificate (it being understood that such
certificate shall be limited to the items that independent certified public
accountants cover in such certificates pursuant to their professional standards
and customs of the profession and shall no longer be required to be delivered
if the Borrower’s certified public accountants no longer provide such a
certificate as a matter of policy);


 


(b)           concurrently with the
delivery of any financial statements pursuant to Sections 6.1(a) or
(b), (i) a Compliance Certificate containing all information and
calculations required by the form of such certificate attached as Exhibit F
(or such other form as may be agreed to by the Administrative Agent to reflect
the terms of Section 7.1), including those necessary for
determining compliance by each Covenant Party with the provisions of Section 7.1
(including detail with respect to any calculation of Consolidated EBITDA) as of
the last day of the fiscal quarter


 


66

















 


or fiscal year of the
Borrower, as the case may be, and (ii) to the extent not previously
disclosed to the Administrative Agent, a description of any change in the
jurisdiction of organization of any Loan Party and a list of any Intellectual
Property acquired by any Loan Party since the date of the most recent report
delivered pursuant to this clause (ii) (or, in the case of the first such
report so delivered, since the Closing Date);


 


(c)           no later than 60 days after
the end of each fiscal year of the Borrower and its Subsidiaries, a
consolidated budget for the following fiscal year, including a detailed
projected consolidated balance sheet of the Borrower and its consolidated
Subsidiaries, the related consolidated statements of projected cash flow and
projected income and a description of the underlying assumptions applicable
thereto for each quarter of such fiscal year, and, as soon as available, significant
revisions, if any, of such budget and projections with respect to such fiscal
year, to the extent such revisions have been delivered to the Board of
Directors of Borrower (or one of Borrower’s parent companies) for its approval;


 


(d)           as promptly as practicable
after the effectiveness thereof, copies of any amendment, supplement, waiver or
other modification with respect to any item of Indebtedness over $20,000,000,
the Senior Subordinated Loans, the Exchange Notes, the Rollover Loans, the Take
Out Debt, the Permitted Additional Subordinated Debt and any Permitted
Refinancing Indebtedness in respect of any of the foregoing and not otherwise
required to be required to be delivered under Section 6.1 or 6.2;


 


(e)           promptly after the
furnishing thereof, copies of any statement or report furnished to any holder
of debt securities in an aggregate principal amount of $20,000,000 for any one
issue or public equity securities of the Borrower or any Subsidiary and not
otherwise required to be furnished to the Lenders pursuant to Section 6.1
or any other clause of this Section 6.2 and promptly after the same
are filed, copies of all financial statements and reports that the Borrower or
any Subsidiary may make to, or file with, the SEC; and


 


(f)            promptly, such additional
financial and other information concerning a Group Member as the Administrative
Agent on behalf of itself or any Lender may from time to time reasonably
request; provided that no such information shall be required to be so
provided if the provision thereof would cause such Group Member to lose
attorney-client privilege or would violate a confidentiality agreement or if
such information is not reasonably available.


 


6.3.          Payment of Taxes. Pay,
discharge or otherwise satisfy at or before maturity or before they become
delinquent, as the case may be, all its material Tax obligations of whatever
nature, except (i) where the amount or validity thereof is being contested
in good faith by appropriate proceedings and reserves in conformity with GAAP
with respect thereto have been provided on the books of the relevant Covenant
Party and such contest suspends the enforcement of the Taxes in question, or
(ii) for failure to pay that could not individually or in the aggregate
reasonably be expected to result in a Material Adverse Effect.


 


6.4.          Maintenance of Existence;
Compliance.


 


(a)           (i) Except as otherwise
explicitly permitted under Section 7.4, preserve, renew and keep in
full force and effect its organizational existence and (ii) take all
reasonable action to maintain all rights, privileges and franchises necessary
in the normal conduct of its business, except, in each case, as otherwise
permitted by Section 7.4 except, in the case of clause (ii) above,
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (b) comply with all Requirements


 


67

















 


of Law except to the extent that failure to comply
therewith could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect.


 


6.5.          Maintenance of Property;
Insurance.


 


(a)           (i) Keep all material
property useful and necessary in its business in good working order and
condition, ordinary wear and tear and ordinary damage by casualty and
condemnation excepted, (ii) maintain with financially sound and reputable
insurance companies insurance on all its Property in at least such amounts and
against at least such risks as are prudent in its reasonable business judgment
(but including in any event public liability and business interruption) as are
usually insured against in the same general area by companies engaged in the
same or a similar business; and (iii) provide that each insurance policy
maintained or required to be maintained by any Covenant Party shall (A) name
the Collateral Agent, on behalf of the Secured Parties, as loss payee pursuant
to a so-called “standard mortgagee clause” or “Lender’s loss payable
endorsement,” with respect to property coverage on Collateral of such Covenant
Party, and shall name the Administrative Agent on behalf of the Secured Parties
as an additional insured, with respect to general liability coverage, (B) provide
that the insurer(s) shall endeavor to notify the Collateral Agent of any
proposed cancellation of such policy at least 30 days in advance thereof
(unless such proposed cancellation arises by reason of non-payment of insurance
premiums in which case such notice shall be given at least 10 days in advance
thereof) and (C) cause any Insurance Subsidiary to (x) conduct its
insurance business in compliance with all applicable insurance laws, rules,
regulations and orders and using sound actuarial principles except to the
extent where such failure to comply could not reasonably be expected to result
in a Material Adverse Effect and (y) maintain usual and customary
stop-loss coverage and excess coverage reinsurance for individual claims. The
insurance premiums and other expenses charged by any Insurance Subsidiary to
the Borrower and its Subsidiaries shall be reasonable and customary. The
Borrower will provide the Administrative Agent copies of any outside actuarial
reports prepared with respect to any projection, valuation or appraisal of any
Insurance Subsidiary promptly after receipt thereof.


 


(b)           With respect to each Mortgaged
Property, obtain flood insurance in such total amount as the Collateral Agent
or the Required Lenders may from time to time require, if at any time the area
in which any improvements located on any Mortgaged Property is designated a
“flood hazard area” in any Flood Insurance Rate Map published by the Federal
Emergency Management Agency (or any successor agency), and otherwise comply
with the National Flood Insurance Program as set forth in the Flood Disaster
Protection Act of 1973, as amended from time to time.


 


6.6.          Inspection of Property;
Books and Records; Discussions. (a) Keep books of records
and account in which full, true and correct entries (in all material respects)
in conformity with GAAP shall be made of all dealings and transactions in relation
to its business and activities required by GAAP, and (b) permit
representatives of any Lender (coordinated through the Administrative Agent) to
visit and inspect any of its properties and examine and make abstracts from any
of its books and records (other than materials protected by the attorney-client
privilege and materials which such person may not disclose without violation of
a confidentiality obligation binding upon it) at any reasonable time during
normal business hours (and upon reasonable notice) and as often as may
reasonably be desired and to discuss the business, operations, properties and
financial and other condition of the Group Members with officers and employees
of the Group Members and with their independent certified public accountants (provided the Borrower is given an
opportunity to be present at such meetings); provided
that, so long as no Event of Default has occurred and is continuing, the
Administrative Agent and the Lenders shall not be entitled to exercise the
foregoing rights more than once, in the aggregate, in any calendar year.


 


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6.7.          Notices. Promptly give
notice to the Administrative Agent and the Administrative Agent shall furnish
to the Lenders by posting to Syndtrak or otherwise of:


 


(a)           the occurrence of any
Default or Event of Default;


 


(b)           any litigation,
investigation or proceeding affecting any Group Member that could reasonably be
expected to result in a Material Adverse Effect;


 


(c)           the following events, as
soon as possible and in any event within 30 days after any Responsible Officer
of the Borrower knows thereof if such event or events could reasonably be
expected to result in a Material Adverse Effect: (i) the occurrence of any
Reportable Event with respect to any Plan, a failure to make any required
contribution to a Plan or Multiemployer Plan, the creation of any Lien in favor
of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution
of proceedings or the taking of any other action by the PBGC or the Borrower or
any Commonly Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the termination, Reorganization or Insolvency of, any Plan
or Multiemployer Plan; and


 


(d)           any development or event
that has had or could reasonably be expected to have a Material Adverse Effect.


 


Each notice pursuant to this Section 6.7
shall be accompanied by a statement of a Responsible Officer setting forth
details of the occurrence referred to therein and stating what action the
relevant Covenant Party proposes to take with respect thereto, if any.


 


6.8.          Environmental Laws.


 


(a)           Comply in all material
respects with, and use commercially reasonable efforts to ensure compliance in
all material respects by all tenants and subtenants, if any, at the Properties
with, all applicable Environmental Laws, and obtain and comply in all material
respects with and maintain, and use commercially reasonable efforts to ensure
that all tenants and subtenants obtain and comply in all material respects with
and maintain, any and all licenses, approvals, notifications, registrations or
permits required by applicable Environmental Laws. This clause (a) shall
be deemed not breached by a noncompliance with the foregoing if, upon learning
of such noncompliance, any affected Covenant Party promptly undertakes
reasonable efforts to eliminate such noncompliance, and such noncompliance and
the elimination thereof, in the aggregate with any other noncompliance with any
of the foregoing and the elimination thereof, could not reasonably be expected
to have a Material Adverse Effect.


 


(b)           Conduct and complete all
investigations, studies, sampling and testing, and all material remedial,
removal and other actions required for purposes of material compliance with
Environmental Laws and promptly comply in all material respects with all lawful
orders and directives of all Governmental Authorities regarding Environmental
Laws in each case. This clause (b) shall be deemed not breached by a
failure to comply with such an order or directive if any affected Covenant
Party timely challenges in good faith such order or directive in a manner
consistent with all applicable Environmental Laws and pursues such challenge diligently,
and the pendency and pursuit of such challenge, in the aggregate with the
pendency and pursuit of any other such challenges, could not reasonably be
expected to have a Material Adverse Effect.


 


69

















 


6.9.          Additional
Collateral, Etc.


 


(a)           With respect to any personal
property or Intellectual Property acquired after the Closing Date by any Loan
Party (other than any motor vehicles, or any tangible personal property
evidenced by a title certificate or any other type of property expressly
excluded by the Security Documents) as to which the Collateral Agent, for the
benefit of the Secured Parties, does not have a perfected Lien, promptly (i) execute
and deliver to the Collateral Agent such amendments to the Guaranty and
Collateral Agreement or such other documents as the Collateral Agent reasonably
deems necessary or advisable to grant to the Collateral Agent, for the benefit
of the Secured Parties, a security interest under U.S. law in such property
pursuant to the terms, conditions and limitations set forth in the Guaranty and
Collateral Agreement, subject to Liens permitted under Section 7.3,
and (ii) take all actions reasonably requested by the Collateral Agent to
grant to the Administrative Agent, for the benefit of the Lenders, a perfected
first priority security interest under U.S. law in such property pursuant to
the terms, conditions and limitations set forth in the Guaranty and Collateral
Agreement, including the filing of Uniform Commercial Code financing statements
in such jurisdictions as may be reasonably required by the Guaranty and
Collateral Agreement or under U.S. law or as may be reasonably requested by the
Administrative Agent.


 


(b)           With respect to any fee
interest in any real property having a value (together with improvements
thereof) of at least $1,000,000 acquired after the date that is 180 days after
the Closing Date by any Loan Party (other than any such real property subject
or to be subject to a Lien permitted by Section 7.3(g)), on a quarterly
basis reasonably promptly within 30 days after delivery of the financial
statements delivered pursuant to Section 6.1(a) or (b) execute
and deliver a first priority mortgage or deed of trust subject to the Liens
permitted by such mortgage or deed of trust in a form substantially similar to
the Mortgages on the Mortgaged Properties and otherwise reasonably satisfactory
to the Administrative Agent, in favor of the Collateral Agent, for the benefit
of the Secured Parties, covering such real property and recorded by a
nationally recognized title insurance company in such manner and in such place
as is required by law to establish, perfect, preserve and protect the Lien in
favor of the Collateral Agent required to be granted pursuant to the Mortgage and
all taxes, fees and other charges payable in connection therewith shall be paid
in full. Such Loan Party shall otherwise take such actions and execute and/or
deliver to the Collateral Agent such documents as the Administrative Agent
shall reasonably require to confirm the validity, perfection and priority of
the Lien of any existing Mortgage or new Mortgage against such after-acquired
Real Property (including a Title Policy, a Survey and local counsel opinion (in
form and substance reasonably satisfactory to the Administrative Agent) and
other documents of the type described in Section 6.15 in respect of
such Mortgage).


 


(c)          With respect to any new
Subsidiary created or acquired after the Closing Date by any Loan Party,
promptly (i) execute and deliver to the Administrative Agent such
amendments to the Guaranty and Collateral Agreement as the Administrative Agent
reasonably deems necessary to grant to the Administrative Agent, for the
benefit of the Lenders, a perfected first priority security interest subject to
Liens permitted pursuant to Section 7.3 in the Capital Stock of
such new Subsidiary that is owned by any Loan Party (provided such security interest shall be limited (A) in
the case of a Foreign Subsidiary directly owned by a Domestic Subsidiary, to 65%
of such Capital Stock in such Foreign Subsidiary and (B) in the case of
any other Foreign Subsidiary or any Insurance Subsidiary or Immaterial
Subsidiary, to 0% of such Capital Stock in such Foreign Subsidiary, Insurance
Subsidiary or Immaterial Subsidiary), (ii) deliver to the Administrative
Agent the certificates representing such Capital Stock, together with undated
stock powers, in blank, executed and delivered by a duly authorized officer of
the relevant Loan Party, (iii) cause such new Subsidiary (unless such
Subsidiary is a Foreign Subsidiary, an Insurance Subsidiary, an Immaterial
Subsidiary, a Regulated Entity or a Non-Wholly-Owned Subsidiary or otherwise
excluded pursuant to the definition of a Subsidiary Guarantor) (A) to
become a party to the Guaranty and Collateral Agreement, (B) to take such
actions necessary and reasonably requested by the Administrative Agent to


 


70

















 


grant to the Administrative Agent for the benefit of
the Lenders a perfected first priority security interest subject to the Liens
permitted under Section 7.3 in the Collateral described in the
Guaranty and Collateral Agreement with respect to such new Subsidiary,
including the filing of Uniform Commercial Code financing statements in such
jurisdictions as may be required by the Guaranty and Collateral Agreement or by
U.S. law or as may be reasonably requested by the Administrative Agent and (C) to
deliver to the Administrative Agent a certificate of such Subsidiary,
substantially in the form of Exhibit C or in such other form as may
be reasonably acceptable to the Administrative Agent, with appropriate
insertions and attachments, and (iv) if reasonably requested by the
Administrative Agent, deliver to the Administrative Agent legal opinions
relating to the matters described above, which opinions shall be in form and
substance, and from counsel, reasonably satisfactory to the Administrative
Agent; provided that (1) the
Borrower shall not be required to take, or cause any Subsidiary to take, the
actions required by this paragraph (c) with respect to any such new Subsidiary
prior to the delivery of financial statements delivered pursuant to Section 6.1(a) or
(b) for the fiscal quarter of the Borrower during which such new
Subsidiary was created or acquired unless (x) the aggregate amount of
Investments made by Borrower and the Subsidiaries in all such new Subsidiaries
exceeds $10,000,000 prior to the end of such fiscal quarter or (y) an
Event of Default has occurred and is continuing and (2) the Borrower shall
not be required to provide the legal opinions required by this paragraph (c) if
the applicable new Subsidiary (on a consolidated basis) accounts for less than
1% of the assets, revenues or Consolidated EBITDA of the Borrower, in each case
on a pro forma basis as of the end of and for the four fiscal quarters most
recently ended for which financial statements have been delivered under Section 6.1(a) or
(b) or, if prior to the first delivery date for such financial
statements, for which financial statements of the Company are available, as
though such Subsidiary had become a Subsidiary at the beginning of such period,
unless such new Subsidiary, together with all other Subsidiary Guarantors
organized in the same jurisdiction with respect to which no opinions have been
received by the Administrative Agent, account for 4% of more of the assets,
revenues or Consolidated EBITDA of the Borrower (determined on the same basis
as provided above).


 


6.10.        Security Interests; Further
Assurances.


 


(a)           Promptly, upon the
reasonable request of the Administrative Agent, at Borrower’s expense, execute,
acknowledge and deliver, or cause the execution, acknowledgment and delivery
of, and thereafter register, file or record, or cause to be registered, filed
or recorded, in an appropriate governmental office, any document or instrument
supplemental to or confirmatory of the Security Documents or otherwise deemed
by the Administrative Agent reasonably necessary for the continued validity,
perfection and priority of the Liens on the Collateral covered thereby subject
to no other Liens except as permitted by this Agreement or the applicable
Security Document, or consents, authorizations, approvals and orders in form
and substance reasonably satisfactory to the Administrative Agent as the
Administrative Agent shall reasonably deem necessary to perfect or maintain the
Liens on the Collateral pursuant to the Security Documents. Upon the exercise
by the Administrative Agent of any power, right, privilege or remedy pursuant
to any Loan Document which requires any consent, approval, registration,
qualification or authorization of any Governmental Authority, use your
commercially reasonable efforts to execute and deliver all applications,
certifications, instruments and other documents and papers that the
Administrative Agent may reasonably require. If the Administrative Agent or the
Required Lenders determine that they are required by a Requirement of Law to
have appraisals prepared in respect of the Real Property of any Loan Party
constituting Collateral, Borrower shall provide to the Administrative Agent
appraisals that satisfy the applicable requirements of the Real Estate
Appraisal Reform Amendments of FIRREA.


 


(b)         Notify the Administrative
Agent and the Collateral Agent in writing of any change in any Loan Party’s (i) legal
name, (ii) location of chief executive office or principal place of
business, (iii) identity or type of organization or corporate structure,
(iv) Federal Taxpayer Identification Number or organizational
identification number or (v) jurisdiction of organization, in each case
within 60


 


71

















 


days after any such change occurs. The Borrower
agrees to cause each Loan Party that makes any change described in the
proceeding sentence to comply with 6.10(a), as applicable.


 


6.11.        Compliance with ERISA. (a) Except
where the failure to so comply could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect, (i) comply with
all material applicable provisions of ERISA and the regulations and published
interpretations thereunder with respect to all Employee Benefit Plans, (ii) not
take any action or fail to take action the result of which could reasonably be
expected to be a liability to the PBGC or to a Multiemployer Plan, (iii) not
participate in any prohibited transaction that could reasonably be expected to
result in any civil penalty under ERISA or tax under the Code and (iv) operate
each Employee Benefit Plan in such a manner that will not incur any tax
liability under Section 4980B of the Code or any liability to any
qualified beneficiary as defined in Section 4980B of the Code and (b) furnish
to the Administrative Agent upon the Administrative Agent’s request such
additional information about any Employee Benefit Plan as may be reasonably
requested by the Administrative Agent.


 


6.12.        Use of Proceeds. The Borrower
will use the proceeds of the Loans for the purposes set forth in Section 4.16.


 


6.13.        Interest Rate Contracts. No later than
the 120th day after the Closing Date, the Borrower shall enter into, and for a
minimum of three years thereafter maintain, Interest Rate Contracts that
result in at least 35% of the aggregate principal amount of the Initial Tranche
B Term Loans being effectively subject to a fixed or maximum interest rate.


 


6.14.        Designation of Subsidiaries. The Borrower
may at any time designate any Subsidiary of the Borrower that is an Insurance
Subsidiary as an Unrestricted Subsidiary or any Unrestricted Subsidiary as a
Subsidiary of Borrower; provided
that (i) immediately before and after such designation on a pro forma
basis, no Default shall have occurred and be continuing, (ii) immediately
after giving effect to such designation, the Borrower shall be in compliance,
on a pro forma basis, with the covenants set forth in Section 7.1
(it being understood that as a condition precedent to the effectiveness of any
such designation, the Borrower shall deliver to the Administrative Agent a
certificate of a Responsible Officer setting forth in reasonable detail the
calculations demonstrating such compliance), (iii) no Subsidiary may be
designated as an Unrestricted Subsidiary or continue as an Unrestricted
Subsidiary if it is a “Restricted Subsidiary” (or any other term of similar
meaning and import) under and as defined in the documents governing the Senior
Subordinated Loans, the Exchange Notes, the Rollover Loans, the Take Out Debt,
the Permitted Additional Subordinated Debt or and any Permitted Refinancing
Indebtedness in respect of any of the foregoing. The designation of any such
Insurance Subsidiary in accordance with the previous sentence as an
Unrestricted Subsidiary after the Closing Date shall constitute an Investment
by the Borrower therein at the date of designation in an amount equal to the
net book value of the Borrower’s or its Subsidiary’s (as applicable) investment
therein (and such designation shall only be permitted to the extent such
Investment is permitted under Section 7.8).


 


6.15.        Real Estate Post-Closing
Obligations. The Borrower and Subsidiary Guarantors under this
Agreement shall obtain and deliver to Collateral Agent, within 180 days after
the Closing Date (unless waived or extended by Collateral Agent in its
discretion), the following with respect to each parcel of owned real property
of the Borrower or any Subsidiary Guarantor that has a fair market value in excess
of $1,000,000 (provided that if
prior to such 180th day the Borrower or a Subsidiary Guarantor enters into a
binding agreement committing the Borrower or such Subsidiary Guarantor, as the
case may be, to Dispose of any such parcel of such owned real property in a
transaction pursuant to Section 7.11, such 180-day period will be
extended with respect to such owned parcel of real property so committed for a
period not to exceed 120 days (or such longer period as the Administrative
Agent shall, in its sole discretion, 


 


72

















 


determine) after which the Borrower and/or the
applicable Subsidiary Guarantor(s) shall deliver a Mortgage with respect
to such parcel of owned real property if such transaction pursuant to Section 7.11
has not been consummated):


 


(i)           a Mortgage encumbering each
such parcel of real property in favor of the Collateral Agent, for the benefit
of the Secured Parties, duly executed and acknowledged by each Loan Party that
is the owner of or holder of any interest in such parcel of real property, and
otherwise in form for recording in the recording office of each applicable political
subdivision where each such parcel of real property is situated, together with
such certificates, affidavits, questionnaires or returns as shall be required
in connection with the recording or filing thereof to create a lien under
applicable Requirements of Law, and such financing statements and any other
instruments necessary to grant a mortgage lien under the laws of any applicable
jurisdiction, all of which shall be in form and substance reasonably
satisfactory to Collateral Agent;


 


(ii)          with respect to each such
parcel of real property, such consents, approvals, amendments, supplements,
estoppels, tenant subordination agreements or other instruments as necessary to
consummate the Transactions or as shall reasonably be deemed necessary by the
Administrative Agent in order for the owner or holder of the fee interest
constituting such parcel of real property to grant the Lien contemplated by the
Mortgage with respect to such parcel of real property;


 


(iii)         with respect to each
Mortgage, a policy of title insurance (or marked up title insurance commitment
having the effect of a policy of title insurance) insuring the Lien of such
Mortgage as a valid first mortgage Lien on each such parcel of real property
and fixtures described therein in the amount equal to not less than 115% of the
estimated fair market value of such parcel of real property and fixtures as set
forth below which amount shall be reasonably satisfactory to the Collateral
Agent, which policy (or such marked-up commitment) (each, a “Title Policy”)
shall (A) be issued by the Title Company, (B) to the extent
necessary, include such reinsurance arrangements (with provisions for direct
access, if necessary) as shall be reasonably acceptable to the Collateral
Agent, (C) contain a “tie-in” or “cluster” endorsement, if available under
applicable law (i.e., policies which insure against losses regardless of
location or allocated value of the insured property up to a stated maximum
coverage amount), (D) have been supplemented by such endorsements as shall
be reasonably requested by the Collateral Agent, and (E) contain no
exceptions to title other than the Liens permitted by such Mortgage and
exceptions reasonably acceptable to the Collateral Agent;


 


(iv)        with respect to each such
parcel of real property, such affidavits, certificates, information (including
financial data) and instruments of indemnification (including a so-called “gap”
indemnification) as shall be required to induce the Title Company to issue the
Title Policy/ies and endorsements contemplated above;


 


(v)         evidence reasonably
acceptable to the Collateral Agent of payment by Borrower of all Title Policy
premiums, search and examination charges, escrow charges and related charges,
mortgage recording taxes, fees, charges, costs and expenses required for the
recording of the Mortgages and issuance of the Title Policies referred to
above;


 


(vi)        with respect to each such
parcel of real property, copies of all Leases in which Borrower or any
Subsidiary holds the lessor’s interest or other agreements relating to
possessory interests, if any. To the extent any of the foregoing affect any
such parcel


 


73

















 


of real property, such
agreement shall be subordinate to the Lien of the Mortgage to be recorded against
such parcel of real property, either expressly by its terms or pursuant to a
subordination, non-disturbance and attornment agreement, and shall otherwise be
reasonably acceptable to the Administrative Agent;


 


(vii)       with respect to each such
parcel of real property, each shall have made all notifications, registrations
and filings, to the extent required by, and in accordance with, all
Governmental Real Property Disclosure Requirements applicable to such parcel of
real property;


 


(viii)      Surveys with respect to each
such parcel of real property;


 


(ix)         on behalf of itself, the
Administrative Agent, the Lenders and the Issuing Bank, an opinion of (i) Kirkland &
Ellis LLP, special counsel for the Loan Parties, and (ii) local counsel in
the applicable jurisdiction reasonably acceptable to the Borrower and the
Administrative Agent, in each case in substantially the forms reasonably
acceptable to the Administrative Agent;


 


(x)          a copy of, or a certificate
as to coverage under, the insurance policies required by Section 6.5,
each of which shall be endorsed or otherwise amended to include a “standard” or
“New York” lender’s loss payable or mortgagee endorsement as applicable and
shall name the Collateral Agent, on behalf of the Secured Parties, as
additional insured, in form and substance reasonably satisfactory to the
Administrative Agent;


 


(xi)         a completed and duly
executed Federal Emergency Management Agency Standard Flood Hazard
Determination with respect to each such parcel of real property in form and
substance reasonably satisfactory to the Collateral Agent; and


 


(xii)        appraisals for each such
parcel of real property as Administrative Agent shall have determined to be
reasonably required under FIRREA.


 


6.16.        Post Closing Matters. The Borrower
shall provide evidence to the Administrative Agent that the Liens in favor of
Commerce Bank/Harrisburg N.A. evidenced by (a) file number 200609010969
and (b) file number 2006102403683 with the Secretary of State of the
Commonwealth of Pennsylvania shall have been released no more that 30 days
following the Closing Date unless extended by the Administrative Agent in its
reasonable discretion.


 


SECTION 7


 


NEGATIVE
COVENANTS


 


The Borrower hereby agrees
that, until the expiration or termination of the Commitments, all Letters of
Credit have been terminated (or cash collateralized or backstopped on terms
reasonably acceptable to Administrative Agent and the Issuing Lender) and so
long as any Obligations (other than contingent indemnification obligations) are
owing to any Lender or the Administrative Agent hereunder, the Borrower shall
not, and shall not permit any of its Subsidiaries to, directly or indirectly:


 


74






 










 


7.1.          Financial Condition
Covenants.


 


(a)           Total Leverage Ratio. Permit the
Total Leverage Ratio as of the last day of any fiscal quarter of the Borrower
ending during any period set forth below to exceed the ratio set forth below
opposite such period:


 


	
  Fiscal Quarter

  Ending During Period

  	
   

  	
  Total

  Leverage Ratio

  
	
   

  	
   

  	
   

  
	
  June 30, 2008 to
  June 30, 2009

  	
   

  	
  5.75
  to 1.00

  
	
  September 30, 2009 to June 30, 2010

  	
   

  	
  5.50 to 1.00

  
	
  September 30, 2010 to June 30, 2011

  	
   

  	
  5.25 to 1.00

  
	
  September 30, 2011 to June 30, 2012

  	
   

  	
  5.00 to 1.00

  
	
  September 30, 2012 to December 31, 2012

  	
   

  	
  4.75 to 1.00

  
	
  March 31, 2013 and Thereafter

  	
   

  	
  4.50 to 1.00

  



 


(b)           Interest Coverage Ratio. Permit the
Interest Coverage Ratio for any period of four consecutive fiscal quarters of
the Borrower ending as of the last day of any fiscal quarter ended during any period
set forth below to be less than the ratio set forth below opposite such period:


 


	
  Fiscal Quarter

  Ending During Period

  	
   

  	
  Consolidated Interest

  Coverage Ratio

  
	
   

  	
   

  	
   

  
	
  June 30, 2008 to December 31, 2008

  	
   

  	
  1.80 to 1.00

  
	
  March 31, 2009 to December 31, 2009

  	
   

  	
  1.85 to 1.00

  
	
  March 31, 2010 to December 31, 2010

  	
   

  	
  1.90 to 1.00

  
	
  March 31, 2011 to December 31, 2011

  	
   

  	
  2.00 to 1.00

  
	
  March 31, 2012 to December 31, 2012

  	
   

  	
  2.05 to 1.00

  
	
  March 31, 2013 to June 30, 2013

  	
   

  	
  2.10 to 1.00

  
	
  September 30, 2013 and Thereafter

  	
   

  	
  2.20 to 1.00

  



 


7.2.          Indebtedness. Create,
issue, incur, assume, become liable in respect of or suffer to exist any
Indebtedness, except:


 


(a)           Indebtedness of any Loan
Party pursuant to any Loan Document;


 


(b)           Indebtedness of the Borrower
or any Subsidiary Guarantor to any Subsidiary and of any Subsidiary Guarantor
to the Borrower or any other Subsidiary Guarantor and of any Subsidiary that is
not a Guarantor to any other Subsidiary that is not a Guarantor; provided that any such Indebtedness of
Borrower or a Subsidiary Guarantor shall be subordinated to the Obligations on
terms reasonably satisfactory to the Administrative Agent;


 


(c)           Guarantee Obligations
incurred in the ordinary course of business by Borrower or any Subsidiary
Guarantor of Indebtedness and other obligations of Borrower or any other
Subsidiary Guarantor;


 


(d)           Indebtedness outstanding on
the date hereof and listed on Schedule 7.2(d) and any Permitted
Refinancing Indebtedness in respect of any such Indebtedness;


 


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(e)           Indebtedness (including,
without limitation, Capital Lease Obligations and purchase money Indebtedness)
secured by Liens permitted by Section 7.3(g), and any Permitted
Refinancing Indebtedness in respect of such Indebtedness, in an aggregate
principal amount not to exceed the sum of $50,000,000 at any one time
outstanding;


 


(f)            Indebtedness of the Borrower
in an aggregate principal amount not to exceed $175,000,000 in respect of the
Senior Subordinated Loans, the Exchange Notes, the Rollover Loans, the Take Out
Debt and any Permitted Refinancing Indebtedness in respect of any of the
foregoing and Guarantee Obligations of any Subsidiary Guarantor in respect
thereof; provided that the Take
Out Debt (a) shall mature no earlier than the six and one-half year
anniversary of the Closing Date, (b) shall provide for no interim
amortization, mandatory redemption or mandatory prepayment prior to maturity
(other than with respect to any “AHYDO” provision), (c) shall not provide
that the holders thereof have the right to require any of the obligors under
such Indebtedness to repurchase or prepay (or offer to repurchase or prepay)
such Indebtedness, except, in the case of clauses (b) and (c) above,
upon mandatory prepayment or mandatory offer to repurchase events that are
market for high yield debt or mezzanine debt, including without limitation
“change of control” and “asset sale” events; provided
further that all Indebtedness outstanding pursuant to this Section 7.2(f) shall
at all times be subordinated in right of payment to the Obligations on terms no
less favorable to the Lenders than those contained in the Senior Subordinated
Loan Agreement as in effect on the Closing Date; provided further that such Guarantee Obligations are
subordinated to the obligations of the Guarantors under the Loan Documents to
the same or substantially the same extent as the obligations of the Borrower in
respect of the Senior Subordinated Loans, the Exchange Notes, the Rollover Loans,
the Take Out Debt and any Permitted Refinancing Indebtedness in respect of any
of the foregoing, as the case may be, are to the Obligations;


 


(g)           Indebtedness of the Borrower
or any of its Subsidiaries acquired or assumed pursuant to an Investment pursuant
to Section 7.8(g), (r), (s), (u), (w), (x) or
(y), which Indebtedness was in existence at the time of such Investment
and not incurred in contemplation thereof (and any Permitted Refinancing
Indebtedness in respect of any such Indebtedness), in an aggregate principal
amount not to exceed $12,000,000 at any time outstanding;


 


(h)           any other Indebtedness of
the Borrower or any of its Subsidiaries in an aggregate amount not exceeding
$25,000,000 at any one time outstanding;


 


(i)            obligations in respect of
(A) performance, bid, surety, statutory or appeal bonds or completion
guarantees or bankers’ acceptances in the ordinary course of business or in
connection with an Investment pursuant to Section 7.8(g), (r),
(s), (u), (w), (x) or (y), (B) payment
obligations in connection with self-insurance or similar obligations and bank
overdrafts (and letters of credit in respect thereof) or with respect to
worker’s compensation claims or other bonds permitted under Section 7.3
and (C) letters of credit in respect of workers’ compensation claims,
health, disability or other employee benefits or property, casualty or
liability insurance or self-insurance or other Indebtedness with respect to
reimbursement-type obligations regarding workers’ compensation claims;


 


(j)            Indebtedness incurred in the
ordinary course of business in respect of netting services, overdraft
protections and otherwise in connection with deposit accounts;


 


(k)           Indebtedness under Interest
Rate Contracts, Swap Agreements and Cash Management Agreements, in each case
incurred not for speculative purposes;


 


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(l)            Indebtedness that is
outstanding on the date hereof but that is repaid on the Closing Date pursuant
to the Debt Discharge;


 


(m)          unsecured Indebtedness of
the Borrower (other than Indebtedness referred to in Section 7.1(f))
that is subordinated to the Obligations on terms not materially less favorable
to the Lenders than the subordination terms set forth in the Senior
Subordinated Loan Agreement as of the Closing Date; provided that (i) both immediately prior to and after
giving effect thereto, (x) no Default shall exist or result therefrom and
(y) the Borrower and its Subsidiaries will be in compliance with the
covenants set forth in Section 7.1, calculated on a pro forma basis
as of the end of the period most recently ended for which financial statements
were required to have been delivered pursuant to Section 6.1(a) or
(b) or, if prior to the first delivery date for such financial statements
hereunder, as of the end of the period for which the most recent financial
statements of the Company are available and, if the last day of any such period
is prior to the first test date under Section 7.1, the levels for
the first test date shall be deemed to apply for this purpose (with, for
purposes of determining compliance with this clause (y), unless the Net Cash
Proceeds of such Indebtedness are used to make a prepayment under Section 2.11(a),
the levels set forth for the Total Leverage Ratio in the tables of Section 7.1
being deemed to be 0.25x lower than such levels otherwise are), (ii) such
Indebtedness matures after, and does not require any scheduled amortization or
other scheduled payments of principal prior to, the date that is one hundred
and eighty-one (181) days after the Tranche B Maturity Date (it being
understood that such Indebtedness may have mandatory prepayment, repurchase or
redemption provisions satisfying the requirement of clause (iii) hereof),
(iii) such Indebtedness and Permitted Refinancing Indebtedness has terms
and conditions (other than interest rate and redemption premiums) that are then
market for high yield or mezzanine debt, and (iv) such Indebtedness and
Permitted Refinancing Indebtedness is incurred by the Borrower and is not guaranteed
by any Subsidiary of the Borrower other than the Subsidiary Guarantors (which
guarantees shall be expressly subordinated to the Obligations on terms not
materially less favorable to the Lenders than the subordination terms of such
Indebtedness and Permitted Refinancing Indebtedness); provided that the Net Cash Proceeds of any
such Indebtedness (other than any such Permitted Refinancing Indebtedness)
shall be concurrently applied to prepay the Loans to the extent required by Section 2.11(a);


 


(n)           Indebtedness representing
deferred compensation to employees of the Borrower and its Subsidiaries
incurred in the ordinary course of business;


 


(o)           Indebtedness consisting of
obligations of the Borrower or its Subsidiaries under deferred compensation or
other similar arrangements incurred by such Person in connection with the
Transaction and Permitted Acquisitions or any other Investment expressly
permitted hereunder;


 


(p)           Indebtedness consisting of
promissory notes issued by the Parent, the Borrower or any Subsidiary to
current or former officers, directors and employees, their respective estates,
spouses or former spouses to finance the purchase or redemption of Capital
Stock of Parent or any of its direct or indirect parent corporations permitted
by Section 7.6; provided
that any such Indebtedness shall be explicitly subordinated in right of payment
to the Obligations to at least the same extent as the Senior Subordinated Loans
are to the Obligations on the Closing Date;


 


(q)           Indebtedness arising in
connection with endorsement of deeds and negotiable and other instruments for
deposit and/or collection in the ordinary course of business;


 


(r)            Indebtedness consisting of
the financing of insurance premiums arising in the ordinary course of business;


 


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(s)          Indebtedness of the Borrower
or any Subsidiary consisting of guarantees, indemnities or obligations in
respect of purchase price adjustments, earn-outs or similar obligations in
connection with the acquisition or disposition of assets of Borrower or a
Subsidiary otherwise permitted herein;


 


(t)          Indebtedness arising from
the honoring by a bank or other financial institution of a check, draft or
similar instrument inadvertently (except in the case of daylight overdrafts)
drawn against insufficient funds in the ordinary course of business; provided, however,
that such Indebtedness is extinguished within five business days of incurrence;


 


(u)         Indebtedness of the Borrower
or any Subsidiary represented by Guarantee Obligations of Borrower or any other
Subsidiary otherwise permitted to be incurred under this Agreement by the
Borrower or the Subsidiary incurring such Guarantee Obligation;


 


(v)         Indebtedness of Subsidiaries
that are not Guarantors in an aggregate principal amount not to exceed
$15,000,000 at any one time outstanding; and


 


(w)         Investments to the extent
such Investments themselves constitute Indebtedness and which are otherwise
permitted pursuant to Section 7.8(d), (h), (r), (s),
(u), (w), (x) or (y).


 


7.3.          Liens. Create,
incur, assume or suffer to exist any Lien upon any of its property, whether now
owned or hereafter acquired, except the following (collectively, the “Permitted
Liens”):


 


(a)          Liens for taxes,
assessments, charges or other governmental levies not overdue for a period of
more than 60 days or that are being contested in good faith by appropriate
proceedings or not required to be paid pursuant to Section 6.3,
which proceedings (or orders entered into in connection with such proceedings)
have the effect of preventing the forfeiture or sale of the property subject to
any such lien; provided that
adequate reserves with respect thereto are maintained on the books of the
Borrower or its Subsidiaries, as the case may be, in conformity with GAAP;


 


(b)         carriers’, warehousemen’s,
mechanics’, materialmen’s, repairmen’s, vendors’, laborers’ or other like Liens
arising in the ordinary course of business that are not overdue for a period of
more than 60 days or being contested in good faith by appropriate proceedings
for which adequate reserves have been established in accordance with GAAP or
the failure to pay could not result in a Material Adverse Effect;


 


(c)          Liens arising out of pledges
or deposits in connection with workers’ compensation, unemployment insurance,
old age pensions and other social security or retirement benefits or other
similar legislation and deposits securing liability insurance carriers under
insurance or self insurance arrangements;


 


(d)         deposits to secure the
performance of bids, tenders, franchises, trade contracts (other than for
borrowed money), leases, statutory obligations, contractual or warranty
obligation, surety and appeal and custom bonds, performance bonds and other
obligations of a like nature, in each case incurred in the ordinary course of
business;


 


(e)          easements, rights-of-way,
zoning restrictions and other similar encumbrances that, in the aggregate, do
not in any case materially detract from the value of the property subject
thereto or materially interfere with the ordinary conduct of the business of
the Borrower or any of its Subsidiaries, taken as a whole;


 


78

















 


(f)            Liens in existence on the
date hereof listed on Schedule 7.3(f), securing Indebtedness permitted
by Section 7.2(d) and replacements and renewals thereof; provided that no such Lien is spread to
cover any additional property after the Closing Date;


 


(g)           Liens securing Indebtedness
of the Borrower or any of its Subsidiaries incurred pursuant to Section 7.2(e) to
finance the acquisition or construction of new equipment, fixed assets or real
property or the repair or improvement thereof or the refinancing of real
property; provided that (i) such
Liens and the Indebtedness secured thereby shall be created within 270 days after
the acquisition, construction, repair or improvement of such new equipment,
fixed or capital assets or real property or improvements thereto and (ii) such
Liens do not at any time encumber any property other than the equipment, fixed
or capital assets or real property (or the real property improved by such
improvements) financed by such Indebtedness;


 


(h)           Liens created pursuant to
the Security Documents;


 


(i)            contractual or statutory
Liens of landlords and Liens of suppliers (including sellers of goods) and
other Liens imposed by law or pursuant to customary reservations or retentions
of title arising in the ordinary course of business;


 


(j)            rights of setoff or bankers’
liens upon deposits of cash in favor of banks or other depository institutions
whether arising by contract or operation of law, incurred in the ordinary
course of business so long as such deposits are not intended to be collateral
for any obligations;


 


(k)           Liens attaching solely to
cash earnest money deposits in connection with any letter of intent or purchase
agreement in connection with a Permitted Acquisition;


 


(l)            Liens arising from
precautionary UCC financing statements regarding operating leases not
constituting Indebtedness or consignments;


 


(m)          Liens securing Indebtedness
incurred under Section 7.2(g) on property or assets acquired
pursuant to a Permitted Acquisition or any other Investment referred to in Section 7.02(g),
or on property or assets of a Subsidiary of the Borrower in existence at the
time such Subsidiary is acquired pursuant to a Permitted Acquisition or
permitted Investment; provided
that such Liens are not incurred in connection with or in anticipation of such
Permitted Acquisition or permitted Investment and do not attach to any other
asset of the Borrower or any of its Subsidiaries;


 


(n)           Liens on insurance policies
and the proceeds thereof securing the financing of the premiums with respect
thereto;


 


(o)           Liens incurred in connection
with the purchase, storage or shipping of goods or assets on the related goods
or assets and proceeds thereof in favor of the seller, storer or shipper of
such goods or assets;


 


(p)           Liens in favor of customs
and revenues authorities which secure payment of customs duties in connection
with the importation of goods;


 


(q)           Liens arising out of judgments,
decrees or awards not constituting an Event of Default under Section 8(g);


 


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(r)            any interest or title of a
licensor, sublicensor, lessee or sublessee, lessor or sublessor, in each case
under any license or lease agreement in the ordinary course of business;


 


(s)           licenses, sublicenses,
leases or subleases granted to third Persons in the ordinary course of business
not interfering in any material respect with the business of the Borrower or
any of its Subsidiaries;


 


(t)            Liens which arise under
Article 4 of the UCC on items in collection and documents and proceeds
related thereto;


 


(u)           Liens not otherwise
permitted by this Section 7.3 so long as the aggregate outstanding
principal amount of the obligations secured thereby does not exceed (as to the
Borrower and all Subsidiaries) $5,000,000 at any one time outstanding;


 


(v)           Liens (i)(A) on cash
advances in favor of the seller of any property to be acquired in an Investment
permitted pursuant to Section 7.8(g), (r), (s), (u),
(w), (x) or (y) or (B) to be applied
against the purchase price for such Investment, or (ii) consisting of an
agreement to Dispose of any property in a Disposition permitted under Section 7.5,
in each case, solely to the extent such Investment or Disposition, as the case
may be, would have been permitted on the date of the creation of such Lien;


 


(w)          Liens securing renewals,
extensions, modifications and replacement of any Indebtedness secured by a Lien
permitted under Section 7.3(g), (m) or (n) so
long as (i) such Indebtedness is not increased (other than in connection
with the payment of any fees, expenses, premiums or accrued interest in
connection therewith), (ii) such renewal, extension, modification or
replacement is not secured by additional assets, and (iii) such Lien
otherwise complies with all stated conditions applicable thereto under this Section 7.3;


 


(x)            Liens encumbering customary
initial deposits and margin deposits and similar Liens and deposits attaching
to commodity trading accounts or other brokerage accounts;


 


(y)           Liens arising by operation
of law under Article 2 of the UCC (or, with respect to the assets of any
Foreign Subsidiary of the Parent, any similar laws of its jurisdiction of
incorporation or formation) in favor of a reclaiming seller of goods or buyer
of goods;


 


(z)            Liens on deposit accounts or
securities accounts in connection with over-draft protection and netting
services in the ordinary course of business;


 


(aa)         Liens arising out of
conditional sale, title retention, consignment or similar arrangements for the
sale of goods entered into by Borrower or any Subsidiary in the ordinary course
of business;


 


(bb)         Liens on property rented to,
or leased by, Borrower or any Subsidiary pursuant to a sale and leaseback
transaction; provided that (i) such
sale and leaseback transaction is otherwise permitted under the Loan Documents
and (ii) such Liens do not encumber any other property of Borrower or any
Subsidiary;


 


(cc)         Liens encumbering deposits
made to secure obligations arising from statutory, regulatory, contractual, or
warranty requirements of the Borrower or any of its Subsidiaries, including
rights of offset and set-off, in each case granted in the ordinary course of
business;


 


80

















 


(dd)         Liens on assets of any
Subsidiary of the Borrower that is not a Guarantor securing Indebtedness
incurred pursuant to Section 7.2(h) or (v);


 


(ee)         Liens in favor of the
Borrower or a Subsidiary Guarantor on assets of any Subsidiary of the Borrower
that is not a Guarantor;


 


(ff)           Liens securing reimbursement
obligations with respect to commercial letters of credit which encumber
documents and other property being purchased using such letters of credit and
products and proceeds thereof, so long as the Liens are extinguished when such
property is delivered to the Borrower or the applicable Subsidiary; and


 


(gg)         Liens on Capital Stock of
Unrestricted Subsidiaries.


 


7.4.          Fundamental Changes. Enter into
any merger, consolidation or amalgamation, or liquidate, wind up or dissolve
itself (or suffer any liquidation or dissolution), or Dispose of all or
substantially all of its property or business, except that:


 


(a)          any Subsidiary of the
Borrower may be merged or consolidated with or into the Borrower (provided that the Borrower shall be the
continuing or surviving corporation) or with or into any other Subsidiary after
giving effect to such merger or consolidation (provided
that when a Subsidiary that is not a Subsidiary Guarantor is merging or
consolidating with a Subsidiary Guarantor, the Subsidiary Guarantor shall be
the continuing or surviving corporation); provided
further, however, that in connection with any such
merger or consolidation the Borrower shall promptly, upon the reasonable request
of the Administrative Agent or the Collateral Agent and in accordance with the
terms, conditions and limitations of the Security Documents, at the Borrower’s
expense, execute, acknowledge and deliver, or cause the execution,
acknowledgment and delivery of, and thereafter register, file or record, or
cause to be registered, filed or recorded, in each appropriate governmental
office, any document or instrument supplemental to or confirmatory of the
Security Documents or otherwise reasonably deemed by the Administrative Agent
or the Collateral Agent reasonably necessary for the continued validity,
perfection and priority of the Liens on the Collateral covered thereby subject
to no other Liens except as permitted by the applicable Security Document in accordance
with the terms, conditions and limitations of the Security Agreement;


 


(b)         any Subsidiary of the
Borrower may Dispose of all or substantially all of its assets (upon voluntary
liquidation or otherwise) (i) to the Borrower or any other Subsidiary (upon
voluntary liquidation or otherwise) (provided
that when a Subsidiary that is a Subsidiary Guarantor is so Disposing of all or
substantially all of its assets to another Subsidiary, such other Subsidiary
must be a Subsidiary Guarantor, the assets that are subject to such Disposition
shall remain subject to the Lien of the Security Documents and the Borrower or
applicable Subsidiary shall take such further action and deliver such further
assurances as the Administrative Agent shall reasonable request to grant,
confirm, maintain or perfect the lien of the Security Documents on such asset)
or (ii) pursuant to a Disposition permitted by Section 7.5;


 


(c)          any Subsidiary of the
Borrower may liquidate or dissolve or change its legal form if the Borrower
determines in good faith that such action is in the best interests of the
Borrower and its Subsidiaries; provided,
however, that in connection with
any such liquidation, dissolution or change of legal form the Borrower and any
applicable Subsidiary shall promptly, upon the reasonable request of the
Administrative Agent or the Collateral Agent and in accordance with the terms,
conditions and limitations of the Security Documents, at Borrower’s expense,
execute, acknowledge and deliver, or cause the execution, acknowledgment and
delivery of, and thereafter


 


81

















 


register, file or record, or
cause to be registered, filed or recorded, in each appropriate governmental
office, any document or instrument supplemental to or confirmatory of the
Security Documents or otherwise deemed by the Administrative Agent or the
Collateral Agent reasonably necessary for the continued validity, perfection
and priority of the Liens on the Collateral covered thereby subject to no other
Liens except as permitted by the applicable Security Document in accordance
with the terms, conditions and limitations of the Security Documents;


 


(d)         the Merger shall be
permitted;


 


(e)          any Investment expressly
permitted by Section 7.8 may be structured as a merger,
consolidation or amalgamation; and


 


(f)          so long as no Default or
Event of Default would result therefrom or shall exist and be continuing after
giving effect thereto, upon no less than 10 Business Days’ prior written notice
to the Administrative Agent, the Borrower or any Subsidiary may merge with an
Affiliate that is a corporation that has no assets or liabilities (other than
de minimis assets or liabilities) that is organized under the laws of any state
of the United States of America or the District of Columbia and which Affiliate
was organized solely for the purpose of redomesticating the Borrower or such
Subsidiary under the laws of the jurisdiction in which such Affiliate is
organized (and the Borrower or such Subsidiary shall be the surviving person in
such merger); provided, however, that in connection with any such
merger the Borrower shall promptly, upon the reasonable request of the
Administrative Agent or the Collateral Agent, at Borrower’s expense, execute,
acknowledge and deliver, or cause the execution, acknowledgment and delivery
of, and thereafter register, file or record, or cause to be registered, filed
or recorded, in each appropriate governmental office, any document or
instrument supplemental to or confirmatory of the Security Documents or
otherwise deemed by the Administrative Agent or the Collateral Agent reasonably
necessary for the continued validity, perfection and priority of the Liens on
the Collateral covered thereby subject to no other Liens except as permitted by
the applicable Security Document in accordance with the terms, conditions and
limitations of the Security Documents.


 


7.5.          Disposition of Property. Dispose of any
of its property, whether now owned or hereafter acquired, or, in the case of
any Subsidiary, issue or sell any shares of such Subsidiary’s Capital Stock to
any Person, except:


 


(a)          the Disposition of
immaterial, obsolete, damaged or worn out property or of property no longer
used or useful, suitable or commercially necessary in the conduct of business
of the Borrower and its Subsidiaries, in each case in the ordinary course of
business;


 


(b)         the Disposition of Cash
Equivalents and sale of inventory or other products or assets sold in the
ordinary course of business;


 


(c)          Dispositions permitted by Sections
7.4(b)(i), 7.4(c) and 7.4(f);


 


(d)         the sale or issuance of any
Subsidiary’s Capital Stock to the Borrower or any holder thereof, so long as
such sale or issuance does not materially reduce Borrower’s direct or indirect
ownership percentage in such Subsidiary;


 


(e)          the license or sublicense of
any property in the ordinary course of business that does not materially and
adversely affect, in the good faith judgment of the Borrower, the value of such
property to the Borrower and its Subsidiaries;


 


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(f)            the Disposition for market
value of other property in the aggregate having a book value not exceeding 20%
of the consolidated net tangible assets of the Borrower and its Subsidiaries in
the aggregate from and after the Closing Date (with consolidated net tangible
assets being determined at the time of any such Disposition by reference to the
most recent consolidated financial statements delivered pursuant to Section 6.1
or, if prior to the first delivery date for such financial statements
hereunder, as of the end of the period for which the most recent financial
statements of the Company are available); provided
that not less than 75% of the total consideration for any such Disposition
shall be paid to the Borrower in cash or consideration which is within 180 days
after the consummation of such Disposition reasonably expected to and shall be
converted into cash; and provided further
that any liabilities that, if not assumed by the transferee with respect to the
applicable Disposition, would have been deducted (other than subordinated
liabilities) in calculating the Net Cash Proceeds from such Disposition but
that are assumed by the transferee with respect to the applicable Disposition
and for which the Borrower and all of the Subsidiaries shall have been validly
released by all applicable creditors in writing, shall be treated as cash
consideration;


 


(g)           any of the Borrower and its
Subsidiaries may transfer assets to the Borrower or any Subsidiary Guarantor; provided, however,
that in connection with any such transfer of assets the Borrower shall
promptly, at Borrower’s expense, take such further actions and deliver such
further assurances as the Administrative Agent or the Collateral Agent may in
accordance with the terms, conditions and limitations of the Security Documents
reasonably request, and in connection therewith execute, acknowledge and
deliver, or cause the execution, acknowledgment and delivery of, and thereafter
register, file or record, or cause to be registered, filed or recorded, in each
appropriate governmental office, any document or instrument supplemental to or
confirmatory of the Security Documents or otherwise deemed by the
Administrative Agent or the Collateral Agent reasonably necessary to grant or confirm
the validity, perfection and priority of the Liens of the Security Documents on
such assets covered thereby subject to no other Liens except as permitted by
the applicable Security Document;


 


(h)           any of the Borrower and its
Subsidiaries shall be permitted to make Permitted Dispositions;


 


(i)            any of the Borrower and its
Subsidiaries shall be permitted to sell or otherwise dispose of property to
consummate a Sale Leaseback Transaction permitted under Section 7.11;


 


(j)            a Recovery Event or
permitted Restricted Payment;


 


(k)           the Borrower or any
Subsidiary may issue Capital Stock in any such Subsidiary to qualify directors
where required by applicable law or to satisfy other requirements of applicable
law with respect to the ownership of Capital Stock in Foreign Subsidiaries or
nominal shares of Foreign Subsidiaries for tax considerations;


 


(l)            Borrower or any of its
Subsidiaries may transfer assets as a part of the consideration for Investments
in Permitted Joint Ventures or Investments permitted by Section 7.8(d),
(g), (r), (s), (u), (w), (x) or (y);


 


(m)          Dispositions effected by
transactions permitted under Section 7.4 shall be permitted;


 


(n)           the granting of Liens in
compliance with Section 7.3, to the extent such Liens would be
considered a Disposition;


 


83

















 


(o)           Borrower or any of its
Subsidiaries may lease, as lessor or sublessor, or license, as licensor or
sublicensor, real or personal property in the ordinary course of business, to
the extent that such lease does not materially interfere with the business of
Borrower or its Subsidiaries;


 


(p)           Borrower or any of its
Subsidiaries may dispose of the Capital Stock or assets comprising an
Investment permitted pursuant to Section 7.8(r), (s), (u),(w),
(x) or (y);


 


(q)           Borrower or any of its
Subsidiaries may make Dispositions to Subsidiaries of the Borrower that are not
Loan Parties for cash consideration not less than the then fair market value of
the assets subject to such Disposition (as determined in good faith by a
Responsible Officer of the Borrower), if such Disposition is otherwise in the
ordinary course of its business and is on terms and conditions at least as
favorable to the Borrower or the Subsidiary making such Disposition as would be
obtainable by the Borrower or the Subsidiary making such Disposition in a
comparable arm’s-length transaction with an independent, unrelated third party;
and


 


(r)            like-kind exchanges of
existing assets for similar replacement assets, so long as the receipt of the
replacement assets in such exchange occurs promptly following the transfer
thereof.


 


To the extent the Required Lenders waive the
provisions of this Section with respect to the sale or other disposition
of any Collateral, or any Collateral is sold or disposed of as permitted by
this Section 7.5, such Collateral in each case (unless sold or
disposed of to Borrower or a Subsidiary Guarantor) shall be sold or otherwise
disposed of free and clear of the Liens created by the Loan Documents and the
Administrative Agent shall take such actions in accordance with Section 10.14
as are appropriate in connection therewith.


 


7.6.          Restricted Payments. Declare or pay any
dividend (other than dividends payable solely in common stock of the Person
making such dividend) on, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption,
defeasance, retirement or other acquisition of, any Capital Stock of any
Covenant Party, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of any Covenant Party (collectively, “Restricted
Payments”), except that:


 


(a)           any Subsidiary may make
Restricted Payments to the Borrower or to other holders of its Capital Stock
(but in the case of any such Restricted Payments made to any Person that is not
the Borrower or a Subsidiary Guarantor, such Restricted Payments shall be made
to such holders of Capital Stock on a pro  rata basis);


 


(b)           (i) so long as no
Default or Event of Default shall have occurred and be continuing or would
result therefrom, the Borrower may pay dividends to Parent to permit Parent to
purchase or to pay dividends to Holdings to permit Holdings to purchase Capital
Stock of Parent or Holdings from present or former officers, directors,
consultants or employees of any Group Member, physicians affiliated with a
Group Member or employees of such physicians, their estates, spouses or former
spouses and their heirs upon the death, disability or termination of employment
of the applicable officer, director, consultant, employee, physician affiliated
with a Group Member or employee of such physician; provided that the aggregate amount of payments under this clause
(i) after the date hereof shall not exceed $2,500,000 in cash in the
aggregate during any fiscal year plus (A) the balance of any such
$2,500,000 limit not used in any fiscal year (which may be used in any
subsequent fiscal year so long as no more than $5,000,000 is expended in any
fiscal year pursuant to this Section 7.6(b) (other than pursuant to clause
(B), (C) or (ii) of this Section7.6(b)), (B) at
any time, in an aggregate amount not to exceed the Applicable


 


84






 










 


Equity Amount at such time, and (C) the
proceeds of any key-man life insurance with respect to such employee paid to
the Borrower or any of its Subsidiaries; and (ii) the Borrower may make
the payments described in Section 7.10(i), (ii), (iii),
(vii), (viii) and (xi);


 


(c)           the Borrower may pay dividends to Parent to provide for
the payment by Parent of, or to permit Parent to pay dividends to Holdings to
provide for the payment by Holdings of, customary corporate indemnities owing
to directors of Holdings, the Parent, the Borrower, its Subsidiaries or any of
their Affiliates in the ordinary course of business (in the case of Holdings or
any such Affiliate that is not Parent, Borrower or a Subsidiary, to the extent
such indemnities arose out of matters relating to Parent, the Borrower or any
Subsidiary);


 


(d)           Restricted Payments made on the Closing Date to consummate
the Transactions;


 


(e)           the Borrower and its Subsidiaries may pay dividends
through issuance of Permitted Capital Stock and may redeem any Capital Stock in
exchange for other Permitted Capital Stock;


 


(f)            the Borrower may make Permitted Tax Distributions to
Parent or Holdings, as applicable;


 


(g)           the Borrower may make Restricted Payments to Parent to
enable it to pay Closing Costs and to make payments required to be made by it
pursuant to the Transaction Agreement or any acquisition agreement pertaining
to any existing acquisition consummated prior to the Closing Date or any
Permitted Acquisition to Persons who were not holders of Capital Stock of Borrower
or any of its Subsidiaries or Parent or its direct or indirect parent companies
prior to such Permitted Acquisition by the Borrower and its Subsidiaries
consummated after the Closing Date;


 


(h)           the Borrower may directly or indirectly make distributions
to Parent or Holdings or make payments on behalf of Parent or Holdings, to the
extent necessary to pay the operating and administrative expenses and other
corporate overhead expenses of Parent or Holdings incurred in the ordinary
course of its business including, without limitation, reasonable directors’
fees and expenses and the Parent’s or Holdings’s liability for Taxes (other
than for Taxes which the Parent is entitled to receive Permitted Tax
Distributions); provided that all
dividends or other distributions made directly or indirectly to, or payments
made on behalf of, Parent or Holdings pursuant to this clause (h) shall
not exceed $1,000,000 per fiscal year;


 


(i)            so long as no Default or Event of Default shall have
occurred and be continuing or would result therefrom, the Borrower may make
Restricted Payments to Parent to enable it redeem its Capital Stock held by the
chief executive officer of Parent pursuant to the terms of that certain
management stock contribution and unit subscription agreement dated as of the
Closing Date, as amended, restated, supplemented or replaced from time to time,
in an aggregate amount not to exceed $15,000,000 per calendar year over a
three-year period and not to exceed $45,000,000 over such three-year period; provided that such payments cannot
commence until on or after the third anniversary of the Closing Date and provided further that after giving effect
to any such payment the Borrower shall be in pro forma compliance with the
covenants set forth in Section 7.1 as of the end of the most recent
period for which financial statements were required to be delivered pursuant to
Section 6.1(a) or (b) or, if prior to the first delivery
date for such financial statements hereunder, as of the end of the period for
which the most recent financial statements of the Company are available and, if
any such period is prior to the first test date under Section 7.1,
the levels for the first test date shall be deemed to apply for this purpose;


 


85

















 


(j)            the Borrower may make Restricted Payments to Parent or
Holdings if the proceeds shall be used by Parent or Holdings solely to make de
minimis cash payments in lieu of the issuance of fractional shares in
connection with the exercise of warrants, options or other securities
convertible into or exchangeable for Capital Stock of Parent or Holdings;


 


(k)           Borrower or any Subsidiary may make repurchases of Capital
Stock (or make Restricted Payments to Parent or Holdings, to allow Parent or
Holdings to make repurchases of Capital Stock) deemed to occur upon the
cashless exercise of stock options when such Capital Stock represents a portion
of the exercise price thereof; and


 


(l)            Restricted Payments at any time that are used to
repurchase Capital Stock of Parent or any Person of which Parent is a
Subsidiary, in an aggregate amount not to exceed the Applicable Equity Amount
at such time.


 


7.7.          Capital
Expenditures. Make or commit to make any Capital Expenditure in connection
with the ongoing maintenance of any facility existing as of September 30,
2007 and the start up, overhaul or implementation of a new facility (other than
an acquired facility) during any fiscal year shall not exceed the amount set
forth below with respect to such fiscal year:


 


	
  Fiscal Year

  Ending

  	
   

  	
  Capital Expenditure

  Limit

  	
   

  
	
  December 31, 2008

  	
   

  	
  $

  	
  40,000,000

  	
   

  
	
  December 31, 2009

  	
   

  	
  $

  	
  35,000,000

  	
   

  
	
  December 31, 2010

  	
   

  	
  $

  	
  35,000,000

  	
   

  
	
  December 31, 2011

  	
   

  	
  $

  	
  35,000,000

  	
   

  
	
  December 31, 2012 and each fiscal year thereafter

  	
   

  	
  $

  	
  35,000,000

  	
   

  



 


; provided that (a) (i) up
to 100% of any such amount referred to above, if not so expended in the fiscal
year for which it is permitted, may be carried over for expenditure in the next
succeeding fiscal year and (ii) Capital Expenditures made pursuant to this
clause (a) during any fiscal year shall be deemed made, first, in
respect of amounts carried over from the prior fiscal year pursuant to clause
(i) above and second, in respect of amounts permitted for such
fiscal year as provided above; and (b) the Capital Expenditure limit set
forth above shall be increased by $350,000 per annum for each facility acquired
or originated after September 30, 2007. For the purposes of this Section 7.7,
“facility” shall mean a facility where the Borrower or one of its
Subsidiaries conducts its business.


 


7.8.          Investments.
Make any advance, loan, extension of credit (by way of guaranty or otherwise)
or capital contribution to, or purchase any Capital Stock, bonds, notes,
debentures or other debt securities of, or any assets constituting a business
unit of, or make any other investment in, any Person (all of the foregoing, “Investments”):


 


(a)           accounts receivable, prepaid expenses and other extensions
of trade credit by the Covenant Parties in the ordinary course of business;


 


(b)           Investments in Cash Equivalents;


 


(c)           Guarantee Obligations permitted by Section 7.2;


 


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(d)           intercompany Investments by any Covenant Party in the
Borrower or any Person that, upon, prior to and following such investment, is a
Subsidiary Guarantor and by any Subsidiary that is not a Guarantor in any other
Subsidiary that is not a Guarantor; provided,
however, that any such
Investments in any Insurance Subsidiary must be made in compliance with clause
(s) below;


 


(e)           Investments existing on the Closing Date and listed on Schedule
7.8(e);


 


(f)            Capital Expenditures made by Borrower or any Subsidiary
on behalf of Borrower or such Subsidiary to the extent permitted by Section 7.7;


 


(g)           Permitted Acquisitions;


 


(h)           the formation of and Investments in new Subsidiaries of
the Borrower that are or, upon consummation of such Investments, become
Subsidiary Guarantors that in each case do not constitute Permitted
Acquisitions;


 


(i)            the Borrower and its Subsidiaries may receive and own
Capital Stock or other investments acquired as non-cash consideration pursuant
to dispositions permitted under Section 7.5;


 


(j)            the Borrower and its Subsidiaries may make pledges and
deposits permitted under Section 7.3;


 


(k)           the Borrower and its Subsidiaries may hold Investments to
the extent such Investments reflect an increase in the value of Investments and
would otherwise exceed the limitations herein;


 


(l)            Investments consisting of endorsements for collection or
deposit in the ordinary course of business;


 


(m)          Investments in deposit accounts opened and maintained in
the ordinary course of business;


 


(n)           the Borrower may acquire and hold promissory notes of
employees of Borrower or its Subsidiaries in connection with such Person’s
purchase of Permitted Capital Stock of Parent or Holdings;


 


(o)           Investments received in connection with any bankruptcy or
reorganization of, or any good faith settlement of delinquent accounts and
disputes with, any customer or supplier arising in the ordinary course of
business;


 


(p)           the Borrower may enter into agreements that are permitted
by Section 7.2(k);


 


(q)           any Investments consisting of deferred compensation owed
to employees of Parent, the Borrower and their respective Subsidiaries;


 


(r)            formation of and Investments by the Covenant Parties in
Subsidiaries (other than Insurance Subsidiaries) that are not Guarantors, which
in the case of Investments made by the Borrower or a Guarantor, do not exceed
$10,000,000 at any time outstanding;


 


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(s)           formation of and Investments by the Borrower or any
Subsidiary in any Insurance Subsidiary (including in respect of the formation
thereof) not exceeding $10,000,000 at any one time outstanding;


 


(t)            Investments consisting of loans and advances to
employees, officers and directors of any Covenant Party or any physician
affiliated with the Borrower or any of its Subsidiaries or any employee of any
such physician (including without limitation for travel, entertainment and relocation
expenses) not exceeding $3,000,000 in the aggregate at any time outstanding;


 


(u)           Investments in Joint Ventures acquired pursuant to a
Permitted Acquisition, which Joint Ventures existed at the time of such
Permitted Acquisition and were not made in contemplation of or in connection
with such Permitted Acquisition;


 


(v)           Investments made in connection with the funding of
contributions under any non-qualified retirement plan or similar employee
compensation plan in an amount not to exceed the amount of compensation expense
recognized by the Borrower and its Subsidiaries in connection with such plans;


 


(w)          Investments by Covenant Parties in Joint Ventures not
exceeding $25,000,000 in the aggregate at any time outstanding;


 


(x)            other Investments that do not exceed, in the aggregate
since the Closing Date, $20,000,000;


 


(y)           Investments by the Borrower and its Subsidiaries at any
time in an aggregate amount not to exceed the Applicable Equity Amount at such
time;


 


(z)            Investments consisting of the licensing or contribution
of Intellectual Property pursuant to joint marketing arrangements with other
Persons;


 


(aa)         Investments consisting of good faith deposits required in
connection with Permitted Acquisitions (or other permitted Investments);


 


(bb)         loans to Parent to the extent Borrower or the applicable
Subsidiary could have made a Restricted Payment under another clause of this Section 7.8; provided that such Restricted Payment
will at such time be deemed to have been made pursuant to such other clause;
and


 


(cc)         Investments to the extent transactions effected pursuant to Section 7.4
or Section 7.5(g) are deemed to be Investments.


 


The amount of any Investment shall be the initial
amount of such Investment and any addition thereto, as reduced by any repayment
of principal (in the case of an Investment constituting Indebtedness) or any
distribution constituting a return of cash (in the case of any other
Investment).


 


7.9.          Optional
Prepayments and Modifications of Certain Debt Instruments and Material
Agreements. (a) Make any voluntary or optional payment, prepayment,
repurchase or redemption of or otherwise defease, in each case, any principal
of the Senior Subordinated Loans, the Rollover Loans, the Exchange Notes, the
Take Out Debt, any Permitted Additional Subordinated Debt or any Permitted
Refinancing Indebtedness incurred in respect of any of the foregoing (other
than a payment of principal at final stated maturity thereof); provided that (i) the Borrower may
pay, prepay, repurchase or redeem any of the foregoing Indebtedness with (A) Permitted
Refinancing Indebtedness and, in addition, in the case


 


88

















 


of the (x) Senior Subordinated Loans, with Rollover Loans and Take
Out Debt, (y) the Rollover Loans, with Exchange Notes and Take Out Debt
and (z) Exchange Notes, with Take Out Debt and in each case, to the extent
permitted by Section 7.2, (B) at any time in an aggregate
amount not to exceed the Applicable Equity Amount at such time or (C) as
may be required by the Senior Subordinated Loan Agreement, and (ii) the
foregoing shall not be construed to prohibit the Debt Discharge; (b) amend,
modify, waive or otherwise change, or consent or agree to any material
amendment, modification, waiver or other change to, any of the terms of any
Indebtedness described in clause (a) above that is materially adverse to
the interests of the Lenders (determined by comparison to such terms in effect
on the Closing Date after giving effect to the Transactions, in the case of
those then in effect, or otherwise to such terms in effect on the date of
creation thereof, and disregarding any default or potential default in respect
thereof); or (c) designate any Indebtedness (other than obligations of the
Loan Parties pursuant to the Loan Documents) as “Designated Senior
Indebtedness” (or any other defined term having a similar purpose) for the
purposes of any Indebtedness described in clause (a) above that is
subordinated to the Obligations.


 


7.10.        Transactions
with Affiliates. Enter into any transaction, including any purchase, sale,
lease or exchange of property, the rendering of any service or the payment of
any management, advisory or similar fees, with any Affiliate (other than the
Borrower or any Subsidiary) unless such transaction is (a) otherwise
permitted under this Agreement and (b) upon fair and reasonable terms no
less favorable to the relevant Covenant Party than it would obtain in a
comparable arm’s length transaction with a Person that is not an Affiliate.
Notwithstanding the foregoing, the foregoing shall not prohibit (i) reasonable
fees and compensation paid to and indemnity provided on behalf of, officers,
directors, employees or consultants or to professional corporations of which
they are the owner of the Parent, the Borrower or any Subsidiary as determined
in good faith by the Borrower’s Board of Directors or senior management, (ii) the
payment of management, consulting, monitoring and advisory fees and related
expenses to the Sponsor and the termination fees pursuant to the Management
Agreement, (iii) the payment of Closing Costs, (iv) Restricted
Payments made pursuant to Section 7.6, (v) Investments
pursuant to Section 7.8 (other than Section 7.8(g) or
(u)), (vi) transactions with a Person that is an Affiliate of the Borrower
solely because the Borrower owns, directly or indirectly, Capital Stock of, or
controls, such Person; provided
such Person does not, directly or indirectly, control the Borrower, (vii) payments
made by the Borrower or any Subsidiary to the Sponsor for any financial
advisory, financing, underwriting or placement services or in respect of other
investment banking activities, including, without limitation, in connection
with acquisitions or divestitures, which payments are approved by a majority of
the disinterested members, if any, of the Board of Directors of Parent in good
faith, (viii) transactions with customers, clients, suppliers, or
purchasers or sellers of goods or services, in each case in the ordinary course
of business and otherwise in compliance with the terms of this Agreement that
are fair to the Borrower and its Subsidiaries, in the reasonable determination
of the Board of Directors of Parent, or are on terms at least as favorable as
would reasonably have been entered into at such time with an unaffiliated
party, (ix) the existence of, or the performance by Parent, the Borrower
or any of its Subsidiaries of its obligations under the terms of, the
Shareholders Agreement (including any registration rights agreement or purchase
agreements related thereto to which it is a party on the Closing Date and any
similar agreement that it may enter into thereafter); provided, however,
that the existence of, or the performance by Parent, the Borrower or any of its
Subsidiaries of its obligations under, any future amendment to the Shareholders
Agreement or under any similar agreement entered into after the Closing Date
shall only be permitted by this clause (ix) to the extent that the
terms of any such existing agreement together with all amendments thereto, taken
as a whole, or new agreement are not otherwise more disadvantageous to the
Lenders in any material respect than the original agreement as in effect on the
Closing Date, (x) the pledge of Capital Stock of Unrestricted Subsidiaries
to support Indebtedness thereof, (xi) purchases or payments for
professional liability and other insurance by the Borrower, its Subsidiaries,
their respective employees or any Person that is an Affiliate of the Borrower
to Batan Insurance in the ordinary course of business and at fair market value
as determined by the Borrower in good faith, (xii) the entry by any party
into a Loan Document or the Transaction 


 


89

















 


Agreement and the enforcement of any party to a Loan Document or the Transaction
Agreement of its rights thereunder and the performance by any party to a Loan
Document or the Transaction Agreement of its obligations thereunder, (xiii) issuances
and sales of Capital Stock of Parent to Affiliates of Parent or the receipt of
the proceeds of capital contributions in respect of Capital Stock, (xiv) leasing
of property or equipment from the Borrower’s or any of its Subsidiary’s
employees or any Person that is an Affiliate of the Borrower in the ordinary
course of business and at fair market values as determined by the Borrower in
good faith, (xv) any agreement as in effect as of the Closing Date or any
amendment thereto or any transaction contemplated thereby (including pursuant
to any amendment thereto) in any replacement agreement thereto so long as any
such amendment or replacement agreement is not more disadvantageous to the
Lenders in any material respect than the original agreement as in effect on the
Closing Date, (xvi) transactions with Joint Ventures in the ordinary
course of business, (xvii) transactions pursuant to Section 7.4
and Sections 7.5(d) and (k) and (xviii) other
transactions to the extent that the aggregate amount of all such transactions
in any fiscal year of the Borrower do not exceed $2,500,000.


 


7.11.        Sales
and Leasebacks. Enter into any arrangement with any Person providing for
the leasing by any Covenant Party of any property or containing an obligation
of such Covenant Party to repurchase such property from such Person, which
property (including for the avoidance of doubt real property) has been or is to
be sold or transferred by such Covenant Party to such Person (or any Affiliate
thereof) or to any other Person (or any Affiliate thereof) to whom funds have
been or are to be advanced by such Person (or any Affiliate thereof) on the
security of such property or rental obligations of such Covenant Party (any
such transaction a “Sale Leaseback Transaction”) except any Sale
Leaseback Transaction (a) in respect of property consisting of capital
assets so sold pursuant to such Sale Leaseback Transaction solely for cash
consideration in an amount not less than the cost thereof within 180 days after
the date that such property was initially acquired by such Covenant Party or
(b) in respect of any equipment so sold pursuant to such Sale Leaseback
Transaction for market value and in the ordinary course of business and, in
each case, in respect of which the Borrower shall comply with Section 2.11(c).


 


7.12.        Swap
Agreements. Enter into any Swap Agreement other than Swap Agreements
required to be entered into pursuant to this Agreement or that are otherwise
entered into in the ordinary course of business, and in each case not for
speculative purposes, in respect of changes in interest rates, commodity prices
or foreign exchange rates.


 


7.13.        Changes
in Fiscal Periods. Permit the fiscal year of the Borrower to end on a day
other than December 31 or change the Borrower’s method of determining
fiscal quarters; provided, however, that the Borrower may, upon
written notice to the Administrative Agent, change its fiscal year to any other
fiscal year reasonably acceptable to the Administrative Agent, provided further, however, that as a condition to any such
change the Borrower and the Administrative Agent shall, and are hereby authorized
by the Lenders to, make any adjustments to this Agreement that are necessary or
appropriate to reflect such change in fiscal year.


 


7.14.        Negative
Pledge Clauses. Enter into or suffer to exist or become effective any
agreement that prohibits or limits the ability of any Covenant Party to create,
incur, assume or suffer to exist any Lien upon any of its property or revenues,
whether now owned or hereafter acquired, to secure its obligations under the
Loan Documents to which it is a party other than (a) this Agreement and
the other Loan Documents or any other Indebtedness permitted hereunder, so long
as the prohibitions or limitations contained in such other Indebtedness on the
ability of any Covenant Party to so secure its obligations under the Loan Documents
are not materially more restrictive, when taken as a whole, than those
contained in the Senior Subordinated Documents, (b) any agreements
governing any Indebtedness secured by Liens permitted hereby (in which case,
any prohibition or limitation shall only be effective against the assets
subject to such Lien), (c) agreements which (i) are binding on a
Subsidiary at the time


 


90

















 


such Subsidiary first becomes a Subsidiary, so long as such agreements
were not entered into in contemplation of such Person becoming a Subsidiary,
(ii) are customary provisions in joint venture agreements and other
similar agreements applicable to joint ventures permitted under Section 7.8
and applicable solely to such joint venture and entered into in the ordinary
course of business, (iii) are customary restrictions in leases, subleases,
licenses or asset sale agreements otherwise permitted hereby so long as such
restrictions relate to the assets subject thereto, (iv) are customary
provisions restricting subletting or assignment of any lease governing a
leasehold interest of the Borrower or any Subsidiary, (v) are customary
provisions restricting assignment of any agreement entered into in the ordinary
course of business, and (vi) are restrictions on cash or other deposits
imposed by customers under contracts entered into in the ordinary course of
business and (d) any prohibition or limitation that exists pursuant to
applicable Requirements of Law.


 


7.15.        Lines
of Business. Enter into any business, either directly or through any
Subsidiary, except for those businesses in which the Borrower and its
Subsidiaries are engaged on the date of this Agreement or that are reasonably
related, complementary or ancillary thereto or a reasonable extension thereof.


 


SECTION 7A


 


PARENT NEGATIVE COVENANTS


 


Parent shall not enter into any business except for
holding all of the Capital Stock of the Borrower and activities incidental
thereto and other transactions expressly permitted under the Loan Documents
(including the Transactions).


 


SECTION 8


 


EVENTS OF DEFAULT


 


If any of the following events shall occur and be
continuing:


 


(a)           the Borrower shall fail to pay any principal of any Loan
or Reimbursement Obligation when due in accordance with the terms hereof; or
the Borrower shall fail to pay within 5 Business Days after the same becomes
due, any interest on any Loan or Reimbursement Obligation or any fee payable
pursuant to Section 2.8, or, within 20 days after the same becomes
due, any other amount payable hereunder or under any other Loan Document; or


 


(b)           any representation or warranty made or deemed made by any
Loan Party herein or in any other Loan Document or that is contained in any
certificate or financial statement (other than materials delivered pursuant to Section 6.2(c))
furnished by it at any time under or in connection with this Agreement or any
such other Loan Document shall prove to have been inaccurate in any materially
respect to the extent such covenant or other agreement is not already subject
to a “materiality” or “Material Adverse Effect” qualifier on or as of the date
made or deemed made; or


 


(c)           any Loan Party shall default in the observance or
performance of any agreement contained in Section 6.4(a) or (b) (with
respect to Parent and the Borrower only), Section 6.7(a), Section 7
or Section 7A of this Agreement; or


 


(d)           any Loan Party shall default in the observance or
performance of any other agreement contained in this Agreement or any other
Loan Document (other than as provided in


 


91

















 


paragraphs (a) through (c) of
this Section), and such default shall continue unremedied for a period of 30
days after the earlier of knowledge thereof by a Responsible Officer of a Loan
Party or notice to the Borrower from the Administrative Agent or the Required
Lenders; or


 


(e)           any Covenant Party shall (i) default in making any
payment of any principal of any Indebtedness (including any Guarantee
Obligation, but excluding the Obligations) on any scheduled or original due
date with respect thereto after giving effect to applicable cure periods and
consents and waivers obtained during such cure periods; or (ii) default in
making any payment of any interest on any such Indebtedness (excluding the
Obligations), beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created and such default has not
been cured or waived; or (iii) default in the observance or performance of
any other agreement or condition relating to any such Indebtedness or contained
in any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or
other event or condition after giving effect to applicable cure periods and
consents and waivers obtained during such cure periods is to cause, or to
permit the holder or beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the giving of notice if
required, such Indebtedness to become due prior to its stated maturity or (in
the case of any such Indebtedness constituting a Guarantee Obligation) to
become payable and such default has not been waived; provided that a default, event or condition described in clause
(i), (ii) or (iii) of this paragraph (e) shall
not at any time constitute an Event of Default unless, at such time, one or
more defaults, events or conditions of the type described in clauses (i),
(ii) and (iii) of this paragraph (e) shall
have occurred and be continuing with respect to Indebtedness the outstanding
principal amount of which exceeds in the aggregate $15,000,000; or


 


(f)            (i) any Covenant Party (other than any Immaterial
Subsidiary) shall commence any case, proceeding or other action (A) under
any existing or future law of any jurisdiction, domestic or foreign, relating
to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have
an order for relief entered with respect to it, or seeking to adjudicate it a
bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
winding-up, liquidation, dissolution, composition or other relief with respect
to it or its debts, or (B) seeking appointment of a receiver, trustee,
custodian, conservator or other similar official for it or for all or any
substantial part of its assets, or any Covenant Party (other than any
Immaterial Subsidiary) shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against any Covenant Party
(other than any Immaterial Subsidiary) any case, proceeding or other action of
a nature referred to in clause (i) above that (A) results in
the entry of an order for relief or any such adjudication or appointment or (B) remains
undismissed or undischarged for a period of 60 days; or (iii) there shall
be commenced against any Covenant Party (other than any Immaterial Subsidiary)
any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets that results in the entry of an order for any
such relief that shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) any Covenant
Party (other than any Immaterial Subsidiary) shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence in,
any of the acts set forth in clause (i), (ii), or (iii) above;
or (v) any Covenant Party (other than any Immaterial Subsidiary) shall
admit in writing its inability to pay its debts as they become due; or


 


(g)           one or more judgments, awards or decrees shall be entered
against the Borrower or any of its Subsidiaries (other than Immaterial
Subsidiaries) involving for the Borrower and its Subsidiaries (other than
Immaterial Subsidiaries) taken as a whole a liability (to the extent not


 


92

















 


paid or fully covered by insurance and as to which
the relevant insurance company has not denied coverage) of $15,000,000 or more,
and all such judgments, awards or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 30 days from the entry
thereof, or


 


(h)           the security interest or lien created under any of the Security
Documents shall cease, for any reason (other than by reason of (x) the
express release thereof pursuant to Section 10.14, (y) the
failure of the Administrative Agent or the Collateral Agent to retain
possession of Collateral physically delivered to it or (z) the failure of
the Administrative Agent or the Collateral Agent to timely file UCC
continuation statements), to be in full force and effect, or any Loan Party or
any Affiliate of any Loan Party shall so assert in writing, or any Lien created
by any of the Security Documents shall cease to be enforceable and of the same
effect and priority purported to be created thereby or any Loan Party or any
Affiliate of any Loan Party shall so assert in writing; or


 


(i)            the guarantee contained in Section 2 of the Guaranty
and Collateral Agreement shall cease, for any reason (other than in accordance
with the terms thereof), to be in full force and effect or any Loan Party or
any Affiliate of any Loan Party shall so assert; or


 


(j)            a Change of Control or a Specified Change of Control
shall occur;


 


then, and in any such event, (A) if such event is an Event of
Default specified in clause (i) or (ii) of paragraph
(f) above with respect to the Borrower, automatically the Commitments
shall immediately terminate and the Loans (with accrued interest thereon) and
all other amounts owing under this Agreement and the other Loan Documents
(including all amounts of Reimbursement Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented
the documents required thereunder) shall immediately become due and payable,
and (B) if such event is any other Event of Default, either or both of the
following actions may be taken: (i) with the consent of the Required
Lenders, the Administrative Agent may, or upon the request of the Required
Lenders, shall, by notice to the Borrower declare the Commitments to be
terminated forthwith, whereupon the Commitments shall immediately terminate;
and (ii) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative
Agent shall, by notice to the Borrower, declare the Loans (with accrued
interest thereon) and all other amounts owing under this Agreement and the
other Loan Documents (including all amounts of Reimbursement Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit
shall have presented the documents required thereunder) to be due and payable
forthwith, whereupon the same shall immediately become due and payable. With
respect to all Letters of Credit with respect to which presentment for honor
shall not have occurred at the time of any action taken pursuant to the
previous sentence, the Borrower shall at such time deposit in a cash collateral
account opened by the Administrative Agent an amount equal to the aggregate
then undrawn and unexpired amount of such Letters of Credit. Amounts held in
such cash collateral account shall be applied by the Administrative Agent to
the payment of Reimbursement Obligations in respect of drafts drawn under such
Letters of Credit, and the unused portion thereof after all such Letters of
Credit shall have expired or been fully drawn upon, if any, shall be applied to
repay other Obligations. After all such Letters of Credit shall have expired or
been fully drawn upon, all Reimbursement Obligations shall have been satisfied
and all other Obligations shall have been paid in full, the balance, if any, in
such cash collateral account shall be returned to the Borrower (or such other
Person as may be lawfully entitled thereto). Except as expressly provided above
in this Section, presentment, demand, protest and all other notices of any kind
are hereby expressly waived by the Borrower.


 


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SECTION 9


 


THE AGENTS


 


9.1.          Appointment.
Each Lender hereby irrevocably designates and appoints the Administrative Agent
and Collateral Agent as the agents of such Lender under this Agreement and the
other Loan Documents, and each such Lender irrevocably authorizes each of the
Administrative Agent and Collateral Agent, in such capacities, to take such
action on its behalf under the provisions of this Agreement and the other Loan
Documents and to exercise such powers and perform such duties as are expressly
delegated to the Administrative Agent or the Collateral Agent, as the case may
be, by the terms of this Agreement and the other Loan Documents, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Agreement or any other Loan
Document, the Administrative Agent and the Collateral Agent shall not have any
duties or responsibilities, except those expressly set forth herein, or any
fiduciary relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent or the Collateral Agent.


 


9.2.          Delegation
of Duties. The Administrative Agent and the Collateral Agent may execute
any of their respective duties under this Agreement and the other Loan
Documents by or through agents or attorneys-in-fact and shall be entitled to
advice of counsel concerning all matters pertaining to such duties. Each of the
Administrative Agent and the Collateral Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys in-fact selected by it with
reasonable care.


 


9.3.          Exculpatory
Provisions. Neither any Agent nor any of their respective officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be (i) liable for
any action lawfully taken or omitted to be taken by it or such Person under or
in connection with this Agreement or any other Loan Document (except to the
extent that any of the foregoing are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from its or such
Person’s own gross negligence or willful misconduct) or (ii) responsible in
any manner to any of the Lenders for any recitals, statements, representations
or warranties made by any Loan Party or any officer thereof contained in this
Agreement or any other Loan Document or in any certificate, report, statement
or other document referred to or provided for in, or received by the Agents
under or in connection with, this Agreement or any other Loan Document or for
the value, validity, effectiveness, genuineness, enforceability or sufficiency
of this Agreement or any other Loan Document or for any failure of any Loan
Party a party thereto to perform its obligations hereunder or thereunder. The
Agents shall not be under any obligation to any Lender to ascertain or to
inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement or any other Loan Document, or to inspect
the properties, books or records of any Loan Party.


 


9.4.          Reliance
by Administrative Agent and Collateral Agent. The Administrative Agent and
the Collateral Agent shall each be entitled to rely, and shall be fully
protected in relying, upon any instrument, writing, resolution, notice,
consent, certificate, affidavit, letter, telecopy, telex or teletype message,
statement, order or other document or conversation believed by it to be genuine
and correct and to have been signed, sent or made by the proper Person or
Persons and upon advice and statements of legal counsel (including counsel to
Parent or the Borrower), independent accountants and other experts selected by
the Administrative Agent or the Collateral Agent, as the case may be. The
Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent and the Collateral Agent shall each be fully justified in
failing or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice


 


94






 










 


or concurrence of the Required Lenders (or, if so specified by this
Agreement, all Lenders) as it deems appropriate or it shall first be
indemnified to its satisfaction by the Lenders against any and all liability
and expense that may be incurred by it by reason of taking or continuing to
take any such action. Each of the Administrative Agent and the Collateral Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement and the other Loan Documents in accordance with a request
of the Required Lenders (or, if so specified by this Agreement, all Lenders),
and such request and any action taken or failure to act pursuant thereto shall
be binding upon all the Lenders and all future holders of the Loans.


 


9.5.          Notice
of Default. Neither the Administrative Agent nor the Collateral Agent shall
be deemed to have knowledge or notice of the occurrence of any Default or Event
of Default unless the Administrative Agent has received notice from a Lender,
Parent or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a “notice of default.” In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders and the Collateral Agent. The
Administrative Agent and the Collateral Agent shall each take such action with
respect to such Default or Event of Default as shall be reasonably directed by
the Required Lenders (or, if so specified by this Agreement, all Lenders); provided that unless and until the
Administrative Agent or the Collateral Agent, as the case may be, shall have
received such directions, the Administrative Agent and the Collateral Agent
each may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it
shall deem advisable in the best interests of the Lenders.


 


9.6.          Non-Reliance
on Agents and Other Lenders.


 


(a)           Each
Lender expressly acknowledges that neither the Agents nor any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates have made any representations or warranties to it and that no act by
any Agent hereafter taken, including any review of the affairs of a Loan Party
or any affiliate of a Loan Party, shall be deemed to constitute any
representation or warranty by any Agent to any Lender. Each Lender represents
to the Agents that it has, independently and without reliance upon any Agent or
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Loan Parties and their affiliates and made its own decision to extend credit
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon any Agent or any other Lender,
and based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement and the other Loan Documents,
and to make such investigation as it deems necessary to inform itself as to the
business, operations, property, financial and other condition and
creditworthiness of the Loan Parties and their affiliates. Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by the Administrative Agent and the Collateral Agent hereunder or under any
other Loan Document, the Administrative Agent and the Collateral Agent, as the
case may be, shall not have any duty or responsibility to provide any Lender
with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
any Loan Party or any affiliate of a Loan Party that may come into the
possession of the Administrative Agent, the Collateral Agent or any of their
respective officers, directors, employees, agents, attorneys-in-fact or
affiliates. Neither the Co-Syndication Agents, the Co-Documentation Agents, the
Joint Lead Arrangers nor the Sole Bookrunner shall have nor shall be deemed to
have any fiduciary relationship with any Lender.


 


(b)           For
purposes of determining compliance with the conditions specified in Section 5.1
or 5.2, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or


 


95

















 


accepted or to be satisfied with, each document or other matter
required thereunder to be consented to or approved by or acceptable or
satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Borrowing Date specifying its
objection thereto.


 


9.7.          Indemnification.
The Lenders agree to indemnify each Agent in its capacity as such (to the
extent not reimbursed by Parent or the Borrower and without limiting the
obligation of Parent or the Borrower to do so), ratably according to their
respective Aggregate Exposure Percentages in effect on the date on which
indemnification is sought under this Section (or, if indemnification is
sought after the date upon which the Commitments shall have terminated and the
Loans shall have been paid in full, ratably in accordance with such Aggregate
Exposure Percentages immediately prior to such date), from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever that may at any
time (whether before or after the payment of the Loans) be imposed on, incurred
by or asserted against such Agent in any way relating to or arising out of, the
Commitments, this Agreement, any of the other Loan Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by such Agent
under or in connection with any of the foregoing; provided that no Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements that are found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from such Agent’s gross negligence, bad faith or willful misconduct.
The agreements in this Section shall survive the payment of the Loans and
all other amounts payable hereunder.


 


9.8.          Agent
in Its Individual Capacity. Each Agent and its affiliates may make loans to,
accept deposits from and generally engage in any kind of business with any Loan
Party as though such Agent were not an Agent. With respect to its Loans made or
renewed by it and with respect to any Letter of Credit issued or participated
in by it, each Agent shall have the same rights and powers under this Agreement
and the other Loan Documents as any Lender and may exercise the same as though
it were not an Agent, and the terms “Lender” and “Lenders” shall include each
Agent in its individual capacity.


 


9.9.          Successor
Administrative Agent or Collateral Agent. The Administrative Agent or
Collateral Agent may resign as Administrative Agent or Collateral Agent, as the
case may be, upon 30 days’ notice to the Lenders and the Borrower. If the
Administrative Agent or the Collateral Agent shall resign as Administrative
Agent or Collateral Agent, as the case may be, under this Agreement and the
other Loan Documents, then the Required Lenders shall appoint from among the
Lenders a successor agent for the Lenders, which successor agent shall (unless
an Event of Default under Section 8(a) or Section 8(f) with
respect to the Borrower shall have occurred and be continuing) be subject to
approval by the Borrower (which approval shall not be unreasonably withheld or
delayed), whereupon such successor agent shall succeed to the rights, powers
and duties of the Administrative Agent or Collateral Agent, as the case may be,
and the term “Administrative Agent” or “Collateral Agent”, as the case may be,
shall mean such successor agent effective upon such appointment and approval,
and the former Administrative Agent’s or Collateral Agent’s, as the case may
be, rights, powers and duties as Administrative Agent or Collateral Agent, as
the case may be, shall be terminated, without any other or further act or deed
on the part of such former Administrative Agent or Collateral Agent, as the
case may be, or any of the parties to this Agreement or any holders of the
Loans. If no successor agent has accepted appointment as Administrative Agent
or Collateral Agent by the date that is 30 days following a retiring
Administrative Agent’s or Collateral Agent’s, as the case may be, notice of
resignation, the retiring Administrative Agent’s or Collateral Agent’s resignation
shall nevertheless thereupon become effective, and the Lenders shall assume and
perform all of the duties of the Administrative Agent or Collateral Agent, as
the case may be, hereunder until such time, if any, as the Required Lenders and
the Borrower, as applicable, appoint a successor agent as provided for above.
After any retiring Administrative Agent’s or Collateral Agent’s resignation


 


96

















 


as Administrative Agent or Collateral Agent, as the case may be, the
provisions of this Section 9 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent or
Collateral Agent, as the case may be, under this Agreement and the other Loan
Documents. Notwithstanding the foregoing, the retiring Collateral Agent shall
continue to hold the Collateral created by the Loan Documents for the benefit
of the Lenders until the successor Collateral Agent has been effectively
appointed pursuant to this paragraph. Notwithstanding anything to the contrary
contained herein, if at any time Wachovia, resigns as Administrative Agent,
Wachovia, may, upon 90 days’ notice to the Borrower resign as the Issuing Bank.
If Wachovia resigns as the Issuing Bank, it shall retain all the rights and
obligations of the Issuing Bank hereunder with respect to all Letters of Credit
outstanding as of the effective date of its resignation as the Issuing Bank and
all Reimbursement Obligations with respect thereto (including the right to
require the Lenders to fund risk participations in respect of any Letter of
Credit pursuant to Section 3.4).


 


9.10.        Withholding
Tax. To the extent required by any applicable law, the Administrative Agent
may withhold from any payment to any Lender an amount equivalent to any
applicable withholding tax. If the Internal Revenue Service or any other
authority of the United States or other jurisdiction asserts a claim that the
Administrative Agent did not properly withhold tax from amounts paid to or for
the account of any Lender for any reason (including, without limitation,
because the appropriate form was not delivered or not properly executed, or
because such Lender failed to notify the Administrative Agent of a change in
circumstance that rendered the exemption from, or reduction of withholding tax
ineffective), such Lender shall indemnify and hold harmless the Administrative
Agent (to the extent that the Administrative Agent has not already been
reimbursed by the Borrower pursuant to Section 2.18 and Section 2.19
and without limiting the obligation of the Borrower to do so) for all amounts
paid, directly or indirectly, by the Administrative Agent as Taxes or
otherwise, together with all expenses incurred, including legal expenses and
any other out-of-pocket expenses, whether or not such tax was correctly or
legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to any
Lender by the Administrative Agent shall be conclusive absent manifest error.


 


9.11.        Joint
Lead Arrangers, Sole Bookrunner, Co-Syndication Agents and Co-Documentation
Agents. Neither any of the Joint Lead Arrangers, Sole Bookrunner, the
Co-Syndication Agents nor the Co-Documentation Agents shall have any duties or
responsibilities hereunder in its capacity as such.


 


SECTION 10


 


MISCELLANEOUS


 


10.1.        Amendments
and Waivers. Neither this Agreement, any other Loan Document, nor any terms
hereof or thereof may be amended, supplemented or modified except in accordance
with the provisions of this Section 10.1 or Sections 7.13 or
2.23. The Required Lenders and each Loan Party party to the relevant
Loan Document may, or, with the written consent of the Required Lenders, the
Administrative Agent and each Loan Party party to the relevant Loan Document
may, from time to time, (a) enter into written amendments, supplements or
modifications hereto and to the other Loan Documents for the purpose of adding
any provisions to this Agreement or the other Loan Documents or changing in any
manner the rights of the Lenders or of the Loan Parties hereunder or thereunder
or (b) waive, on such terms and conditions as the Required Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any
of the requirements of this Agreement or the other Loan Documents or any
Default or Event of Default and its consequences; provided, however,
that no such waiver and no such amendment, supplement or modification shall (i) forgive
the principal amount or extend the final scheduled 


 


97

















 


date of maturity of any Loan, extend the scheduled date of any
amortization payment (but not prepayment) in respect of any Tranche B Term
Loan, reduce the stated rate of any interest or fee payable hereunder (except (x) in
connection with the waiver of applicability of any post-default increase in
interest rates (which waiver shall be effective with the consent of the
Majority Facility Lenders of each adversely affected Facility) and (y) that
any amendment or modification of defined terms used in the financial covenants
in this Agreement shall not constitute a reduction in the rate of interest or
fees for purposes of this clause (i)) or extend the scheduled date of any
payment thereof, or increase the amount or extend the expiration date of any
Lender’s Revolving Commitment, in each case without the written consent of each
Lender (it being understood that waivers or modifications of conditions
precedent, covenants, Defaults or Events of Default or of any mandatory reductions
of Commitments or a waiver, reduction or deferral of a mandatory prepayment
required pursuant to Section 2.11, or any amendment of Section 2.11
or the definitions of Asset Sale, Excess Cash Flow or Recovery Event shall only
require the consent of Required Lenders and that an increase in the available
portion of any Revolving Commitment of any Lender otherwise in accordance with
this Agreement shall not constitute an increase in the Commitment of any
Lender) directly affected thereby in an adverse manner; (ii) eliminate or
reduce the voting rights of any Lender under this Section 10.1
without the written consent of such Lender; (iii) reduce any percentage
specified in the definition of Required Lenders, consent to the assignment or
transfer by the Borrower of any of its rights and obligations under this
Agreement and the other Loan Documents, release all or substantially all of the
Collateral or release all or substantially all of the Loan Parties (or Loan
Parties owning all or substantially all of the Collateral) from their
obligations under the Guaranty and Collateral Agreement, in each case without
the written consent of all Lenders; (iv) amend, modify or waive any
provision of Section 2.17 without the written consent of the
Majority Facility Lenders in respect of each Facility adversely affected
thereby; (v) reduce the percentage specified in the definition of Majority
Facility Lenders with respect to any Facility without the written consent of
all Lenders under such Facility; (vi) amend, modify or waive any provision
of Section 9 without the written consent of the Administrative
Agent or, to the extent relating to the Collateral Agent, the Collateral Agent;
(vii) amend, modify or waive any provision of Section 2.6 or 2.7
without the written consent of the Swingline Lender; or (viii) amend,
modify or waive any provision of Section 3 without the written
consent of the Issuing Bank. Any such waiver and any such amendment, supplement
or modification shall apply equally to each of the Lenders and shall be binding
upon the Loan Parties, the Lenders, the Administrative Agent, the Collateral
Agent and all future holders of the Loans. In the case of any waiver, the Loan
Parties, the Lenders, the Administrative Agent and the Collateral Agent shall
be restored to their former position and rights hereunder and under the other
Loan Documents, and any Default or Event of Default waived shall be deemed to
be cured and not continuing; but no such waiver shall extend to any subsequent
or other Default or Event of Default, or impair any right consequent thereon.


 


Notwithstanding the foregoing, this Agreement may be
amended (or amended and restated) with the written consent of the then Required
Lenders, the Administrative Agent and the Borrower (a) to add one or more
additional credit facilities to this Agreement and to permit the extensions of
credit from time to time outstanding thereunder and the accrued interest and
fees in respect thereof to share ratably in the benefits of this Agreement and
the other Loan Documents with the extensions of credit under the Facilities and
the accrued interest and fees in respect thereof and (b) to include
appropriately the Lenders holding such credit facilities in any determination
of the Required Lenders and Majority Facility Lenders.


 


In addition, notwithstanding the foregoing, this
Agreement may be amended with the written consent of the Administrative Agent,
the Borrower and the Lenders providing the relevant Replacement Tranche B Term
Loans (as defined below) to permit the refinancing, replacement or modification
of all outstanding Tranche B Term Loans (“Refinanced Tranche B Term
Loans”) with a replacement “B” term loan tranche hereunder (“Replacement
Tranche B Term Loans”), provided
that (a) the aggregate


 


98

















 


principal amount of such Replacement Tranche B Term Loans (with
appropriate adjustments to take into account any upfront fees or original issue
discount) shall not exceed the aggregate principal amount of such Refinanced
Tranche B Term Loans, (b) the Applicable Margin for such Replacement
Tranche B Term Loans shall not be higher than the Applicable Margin for such
Refinanced Tranche B Term Loans, (c) the weighted average life to maturity
of such Replacement Tranche B Term Loans shall not be shorter than the weighted
average life to maturity of such Refinanced Tranche B Term Loans at the time of
such refinancing, and (d) the Lenders providing the relevant Replacement
Tranche B Term Loans shall have the same relative rights and priorities under
the Loan Documents as the Lenders of the Refinanced Tranche B Term Loans at the
time of such refinancing.


 


If the Borrower wishes to replace the Commitments,
Loans and other extensions of credit, as applicable, under any Facility (the “Facility
Interests”) with ones having different terms, it shall have the option,
with the consent of the Administrative Agent and subject to at least three
Business Days’ advance notice to the Lenders under such Facility, instead of
reducing, terminating and repaying such Facility Interests to be replaced, to
(i) require the Lenders under such Facility to assign such Facility
Interests to the Administrative Agent or its designees (it being understood
that none of the Lenders shall be required to be such a designee without its
consent) and (ii) amend the terms thereof in accordance with and subject
to the requirements of this Section 10.1 (with such replacement, if
applicable, being deemed to have been made pursuant to this Section 10.1).
Pursuant to any such assignment, all Facility Interests to be replaced shall be
purchased at par (allocated among the Lenders under such Facility in the same
manner as would be required if all Loans included therein were being optionally
prepaid and all Commitments included therein were being optionally reduced or
terminated by the Borrower), accompanied by payment of any accrued interest and
fees thereon and any amounts owing pursuant to Section 3, 2.20
or 10.6. By receiving such purchase price, the Lenders under such
Facility shall automatically be deemed to have assigned the Facility Interests
under such Facility pursuant to the terms of the form of Assignment and
Assumption, and accordingly no other action by such Lenders shall be required
in connection therewith. The provisions of this paragraph are intended to
facilitate the maintenance of the perfection and priority of existing security
interests in the Collateral during any such replacement.


 


Notwithstanding anything to the contrary contained
in this Section 10.1, if the Administrative Agent and Parent shall
have jointly identified an obvious error (including, but not limited to, an
incorrect cross-reference) or any error or omission of a technical nature, in
each case, in any provision of any Loan Document, then the Administrative Agent
and/or the Collateral Agent (acting in their sole discretion) and the Borrowers
or any other relevant Loan Party shall be permitted to amend such provision or
cure any ambiguity, defect or inconsistency and such amendment shall become
effective without any further action or consent of any other party to any Loan
Document.


 


10.2.        Notices.
All notices, requests and demands to or upon the respective parties hereto to
be effective shall be in writing (including by telecopy), and, unless otherwise
expressly provided herein, shall be deemed to have been duly given or made when
delivered, or three Business Days after being deposited in the mail, postage
prepaid, or, in the case of telecopy notice, when received, addressed as
follows in the case of Parent, the Borrower and the Administrative Agent, and
as set forth in an administrative questionnaire delivered to the Administrative
Agent in the case of the Lenders, or to such other address as may be hereafter
notified by the respective parties hereto:


 


99

















 


	
  Parent and Borrower:

  	
  Radiation Therapy Services Holdings, Inc.

  
	
   

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

  
	
   

  	
  245 Park Avenue,

  
	
   

  	
  41st Floor

  
	
   

  	
  New York, NY 10167

  
	
   

  	
  Attention: James L. Elrod, Jr.

  
	
   

  	
  Telecopy: (212) 808-4922

  
	
   

  	
   

  
	
  Administrative Agent:

  	
  Wachovia Bank, National Association

  
	
   

  	
  301 South College Street

  
	
   

  	
  Charlotte, NC 28202

  
	
   

  	
  Attention: Kirk Tesch

  
	
   

  	
  Telecopy: 704-383-6647

  
	
   

  	
  Telephone: 704-715-1708

  



 


provided that any notice, request or
demand to or upon the Administrative Agent or the Lenders shall not be
effective until received.


 


Documents required to be delivered pursuant to Section 6.1
or Section 6.2 may be delivered electronically and if so delivered,
shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower’s
website on the Internet at the website address listed on Schedule 10.2
or on the SEC’s website or (ii) on which such documents are posted on the
Borrower’s behalf on an Internet or Intranet website, if any, to which the
Administrative Agent has access (whether a commercial, third-party website or
whether sponsored by the Administrative Agent); provided that: (i) the Borrower shall deliver copies
(which may be electronic) of such documents to the Administrative Agent which
so requests until a written request to cease delivering copies is given by the
Administrative Agent or such Lender and (ii) the Borrower shall notify
(which may be by facsimile or electronic mail) the Administrative Agent (and
each Lender if there is at the time no incumbent Administrative Agent) of the
posting of any such documents. The Administrative Agent shall have no
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each Lender
shall be solely responsible for requesting delivery to it or maintaining its
copies of such documents referred to in this proviso. Furthermore, if any
financial statement, certificate or other information required to be delivered
pursuant to Section 6.1 or 6.2 shall be required to be
delivered on any date that is not a Business Day, such financial statement,
certificate or other information may be delivered to the Administrative Agent
on the next succeeding Business Day after such date.


 


Notices and other communications to the Lenders
hereunder may be delivered or furnished by electronic communications pursuant
to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices
pursuant to Section 2 or 3 unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided
that approval of such procedures may be limited to particular notices or
communications.


 


10.3.        No
Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of the Administrative Agent or any Lender, any right,
remedy, power or privilege hereunder or under the other Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges


 


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herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.


 


10.4.        Survival
of Representations and Warranties. All representations and warranties made
hereunder, in the other Loan Documents and in any document, certificate or
statement delivered pursuant hereto or in connection herewith shall survive the
execution and delivery of this Agreement and the making of the Loans and other
extensions of credit hereunder.


 


10.5.        Payment
of Expenses. The Borrower agrees (a) to pay or reimburse each of the
Administrative Agent, the Collateral Agent and the Joint Lead Arrangers for all
its reasonable out-of- pocket costs and expenses incurred in connection with
the development, preparation and execution of, and any amendment, supplement or
modification to, this Agreement and the other Loan Documents and any other
documents prepared in connection herewith or therewith, and the consummation
and administration of the transactions contemplated hereby and thereby,
including the reasonable fees and disbursements of Cahill Gordon &
Reindel LLP, counsel to the Administrative Agent, Collateral Agent and Joint
Lead Arrangers (and one local counsel to the Administrative Agent, Collateral
Agent and Joint Lead Arrangers in any applicable jurisdiction as to which the
Administrative Agent reasonably determines local counsel is appropriate) (provided that in no event shall the
Borrower be obligated to reimburse the reasonable expenses of more than one
counsel plus one counsel in each jurisdiction pursuant to this clause (a)), (b) to
pay or reimburse each Lender, the Collateral Agent and the Administrative Agent
for all their reasonable out-of-pocket costs and expenses incurred in
connection with the enforcement or preservation of any rights under this
Agreement, the other Loan Documents and any other documents prepared in
connection herewith or therewith, including, without limitation, the reasonable
fees and disbursements of counsel to Lenders, the Administrative Agent and the
Collateral Agent (provided that
in no event shall the Borrower be obligated to reimburse the reasonable
expenses of more than one counsel plus one counsel in each jurisdiction, unless
as reasonably determined by a Lender, representation of all the Lenders, the
Administrative Agent and the Collateral Agent would create an actual or
potential conflict of interest) and (c) to pay, indemnify and hold each
Lender and each Agent and their respective officers, directors, employees,
affiliates, partners, advisors, agents and controlling persons (each, an “Indemnitee”)
harmless from and against any and all other liabilities, obligations, losses,
damages, claims, penalties, actions, judgments, suits, costs or expenses
(including reasonable fees, disbursements, settlement costs and other charges
of counsel) of any kind or nature whatsoever (other than consequential, special
or punitive damages or losses) with respect to the execution, delivery,
enforcement, performance and administration of this Agreement, the other Loan
Documents and any such other documents, including any of the foregoing relating
to the use of proceeds of the Loans or the violation of, noncompliance with or
liability under, any Environmental Law relating to the operations of any Group
Member or any of the Properties, including the presence or Release or threat of
Release of Materials of Environmental Concern at, on, under or from the
Properties, and the reasonable fees and expenses of legal counsel in connection
with claims, actions or proceedings by any Indemnitee against any Loan Party
under any Loan Document (all the foregoing in this clause (c), collectively,
the “Indemnified Liabilities”),
provided that, in each case, the Borrower shall have no obligation
hereunder to any Indemnitee with respect to Indemnified Liabilities to the
extent such Indemnified Liabilities are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from (A) the
bad faith, fraud, negligence, or willful misconduct of such Indemnitee (or any
of such Indemnitee’s affiliates or their respective officers, directors,
employees, advisors, trustees or agents), (B) a dispute arising solely
among Indemnitees and not arising from an act or omission of Parent or any of its
Subsidiaries or (C) a material breach by such Indemnitee (or any of such
Indemnitee’s affiliates or their respective officers, directors, employees,
advisors, trustees or agents) of its obligations hereunder. In the case of any
investigation, litigation or other proceeding to which the indemnity in clause
(c) of this Section applies, such indemnity shall be effective
whether or not such investigation, litigation or other proceeding is brought by
a third party or any Group Member or an Indemnitee, and whether or not an
Indemnitee 


 


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is otherwise a party thereto; provided
further that the Borrower shall not be required to reimburse the
legal fees and expenses of more than one primary outside counsel and reasonably
necessary local and specialty counsel for all Indemnitees with respect to any
matter for which indemnification is sought unless, as reasonably determined by
an Indemnitee’s counsel, representation of all such Indemnitees would create an
actual or potential conflict of interest. The Borrower shall not be required to
indemnify any Indemnitee for any Indemnified Liabilities paid or payable by
such Indemnitee in, or resulting from, the settlement of any action, proceeding
or investigation without the written consent of the Borrower, which consent
shall not be unreasonably withheld or delayed; provided that the
foregoing indemnity shall apply to any such settlement in the event that the
Borrower was offered the ability to assume the defense of the action that was
the subject matter of such settlement and elected not to assume. All amounts
due under this Section 10.5 shall be payable not later than 30 days
after written demand accompanied by a commercially reasonably detailed invoice
therefor. Statements payable by the Borrower pursuant to this Section 10.5
shall be submitted to the address of the Borrower set forth in Section 10.2,
or to such other Person or address as may be hereafter designated by the
Borrower in a written notice to the Administrative Agent. The agreements in
this Section 10.5 shall survive termination of the Commitments and
repayment of the Loans and all other amounts payable hereunder.


 


10.6.        Successors
and Assigns; Participations and Assignments.


 


(a)           Successors
and Assigns Generally. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns permitted hereby (including any affiliate of the Issuing
Bank that issues any Letter of Credit), except that (i) the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Lender (and any attempted assignment
or transfer by the Borrower without such consent shall be null and void) and
(ii) no Lender may assign or otherwise transfer its rights or obligations
hereunder except in accordance with this Section 10.6. Nothing in
this Agreement, express or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in paragraph (d) of
this Section and, to the extent expressly contemplated hereby, the other
Indemnitees) any legal or equitable right, remedy or claim under or by reason
of this Agreement.


 


(b)           Assignments
by Lenders. Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans at the time owing
to it), provided that:


 


(i)            except in the case of an assignment to an Eligible
Assignee or an assignment of the entire remaining amount of the assigning
Lender’s interests under any Facility, the amount of the Commitments or Tranche
B Term Loans, as applicable, of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $1,000,000 (or, in the case of the Revolving Facility, $5,000,000)
unless each of the Borrower and the Administrative Agent otherwise consent, provided that no such consent of the
Borrower shall be required if an Event of Default under Section 8(a) or
8(f) has occurred and is continuing;


 


(ii)           each partial assignment shall be made as an assignment of
a proportionate part of all the assigning Lender’s rights and obligations under
this Agreement, provided that
this clause shall not be construed to prohibit the assignment of a
proportionate part of all the assigning Lender’s rights and obligations in
respect of each Facility. This Section 10.6(b)(ii) shall not
be construed to prohibit assignment of a proportionate part of all the
assigning Lender’s rights and obligations in respect of a single Facility;


 


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(iii)          the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500 ; provided
that only one such fee shall be payable in the event of simultaneous
assignments to or from two or more Approved Funds or Affiliates of the same
Lender; and


 


(iv)          any Eligible Assignee, if it shall not be a Lender, shall
deliver to the Administrative Agent an administrative questionnaire in which
such Eligible Assignee designates one or more credit contacts to whom all
syndicate-level information (which may contain material nonpublic information
about the Borrower, the Loan Parties and their Affiliates or their respective
securities) will be made available and who may receive such information in
accordance with such Eligible Assignee’s compliance procedures and applicable
laws, including Federal and state securities laws.


 


Subject to acceptance and recording thereof pursuant to paragraph
(c)(ii) below, from and after the effective date specified in each
Assignment and Assumption the Eligible Assignee thereunder shall be a party
hereto and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this Agreement,
and the assigning Lender thereunder shall, to the extent of the interest
assigned by such Assignment and Assumption, be released from its obligations
under this Agreement (and, in the case of an Assignment and Assumption covering
all of the assigning Lender’s rights and obligations under this Agreement, such
Lender shall cease to be a party hereto but shall continue to be entitled to
the benefits of Sections 2.18, 2.19, 2.20 and 10.5).
Any assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 10.6 shall be
treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph
(d) of this Section 10.6.


 


(c)           Register.
(i) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments and Revolving Extensions of
Credit of, and principal amount (and stated interest) of the Loans owing to,
each Lender pursuant to the terms hereof from time to time (the “Register”).
The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, the Issuing Bank and the Lenders shall treat each Person
whose name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower or any
Lender (with respect to any entry relating to such Lender’s Loans) at any
reasonable time and from time to time upon reasonable prior notice.


 


(ii)           Upon
its receipt of a duly completed Assignment and Assumption executed by an
assigning Lender and an Eligible Assignee, the Eligible Assignee’s completed
administrative questionnaire (unless the Eligible Assignee shall already be a
Lender hereunder), the processing and recordation fee referred to in paragraph
(b)(iii) of this Section 10.6, all tax forms required under
Section 2.19 and any written consent to such assignment required by
paragraph (b)(i) of this Section 10.6, the Administrative
Agent shall accept such Assignment and Assumption and record the information
contained therein in the Register. No assignment shall be effective for
purposes of this Agreement unless and until it has been recorded in the
Register as provided in this paragraph. The Register shall be available for
inspection by the Borrower or any Lender (with respect to any entry relating to
such Lender’s Loans) at any reasonable time and from time to time upon
reasonable prior notice.


 


(d)           Participations.
Any Lender may, without the consent of the Borrower or the Administrative
Agent, sell participations to one or more banks or other entities (other than
natural persons) (a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement


 


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(including all or a portion of its Commitments and the Loans owing to
it); provided that (A) such
Lender’s obligations under this Agreement shall remain unchanged, (B) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (C) the Borrower, the Administrative
Agent, the Issuing Bank and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender’s rights and
obligations under this Agreement. Any agreement pursuant to which a Lender
sells such a participation shall provide that such Lender shall retain the sole
right to enforce this Agreement and to approve any amendment, modification or
waiver of any provision of the Loan Documents; provided
that such agreement may provide that such Lender will not, without the consent
of the Participant, agree to any amendment, modification or waiver that
(1) requires the consent of each Lender directly affected thereby pursuant
to the proviso to the second sentence of Section 10.1 and
(2) directly affects such Participant. Subject to paragraph (e) of
this Section 10.6, the Borrower agrees that each Participant shall
be entitled to the benefits of Sections 2.18, 2.19 and 2.20
(subject to the requirements and limitations of such sections) to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section 10.6. To the extent
permitted by law, each Participant also shall be entitled to the benefits of Section 10.7(b) as
though it were a Lender, provided
such Participant shall be subject to Section 10.7(a) as though
it were a Lender. Each Lender that sells a participation shall, acting solely for
this purpose as an agent of the Borrower, maintain a register on which it
enters the name and address of each Participant and the principal amounts (and
stated interest) of each participant’s interest in the Loans or other
obligations under this Agreement (the “Participant Register”). The
entries in the Participant Register shall be conclusive and such Lender shall
treat each person whose name is recorded in the Participant Register as the
owner of such participation for all purposes of this Agreement notwithstanding
any notice to the contrary.


 


(e)           Limitation
on Participants’ Rights. No Participant shall be entitled to receive any
greater payment under Section 2.18 or 2.19 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower’s prior written consent, not to be
unreasonably withheld or delayed.


 


(f)            Certain
Pledges. Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender (and any initial or subsequent pledgee or grantee, as the case may
be, may in turn at any time and from time to time pledge or grant a security
interest in all or any portion of such rights as collateral security to secure
obligations of such Person), including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to
any such pledge or assignment of a security interest; provided that no such pledge or assignment
of a security interest shall release a Lender from any of its obligations
hereunder or substitute any such pledgee or Eligible Assignee for such Lender
as a party hereto.


 


(g)           Electronic
Execution of Assignments. The words “execution,” “signed,” “signature,” and
words of like import in any Assignment and Assumption shall be deemed to
include electronic signatures or the keeping of records in electronic form,
each of which shall be of the same legal effect, validity or enforceability as
a manually executed signature or the use of a paper-based recordkeeping system,
as the case may be, to the extent and as provided for in any applicable
Requirement of Law, including the Federal Electronic Signatures in Global and
National Commerce Act, the New York State Electronic Signatures and Records
Act, or any other similar state laws based on the Uniform Electronic
Transactions Act.


 


(h)           The
Borrower, upon receipt of written notice from the relevant Lender, agrees to
issue Notes to any Lender requiring Notes to facilitate transactions of the
type described in paragraph (d) above.


 


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10.7.        Adjustments;
Set-off.


 


(a)           Except
to the extent that this Agreement expressly provides for payments to be
allocated to a particular Lender or to the Lenders under a particular Facility,
if any Lender (a “Benefitted Lender”) shall receive any payment of all
or part of the Obligations owing to it, or receive any collateral in respect
thereof (whether voluntarily or involuntarily, by set-off, pursuant to events
or proceedings of the nature referred to in Section 8(f), or
otherwise), in a greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of the Obligations owing to
such other Lender, such Benefitted Lender shall purchase for cash from the
other Lenders a participating interest in such portion of the Obligations owing
to each such other Lender, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary to cause such Benefitted
Lender to share the excess payment or benefits of such collateral ratably with
each of the Lenders; provided, however, that if all or any portion of
such excess payment or benefits is thereafter recovered from such Benefitted
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned, to the extent of such recovery, but without interest.


 


(b)           In
addition to any rights and remedies of the Lenders provided by law, each Lender
shall have the right after the occurrence and during the continuance of an
Event of Default, without prior notice to Parent or the Borrower, any such
notice being expressly waived by Parent and the Borrower to the extent
permitted by applicable law, upon any amount becoming overdue and payable by
Parent or the Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise), to set off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final other than payroll, tax or trust accounts), in any currency, and any
other credits, indebtedness or claims, in any currency, in each case whether
direct or indirect, absolute or contingent, matured or unmatured, at any time
held or owing by such Lender or any branch or agency thereof to or for the
credit or the account of Parent or the Borrower, as the case may be. Each Lender
agrees promptly to notify the Borrower and the Administrative Agent after any
such setoff and application made by such Lender, provided that the failure to give such notice shall not
affect the validity of such setoff and application.


 


10.8.        Counterparts.
This Agreement may be executed by one or more of the parties to this Agreement
on any number of separate counterparts (including Lender Addendums), and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile, .pdf file or other electronic transmission shall be effective as
delivery of a manually executed counterpart hereof. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Borrower and the
Administrative Agent.


 


10.9.        Severability.
Any provision of this Agreement that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.


 


10.10.      Integration.
This Agreement and the other Loan Documents represent the entire agreement of
Parent, the Borrower, the Administrative Agent and the Lenders with respect to
the subject matter hereof and thereof, and there are no promises, undertakings,
representations or warranties by the Administrative Agent or any Lender
relative to the subject matter hereof not expressly set forth or referred to
herein or in the other Loan Documents.


 


10.11.      GOVERNING
LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY,


 


105

















 


AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE
OF NEW YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT
THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WILL BE REQUIRED THEREBY.


 


10.12.      Submission
to Jurisdiction; Waivers. Each of the parties hereto hereby irrevocably and
unconditionally:


 


(a)           submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State
of New York, the courts of the United States for the Southern District of New
York, and appellate courts from any thereof;


 


(b)           consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to
the venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;


 


(c)           agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to Parent or
the Borrower, as the case may be at its address set forth in Section 10.2
or at such other address of which the Administrative Agent shall have been
notified pursuant thereto;


 


(d)           agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to sue in any other jurisdiction; and


 


(e)           waives, to the maximum extent not prohibited by law, any
right it may have to claim or recover in any legal action or proceeding
referred to in this Section 10.12 any special, exemplary, punitive
or consequential damages.


 


10.13.      Acknowledgements.
Each of Parent and the Borrower hereby acknowledges that:


 


(a)           it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;


 


(b)           neither the Administrative Agent nor any Lender has any
fiduciary relationship with or duty to Parent or the Borrower arising out of or
in connection with this Agreement or any of the other Loan Documents, and the
relationship between Administrative Agent and Lenders, on one hand, and Parent
and the Borrower, on the other hand, in connection herewith or therewith is
solely that of debtor and creditor; and


 


(c)           no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
among the Lenders or among Parent, the Borrower and the Lenders.


 


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10.14.      Releases
of Guarantees and Liens.


 


(a)           Notwithstanding anything to the contrary contained herein
or in any other Loan Document, the Administrative Agent and the Collateral
Agent are hereby irrevocably authorized by each Lender (without requirement of
notice to or consent of any Lender except as expressly required by Section 10.1)
to (A) take any action requested by the Borrower having the effect of
releasing any Collateral or guarantee obligations (i) to the extent
necessary to permit sale or other disposition of Collateral (other than any
such sale or disposition to another Loan Party) not prohibited by any Loan
Document or that has been consented to in accordance with Section 10.1,
(ii) upon termination of the Total Revolving Commitments and payment in
full of all then outstanding Obligations (other than contingent indemnification
obligations) and the expiration or termination of all Letters of Credit (unless
cash collateralized or subject to other arrangements satisfactory to the Issuing
Bank) or (iii) subject to Section 10.1, if otherwise approved,
authorized or ratified in writing by the Required Lenders, (B) to the
extent agreed by the Administrative Agent, to subordinate any Lien on any
Property granted to or held by the Administrative Agent or Collateral Agent
under any Loan Document to the holder of any Lien on such Property that is
permitted by Section 7.3 or (C) to release any Subsidiary
Guarantor from its obligations under the Guarantee and Collateral Agreement if
such Person ceases to be a Subsidiary Guarantor as a result of a Disposition or
any other transaction permitted under any Loan Document.


 


(b)           In connection with a termination or release pursuant to Section 10.14(a)(A) or
(a)(C), the Administrative Agent and Collateral Agent shall promptly
execute and deliver to the applicable Loan Party, at the Borrower’s expense,
all documents that the applicable Loan Party shall reasonably request to
evidence such termination or release. Upon request by the Administrative Agent
or the Collateral Agent at any time, the Required Lenders will confirm in
writing such Administrative Agent’s and Collateral Agent’s authority to release
or subordinate its interest in particular types or items of Property, or to
release any Subsidiary Guarantor from its obligations under the Guarantee and
Collateral Agreement pursuant to this Section 10.14.


 


10.15.      Confidentiality.
Each of the Administrative Agent, the Issuing Bank and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates’ respective
partners, directors, officers, employees, agents and representatives, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners),
(c) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder,
under any other Loan Document or any suit, action or proceeding relating to
this Agreement, any other Loan Document or the enforcement of rights hereunder
or thereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or
prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (g) subject to
each such Person being informed of the confidential nature of the Information
and to its agreement to keep such Information confidential and subject to an
agreement containing provisions substantially the same as those of this
Section, to (i) an investor or prospective investor in securities issued
by an Approved Fund that also agrees that Information shall be used solely for
the purpose of evaluating an investment in such securities issued by the
Approved Fund, (ii) a trustee, collateral manager, servicer, backup
servicer, note-holder or secured party in securities issued by an Approved Fund
in connection with the administration,


 


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servicing and reporting on the assets serving as collateral for
securities issued by an Approved Fund, or (iii) a nationally recognized
rating agency that requires access to information regarding the Loan Parties,
the Loans and Loan Documents in connection with ratings issued in respect of
securities issued by an Approved Fund, (h) with the written consent of the
Borrower or (i) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section 10.15
or (ii) becomes available to the Administrative Agent, the Issuing Bank or
any Lender on a non-confidential basis from a source other than the Borrower; provided, however,
that with respect to disclosures pursuant to clauses (b) and (c) of
this Section 10.15 (other than disclosures pursuant to routine
regulatory examinations) and clause (e) of this Section 10.15
(as such clause relates to suits, actions or proceedings in which disclosure is
being sought by a third party), unless prohibited by applicable Requirements of
Law or court order, each Lender, the Issuing Bank and the Administrative Agent
shall (x) notify the Borrower in writing of any request by any
Governmental Authority or representative thereof or other Person for disclosure
of confidential and non-public information after receipt of such request and
(y) if such disclosure of such confidential or non-public information is
legally required, furnish only such portion of such information as it is
legally compelled to disclose and exercise commercially reasonable efforts to
obtain a protective order or other reliable assurance that confidential
treatment will be accorded to the disclosed information.


 


For the purposes of this Section 10.15,
“Information” means all information received from the Borrower relating to the
Borrower or its business, other than any such information that is available to
the Administrative Agent, the Issuing Bank or any Lender on a non-confidential
basis prior to disclosure by the Borrower subject to the last paragraph of Section 6.1.
Any Person required to maintain the confidentiality of Information as provided
in this Section shall be considered to have complied with its obligation
to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.


 


10.16.      WAIVERS OF JURY TRIAL. HOLDINGS, THE
BORROWER, THE ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.


 


10.17.      USA
PATRIOT Act. Each Lender that is subject to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26,
2001)) (the “Act”) hereby notifies the Borrower that pursuant to the
requirements of the Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender
to identify the Borrower in accordance with the Act.


 


10.18.      No
Advisory or Fiduciary Responsibility. The Administrative Agent,
Co-Syndication Agents, Co-Documentation Agents the Lead Arrangers and each
Lender and their respective Affiliates (collectively, solely for purposes of
this paragraph, the “Lenders”), may have economic interests that
conflict with those of the Loan Parties. The Loan Parties agree that nothing in
the Loan Documents will be deemed to create an advisory, fiduciary or agency
relationship or fiduciary or other similar implied duty between the Lenders and
the Loan Parties. In connection with all aspects of each transaction
contemplated by this Agreement, the Loan Parties acknowledge and agree that:
(a) (i) the arranging and other services described herein are
arm’s-length commercial transactions between the Loan Parties, on the one hand,
and the Lenders, on the other hand, (ii) the Loan Parties have consulted
their own legal, accounting, regulatory and tax advisors to the extent you have
deemed appropriate and have not relied on any of the Lenders for advice in any
of such regards, and (iii) the Loan Parties are capable of evaluating, and
understand and accept, the terms, risks and conditions of the transactions
contemplated by this Agreement; and (b) (i) each Lender has been, is,
and will be acting solely as a principal and, except as


 


108

















 


otherwise expressly agreed in writing by the relevant parties, has not
been, is not, and will not be acting as an advisor, agent or fiduciary for any
of Loan Parties under the Loan Documents and (ii) under the Loan
Documents, no Lender has any obligation to the Loan Parties with respect to the
transactions contemplated by this Agreement except those obligations expressly
set forth in this Agreement and/or the other Loan Documents. The Borrower
further acknowledges and agrees that it is responsible for making its own
independent judgment with respect to such transactions and the process leading
thereto.


 


109

















 


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed and delivered by their proper and duly
authorized officers as of the day and year first above written.


 


	
   

  	
  RADIATION THERAPY SERVICES 

  
	
   

  	
  HOLDINGS, INC.,

  
	
   

  	
  as Parent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Erin L. Russell

  
	
   

  	
   

  	
  Name: Erin L. Russell

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  RTS MERGERCO, INC.,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Erin L. Russell

  
	
   

  	
   

  	
  Name: Erin L. Russell

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  FROM AND AFTER GIVING EFFECT TO THE MERGER

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RADIATION THERAPY SERVICES, INC.,

  
	
   

  	
  as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Watson

  
	
   

  	
   

  	
  Name:

  	
  David Watson

  
	
   

  	
   

  	
  Title:

  	
  Executive Vice President and Chief Financial Officer

  



 


[Credit Agreement]


 

















 


	
   

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION, as

  
	
   

  	
  Administrative Agent, Collateral Agent, Issuing Bank, 

  
	
   

  	
  Swingline Lender and a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kurt Brechnitz

  
	
   

  	
   

  	
  Name:

  	
  Kurt Brechnitz

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  



 


[Credit Agreement]


 

















 


	
   

  	
  WACHOVIA CAPITAL MARKETS, LLC, as

  
	
   

  	
  a Joint Lead Arranger and Sole Bookrunner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kurt Brechnitz

  
	
   

  	
   

  	
  Name:

  	
  Kurt Brechnitz

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  



 


[Credit Agreement]


 

















 


	
   

  	
  BNP PARISBAS, as

  
	
   

  	
  a Co-Syndication Agent and a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Authorized Signatory

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title:    

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kandice Gu

  
	
   

  	
   

  	
  Name: Kandice Gu

  
	
   

  	
   

  	
  Title:    Vice President

  



 


[Credit
Agreement]


 

















 


	
   

  	
  BNP PARISBAS SECURITIES CORP, as

  
	
   

  	
  a Joint Lead Arranger

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Authorized Signatory

  
	
   

  	
   

  	
  Name: 

  
	
   

  	
   

  	
  Title:    Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dimitri Jobert

  
	
   

  	
   

  	
  Name: Dimitri Jobert

  
	
   

  	
   

  	
  Title:    Director

  



 


[Credit
Agreement]


 






 










 


	
   

  	
  SUMITOMO MITSUI BANKING CORPORATION, as

  
	
   

  	
  a Co-Syndication Agent, a Co-Documentation Agent,

  
	
   

  	
  a Joint Lead Arranger and a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Leo Pagarigan

  
	
   

  	
   

  	
  Name: Leo Pagarigan

  
	
   

  	
   

  	
  Title:   General Manager

  



 


[Credit
Agreement]


 

















 


	
   

  	
  GENERAL ELECTRIC CAPITAL CORPORATION, as

  
	
   

  	
  a Co-Syndication Agent and a Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brent Shepherd

  
	
   

  	
   

  	
  Name: Brent Shepherd

  
	
   

  	
   

  	
  Title:   Duly Authorized
  Signatory

  



 


[Credit
Agreement]


 

















 


	
   

  	
  Fifth Third Bank, as a Co-Documentation Agent

  
	
   

  	
  and a Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joseph A. Miller

  
	
   

  	
   

  	
  Name: Joseph A. Miller

  
	
   

  	
   

  	
  Title:   Vice President

  



 


[Credit
Agreement]


 

















 


	
   

  	
  Natixis, as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Frank H. Madden, Jr.

  
	
   

  	
   

  	
  Name: Frank H. Madden, Jr.

  
	
   

  	
   

  	
  Title:   Managing Director

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Tefta Ghilaga

  
	
   

  	
   

  	
  Tefta Ghilaga

  
	
   

  	
   

  	
  Director

  
	
   

  	
   

  	
  Natixis

  



 


[Credit
Agreement]


 

















 


	
   

  	
  Carolina First Bank, as Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alan T. Ennis

  
	
   

  	
   

  	
  Name: Alan T. Ennis

  
	
   

  	
   

  	
  Title:   Senior Vice President

  



 


[Credit
Agreement]


 

















 


	
   

  	
  CITIBANK N.A., as Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Gregory Roll

  
	
   

  	
   

  	
  Name: Gregory Roll

  
	
   

  	
   

  	
  Title:   Vice President

  



 


[Credit
Agreement]


 

















 


	
   

  	
  Union Bank of California, N. A., as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard A. Lopatt

  
	
   

  	
   

  	
  Name: Richard A. Lopatt

  
	
   

  	
   

  	
  Title:   Vice President

  



 


[Credit
Agreement]


 

















 


	
   

  	
  WELLS FARGO FOOTHILL, LLC, as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Elizabeth Downey

  
	
   

  	
   

  	
  Name: Elizabeth Downey

  
	
   

  	
   

  	
  Title:   Vice President

  



 


[Credit
Agreement]


 

















 


EXECUTION
COPY


 


SCHEDULES


 


TO THE


 


CREDIT
AGREEMENT


 


Dated as of


 


February 21,
2008


 


among


 


RADIATION
THERAPY SERVICES HOLDINGS, INC.,


 


RADIATION
THERAPY SERVICES, INC.


(as
successor to RTS MERGERCO, INC.),


 


as Borrower


 


The Several
Lenders from Time to Time Parties Hereto

and

WACHOVIA BANK, NATIONAL ASSOCIATION,

as Administrative Agent, Collateral Agent, Issuing Bank and Swingline
Lender


 


BNP PARIBAS
and GENERAL ELECTRIC CAPITAL CORPORATION,


as Co-Syndication Agent


 


SUMITOMO
MITSUI BANKING CORPORATION


and FIFTH
THIRD BANK


 


as Co-Documentation Agents




and


 


WACHOVIA
CAPITAL MARKETS, LLC,

and BNP PARIBAS SECURITIES CORP. and

SUMITOMO MITSUI BANKING CORPORATION


 


as Joint
Lead Arrangers


 


and

Wachovia Capital Markets, LLC,

as Sole Bookrunner


 

















 


SCHEDULE
1.1A

COMMITMENTS

Commitments


 


	
  Lender

  	
   

  	
  Revolving Commitment

  	
   

  	
  Initial Tranche B

  Term Commitment

  	
   

  	
  Delayed Draw Tranche B

  Term Commitment

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wachovia Bank, National
  Association

  	
   

  	
  $

  	
  12,614,986.71

  	
   

  	
  $

  	
  82,500,000.00

  	
   

  	
  $

  	
  6,967,951.16

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Sumitomo Mitsui Banking
  Corporation

  	
   

  	
  $

  	
  5,154,300.76

  	
   

  	
  $

  	
  54,689,996.39

  	
   

  	
  $

  	
  2,572,764.99

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  General Electric Capital
  Corporation

  	
   

  	
  $

  	
  11,056,511.06

  	
   

  	
  $

  	
  56,572,481.57

  	
   

  	
  $

  	
  7,371,007.37

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BNP Paribas

  	
   

  	
  $

  	
  7,200,000.00

  	
   

  	
  $

  	
  13,000,000.00

  	
   

  	
  $

  	
  4,800,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fifth Third Bank

  	
   

  	
  $

  	
  9,000,000.00

  	
   

  	
  $

  	
  35,000,000.00

  	
   

  	
  $

  	
  6,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Natixis

  	
   

  	
  -0-

  	
   

  	
  $

  	
  17,694,524.50

  	
   

  	
  $

  	
  2,305,475.50

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Citibank, N.A.

  	
   

  	
  $

  	
  6,000,000.00

  	
   

  	
  $

  	
  15,000,000.00

  	
   

  	
  $

  	
  4,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Union Bank of California, N.A.

  	
   

  	
  -0-

  	
   

  	
  $

  	
  15,000,000.00

  	
   

  	
  -0-

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Carolina First Bank

  	
   

  	
  $

  	
  7,500,000.00

  	
   

  	
  -0-

  	
   

  	
  $

  	
  5,000,000.00

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wells Fargo Foothill

  	
   

  	
  $

  	
  1,474,201.47

  	
   

  	
  $

  	
  17,542,997.54

  	
   

  	
  $

  	
  982,800.98

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total:

  	
   

  	
  $

  	
  60,000,000.00

  	
   

  	
  $

  	
  307,000,000.00

  	
   

  	
  $

  	
  40,000,000.00

  	
   

  



 


2






 










 


SCHEDULE
1.1B


UNRESTRICTED
SUBSIDIARIES


 


None


 


3

















 


SCHEDULE
4.4


CONSENTS,
AUTHORIZATIONS, FILINGS AND NOTICE


 


1.                                       Consent of the
Arizona Department of Health Services is required to consummate the Merger.


 


2.                                       License from
the Florida Agency for Health Care Administration is required prior to closing
the Merger.


 


3.                                       Consent of, or
notice to, the New Jersey Department of Health and Senior Services is required
to consummate the Merger.


 


4.                                       Consent of the
Pennsylvania Department of Health is required to consummate the Merger.


 


5.                                       Consent of, or
notice to, the Rhode Island Department of Health is required to consummate the
Merger.


 


6.                                       Consent of, or
notice to, the West Virginia Health Care Authority is required to consummate
the Merger.


 


7.                                       License from
the Maryland Department of the Environment and/or the Maryland Department of
Health and Mental Hygiene required to operate major medical equipment in
Maryland.


 


8.                                       Consent of, or
notice to, the North Carolina Department of Health and Human Services.


 


9.                                       Consent of, or
notice to, the Massachusetts Department of Public Health.


 


10.                                 Consent of, or
notice to, the Michigan Department of Community Health, Certificate of Need
Section.


 


11.                                 Consent,
certificates of need (or exemption or “no review” letters), and/or
acknowledgements of receipt of required notices from the appropriate agencies
overseeing the certificate of need and change of ownership processes in
Alabama, Delaware, Kentucky, to the extent necessary.


 


12.                                 Any consents,
notices to, or approvals required to maintain participation in the Medicare and
Medicaid programs under existing provider or supplier agreements.


 


13.                                 Any state,
county or city business licenses, occupational licenses, certificates of
waiver, biomedical waste permits, or radiation machine registrations required
to consummate the merger.


 


14.                                 Any federal,
state or local licenses, permits, other government approvals, or notice to
government authorities relating to radiation control, including in particular,
any license transfer or notice to the United States Nuclear Regulatory
Commission.


 


4

















 


SCHEDULE
4.6

LITIGATION


 


None.


 


5

















 


SCHEDULE
4.8

REAL PROPERTY


 


Owned Real Properties. All interests in real
estate are owned by 21st Century Oncology, Inc. unless otherwise
indicated:


 


	
  Address

  	
   

  	
  County

  	
   

  	
  Type

  	
   

  	
  Lease/Own

  	
   

  	
  Sq. Ft.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  1419 SE 8th Terrace

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Cape Coral, FL 33990-3213

  	
   

  	
  (Lee)

  	
   

  	
  Center

  	
   

  	
  Owned

  	
   

  	
  12,231

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  7341 Gladiolus Drive

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Ft. Myers, FL 33908-5122

  	
   

  	
  (Lee)

  	
   

  	
  Center

  	
   

  	
  Owned

  	
   

  	
  9,500

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  12165 - 19B Metro Parkway

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Ft. Myers, FL 33912

  	
   

  	
  (Lee)

  	
   

  	
  Office

  	
   

  	
  Owned

  	
   

  	
  3,600

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  1860B Boyscout Drive

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Suite 203-204

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Ft. Myers, FL 33907

  	
   

  	
  (Lee)

  	
   

  	
  Office

  	
   

  	
  Owned

  	
   

  	
  4,500

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  3175 Harbor Blvd.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Port Charlotte, FL 33952-6729

  	
   

  	
  (Charlotte)

  	
   

  	
  Center

  	
   

  	
  Owned

  	
   

  	
  11,700

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  571 Medical Drive

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Englewood, FL 34223-3996

  	
   

  	
  (Sarasota)

  	
   

  	
  Center

  	
   

  	
  Owned

  	
   

  	
  7,500

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  3210 Fruitville Road

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sarasota, FL 34237-6411

  	
   

  	
  (Sarasota)

  	
   

  	
  Center

  	
   

  	
  Owned

  	
   

  	
  10,535

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  959 E. Venice Avenue

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Venice, FL 34292

  	
   

  	
  (Sarasota)

  	
   

  	
  Center

  	
   

  	
  Owned

  	
   

  	
  7,663

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  920 N. Mills Avenue

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Arcadia, FL 34266-8716

  	
   

  	
  (DeSoto)

  	
   

  	
  Center

  	
   

  	
  Owned

  	
   

  	
  7,700

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  820 Goodlette Road North

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Naples, FL 34102-5445

  	
   

  	
  (Collier)

  	
   

  	
  Center

  	
   

  	
  Owned (building)/

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Leasehold (Land)

  	
   

  	
  10,553

  
	
  11.

  	
   

  	
  1885 SW Healthpark Way

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Naples, FL 34109

  	
   

  	
   

  	
   

  	
  Center

  	
   

  	
  Owned

  	
   

  	
  7,448

  
	
   

  	
   

  	
  Vault extension

  	
   

  	
  (Collier)

  	
   

  	
  Vault #2

  	
   

  	
  Leasehold

  	
   

  	
  1,000

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  266 West Hillsboro Blvd.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Deerfield Beach, FL 33441-3322

  	
   

  	
  (Broward)

  	
   

  	
  Center

  	
   

  	
  Owned

  	
   

  	
  5,500

  



 


6

















 


	
  Address

  	
   

  	
  County

  	
   

  	
  Type

  	
   

  	
  Lease/Own

  	
   

  	
  Sq. Ft.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
   

  	
  3426 N. Roosevelt Blvd.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Owned

  	
   

  	
   

  
	
   

  	
   

  	
  Key West, FL 33040

  	
   

  	
  (Monroe)

  	
   

  	
  Center

  	
   

  	
   

  	
   

  	
  4,339

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  1176 Vegas Valley Drive

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Las Vegas, NV 89109-1500

  	
   

  	
  (Clark)

  	
   

  	
  Center

  	
   

  	
  Owned *

  	
   

  	
  7,016

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
   

  	
  970 North Broadway

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Suites 101, 102 and 103

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Yonkers, NY 10701

  	
   

  	
  (Westchester)

  	
   

  	
  Center

  	
   

  	
  Owned **

  	
   

  	
  4,120

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
   

  	
  204 South 2nd Street

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Danville, KY 40422

  	
   

  	
  (Boyle)

  	
   

  	
  Center

  	
   

  	
  Owned^^^

  	
   

  	
  5,064

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  17.

  	
   

  	
  30365 Dequindre Ave.

  	
   

  	
  (Oakland)

  	
   

  	
  Center

  	
   

  	
  Owned ^

  	
   

  	
  10,000

  
	
   

  	
   

  	
  Madison Heights, MI

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  18.

  	
   

  	
  1085 N. Macomb St.

  	
   

  	
  (Monroe)

  	
   

  	
  Center

  	
   

  	
  Owned ^^

  	
   

  	
  10,500

  
	
   

  	
   

  	
  Monroe, MI

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  19.

  	
   

  	
  23337 Gratiot Ave.

  	
   

  	
  (Macomb)

  	
   

  	
  Center

  	
   

  	
  Owned ^

  	
   

  	
  4,000

  
	
   

  	
   

  	
  Eastpointe, MI

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  20.

  	
   

  	
  314 Franklin Avenue

  	
   

  	
  (Worcester)

  	
   

  	
  Center

  	
   

  	
  Owned***

  	
   

  	
  5,400

  
	
   

  	
   

  	
  Berlin, Md 21811

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






	
  *

  	
   

  	
  Nevada Radiation Therapy Management Services, Inc.

  
	
  **

  	
   

  	
  New York Radiation Therapy Management Services, Inc.

  
	
  ^

  	
   

  	
  Phoenix Management Company, LLC

  
	
  ^^

  	
   

  	
  American Consolidated Technologies, LLC

  
	
  ^^^

  	
   

  	
  21st Century Oncology of Kentucky, LLC

  
	
  ***

  	
   

  	
  Berlin Radiation Therapy Treatment Center, LLC

  



 


7

















 


SCHEDULE
4.9

LICENSES


 


None.


 


8

















 


SCHEDULE
4.15(a)


ORGANIZATIONAL
STRUCTURE


 





 


The following joint-ventures, which are not listed in the organization
chart are Gettysburg Radiation, LLC; Roger Williams Radiation Therapy, LLC;
Central Massachusetts Comprehensive Cancer Center, LLC; South County Radiation
Therapy, LLC; Southern New England Regional Cancer Center, LLC; Northwest
Baltimore Radiation Therapy Regional Center, LLC; Ambergis, LLC; Bluegrass
Regional Cancer Center, LLP; Radiosurgery Center of Nebraska, LLC; and Pinnacle
Cancer Care Centre India. 


 


9

















 





 


10

















 


SCHEDULE
4.15(b)

SUBSIDIARIES


 


	
  Name

  	
   

  	
  Jurisdiction

  	
   

  	
  Classification

  	
   

  	
  % of each class of Capital

  Stock

  
	
  21st Century Oncology of Alabama, Inc.

  	
   

  	
  Alabama

  	
   

  	
  Material

  	
   

  	
  100% owned by Borrower

  
	
  Arizona Radiation Therapy Management Services, Inc.

  	
   

  	
  Arizona

  	
   

  	
  Material

  	
   

  	
  100% owned by Borrower

  
	
  California Radiation Therapy Management Services, Inc.

  	
   

  	
  California

  	
   

  	
  Material

  	
   

  	
  100% owned by Borrower

  
	
  21st Century Oncology of Jacksonville, Inc.

  	
   

  	
  Florida

  	
   

  	
  Material

  	
   

  	
  100% owned by Borrower

  
	
  21st Century Oncology, Inc.

  	
   

  	
  Florida

  	
   

  	
  Material

  	
   

  	
  100% owned by Borrower

  
	
  21st Century Oncology of Harford County Maryland, LLC

  	
   

  	
  Maryland

  	
   

  	
  Material

  	
   

  	
  100% owned by Maryland
  Radiation Therapy Management Services, Inc.

  
	
  Berlin Radiation Therapy Treatment Center, LLC

  	
   

  	
  Maryland

  	
   

  	
  Material

  	
   

  	
  100% owned by Maryland
  Radiation Therapy Management Services, Inc.

  
	
  American Consolidated Technologies, L.L.C.

  	
   

  	
  Michigan

  	
   

  	
  Material

  	
   

  	
  100% owned by Michigan
  Radiation Therapy Management Services, Inc.

  
	
  Nevada Radiation Therapy Management Services, Incorporated

  	
   

  	
  Nevada

  	
   

  	
  Material

  	
   

  	
  100% owned by Borrower

  
	
  21st Century Oncology of New Jersey, Inc.

  	
   

  	
  New Jersey

  	
   

  	
  Material

  	
   

  	
  100% owned by Borrower

  
	
  New York Radiation Therapy Management Services, Incorporated

  	
   

  	
  New York

  	
   

  	
  Material

  	
   

  	
  100% owned by Borrower

  
	
  North Carolina Radiation Therapy Management Services, Inc.

  	
   

  	
  North Carolina

  	
   

  	
  Material

  	
   

  	
  100% owned by Borrower

  
	
  West Virginia Radiation Therapy Services, Inc.

  	
   

  	
  West Virginia

  	
   

  	
  Material

  	
   

  	
  100% owned by Borrower

  
	
  21st Century Oncology of Arizona, Inc.

  	
   

  	
  Arizona

  	
   

  	
  Material

  	
   

  	
  100% owned by Borrower

  
	
  Devoto Construction of Southwest Florida, Inc.

  	
   

  	
  Florida

  	
   

  	
  Material

  	
   

  	
  100% owned by Borrower

  
	
  Financial Services of Southwest Florida, LLC

  	
   

  	
  Florida

  	
   

  	
  Material

  	
   

  	
  100% owned by Borrower

  
	
  Radiation Therapy Services International, Inc.

  	
   

  	
  Florida

  	
   

  	
  Material

  	
   

  	
  100% owned by Borrower

  
	
  21st Century Oncology Management Services, Inc.

  	
   

  	
  Florida

  	
   

  	
  Material

  	
   

  	
  100% owned by 21st Century
  Oncology, Inc.

  
	
  Maryland Radiation Therapy Management Services, Inc.

  	
   

  	
  Maryland

  	
   

  	
  Material

  	
   

  	
  100% owned by Borrower

  
	
  21st Century Oncology of Prince Georges County, Maryland, LLC

  	
   

  	
  Maryland

  	
   

  	
  Material

  	
   

  	
  100% owned by Maryland
  Radiation Therapy Management Services, Inc.

  
	
  Michigan Radiation Therapy Management Services, Inc.

  	
   

  	
  Michigan

  	
   

  	
  Material

  	
   

  	
  100% owned by Borrower

  
	
  21st Century Oncology of South Carolina, LLC

  	
   

  	
  South Carolina

  	
   

  	
  Material

  	
   

  	
  100% owned by Borrower

  



 


11

















 


	
  21st Century Oncology of Kentucky,

  LLC.

  	
   

  	
  Kentucky

  	
   

  	
  Immaterial

  	
   

  	
  100% owned by Borrower

  
	
  Phoenix Management Company, LLC

  	
   

  	
  Michigan

  	
   

  	
  Immaterial

  	
   

  	
  100% owned by Michigan
  Radiation Therapy Management Services, Inc.

  
	
  Radiation Therapy School For Radiation Therapy Technology, Inc.

  	
   

  	
  Florida

  	
   

  	
  Immaterial

  	
   

  	
  100% owned by Borrower

  
	
  21st Century Palmetto, LLC

  	
   

  	
  Florida

  	
   

  	
  Immaterial

  	
   

  	
  100% owned by Borrower

  
	
  New England Radiation Therapy Management Services, Inc.

  	
   

  	
  Massachusetts

  	
   

  	
  Immaterial

  	
   

  	
  100% owned by Borrower

  
	
  Nebraska Radiation Therapy Management Services, Inc.

  	
   

  	
  Nebraska

  	
   

  	
  Immaterial

  	
   

  	
  100% owned by Borrower

  
	
  Creighton Radiosurgery Holding Company, LLC

  	
   

  	
  Nebraska

  	
   

  	
  Immaterial

  	
   

  	
  100% owned by Nebraska
  Radiation Therapy Management Services, Inc.

  
	
  21st Century Oncology of Pennsylvania, Inc.

  	
   

  	
  Pennsylvania

  	
   

  	
  Immaterial

  	
   

  	
  100% owned by Borrower

  
	
  Carolina Radiation and Cancer Treatment Center, Inc.

  	
   

  	
  North Carolina

  	
   

  	
  Immaterial

  	
   

  	
  100% owned by North
  Carolina Radiation Therapy Management Services, Inc.

  
	
  Gettysburg Radiation, LLC

  	
   

  	
  Pennsylvania

  	
   

  	
  Joint Venture

  	
   

  	
  67.5% owned by 21st
  Century Oncology of Pennsylvania, Inc.

  
	
  Northwest Baltimore Radiation Therapy Regional Center, LLC

  	
   

  	
  Maryland

  	
   

  	
  Joint Venture

  	
   

  	
  90% owned by Maryland
  Radiation Therapy Management Services, Inc.

  
	
  Radiosurgery Center of Nebraska, LLC

  	
   

  	
  Nebraska

  	
   

  	
  Joint Venture

  	
   

  	
  63.4% owned by Creighton
  Radiosurgery Holding Company

  
	
  Southern New England Regional Cancer Center, LLC

  	
   

  	
  Rhode Island

  	
   

  	
  Joint Venture

  	
   

  	
  62% owned by Borrower

  
	
  South County Radiation Therapy, LLC

  	
   

  	
  Rhode Island

  	
   

  	
  Joint Venture

  	
   

  	
  65% owned by Borrower

  
	
  Roger Williams Radiation Therapy, LLC

  	
   

  	
  Rhode Island

  	
   

  	
  Joint Venture

  	
   

  	
  51% owned by New England
  Radiation Therapy Management Services, Inc.

  
	
  Central Massachusetts Comprehensive Cancer Center, LLC

  	
   

  	
  Massachusetts

  	
   

  	
  Joint Venture

  	
   

  	
  80.4% owned by New England
  Radiation Therapy Management Services, Inc.

  
	
  Pinnacle Cancer Care Centre India Private Limited

  	
   

  	
  India (Karnataka)

  	
   

  	
  Joint Venture

  	
   

  	
  50.1% owned by Radiation
  Therapy Services International, Inc.

  



 


12














 


SCHEDULE
4.19(a)

UCC FILING JURISDICTIONS


 


	
  Type of Filing

  	
   

  	
  Entity

  	
   

  	
  Applicable Collateral

  Document

  [Mortgage, Security

  Agreement or Other]

  	
   

  	
  Jurisdictions

  
	
  UCC-1 Financing Statement

  	
   

  	
  RTS MergerCo, Inc.

  	
   

  	
  Security Agreement

  	
   

  	
  Florida

  
	
  UCC-1 Financing Statement

  	
   

  	
  Radiation Therapy Services Holdings, Inc.

  	
   

  	
  Security Agreement

  	
   

  	
  Delaware

  
	
  UCC-1 Financing Statement

  	
   

  	
  Radiation Therapy Services, Inc.

  	
   

  	
  Security Agreement

  	
   

  	
  Florida

  
	
  UCC-1 Financing Statement

  	
   

  	
  21st Century Oncology of Alabama, Inc.

  	
   

  	
  Security Agreement

  	
   

  	
  Alabama

  
	
  UCC-1 Financing Statement

  	
   

  	
  Arizona Radiation Therapy Management Services, Inc.

  	
   

  	
  Security Agreement

  	
   

  	
  Arizona

  
	
  UCC-1 Financing Statement

  	
   

  	
  California Radiation Therapy Management Services, Inc.

  	
   

  	
  Security Agreement

  	
   

  	
  California

  
	
  UCC-1 Financing Statement

  	
   

  	
  21st Century Oncology of Jacksonville, Inc.

  	
   

  	
  Security Agreement

  	
   

  	
  Florida

  
	
  UCC-1 Financing Statement

  	
   

  	
  21st Century Oncology, Inc.

  	
   

  	
  Security Agreement

  	
   

  	
  Florida

  
	
  UCC-1 Financing Statement

  	
   

  	
  21st Century Oncology of Harford County Maryland, LLC

  	
   

  	
  Security Agreement

  	
   

  	
  Maryland

  
	
  UCC-1 Financing Statement

  	
   

  	
  Berlin Radiation Therapy Treatment Center, LLC

  	
   

  	
  Security Agreement

  	
   

  	
  Maryland

  
	
  UCC-1 Financing Statement

  	
   

  	
  American Consolidated Technologies, L.L.C.

  	
   

  	
  Security Agreement

  	
   

  	
  Michigan

  
	
  UCC-1 Financing Statement

  	
   

  	
  Nevada Radiation Therapy Management Services, Incorporated

  	
   

  	
  Security Agreement

  	
   

  	
  Nevada

  
	
  UCC-1 Financing Statement

  	
   

  	
  21st Century Oncology of New Jersey, Inc.

  	
   

  	
  Security Agreement

  	
   

  	
  New Jersey

  
	
  UCC-1 Financing Statement

  	
   

  	
  New York Radiation Therapy Management Services, Incorporated

  	
   

  	
  Security Agreement

  	
   

  	
  New York

  
	
  UCC-1 Financing Statement

  	
   

  	
  North Carolina Radiation Therapy Management Services, Inc.

  	
   

  	
  Security Agreement

  	
   

  	
  North Carolina

  
	
  UCC-1 Financing Statement

  	
   

  	
  West Virginia Radiation Therapy Services, Inc.

  	
   

  	
  Security Agreement

  	
   

  	
  West Virginia

  
	
  UCC -1 Financing Statement

  	
   

  	
  21st Century Oncology of Arizona, Inc.

  	
   

  	
  Security Agreement

  	
   

  	
  Arizona

  



 


13

















 


	
  UCC-1 Financing Statement

  	
   

  	
  Devoto Construction of Southwest Florida, Inc.

  	
   

  	
  Security Agreement

  	
   

  	
  Florida

  
	
  UCC-1 Financing Statement

  	
   

  	
  Financial Services of Southwest Florida, LLC

  	
   

  	
  Security Agreement

  	
   

  	
  Florida

  
	
  UCC-1 Financing Statement

  	
   

  	
  Radiation Therapy Services International, Inc.

  	
   

  	
  Security Agreement

  	
   

  	
  Florida

  
	
  UCC-1 Financing Statement

  	
   

  	
  21st Century Oncology Management Services, Inc.

  	
   

  	
  Security Agreement

  	
   

  	
  Florida

  
	
  UCC-1 Financing Statement

  	
   

  	
  Maryland Radiation Therapy Management Services, Inc.

  	
   

  	
  Security Agreement

  	
   

  	
  Maryland

  
	
  UCC-1 Financing Statement

  	
   

  	
  21st Century Oncology of Prince Georges County, Maryland, LLC

  	
   

  	
  Security Agreement

  	
   

  	
  Maryland

  
	
  UCC-1 Financing Statement

  	
   

  	
  Michigan Radiation Therapy Management Services, Inc.

  	
   

  	
  Security Agreement

  	
   

  	
  Michigan

  
	
  UCC -1 Financing Statement

  	
   

  	
  21st Century Oncology of South Carolina, LLC

  	
   

  	
  Security Agreement

  	
   

  	
  South Carolina

  



 


14

















 


SCHEDULE
4.22

INSURANCE


 


1.       Self
Insurance Programs


 


(a)           Aetna POS II Plan (comprehensive
medical)


 


2.       Insurance
Policies


 


	
  COVERAGE
  TYPE

  	
   

  	
  COVERAGE

  	
   

  	
  LIMIT OR

  AMOUNT

  	
   

  	
  COMPANY

  POLICY

  #/TERM

  	
   

  	
  ANNUAL

  PREMIUM

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PROPERTY

  	
   

  	
  Limit
  of Liability — Any
  One Occurrence, Except

  	
   

  	
   

  	
   

  	
  Travelers 

  	
   

  	
  $

  	
  877,014

  	
   

  
	
  Real and Personal

  	
   

  	
  as Sublimited

  	
   

  	
   

  	
   

  	
  Indemnity

  	
   

  	
   

  	
   

  
	
  Property, w/

  	
   

  	
  Real Property

  	
   

  	
  $

  	
  26,637,200

  	
   

  	
  Company of

  	
   

  	
   

  	
   

  
	
  Business Income &

  	
   

  	
  Personal Property

  	
   

  	
  $

  	
  15,024,884

  	
   

  	
  America

  	
   

  	
   

  	
   

  
	
  Extra Expense

  	
   

  	
  EDP Equipment

  	
   

  	
  $

  	
  661,514

  	
   

  	
  #630-515D1067-

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Business Income & Extra Expense

  	
   

  	
  $

  	
  35,854,460

  	
   

  	
  TIA-07

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Medical Equipment

  	
   

  	
  $

  	
  72,274,600

  	
   

  	
  04/01/07-04/01/08

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Specific *

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Real Property

  	
   

  	
  $

  	
  41,827,198

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Personal Property

  	
   

  	
  $

  	
  7,770,840

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EDP Equipment

  	
   

  	
  $

  	
  1,961,298

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Business Income & Extra Expense

  	
   

  	
  $

  	
  38,804,235

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  *Not a blanket limit. Scheduled limit per policy schedule
  as reported on Statement of Values on file with company.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Sublimits

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Earthquake — Annual Aggregate (scheduled locations)

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Flood for location in Zones B, C or X - Annual

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Aggregate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Flood for locations in Zones A or V - Annual

  	
   

  	
  $

  	
  500,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Aggregate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Perils: All Risk of Direct Physical Loss or Damage

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Deductibles

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By any
  other loss in any one occurrence

  	
   

  	
  $

  	
  15,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -Business Income/Extra Expense

  	
   

  	
  72 Hours

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  EDP

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -Business Income/Extra Expense

  	
   

  	
  72 Hours

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Earthquake
  (scheduled locations)

  	
   

  	
  $

  	
  50,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -Business Income/Extra Expense

  	
   

  	
  72 Hours

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Flood
  (scheduled locations)

  	
   

  	
  $

  	
  50,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -Business Income/Extra Expense

  	
   

  	
  72 Hours

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Windstorm/Hail
  — DE, MD, NJ locations

  	
   

  	
  2% TIV,

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  $

  	
  100,000 Min

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -Business Income (unless specified elsewhere)

  	
   

  	
  72 Hours

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Windstorm/Hail
  — FL locations

  	
   

  	
  $

  	
  5% TIV,

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  $

  	
  250,000 Min.

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -Business Income/Extra Expense

  	
   

  	
  168 Hours

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 


15

















 


	
  COVERAGE TYPE

  	
   

  	
  COVERAGE

  	
   

  	
  LIMIT OR

  AMOUNT

  	
   

  	
  COMPANY

  POLICY # /TERM

  	
   

  	
  ANNUAL

  PREMIUM

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PROPERTY

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CONT’D

  	
   

  	
  Valuation

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  - Replacement
  Cost applies to Real & Personal Property

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  - Actual Loss
  Sustained for Business Income/Extra Expense

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  - 50% Coinsurance
  Business Income/Extra Expense

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GENERAL

  	
   

  	
  Limits of Liability

  	
   

  	
   

  	
   

  	
  Travelers
  Indemnity

  	
   

  	
   

  	
   

  
	
  LIABILITY

  	
   

  	
  General Aggregate

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
  Company of

  	
   

  	
  $

  	
  119,723

  	
   

  
	
   

  	
   

  	
  Products-Completed
  Operations Aggregate

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
  America

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Personal and
  Advertising Injury

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  #630-515D1067-

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Each Occurrence

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  TIA-07

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Damage to
  Premises Rented to you Limit(any one occurrence)

  	
   

  	
  $

  	
  300,000

  	
   

  	
  04/01/07-04/01/08

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Medical Expense
  (any one person)

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Employee Benefits Liability
  (Claims-Made)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Aggregate

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
   

  	
   

  	
  $

  	
  570

  	
   

  
	
   

  	
   

  	
  Each Employee
  Limit

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Deductible:

  	
   

  	
  $

  	
  0

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Retro
  Date: 03/20/1993

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GENERAL

  	
   

  	
  Limits of Liability

  	
   

  	
   

  	
   

  	
  Southern-Owners

  	
   

  	
   

  	
   

  
	
  LIABILITY

  	
   

  	
  General Aggregate

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
  Insurance Company

  	
   

  	
  $

  	
  10,081.00

  	
   

  
	
  DEVOTO

  	
   

  	
  Products-Completed
  Operations Aggregate

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
  #00231220608806-

  	
   

  	
   

  	
   

  
	
  CONSTRUCTION OF

  	
  Personal and
  Advertising Injury

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  06

  	
   

  	
   

  	
   

  
	
  SOUTHWEST

  	
   

  	
  Each Occurrence

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  12/1/07 - 121/08

  	
   

  	
   

  	
   

  
	
  FLORIDA, INC.

  	
   

  	
  Damage to
  Premises Rented to you Limit (any one Premise)

  	
   

  	
  $

  	
  50,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Medical Expense
  (any one person)

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


16

















 


	
  COVERAGE
  TYPE

  	
   

  	
  COVERAGE

  	
   

  	
   

  	
   

  	
  LIMIT OR

  AMOUNT

  	
   

  	
  COMPANY

  POLICY # /TERM

  	
   

  	
  ANNUAL

  PREMIUM

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AUTOMOBILE

  	
   

  	
  Limits Of Liability

  	
   

  	
  Symbol

  	
   

  	
   

  	
   

  	
  Travelers
  Property

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  *Combined Single
  Limit

  	
   

  	
  1

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  Casualty Company

  	
   

  	
  $

  	
  229,393

  	
   

  
	
   

  	
   

  	
  PIP

  	
   

  	
  5

  	
   

  	
  Stated in each
  PIP endorsement

  	
   

  	
  of America

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Medical Payments,
  per person

  	
   

  	
  2

  	
   

  	
  $

  	
  5,000

  	
   

  	
  #810-515D1067-

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Uninsured/Underinsured
  Motorists

  	
   

  	
  2

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  TIL-07

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Physical Damage
  Limit

  	
   

  	
  2

  	
   

  	
  $

  	
  ACV or Cost to repair

  	
   

  	
  04/01/07-04/01/08

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Towing and Labor
  (Private Passenger Autos)

  	
   

  	
  3

  	
   

  	
  $

  	
  50

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Rental
  Reimbursement

  	
   

  	
  7

  	
   

  	
  $

  	
  50 a day/ 30 days

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Max./any one period
  $1,500

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Hired Physical
  Damage

  	
   

  	
  8

  	
   

  	
  $

  	
  50,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Deductibles

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Comprehensive
  (Hired)

  	
   

  	
   

  	
   

  	
  $

  	
  250

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Collision (Hired)

  	
   

  	
   

  	
   

  	
  $

  	
  250

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Comprehensive
  (Owned)

  	
   

  	
   

  	
   

  	
  $

  	
  1,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Collision (Owned)

  	
   

  	
   

  	
   

  	
  $

  	
  1,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Symbol Key

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  1
  —             Any
  “Auto”

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2
  —             Owned
  “Auto” Only

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  3
  —             Owned
  Private Passenger “Autos” Only

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  8
  —             Hired
  “Autos” Only

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  * Except State of
  Massachusetts per policy wording

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
														



 


17

















 


	
  COVERAGE

  TYPE

  	
   

  	
  COVERAGE

  	
   

  	
  LIMIT OR

  AMOUNT

  	
   

  	
  COMPANY

  POLICY # /TERM

  	
   

  	
  ANNUAL

  PREMIUM

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UMBRELLA

  	
   

  	
  Limits of Liability

  	
   

  	
   

  	
   

  	
  Travelers
  Property

  	
   

  	
  $

  	
  84,136

  	
   

  
	
   

  	
   

  	
  Bodily Injury and
  Property Damage any one occurrence

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  Casualty Company

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Personal &
  Advertising Injury Liability any one occurrence

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  of America

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Products/Completed
  Operations Aggregate

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  #CUP-515D1067-

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  General Aggregate

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  TIL-07

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  04/01/07-04/01/08

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  $

  	
  10,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Retention

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BOILER &
  MACHINERY

  	
   

  	
  Limit of Liability

  	
   

  	
   

  	
   

  	
  Continental

  	
   

  	
  $

  	
  19,320

  	
   

  
	
   

  	
   

  	
  Combined Property
  Damage & Business Income/Extra Expense

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  Casualty Co.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Diagnostic/Medical
  Equipment

  	
   

  	
   

  	
   

  	
  #BM2075899490

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -  Deductible:
  Property Damage

  	
   

  	
  $

  	
   25,000

  	
   

  	
  04/01/07-04/01/08

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -  Deductible:
  Business Income/ Extra Expense

  	
   

  	
  72 Hours

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  All Other Objects

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -  Deductible:
  Property Damage

  	
   

  	
  $

  	
   2,500

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -  Deductible:
  Business Income/Extra Expense

  	
   

  	
  24 Hours

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AIRCRAFT

  	
   

  	
  COVERAGE
  D: Single Limit Bodily Injury and Property Damage

  	
   

  	
   

  	
   

  	
  Allianz Aviation

  	
   

  	
  $

  	
  43,226

  	
   

  
	
   

  	
   

  	
  Liability
  including Passengers with Passenger

  	
   

  	
  $

  	
  100,000,000

  	
   

  	
  Managers, LLC on

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Liability Limited
  to:

  	
   

  	
  Each Occurrence

  	
   

  	
  behalf
  of Allianz

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  US Global Risks

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COVERAGE
  E: Medical Expense
  including Crew

  	
   

  	
  $

  	
   50,000

  	
   

  	
  Global Insurance

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Each Person

  	
   

  	
  Co.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  #A2GA000088507

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  COVERAGES
  F, G OR H: AIRCRAFT/PHYSICAL DAMAGE

  	
   

  	
  $

  	
   7,200,000

  	
   

  	
  AM

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Raytheon Hawker
  400A; REG#N416RX, BUILT 2007, SEATS

  	
   

  	
   

  	
   

  	
  03/23/07-03/23/08

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2CREW-9
  PASSENGERS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


18

















 


	
  COVERAGE TYPE

  	
   

  	
  COVERAGE

  	
   

  	
  LIMIT OR

  AMOUNT

  	
   

  	
  COMPANY

  POLICY # /TERM

  	
   

  	
  ANNUAL

  PREMIUM

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  DIRECTORS &
  

  	
   

  	
  Limits of Liability

  	
   

  	
   

  	
   

  	
  AIG - American

  	
   

  	
  $

  	
  299,471, 

  	
   

  
	
  OFFICERS

  	
   

  	
  Each Occurrence

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  Home Assurance

  	
   

  	
  plus

  	
   

  
	
  LIABILITY

  	
   

  	
  Aggregate

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  Company

  	
   

  	
  $

  	
  8,685 

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  #361-00-27

  	
   

  	
  surcharge

  	
   

  
	
   

  	
   

  	
  Retention

  	
   

  	
   

  	
   

  	
  06/17/07-06/17/08

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Securities Claim

  	
   

  	
  $

  	
  500,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Employment Practices Claims

  	
   

  	
  $

  	
  250,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Other Claims

  	
   

  	
  $

  	
  250,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Continuity
  Date: 01/31/1997

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXCESS
  DIRECTORS 

  	
   

  	
  Excess of $15,000,000

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  ACE American 

  	
   

  	
  $

  	
  133,000, 

  	
   

  
	
  &
  OFFICERS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Insurance Co.

  	
   

  	
  plus

  	
   

  
	
  LIABILITY

  	
   

  	
  Retention

  	
   

  	
  $

  	
  N/A

  	
   

  	
  #DOX G21646829
  004

  	
   

  	
  $

  	
  1,330 surcharge

  	
   

  
	
   

  	
   

  	
  Prior &
  Pending Litigation Date: 6/17/2004

  	
   

  	
   

  	
   

  	
  06/01/07-06/01/08

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXCESS
  DIRECTORS

  	
   

  	
  Excess of $25,000,000

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
  XL Specialty

  	
   

  	
  $

  	
  51,820, plus

  	
   

  
	
  &
  OFFICERS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Insurance Company

  	
   

  	
   

  	
   

  
	
  LIABILITY

  	
   

  	
  Retention:

  	
   

  	
  $

  	
  N/A

  	
   

  	
  #ELU098498-07

  	
   

  	
  $

  	
  518.20

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  6/17/07 to 6/17/08

  	
   

  	
  surcharge

  	
   

  
	
   

  	
   

  	
  Prior or Pending Litigation Date: 6-17-2007

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Continuity Date: 6-17-2007

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EMPLOYMENT

  	
   

  	
  Limits of Liability

  	
   

  	
   

  	
   

  	
  American Home

  	
   

  	
  $

  	
  57,800, plus

  	
   

  
	
  PRACTICES

  	
   

  	
  Each Occurrence

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  Assurance

  	
   

  	
  $

  	
  1.676

  	
   

  
	
  LIABILITY

  	
   

  	
  Aggregate

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  Company

  	
   

  	
  surcharge

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  #263-97-18

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Retention

  	
   

  	
  $

  	
  150,000

  	
   

  	
  06/17/07-06/17/08

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Continuity
  Date: 01/31/1997

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FIDUCIARY

  	
   

  	
  Limits of Liability

  	
   

  	
   

  	
   

  	
  American Home

  	
   

  	
  $

  	
  11,245, plus

  	
   

  
	
  LIABILITY

  	
   

  	
  Each Occurrence

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  Assurance

  	
   

  	
  $

  	
  326

  	
   

  
	
   

  	
   

  	
  Aggregate

  	
   

  	
  $

  	
  10,000,000

  	
   

  	
  Company

  	
   

  	
  surcharge

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  #263-97-10

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Retention

  	
   

  	
  $

  	
  10,000

  	
   

  	
  06/17/07-06/17/08

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Continuity
  Date: 01/31/1997

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


19

















 


	
  COVERAGE TYPE

  	
   

  	
  COVERAGE

  	
   

  	
  LIMIT OR

  AMOUNT

  	
   

  	
  COMPANY

  POLICY # /TERM

  	
   

  	
  ANNUAL

  PREMIUM

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CRIME

  	
   

  	
  Limits of Liability

  	
   

  	
   

  	
   

  	
  St. Paul
  Fire &

  	
   

  	
  $

  	
  4,163

  	
   

  
	
   

  	
   

  	
  Employee Theft/Forgery

  	
   

  	
  $

  	
  1,500,000

  	
   

  	
  Marine Ins. Co.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Liability to Others for Employee Theft/Forgery

  	
   

  	
  $

  	
  50,000

  	
   

  	
  #412CF0603

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Premises

  	
   

  	
  $

  	
  50,000

  	
   

  	
  04/01/07-04/01/08

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Transit

  	
   

  	
  $

  	
  50,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Forgery

  	
   

  	
  $

  	
  50,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Computer Crime/Computer Virus

  	
   

  	
  $

  	
  50,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Employee Benefit Plan(s)

  	
   

  	
  $

  	
  50,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Money Orders/Counterfeit Money

  	
   

  	
  $

  	
  50,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Funds Transfer Fraud

  	
   

  	
  $

  	
  50,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Deductibles

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Employee Theft/Forgery

  	
   

  	
  $

  	
  75,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Liability to Others for Employee Theft/Forgery

  	
   

  	
  $

  	
  2,500

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Premises

  	
   

  	
  $

  	
  2,500

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Transit

  	
   

  	
  $

  	
  2,500

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Forgery

  	
   

  	
  $

  	
  2,500

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Computer Crime/Computer Virus

  	
   

  	
  $

  	
  2,500

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Employee Benefit Plan(s)

  	
   

  	
  $

  	
  2,500

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Money Orders/Counterfeit Money

  	
   

  	
  $

  	
  2,500

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Funds Transfer Fraud

  	
   

  	
  $

  	
  2,500

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BUSINESS
  SERVICES

  	
   

  	
  Bond Amount

  	
   

  	
  $

  	
  250,000

  	
   

  	
  Platte River

  	
   

  	
  $

  	
  3,000

  	
   

  
	
  BOND

  	
   

  	
  Obligee: State of
  Florida Dept. of Insurance

  	
   

  	
   

  	
   

  	
  Insurance Co.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  #40091452

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  04/23/07-04/23/08

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  POLLUTION
  LEGAL

  	
   

  	
  Limits of Liability

  	
   

  	
   

  	
   

  	
  Liberty Surplus

  	
   

  	
  $

  	
  8,652

  	
   

  
	
  LIABILITY

  	
   

  	
  Each Occurrence

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  Insurance

  	
   

  	
  (Excluding

  	
   

  
	
  21st Century Oncology of

  	
   

  	
  Aggregate

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
  Surplus

  	
   

  
	
  KY, LLC

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  #TVE-NY-100302-017

  	
   

  	
  Lines charges)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  04/01/07-04/01/08

  	
   

  	
   

  	
   

  
	
  2 Physicians Park Drive

  	
   

  	
  Deductible

  	
   

  	
  $

  	
  25,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Frankfort, KY 40601

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Retroactive
  Date: 04/01/2004

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


20

















 


	
  COVERAGE TYPE

  	
   

  	
  COVERAGE

  	
   

  	
  LIMIT OR

  AMOUNT

  	
   

  	
  COMPANY

  POLICY # /TERM

  	
   

  	
  ANNUAL

  PREMIUM

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FOREIGN
  PACKAGE

  	
   

  	
  Property Limits of Liability

  	
   

  	
   

  	
   

  	
  St. Paul
  Fire  &

  	
   

  	
  $

  	
  3,403

  	
   

  
	
   

  	
   

  	
  Business Personal
  Property

  	
   

  	
  $

  	
  10,000

  	
   

  	
  Marine Ins. Co.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Property in
  transit

  	
   

  	
  $

  	
  25,000

  	
   

  	
  #GB06303225

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Personal
  Belongings

  	
   

  	
  $

  	
  25,000

  	
   

  	
  04/01/07-04/01/08

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Deductible

  	
   

  	
  $

  	
  2,500

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  International General Liability

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  General Aggregate

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Products-Completed
  Operations Aggregate

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Personal and
  Advertising Injury

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Each Occurrence

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Fire Legal
  Liability

  	
   

  	
  $

  	
  50,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Medical Expense

  	
   

  	
  $

  	
  10,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  International Auto Liability

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Combined Single
  Limit

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Medical Payments

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  International Voluntary Workers Compensation

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Employers Liability Limits

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bodily Injury by
  Accident (each accident)

  	
   

  	
  $

  	
  500,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bodily Injury by
  Disease (policy limit)

  	
   

  	
  $

  	
  500,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bodily Injury by
  Disease (each employee)

  	
   

  	
  $

  	
  500,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Medical
  Evacuation & Repatriation 
  (each employee)

  	
   

  	
  $

  	
  25,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Medical
  Evacuation & Repatriation 
  (policy limit)

  	
   

  	
  $

  	
  100,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Workers’ Compensation

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Each Occurrence

  	
   

  	
  Statutory — State
  of Hire

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 


21

















 


	
  COVERAGE TYPE

  	
   

  	
  COVERAGE

  	
   

  	
  LIMIT OR

  AMOUNT

  	
   

  	
  COMPANY

  POLICY # /TERM

  	
   

  	
  ANNUAL

  PREMIUM

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
   

  	
  $

  	
  500,000

  	
   

  	
  American Bankers

  	
   

  	
  $

  	
  1180.00

  	
   

  
	
  7850 N.
  University Drive

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  500

  	
   

  	
  #6500384356

  	
   

  	
   

  	
   

  
	
  Tamarac, FL 33321

  	
   

  	
  Contents

  	
   

  	
   

  	
  $

  	
  500,000

  	
   

  	
  2/02/08-2/03/09

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  500

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
   

  	
  $

  	
  500,000

  	
   

  	
  American Bankers

  	
   

  	
  $

  	
  1624

  	
   

  
	
  Bonita Radiation
  Associates

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  500

  	
   

  	
  #9901570399

  	
   

  	
   

  	
   

  
	
  8891 Brighton
  Lane

  	
   

  	
  Contents

  	
   

  	
   

  	
  $

  	
  500,000

  	
   

  	
  02/28/08-02/28/09

  	
   

  	
   

  	
   

  
	
  Bonita Springs,
  FL 34135

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  500

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
   

  	
  $

  	
  500,000,

  	
   

  	
  The Standard Fire

  	
   

  	
  $

  	
  1,573

  	
   

  
	
  Collier Radiation
  Therapy

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
  Ins. Co.

  	
   

  	
   

  	
   

  
	
  820 Goodlette
  Road

  	
   

  	
  Contents

  	
   

  	
   

  	
  $

  	
  500,000

  	
   

  	
  #6002563481

  	
   

  	
   

  	
   

  
	
  Naples, FL 34102

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
  03/12/07-03/12/08

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
   

  	
  $

  	
  500,000

  	
   

  	
  American Bankers

  	
   

  	
  $

  	
  788

  	
   

  
	
  350 NW 84th Avenue

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  500

  	
   

  	
  Ins. Co.

  	
   

  	
   

  	
   

  
	
  Plantation, FL
  33324

  	
   

  	
  Contents

  	
   

  	
   

  	
  $

  	
  145,000

  	
   

  	
  #1011124104

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
  05/06/07-05/06/08

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
   

  	
  $

  	
  500,000

  	
   

  	
  Hartford Fire

  	
   

  	
  $

  	
  4291

  	
   

  
	
  6879 US Hwy 98 N

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  500

  	
   

  	
  Insurance Co.

  	
   

  	
   

  	
   

  
	
  Santa Rosa Beach,
  FL 32459

  	
   

  	
  Contents

  	
   

  	
   

  	
  $

  	
  500,000

  	
   

  	
  #87017366232006

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  500

  	
   

  	
  07/23/07-07/23/08

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
   

  	
  $

  	
  288,000

  	
   

  	
  The Standard Fire

  	
   

  	
  $

  	
  1,850

  	
   

  
	
  21st Century
  Oncology, Inc.

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
  Ins. Co.

  	
   

  	
   

  	
   

  
	
  12165 Metro Pkwy

  	
   

  	
  Contents

  	
   

  	
   

  	
  $

  	
  119,300

  	
   

  	
  #6003664189

  	
   

  	
   

  	
   

  
	
  Fort Myers, FL
  33907

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
  08/10/07-08/10/08

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
   

  	
  $

  	
  500,000

  	
   

  	
  The Standard Fire

  	
   

  	
  $

  	
  2,985

  	
   

  
	
  21st Century
  Oncology, Inc.

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
  Ins. Co.

  	
   

  	
   

  	
   

  
	
  7341 Gladiolus
  Drive

  	
   

  	
  Contents

  	
   

  	
   

  	
  $

  	
  330,800

  	
   

  	
  #6002769559

  	
   

  	
   

  	
   

  
	
  Fort Myers, FL
  33908

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
  09/01/07-09/01/08

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
   

  	
  $

  	
  500,000

  	
   

  	
  The Standard Fire

  	
   

  	
  $

  	
  2,563

  	
   

  
	
  571 Medical Drive

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
  Ins. Co.

  	
   

  	
   

  	
   

  
	
  Englewood, FL
  34223

  	
   

  	
  Contents

  	
   

  	
   

  	
  $

  	
  241,500

  	
   

  	
  #6002769575

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
  09/07/07-09/07/08

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Contents

  	
   

  	
   

  	
  $

  	
  100,000

  	
   

  	
  Hartford Fire

  	
   

  	
  $

  	
  790

  	
   

  
	
  1860 Boy Scout
  Drive Ste 203

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  500

  	
   

  	
  Insurance Co.

  	
   

  	
   

  	
   

  
	
  Fort Myers, FL
  33907

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  #99015011132006

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  09/07/07-09/07/08

  	
   

  	
   

  	
   

  



 


22






 










 


	
  COVERAGE TYPE

  	
   

  	
  COVERAGE

  	
   

  	
  LIMIT OR

  AMOUNT

  	
   

  	
  COMPANY POLICY #/

  TERM

  	
   

  	
  ANNUAL

  PREMIUM

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
   

  	
  $

  	
  500,000

  	
   

  	
  The Standard Fire Ins. Co. #6002769583

  09/23/07-09/23/08

  	
   

  	
  $

  	
  888

  	
   

  
	
  Charlotte County Radiation

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  
	
  Therapy Regional Center

  	
   

  	
  Contents

  	
   

  	
   

  	
  $

  	
  500,000

  	
   

  	
   

  	
   

  	
   

  
	
  3175 Harbour Blvd.

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  
	
  Port Charlotte, FL 33952

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Contents

  	
   

  	
   

  	
  $

  	
  100,000

  	
   

  	
  Hartford Fire Insurance Co. #99015011082006

  10/06/07-10/06/08

  	
   

  	
  $

  	
  790

  	
   

  
	
  1860 Boy Scout Drive Ste

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  500

  	
   

  	
   

  	
   

  	
   

  
	
  204

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fort Myers, FL 33907

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
   

  	
  $

  	
  500,000

  	
   

  	
  The Standard Fire Ins. Co. #6500283178

  10/13/07 -10/13/08

  	
   

  	
  $

  	
  3,370

  	
   

  
	
  21st Century Oncology Inc.

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  
	
  1885 SW Health Park Way

  	
   

  	
  Contents

  	
   

  	
   

  	
  $

  	
  400,000

  	
   

  	
   

  	
   

  	
   

  
	
  Naples, FL 34101

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
   

  	
  $

  	
  500,000

  	
   

  	
  Hartford Fire Insurance Co. #99015081942006

  10/17/07-10/17/08

  	
   

  	
  $

  	
  3,865

  	
   

  
	
  6555 Cortez Road W.

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  500

  	
   

  	
   

  	
   

  	
   

  
	
  Bradenton, FL 34210

  	
   

  	
  Contents

  	
   

  	
   

  	
  $

  	
  500,000

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  500

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Contents

  	
   

  	
   

  	
  $

  	
  475,000

  	
   

  	
  The Standard Fire Ins. Co. #6002780366

  10/17/07-10/17/08

  	
   

  	
  $

  	
  680

  	
   

  
	
  21st Century Oncology Inc.

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  500

  	
   

  	
   

  	
   

  	
   

  
	
  2101 Riverside Drive

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Coral Springs, FL 33701

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
   

  	
  $

  	
  500,000

  	
   

  	
  The Standard Fire Ins. Co. #6004000680

  10/25/07-10/25/08

  	
   

  	
  $

  	
  2,682

  	
   

  
	
  Boca Raton Radiation

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  
	
  Therapy Regional Center

  	
   

  	
  Contents

  	
   

  	
   

  	
  $

  	
  230,000

  	
   

  	
   

  	
   

  	
   

  
	
  Inc,

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  
	
  266 West Hillsborough

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Blvd.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Deerfield Beach, FL 33441

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
   

  	
  $

  	
  500,000

  	
   

  	
  The Standard Fire Ins. Co. #6004000698

  10/25/07-10/25/08

  	
   

  	
  $

  	
  2,744

  	
   

  
	
  Katin Dosoretz Radiation

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  
	
  Therapy

  	
   

  	
  Contents

  	
   

  	
   

  	
  $

  	
  296,200

  	
   

  	
   

  	
   

  	
   

  
	
  1419 SE 8th Terrace

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  
	
  Cape Coral, FL 33990

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


23

















 


	
  COVERAGE TYPE

  	
   

  	
  COVERAGE

  	
   

  	
  LIMIT OR

  AMOUNT

  	
   

  	
  COMPANY

  POLICY #/TERM

  	
   

  	
  ANNUAL

  PREMIUM

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Contents

  	
   

  	
  $

  	
  221,800

  	
   

  	
  The Standard Fire Ins. Co. #6004000706

  10/25/07-10/25/08

  	
   

  	
  $

  	
  1,213

  	
   

  
	
  Katin Dosoretz Radiation

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  
	
  Therapy

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3680 broadway

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Fort Myers, FL 33901

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
  $

  	
  500,000

  	
   

  	
  American Bankers Ins. Co. #1011189713

  10/31/07-10/31/08*

  	
   

  	
  $

  	
  5486

  	
   

  
	
  3426 N. Roosevelt Blvd.

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  1,000

  	
   

  	
   

  	
   

  	
   

  
	
  Key West, FL 33040

  	
   

  	
  Contents

  	
   

  	
  $

  	
  500,000

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  1,000

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
  $

  	
  500,000

  	
   

  	
  American Bankers Ins. Co. #1011188275

  11/05/07-11/05/08

  	
   

  	
  $

  	
  2,300

  	
   

  
	
  1026 Mar Walt Drive

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  500

  	
   

  	
   

  	
   

  	
   

  
	
  Fort Walton Beach, FL

  	
   

  	
  Contents

  	
   

  	
  $

  	
  500,000

  	
   

  	
   

  	
   

  	
   

  
	
  32547

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  500

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
  $

  	
  500,000

  	
   

  	
  The Standard Fire Ins. Co. #6003762660

  11/13/07-11/13/08

  	
   

  	
  $

  	
  1,510

  	
   

  
	
  959 Venice Avenue

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  
	
  Venice, FL 34285

  	
   

  	
  Contents

  	
   

  	
  $

  	
  500,000

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
  $

  	
  500,000

  	
   

  	
  The Standard Fire Ins. Co. #6002815238

  12/06/07-12/06/08

  	
   

  	
  $

  	
  3,553

  	
   

  
	
  3210 Fruitville Road

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  
	
  Ft. Myers, FL 33919

  	
   

  	
  Contents

  	
   

  	
  $

  	
  500,000

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  FLOOD

  	
   

  	
  Building

  	
   

  	
  $

  	
  500,000

  	
   

  	
  American Bankers Ins. Co. #1011160459

  12/15/07-12/15/08

  	
   

  	
  $

  	
  2,569

  	
   

  
	
  77-840 Flora Road

  	
   

  	
  -

  	
  Deductible

  	
   

  	
  $

  	
  500

  	
   

  	
   

  	
   

  	
   

  
	
  Palm Desert, CA 92203

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


24

















 


	
  COVERAGE

  TYPE

  	
   

  	
  COVERAGE

  	
   

  	
  LIMIT OR

  AMOUNT

  	
   

  	
  COMPANY

  POLICY #/TERM

  	
   

  	
  ANNUAL

  PREMIUM

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  MEDICAL

  	
   

  	
  Physician Medical Professional

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PROFESSIONAL

  	
   

  	
  Liability — (Claims-Made Coverage)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIABILITY

  	
   

  	
  Underlying Limits

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Lead Primary Policy — NMP

  	
   

  	
  $

  	
  250,000

  	
   

  	
  National Medical Professional Insurance Co. (NMP) #NMPFL860013

  10/14/07-10/14/08

  	
   

  	
  $

  	
  2,544,123

  	
   

  
	
   

  	
   

  	
  Per Claim Per Physician

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Supplemental Primary Policy — Batan

  	
   

  	
  $

  	
  750,000

  	
   

  	
  Batan Insurance Company, SPC, Ltd. #BAT0001- 2007

  10/14/07-10/14/08

  	
   

  	
  $

  	
  2,903,691

  	
   

  
	
   

  	
   

  	
  Per Claim Per Physician

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  NMP will issue the lead $250,000 policy, with the
  $750,000 excess of $250,000 limit issued by Batan.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Excess Liability Policy

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Per Occurrence of Medical Incident

  	
   

  	
  $

  	
  15,000,000

  	
   

  	
  Batan Insurance Company, SPC, Ltd. #SPA-Pending

  10/14/07-10/14/08

  	
   

  	
  $

  	
  1,324,800

  	
   

  
	
   

  	
   

  	
  $ 15,000,000 per loss

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  $15,000,000 annual aggregate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Footnote:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Medical Professional Liability

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Coverage is applicable to RTSI, all affiliated entities and employed
  physicians — RTSI physician limits are sub-limited per employment agreement.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


25

















 


	
  COVERAGE TYPE

  	
   

  	
  COVERAGE

  	
   

  	
  LIMIT OR

  AMOUNT

  	
   

  	
  COMPANY POLICY #

  /TERM

  	
   

  	
  ANNUAL

  PREMIUM

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BUSINESS

  	
   

  	
  General Liability

  	
   

  	
   

  	
   

  	
  Hartford Casualty Ins. Co. #54 SBM TS4345 54

  04/01/07-04/01/08

  	
   

  	
  $

  	
  3,567

  	
   

  
	
  OWNERS

  	
   

  	
  General Aggregate

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
   

  	
   

  	
   

  
	
  PACKAGE

  	
   

  	
  Products-Completed Operations

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
   

  	
   

  	
   

  
	
  Paul W. Adams MD

  	
   

  	
  Aggregate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PC

  	
   

  	
  Personal and Advertising Injury

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Each Occurrence

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4274 W. Main Street

  	
   

  	
  Fire Legal Liability

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Dothan, AL 36305

  	
   

  	
  Medical Expense

  	
   

  	
  $

  	
  10,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  802 N. Main Street

  	
   

  	
  Employee Practices Liability

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Opp, AL 36467

  	
   

  	
  (Claims-Made)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Aggregate

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Occurrence

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Retro Date: 04/01/2006

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Hired & Non-Owned Auto

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Liability

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Combined Single Limit

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Umbrella

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Each Occurrence other than

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Products-Completed
  Operations

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Aggregate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Products-Completed
  Operations

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Aggregate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bodily Injury By Disease

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Aggregate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  General Aggregate

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Retention

  	
   

  	
  $

  	
  10,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 


26

















 


	
  COVERAGE TYPE

  	
   

  	
  COVERAGE

  	
   

  	
  LIMIT OR

  AMOUNT

  	
   

  	
  COMPANY POLICY

  # /TERM

  	
   

  	
  ANNUAL

  PREMIUM

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BUSINESS OWNERS PACKAGE

  	
   

  	
  Property Limits of Liability

  	
   

  	
   

  	
   

  	
  Hartford Casualty Ins. Co. #21SBARQ9141

  05/14/07-05/14/08

  	
   

  	
  $

  	
  1,566

  	
   

  
	
   

  	
   

  	
  Business Personal Property

  	
   

  	
  $

  	
  58,600

  	
   

  	
   

  	
   

  	
   

  
	
  Tennessee Valley

  	
   

  	
  Business Income & Extra Expense

  	
   

  	
  12 months

  	
   

  	
   

  	
   

  	
   

  
	
  Gynecologic Oncology PC

  	
   

  	
   

  	
   

  	
  Actual Loss

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Sustained

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Deductible: per occurrence

  	
   

  	
  $

  	
  500

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  532 Madison Street Huntsville, AL 35801

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  General Liability

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  General Aggregate

  	
   

  	
  $

  	
  4,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Products-Completed Operations Aggregate

  	
   

  	
  $

  	
  4,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Personal and Advertising Injury

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Each Occurrence (Liability &

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Medical Expenses)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Damages to Premises Rented to You

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Any one Premises)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Medical Expense- any one person

  	
   

  	
  $

  	
  10,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Employee Benefits Liability

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Claims-Made)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Aggregate

  	
   

  	
  $

  	
  4,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Each Claim

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Retro Date: 05/14/2004

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Employee Practices Liability

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (Claims-Made)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Aggregate

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Occurrence

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Retro Date: 05/14/2004

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Hired & Non-Owned Auto
  Liability

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Combined Single Limit

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Umbrella

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Each Occurrence

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  General Aggregate (other than

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Products/Completed Operations)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Products/Completed Operations

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Aggregate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bodily Injury by Disease General

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Aggregate

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Retention

  	
   

  	
  $

  	
  10,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
												



 


27

















 


	
  COVERAGE TYPE

  	
   

  	
  COVERAGE

  	
   

  	
  LIMIT OR

  AMOUNT

  	
   

  	
  COMPANY POLICY

  #/ TERM

  	
   

  	
  ANNUAL

  PREMIUM

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WORKERS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  COMPENSATION

  	
   

  	
  Employers Liability Limits

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  Sentry Insurance

  	
   

  	
  $

  	
  121,753

  	
   

  
	
  AL, AZ,
  CA, DE, FL,

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  KY, MD, MI,

  	
   

  	
  Bodily Injury by Accident (each
  Accident)

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  (Paid Loss Deductible)

  	
   

  	
  (Auditable)

  	
   

  
	
  NV, NJ, NC, PA, RI

  	
   

  	
  Bodily Injury by Disease (policy
  limit)

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  04/0/07-04/01/08

  	
   

  	
   

  	
   

  
	
  MA, NY

  	
   

  	
  Bodily Injury by Disease (each
  employee)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Each Occurrence

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Deductible Limits (including ALAE)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Each Accident

  	
   

  	
  $

  	
  250,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Each Employee (Disease)

  	
   

  	
  $

  	
  250,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Loss Only Aggregate (estimate)

  	
   

  	
  $

  	
  650,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WORKERS

  	
   

  	
  Covering Sentry’s Deductible Limits

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  COMPENSATION

  	
   

  	
  (including ALAE)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AL, AZ,
  CA, DE, FL, KY, MD, MI,

  	
   

  	
  Each Accident

  	
   

  	
  $

  	
  250,000

  	
   

  	
  Batan Insurance — Contractual Liability Protection

  	
   

  	
  $

  	
  498,000

  	
   

  
	
  NV, NJ, NC, PA, RI

  	
   

  	
  Each Employee (Disease)

  	
   

  	
  $

  	
  250,000

  	
   

  	
  Policy

  	
   

  	
   

  	
   

  
	
  MA, NY

  	
   

  	
  Loss Only Aggregate (estimate)

  	
   

  	
  $

  	
  650,000

  	
   

  	
  04/01/07-04/01/08

  	
   

  	
   

  	
   

  
	
  WORKERS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  Brick Street Mutual

  	
   

  	
   

  	
   

  
	
  COMPENSATION

  	
   

  	
  Employer’s Liability Insurance
  Limits

  	
   

  	
  $

  	
  500,000

  	
   

  	
  Insurance

  	
   

  	
  $

  	
  1,475

  	
   

  
	
  WV

  	
   

  	
  Bodily Injury by Accident (each
  Accident)

  	
   

  	
  $

  	
  500,000

  	
   

  	
  Company.

  	
   

  	
  (Auditable)

  	
   

  
	
   

  	
   

  	
  Bodily Injury by Disease (policy
  limit)

  	
   

  	
  $

  	
  500,000

  	
   

  	
  WC10102598-03

  	
   

  	
  $

  	
  1,391

  	
   

  
	
   

  	
   

  	
  Bodily Injury by Disease (each
  employee)

  	
   

  	
   

  	
   

  	
  WC10102605-03

  	
   

  	
  (Auditable)

  	
   

  
	
   

  	
   

  	
  Workers’ Compensation

  	
   

  	
  Statutory

  	
   

  	
  1/1/08-1/1/09

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Each Occurrence

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  WORKERS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  COMPENSATION

  	
   

  	
  Employer’s Liability Insurance
  Limits

  	
   

  	
  $

  	
  500,000

  	
   

  	
  Twin City Fire Ins. Co.

  	
   

  	
  $

  	
  1,566

  	
   

  
	
  TENNESSEE VALLEY

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GYNECOLOGIC

  	
   

  	
  Bodily Injury by Accident (each
  Accident)

  	
   

  	
  $

  	
  500,000

  	
   

  	
  #21WECRU3895

  	
   

  	
  (Auditable)

  	
   

  
	
  ONCOLOGY PC

  	
   

  	
  Bodily Injury by Disease (policy
  limit)

  	
   

  	
  $

  	
  500,000

  	
   

  	
  05/14/07-05/14/08

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bodily Injury by Disease (each
  employee)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  532 MADISON STREET

  	
   

  	
  Workers’ Compensation

  	
   

  	
  Statutory

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  HUNTSVILLE, AL

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  35801

  	
   

  	
  Each Occurrence

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


28

















 


	
  COVERAGE TYPE

  	
   

  	
  COVERAGE

  	
   

  	
  LIMIT OR

  AMOUNT

  	
   

  	
  COMPANY POLICY

  # /TERM

  	
   

  	
  ANNUAL

  PREMIUM

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BUSINESS OWNERS

  	
   

  	
  Property Limits of Liability* - Any One

  	
   

  	
   

  	
   

  	
  Travelers Property Casualty Company of America #630-8273B939-TIL-

  	
   

  	
  $

  	
  24,359

  	
   

  
	
  PACKAGE

  	
   

  	
  Occurrence, Except as Sublimited

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Palms West Radiation

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Therapy, LLC

  	
   

  	
  Real Property

  	
   

  	
  $

  	
  2,170,000

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Business Personal Property

  	
   

  	
  $

  	
  100,000

  	
   

  	
  06

  	
   

  	
   

  	
   

  
	
  12993 Loxahatchee Blvd.

  	
   

  	
  Business Income/Extra Expense

  	
   

  	
  $

  	
  750,000

  	
   

  	
  11/15/07-11/15/08

  	
   

  	
   

  	
   

  
	
  Loxahatchee, FL 33470

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Perils: All Risk of Direct Physical Loss or

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Damage

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Deductibles

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Windstorm/Hail

  	
   

  	
  5%
  TIV,

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  $

  	
   100,000 Min.

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Business Income/Extra Expense (unless specified elsewhere)

  	
   

  	
  168
  Hours

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  All Other Covered Causes of Loss

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Business Income/Extra Expense

  	
   

  	
  72
  Hours

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  *Not a blanket limit. Scheduled
  limit per policy schedule as reported on Statement of Values on file with
  company.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Valuation

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  - Replacement Cost applies to Real &
  Personal Property

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  - Actual Loss Sustained for Business Income/Extra
  Expense

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  -100%
  Coinsurance applies to Real & Personal Property

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  - 50% for Business Income/Extra Expense

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Inland Marine Limits of Liability(excludes Flood & EQ)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Hardware

  	
   

  	
  $

  	
  15,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Software

  	
   

  	
  $

  	
  10,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Deductible

  	
   

  	
  $

  	
  5,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  General Liability

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  General Aggregate

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Products-Completed Operations Aggregate

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Personal and Advertising Injury

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Each Occurrence

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Damage to Premises Rented to You Limit

  	
   

  	
  $

  	
  100,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (any one premises)

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Medical Expense (any one person)

  	
   

  	
  $

  	
  10,000

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


29

















 


	
  COVERAGE TYPE

  	
   

  	
  COVERAGE

  	
   

  	
  LIMIT OR

  AMOUNT

  	
   

  	
  COMPANY

  POLICY #

  /TERM

  	
   

  	
  ANNUAL

  PREMIUM

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BUSINESS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  OWNERS

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  PACKAGE

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CONT’D

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Palms West Radiation

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Therapy, LLC

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AUTOMOBILE

  	
   

  	
  Hired & Non-Owned Auto
  Liability Combined Single Limit

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  Travelers Property Casualty #P-810-8273B940- TIL-06

  11/15/07-11/15/08

  	
   

  	
  $

  	
  531

  	
   

  
	
  UMBRELLA

  	
   

  	
  Umbrella

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bodily Injury & Property Damage

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
  Travelers Property Casualty #PSM-CUP-8273B952-TIL-06

  11/15/07-11/15/08

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Liability

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
  1,010

  	
   

  
	
   

  	
   

  	
  Personal & Advertising Injury Liability

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  General Aggregate

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Products/Completed Operations Aggregate

  	
   

  	
  $

  	
  1,000,000

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Retention

  	
   

  	
  $

  	
  10,000

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIFE INSURANCE

  	
   

  	
  Policy Specifications

  	
   

  	
   

  	
   

  	
  American General Life Insurance Company YM00008696 

  Date Issue:

  05/08/03

  	
   

  	
  $

  	
  7,360

  	
   

  
	
   

  	
   

  	
  Face Amount

  	
   

  	
  $

  	
  5,000,000

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Insured

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Dosoretz, Daniel E

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Beneficiary/Owner

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  21st Century Oncology, Inc.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Plan of Insurance

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TERM — 15YR

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Policy Specifications

  	
   

  	
   

  	
   

  	
  American General Life Insurance Company YM100011358 

  Date Issue:

  05/07/03

  	
   

  	
  $

  	
  2,650

  	
   

  
	
   

  	
   

  	
  Face Amount

  	
   

  	
  $

  	
  2,000,000

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Insured

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  James H. Rubenstein

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Beneficiary/Owner

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  21st Century Oncology, Inc.

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Plan of Insurance

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TERM — 15YR

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIFE INSURANCE

  	
   

  	
  Policy Specifications

  	
   

  	
   

  	
   

  	
  West Coast Life Insurance Company Z01217822

  Date Issue: 02/14/02

  	
   

  	
  $

  	
  1,300

  	
   

  
	
  CONT’D

  	
   

  	
  Face Amount

  	
   

  	
  $

  	
  500,000

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Insured

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Thomas, Charles C. II

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Beneficiary/Owner

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Charlene R. Thomas/North Carolina

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Radiation Therapy

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Plan of Insurance

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TERM -10 YR

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


30

















 


SCHEDULE
4.24

BROKERS’ FEES


 


None.


 


31

















 


SCHEDULE
5.1(k)(ii)

LOCAL COUNSEL


 


	
  STATE

  	
   

  	
  LOCAL

  COUNSEL

  
	
  Alabama

  	
   

  	
  Baker Donelson Bearman Caldwell & Berkowitz, PC

  
	
  Arizona

  	
   

  	
  Fennemore Craig, PC

  
	
  California

  	
   

  	
  Kirkland & Ellis LLP

  
	
  Delaware

  	
   

  	
  Kirkland & Ellis LLP

  
	
  Florida

  	
   

  	
  Shumaker, Loop & Kendrick LLP

  
	
  Maryland

  	
   

  	
  Ober Kaler PA

  
	
  Michigan

  	
   

  	
  Varnum Riddering Schmidt
  Howlett LLP

  
	
  Nevada

  	
   

  	
  Fennemore Craig, PC

  
	
  New Jersey

  	
   

  	
  Wolff & Samson, PC

  
	
  New York

  	
   

  	
  Kirkland & Ellis LLP

  
	
  North Carolina

  	
   

  	
  Shumaker, Loop & Kendrick LLP

  
	
  South Carolina

  	
   

  	
  Parker Poe
  Adams & Bernstein LLP

  
	
  West Virginia

  	
   

  	
  Ziegler & Ziegler LC

  



 


32














 


SCHEDULE
7.2(d)


EXISTING INDEBTEDNESS


 


	
  Capital Leases

  	
   

  	
  Loan Balance as of

  2/21/08

  	
   

  
	
  21 Century
  Oncology, Inc.

  	
   

  	
   

  	
   

  
	
  1) LASALLE S/N 1094

  	
   

  	
  1,631,291.05

  	
   

  
	
  2) BofA-Brainlab Equip

  	
   

  	
  243, 072.93

  	
   

  
	
  3) BofA-Varian 600 C S/N
  754

  	
   

  	
  120,927.22

  	
   

  
	
  4) LaSalle - Varian S/N 1112

  	
   

  	
  1,631,291.05

  	
   

  
	
  5) BofA-Varian 600 C

  	
   

  	
  136, 957.93

  	
   

  
	
  6) LaSalle - Varian S/N
  1096

  	
   

  	
  1,631,291.05

  	
   

  
	
  7) M&I Tomo s/n 160

  	
   

  	
  2,999,005.94

  	
   

  
	
  8) BofA-Varian MLC

  	
   

  	
  70,570.42

  	
   

  
	
  9) LaSalle Port Vision S/N
  409

  	
   

  	
  427,320.86

  	
   

  
	
  10) M & I Leasing
  - s/n 3591

  	
   

  	
  1,626,758.97

  	
   

  
	
  11) BofA-Varian MLC

  	
   

  	
  83,302.52

  	
   

  
	
  12) IBM Data Center

  	
   

  	
  40,380.78

  	
   

  
	
  13) IBM Data Center

  	
   

  	
  80,014.83

  	
   

  
	
  NEW YORK RADIATION THERAPY MANAGEMENT SERVICES, INCORPORATED

  	
   

  	
   

  	
   

  
	
  1) BofA Varian 600c S/N
  774

  	
   

  	
  177,220.31

  	
   

  
	
  2) LaSalle Port Vision S/N
  783

  	
   

  	
  217,666.17

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  MARYLAND RADIATION THERAPY
  MANAGEMENT SERVICES, INC.

  	
   

  	
   

  	
   

  
	
  1) BofA Varian 2100 s/n
  2209

  	
   

  	
  143,812.641

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  NEVADA RADIATION THERAPY
  MANAGEMENT SERVICES, INC.

  	
   

  	
   

  	
   

  
	
  1) BofA Varian Clinac
  600EX s/n 7891

  	
   

  	
  251,449.68

  	
   

  
	
  2) LaSalle Port Vision S/N
  722

  	
   

  	
  216,410.85

  	
   

  
	
  3) LaSalle Varian s/n 3635

  	
   

  	
  2,421,323.13

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  21st CENTURY ONCOLOGY OF
  ALABAMA, Inc,

  	
   

  	
   

  	
   

  
	
  1) BofA Varian MLC s/n 302

  	
   

  	
  125,233.30

  	
   

  
	
  2) LaSalle Port Vision S/N
  302

  	
   

  	
  200,845.33

  	
   

  
	
  3) Lasalle Varian s/n 3635

  	
   

  	
  2,473,072.98

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARIZONA RADIATION THERAPY MANAGEMENT
  SERVICES, INC.

  	
   

  	
   

  	
   

  
	
  1) LaSalle Port Vision S/N
  1038

  	
   

  	
  200,845.33

  	
   

  
	
  2) LaSalle Varian s/n 1095

  	
   

  	
  2,247,167.64

  	
   

  
	
  3) M&I Varian s/n 3520

  	
   

  	
  1,701,407.88

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  CALIFORNIA RADIATION
  THERAPY MANAGEMENT SERVICES, INC.

  	
   

  	
   

  	
   

  
	
  1) BofA Varian s/n 1060

  	
   

  	
  1,672,901.93

  	
   

  
	
  2) Siemens

  	
   

  	
  412,025.79

  	
   

  
	
  3) LaSalle Siemens Oncor
  s/n 5134

  	
   

  	
  1,122,261.95

  	
   

  



 


33

















 


	
  Capital Leases

  	
   

  	
  Loan Balance as of

  2/21/08

  	
   

  
	
  NORTH CAROLINA RADIATION
  THERAPY MANAGEMENT SERVICES, INC.

  	
   

  	
   

  	
   

  
	
  1) M & I Siemens
  ONCOR s/n 5120

  	
   

  	
  1,338,067.20

  	
   

  
	
  2) M&I Siemens s/n 5170

  	
   

  	
  1,355,235.08

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  21st CENTURY ONCOLOGY OF
  KENTUCKY, INC.

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  1) BofA Varian MLC S/N 499

  	
   

  	
  107,284.85

  	
   

  
	
  2) BofA Varian MLC S/N 804

  	
   

  	
  108,200.69

  	
   

  
	
  3) Siemens Oncor s/n 4119

  	
   

  	
  766,071.43

  	
   

  
	
  4) LaSalle Port Vision S/N
  499

  	
   

  	
  200,845.33

  	
   

  
	
  5) Lasalle Varian s/n 3627

  	
   

  	
  2,365,818.08

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  21st CENTURY ONCOLOGY OF
  NEW JERSEY, INC.

  	
   

  	
   

  	
   

  
	
  1) Accelerator in Woodbury

  	
   

  	
  936,689.83

  	
   

  
	
  2) Willingboro-Siemens
  ONCOR s/n 4078

  	
   

  	
  639,731.36

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  BERLIN RADIATION THERAPY
  TREATMENT CENTER, LLC

  	
   

  	
   

  	
   

  
	
  1) Varian Cliniac EX-D
  IMRT

  	
   

  	
  1,683,018.21

  	
   

  
	
  2) Various Equipment
  #24606598

  	
   

  	
  325,416.91

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  RADIATION THERAPY
  SERVICES, INC.

  	
   

  	
   

  	
   

  
	
  1) BofA-Varian s/n 2811
  (SNR)

  	
   

  	
  557,580.28

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  TOTAL ALL

  	
   

  	
  34,609,806.96

  	
   

  



 


34

















 


SCHEDULE
7.3(f)

EXISTING LIENS


 


	
  DEBTOR

  	
   

  	
  JURISDICTION

  	
   

  	
  SECURED PARTY

  	
   

  	
  COLLATERAL

  
	
  21st Century Oncology of Alabama, Inc.

  	
   

  	
  Alabama

  	
   

  	
  Banc of America, Leasing and Capital LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  Lasalle National Leasing & Capital LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  Lasalle National Leasing & Capital LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Arizona Radiation Therapy Management Services, Inc.

  	
   

  	
  Arizona

  	
   

  	
  Lasalle National Leasing & Capital LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  Lasalle National Leasing & Capital LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  M&I Equipment Finance Statement

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  California Radiation Therapy Management Services, Inc.

  	
   

  	
  California

  	
   

  	
  Siemens Financial Services, Inc.

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  Banc of America, Leasing and Capital LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  Lasalle National Leasing & Capital LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  North Carolina Radiation Therapy Management Services, Inc.

  	
   

  	
  North Carolina

  	
   

  	
  M&I Equipment Finance Statement

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  M&I Equipment Finance Statement

  	
   

  	
  Specific Equipment

  



 


35

















 


	
  DEBTOR

  	
   

  	
  JURISDICTION

  	
   

  	
  SECURED PARTY

  	
   

  	
  COLLATERAL

  
	
  21st Century Oncology of Kentucky, Inc.

  	
   

  	
  Kentucky

  	
   

  	
  Banc of America Leasing & Capital, LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  Banc of America Leasing & Capital, LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  Siemens Financial Services, Inc.

  	
   

  	
  Siemens Oncor s/n 4119

  
	
   

  	
   

  	
   

  	
   

  	
  Lasalle National Leasing & Capital LLC

  	
   

  	
  Medical Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  Lasalle National Leasing & Capital LLC

  	
   

  	
  Medical Equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21st Century Oncology of New Jersey, Inc.

  	
   

  	
  New Jersey

  	
   

  	
  Radiation Oncology of Southern New Jersey

  	
   

  	
  Accelerator

  
	
   

  	
   

  	
   

  	
   

  	
  Banc of America Leasing & Capital, LLC

  	
   

  	
  Siemens Oncor s/n 4078

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Berlin Radiation Therapy Treatment Center, Inc.

  	
   

  	
  Maryland

  	
   

  	
  Banc of America Leasing & Capital, LLC

  	
   

  	
  Varian Cliniac EX-D IMRT

  
	
   

  	
   

  	
   

  	
   

  	
  Banc of America Leasing & Capital, LLC

  	
   

  	
  Equipment #24606598

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Radiation Therapy Services, Inc.

  	
   

  	
  Florida

  	
   

  	
  Banc of America Leasing & Capital, LLC

  	
   

  	
  Varian s/n 2811

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New York Radiation Therapy Management Services, Incorporated

  	
   

  	
  New York

  	
   

  	
  Bank of America Leasing & Capital, LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  Lasalle National Leasing & Capital LLC

  	
   

  	
  Port Vision s/n 783

  



 


36

















 


	
  DEBTOR

  	
   

  	
  JURISDICTION

  	
   

  	
  SECURED PARTY

  	
   

  	
  COLLATERAL

  
	
  Maryland Radiation Therapy Management Services, Inc.

  	
   

  	
  Maryland

  	
   

  	
  Banc of America Leasing & Capital, LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Nevada Radiation Therapy Management Services, Incorporated

  	
   

  	
  Nevada

  	
   

  	
  Banc of America Leasing & Capital, LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  LaSalle National Leasing & Capital LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  Lasalle National Leasing & Capital LLC

  	
   

  	
  Master Lease

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21st Century Oncology, Inc.

  	
   

  	
  Florida

  	
   

  	
  LaSalle National Leasing & Capital LLC

  	
   

  	
  Equipment Lease

  
	
   

  	
   

  	
   

  	
   

  	
  Banc of America Leasing & Capital LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  Banc of America Leasing & Capital LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  LaSalle National Leasing & Capital LLC

  	
   

  	
  Equipment Lease

  
	
   

  	
   

  	
   

  	
   

  	
  Banc of America Leasing & Capital, LLC

  	
   

  	
  Varian 600 C

  
	
   

  	
   

  	
   

  	
   

  	
  LaSalle National Leasing & Capital LLC

  	
   

  	
  Equipment Lease

  
	
   

  	
   

  	
   

  	
   

  	
  M&I Equipment Finance Statement

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  Banc of America Leasing & Capital, LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  LaSalle National Leasing & Capital LLC

  	
   

  	
  Equipment Lease

  
	
   

  	
   

  	
   

  	
   

  	
  M&I Equipment Finance Statement

  	
   

  	
  Equipment

  



 


37

















 


	
  DEBTOR

  	
   

  	
  JURISDICTION

  	
   

  	
  SECURED PARTY

  	
   

  	
  COLLATERAL

  
	
   

  	
   

  	
   

  	
   

  	
  Banc of America Leasing & Capital, LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  IBM Credit LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  IBM Credit LLC

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Gettysburg Radiation LLC

  	
   

  	
  Pennsylvania

  	
   

  	
  Commerce Bank/Harrisburg N.A.

  	
   

  	
  Equipment

  
	
   

  	
   

  	
   

  	
   

  	
  Commerce Bank/Harrisburg N.A.

  	
   

  	
  Equipment

  



 


38

















 


SCHEDULE 7.8(e)

EXISTING INVESTMENTS


 


1.                                       Naples Pet,
L.L.C., a Florida limited liability company. 21st Century Oncology, Inc.
owns 40% of the outstanding membership interests of such entity.


 


2.                                       Faxton Leasing,
LLC (“Faxton”), a New York limited liability company. New York Radiation
Therapy Management Services, Inc. owns 37% of the outstanding membership
interests of such entity. Faxton is a joint venture between New York Radiation
Therapy Management Services, Inc. and Faxton Hospital.


 


3.                                       Palmetto
Radiation Associates, LLC, a Florida limited liability company. 21st Century
Oncology, Inc. owns 50% of the outstanding membership interests of such
entity (although such entity does not have any operating activities).


 


4.                                       Palms West
Radiation Therapy, L.L.C., a Florida limited liability company. 21st Century
Oncology, Inc. owns 50% of the outstanding membership interests of such
entity.


 


5.                                       Radiosurgery
Center of Rhode Island, LLC, a Rhode Island limited liability company. New
England Radiation Therapy Management Services, Inc. owns 45% of the
outstanding membership interests of such entity. The operation of this entity
is contingent upon certificate of need approval in the State of Rhode Island.
If a certificate of need is issued to this entity, the members will be required
to make capital contributions to fund the purchase of major medical equipment
in proportion to their membership interests. The capital requirement are
approximately $7 million, which is principally comprised of capital equipment
(Accuracy Generation 4 Cyberknife at $4 million) and construction/renovation
costs of approximately $3 million.


 


6.                                       Southern New
England Regional Cancer Center, LLC (“Southern”), a Rhode Island limited
liability company. The Company owns 62% of the outstanding membership interest
in such entity. Southern is a joint venture between the Company and Landmark
Medical Center.


 


7.                                       Bluegrass
Regional Cancer Center, L.L.P. (“Bluegrass”), a Kentucky limited liability
partnership. 21st Century Oncology of Kentucky, L.L.C. has a 90% ownership interest
in such entity. Bluegrass is a joint venture between 21st Century Oncology of
Kentucky, L.L.C. and Jewish Hospital & St. Mary’s Healthcare.


 


8.                                       Ambergris,
L.L.C. (“Ambergris”), a West Virginia limited liability company. Maryland
Radiation Therapy Management Services, Inc. owns 60% of the outstanding
membership interest in such entity. Ambergris is a joint venture between
Maryland Radiation Therapy Management Services and Gateway Health Enterprises
Co.


 


9.                                       South County
Radiation Therapy, LLC (“South County”), a Rhode Island limited liability
company. The Company owns 65% of the outstanding membership interest in such
entity. South County is a joint venture between the Company and South County
Hospital Health Care Systems.


 


10.                                 Northwest
Baltimore Radiation Therapy Regional Center, L.L.C. (“Northwest”), a Maryland
limited liability company. Maryland Radiation Therapy Management
Services, Inc. owns 90% of the outstanding membership interest in such
entity. Northwest is a


 


39

















 


joint venture between Maryland Radiation Therapy
Management Services, Inc. and Lifebridge Investments Inc.


 


11.                                 Gettysburg
Radiation, L.L.C. (“Gettysburg”), a Pennsylvania limited liability company.
21st Century Oncology of Pennsylvania, Inc. owns 67.5% of the outstanding
membership interest in such entity. Gettysburg is a joint venture between 21st
Century Oncology of Pennsylvania, Inc., Satish Shah M.D. and David
Cunningham, Ph.D.


 


12.                                 Roger Williams
Radiation Therapy, L.L.C. (“Roger Williams”), a Rhode Island limited liability
company. New England Radiation Therapy Management Services, Inc. owns 51%
of the outstanding membership interest in such entity. Roger Williams is a
joint venture between New England Radiation Therapy Management Services, Inc.
and Roger Williams Hospital.


 


Immaterial Subsidiaries


 


21st Century Oncology of Kentucky, LLC


Phoenix Management Company, LLC


Radiation Therapy School For Radiation Therapy Technology, Inc.


 


21st Century Palmetto, LLC


New England Radiation Therapy Management Services, Inc.


Nebraska Radiation Therapy Management Services, Inc.


Creighton Radiosurgery Holding Company, LLC


 


21st Century Oncology of Pennsylvania, Inc.


Carolina Radiation and Cancer Treatment Center, Inc.


 


40

















 


SCHEDULE
7.10

TRANSACTIONS WITH AFFILIATES


 


None.


 


41

















 


SCHEDULE
10.2

WEBSITE


 


www.rtsx.com


 


www.21stcenturyoncology.com


 


42