Exhibit 10.1
AMENDMENT AGREEMENT NO. 1 TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT (the "Amendment Agreement") is made and entered
into this 8th day of October, 2004, among RADIATION THERAPY SERVICES, INC., a
Florida corporation (the "Borrower"), each Subsidiary Guarantor party to a
Subsidiary Guaranty pursuant to the terms of the Credit Agreement (as defined
below), BANK OF AMERICA, N.A., as Administrative Agent (the "Administrative
Agent"), and the Lenders party to the Credit Agreement. Unless the context
otherwise requires, capitalized terms used but not defined herein have the
meanings ascribed thereto in the Credit Agreement.
W I T N E S S E T H:
WHEREAS, the Borrower, the Administrative Agent and the Lenders have
entered into that certain Third Amended and Restated Credit Agreement dated as
of March 31, 2004, (as the same may be modified, supplemented, amended or
amended and restated from time to time, the "Credit Agreement"), whereby the
Lenders have made available to the Borrower a term loan A facility, a term loan
B facility and a revolving credit facility with a letter of credit subfacility
and a swing line subfacility; and
WHEREAS, the Borrower desires to prepay the Term Loan B in full and has
requested that the Term Loan A Lenders readvance a portion of the Term Loan A
and that the Revolving Lenders increase their commitments under the Revolving
Credit Facility; and
WHEREAS, the Revolving Lenders are willing to increase their commitments
under the Revolving Credit Facility and the Term Loan A Lenders are willing to
readvance $13,750,000 of the Term Loan A, the proceeds of which will be used,
together with funds drawn under the Revolving Credit Facility, to prepay the
Term Loan B in full; and
WHEREAS, the Administrative Agent, the Lenders and the Borrower are
willing to amend the Credit Agreement in the manner described herein and subject
to the terms and conditions set forth herein; and
NOW, THEREFORE, the Borrower, the Administrative Agent and the Lenders do
hereby agree as follows:
1. Credit Agreement. The term "Credit Agreement" as used herein and in the
Credit Documents (as defined in the Credit Agreement) shall mean the Credit
Agreement as hereby amended and modified.
2. Amendment. Subject to the conditions set forth herein, the Credit
Agreement is hereby amended, effective as of the date hereof, as follows:
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(a) Section 1.1 of the Credit Agreement is amended to add a new subsection
(e) to the end thereof, which shall read as follows:
(e) The parties hereto acknowledge that, notwithstanding clauses (c)
and (d) above, and notwithstanding the provisions regarding assignments
set forth in Section 14.7 hereof, as of the Amendment No. 1 Effective
Date, the Term Loan A Commitment, Revolving Credit Commitment and
Applicable Commitment Percentage for each of the Revolving Lenders and
Term Loan A Lenders are as follows:
Term Loan A Facility
Term Loan A Portion of Term
Outstandings prior Loan A being
to readvanced as of Applicable
Term Loan A Amendment No. 1 the Amendment No. Commitment
Term Loan A Lender Commitment Effective Date 1 Effective Date Percentage
Bank of America, N.A. $ 6,109,022.54 $ 3,552,631.66 $ 3,359,962.40 24.436090160%
Wachovia Bank, National Association $ 5,865,516.04 $ 2,529,904.36 $ 3,226,033.82 23.462064160%
Fifth Third Bank, Florida $ 4,316,188.18 $ 2,368,421.10 $ 2,373,903.50 17.264752720%
SunTrust Bank $ 3,352,130.38 $ 1,776,315.60 $ 1,843,671.71 13.408521520%
Regions Bank $ 2,976,190.48 $ 511,363.64 $ 1,636,904.76 11.904761920%
National City Bank $ 2,380,952.38 $ 511,363.64 $ 1,309,523.81 9.523809520%
Term Loan A Facility Total $ 25,000,000.00
Revolving Loan Facility
Applicable
Revolving Credit Commitment
Revolving Lender Commitment Percentage
Bank of America, N.A. $ 19,548,872.11 24.436090150%
Wachovia Bank, National Association $ 18,769,651.33 23.462064163%
Fifth Third Bank, Florida $ 13,811,802.19 17.264752738%
SunTrust Bank $ 10,726,817.22 13.408521525%
Regions Bank $ 9,523,809.52 11.904761900%
National City Bank $ 7,619,047.62 9.523809525%
Revolving Credit Facility Total $ 80,000,000.00
TOTAL FACILITIES $105,000,000.00
===============
(b) Section 1.2 of the Credit Agreement is amended to add the following
definitions in the appropriate alphabetical order:
"Amendment No. 1" means that certain Amendment Agreement No. 1 to
Third Amended and Restated Credit Agreement dated as of October 8, 2004,
by
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and among the Borrower, the Subsidiary Guarantors, the Administrative
Agent and the Lenders party thereto.
"Amendment No. 1 Effective Date" means the date all the conditions
to the effectiveness of Amendment No. 1 contained in Section 4 of
Amendment No. 1 are satisfied.
(c) Section 1.2 of the Credit Agreement is further amended to amend and
restate in their entirety the definitions of "Applicable Margin Percentage",
"Cash Equivalents", "EBITDA", "Revolving Notes", "Term Loan A Commitment", "Term
Loan A Facility", "Term Loan A Notes" and "Total Revolving Credit Commitments"
to read as follows:
"Applicable Margin Percentage" shall mean, at any time from and
after the Amendment No. 1 Effective Date, with respect to Revolving Loans
and Segments of the Term Loan A and the commitment fee payable pursuant to
Section 5.2(a), the applicable percentage set forth below, each (i) to be
added to the Base Rate pursuant to Section 5.1 for purposes of determining
the Adjusted Base Rate, and (ii) to be added to the LIBOR Rate pursuant to
Section 5.1 for purposes of determining the Adjusted LIBOR Rate:
Applicable Margin Applicable Margin
Percentage Percentage
Leverage Ratio for Base Rate Loans for LIBOR Loans
-------------- ------------------- ---------------
Less than 1.50 to 1.00 0.25% 1.75%
Greater than or equal to 1.50 0.50% 2.00%
to 1.00, but less than 2.00
to 1.00
Greater than or equal to 2.00 0.75% 2.25%
to 1.00, but less than 2.50
to 1
Greater than or equal to 2.50 1.125% 2.625%
to 1.00 but less than 2.75
to 1.00
Greater than or equal to 2.75 1.50% 3.00%
to 1.00
On each Adjustment Date (as hereinafter defined), the Applicable
Margin Percentage for all Revolving Loans and Term Loan A and the
commitment fee payable pursuant to Section 5.2(a) shall be adjusted
effective as of such date (based upon the calculation of the Leverage
Ratio as of the last day of the fiscal period to which such Adjustment
Date relates) in accordance with the above matrix; provided, however,
that, notwithstanding the foregoing or anything else herein to the
contrary, if at any time the Borrower shall have failed to deliver the
financial statements and a Compliance Certificate as required by Section
9.1(a) or Section 9.1(b), as the case may be, and Section 9.2(a), then at
the election of the Required Revolving Lenders and the Required Term Loan
A Lenders, at all times
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from and including the date on which such statements and Compliance
Certificate are required to have been delivered to the date on which the
same shall have been delivered each Applicable Margin Percentage shall be
determined in accordance with the above matrix as if the Leverage Ratio
were greater than 2.75:1.00 (notwithstanding the actual Leverage Ratio).
For purposes of this definition, "Adjustment Date" shall mean with respect
to any fiscal period of the Borrower beginning with the fiscal quarter
ending December 31, 2004, the tenth (10th) day (or, if such day is not a
Business Day, on the next succeeding Business Day) after delivery by the
Borrower in accordance with Section 9.1(a), Section 9.1(b) or Section
9.9(b), as the case may be, of (i) financial statements as of the end of
and for such fiscal period, (ii) a duly completed Compliance Certificate
with respect to such fiscal period, and (iii) any pro forma Compliance
Certificate of the Borrower and its Subsidiaries giving effect to a
Permitted Acquisition in accordance with Section 9.9."
"Cash Equivalents" shall mean Eligible Investments of High Credit
Quality without Concentrations and with a Short Term Maturity. For
purposes of this definition:
1) Eligible Investments are defined as investment in the
following held in U.S. dollars: (i) AAA rated money market
mutual funds; (ii) obligations issued by the U.S. Treasury
such as treasury bills, treasury notes and/or treasury bonds;
(iii) obligations issued by a U.S. Federal Agency (e.g.,
Federal Home Loan Bank, Federal Farm Credit Bank and Xxxxxx
Mae); (iv) obligations of major corporations and bank holding
companies and limited to commercial paper, corporate notes,
corporate bonds and medium-term-notes; (v) taxable and
tax-exempt municipal securities, which also include variable
rate demands notes (VRDNs) and auction rate securities; (vi)
auction rate preferreds; or (vii) repurchase agreements
collateralized by U.S. Treasury or agency securities at a
minimum level of 102%.
2) High Credit Quality is defined as: (i) investments which bear
a short-term credit rating must have a minimum rating and be
explicitly rated by two of the rating services as follows: A1
by Standard & Poor's, P1 by Xxxxx'x and/or F-1 by Fitch (no
split-rated paper permitted) - for municipal securities, the
short-term credit minimum must be SPI by S&P, MIG1 by Xxxxx'x;
(ii) investments which bear a long-term credit rating must
have a minimum rating and be explicitly rated by two of the
rating services as follows: A by Standard & Poor's, A2 by
Xxxxx'x and/or A by Fitch; or (iii) investments, which bear a
AAA-rating, need only be rated by one of the three rating
agencies.
3) Concentration is defined as the portfolio holding more than
10% of its portfolio in one issue or more than 10% of any one
issuer. AAA-rated
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money market mutual funds, U.S. Treasury and U.S. Agency
securities are exempt from these concentration limits.
4) Short Term Maturity is defined as investments that mature
within six months. For investments where the interest rate is
adjusted via an auction, the auction date will be used to
determine liquidity.
"EBITDA" shall mean, for any period, (A) the aggregate of (i) net
income (or loss) of a Person for such period, determined in accordance
with GAAP, plus (ii) the sum of interest expense, taxes, depreciation and
amortization of such Person for such Period, determined in accordance with
GAAP, plus (iii) the write-off of any deferred financing costs as a result
of the execution and effectiveness of Amendment No. 2 to the Second
Amended Credit Agreement, this Agreement, and Amendment No. 1 to this
Agreement but, in the case of both (ii) and (iii), only to the extent
deducted in determining net income for the applicable period.
"Revolving Notes" means, collectively, the promissory notes of the
Borrower evidencing Revolving Loans executed and delivered to the
Revolving Lenders as provided in Section 3.4 substantially in the form of
Exhibit A-2, with appropriate insertions as to amounts, dates and names of
the Revolving Lenders, including any amendments and restatements thereof.
"Term Loan A Commitment" shall mean, with respect to each Term Loan
A Lender, the obligation of such Lender to make the Term Loan A to the
Borrower in a principal amount equal to such Lender's Applicable
Commitment Percentage of the Total Term Loan A Commitment as set forth in
(i) after the Effective Date and prior to the Amendment No. 1 Effective
Date, Section 1.1(c), and (ii) as of and after the Amendment No. 1
Effective Date, Section 1.1(e).
"Term Loan A Facility" shall mean the facility described in Section
2.1 providing for a Term Loan A to the Borrower by the Term Loan A Lenders
in the principal amount of $25,000,000, $11,250,000 of which is
outstanding prior to the effectiveness of Amendment No. 1 hereto.
"Term Loan A Notes" means, collectively, the promissory notes of the
Borrower evidencing the Term Loan A executed and delivered to the Term
Loan A Lenders as provided in Section 2.4 substantially in the form of
Exhibit A-1, with appropriate insertions as to amounts, dates and names of
the Term Loan A Lenders, including any amendments and restatements
thereof.
"Total Revolving Credit Commitment" shall mean a principal amount
equal to $80,000,000, as reduced or increased from time to time in
accordance with Section 3.5 or 3.6.
(d) Section 1.2 is amended to delete the definitions of "Excess Cash
Flow", "Shareholders' Agreement" and "Shareholder Life Insurance Payment" in
their entirety. All references in the Agreement to such terms shall be null and
void.
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(e) Section 2.1(b) is hereby amended to delete each reference to
"$1,250,000" contained therein and replace it with "$1,750,000".
(f) Section 2.1 is further amended to add a new subsection (c) to the end
thereof as follows:
(c) The Borrower hereby acknowledges that the Term Loan A has been
advanced and is outstanding in the principal amount of $11,250,000 as of
the Amendment No. 1 Effective Date (but immediately prior to giving effect
to such Amendment No. 1). Notwithstanding anything contained herein to the
contrary, including but not limited to any prohibitions on subsequent
advances contained in subsection (a) above, the Term Loan A Lenders agree
to readvance $13,750,000 of the Term Loan A to the Borrower on the
Amendment No. 1 Effective Date (the "Amendment No. 1 Advance"), which
Amendment No. 1 Advance shall be used exclusively to prepay a portion of
the Term Loan B in accordance with Section 2.3(b)(v). The Amendment No. 1
Advance shall advanced as a Base Rate Segment on the Amendment No. 1
Effective Date, without additional notice or consent, including without
any Notice of Borrowing, and the entire proceeds of the Amendment No. 1
Advance shall be applied immediately by the Administrative Agent, together
with $9,010,000 to be drawn under the Revolving Credit Facility, to prepay
the outstanding amount of the Term Loan B ($22,760,000) in full. After the
Amendment No. 1 Effective Date and such Amendment No. 1 Advance, the
principal amount of each Segment of the Term Loan A outstanding hereunder
from time to time shall bear interest and the Term Loan A shall be
repayable as herein provided. After the Amendment No. 1 Effective Date, no
amount of the Term Loan A repaid or prepaid by the Borrower may be
reborrowed hereunder, and no subsequent advances of the Term Loan A
amounts shall be made by any Lender after the Amendment No. 1 Advance.
(g) Section 2.3(a) is hereby amended to delete the introductory phrase
"The Borrower may prepay the Term Loan A and the Term Loan B, but only on a pro
rata basis based upon the Pro Rata Percentages," and to replace it with the
phrase "The Borrower may prepay the Term Loan A or the Term Loan B,".
(h) Section 9.1(a) is amended to provide that quarterly financial
statements shall be delivered to the Administrative Agent not later than the
earlier of the date required to be delivered to the SEC or forty-five (45) days
after the end of each of the first three fiscal quarters of each fiscal year.
(i) Section 9.1(b) is amended and restated in its entirety to read as
follows:
(b) not later than the earlier of the date when required to be
delivered to the SEC or ninety (90) days after the end of each
fiscal year of the Borrower, a consolidated balance sheet of the
Borrower and its Subsidiaries (including all Excluded Subsidiaries)
as at the end of such fiscal year, and the related
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consolidated statements of income or operations, shareholders'
equity and cash flows for such fiscal year, setting forth in each
case in comparative form the figures for the previous fiscal year,
all in reasonable detail and prepared in accordance with GAAP,
audited and accompanied by a report and opinion of Ernst & Young,
LLP or other independent certified public accountant of nationally
recognized standing reasonably acceptable to the Required Lenders,
which report and opinion shall be prepared in accordance with
generally accepted auditing standards and shall not be subject to
any "going concern" or exception or any qualification or exception
as to the scope of such audit.
(j) Section 9.2 is amended as follows:
(a) subsection (a) is amended to delete the introductory phrase
"Concurrently with each delivery of the financial statements described in
Section 9.1 (except, for the auditor's draft financial statements provided
for in subsection (b) thereof)" and to replace it with the phrase "Not
later than forty-five (45) days after the end of each of the first three
fiscal quarters of each fiscal year of the Borrower and one hundred (100)
days after the end of each fiscal year of the Borrower (except in the case
of the Compliance Certificate and related Covenant Compliance Worksheet,
which shall be delivered concurrently with the delivery by the Borrower of
its financial statements to the SEC),";
(b) subsection (b) is amended to delete the introductory phrase
"Concurrently with the delivery of the financial statements described in
Section 9.1(b)," and to replace it with the phrase "Not later than one
hundred (100) days after the end of each fiscal year of the Borrower,";
and
(c) subsection (c) is deleted in its entirety in and replaced with
the following: "(c) Intentionally deleted.".
(k) Section 9.9(a)(ii) is amended and restated in its entirety to read as
follows:
(ii) the Required Lenders shall have given their consent to such
acquisition which consent shall (A) not be unreasonably withheld and (B)
be given within ten (10) Business Days from the Administrative Agent's
receipt of the information, in form and substance satisfactory to the
Administrative Agent in its reasonable discretion, referred to in clauses
(b) and (c) of this Section 9.9; provided that no such consent will be
required if the Acquisition Amount with respect to such acquisition
(regardless of the form of consideration) (y) shall not exceed
$12,000,000, and (z) together with the aggregate of the Acquisition
Amounts (regardless of the form of consideration) for all other Permitted
Acquisitions consummated during the same fiscal year, shall not exceed
$25,000,000 (including any "earnout" payments made such fiscal year with
respect to any Permitted Acquisition, irrespective of when such Permitted
Acquisition was consummated).
(l) Section 9.9(b)(iii) is amended and restated in its entirety to read as
follows:
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(iii) consolidated projected income statement of the Target and its
subsidiaries for the two-year period following consummation of such
Permitted Acquisition, in reasonable detail, together with any appropriate
statement of assumptions and pro forma adjustments; and
(m) Section 9.15 is amended to delete such section in its entirety and
replace it as follows:
9.15 Intentionally Deleted.
(n) Section 9.16 is amended to delete such section in its entirety and
replace it as follows:
9.16 Intentionally Deleted.
(o) Section 11.2 is amended to delete "and" at the end of subsection (vii)
thereof, delete "." at the end of subsection (viii) thereof and replace it with
";" and add the following subsection (ix) to read as follows:
(ix) (A) Indebtedness of the Borrower or any Subsidiary, not to
exceed $15,000,000 in the aggregate, owing to the seller(s) in connection
with one or more Permitted Acquisitions, provided that such Indebtedness
is unsecured and, subordinated in right and time of payment upon the
occurrence of an Event of Default hereunder, and shall have such other
terms (including but not limited to a 180 day standstill provision),
conditions and provisions reasonably satisfactory in form and substance to
the Administrative Agent and (B) Contingent Obligations permitted under
Section 11.16(v).
(p) Section 11.5(x) is amended to replace the number "$1,000,000" in the
second line thereof and replace it with "$2,000,000.
(q) Section 11.4 is amended to delete "and" at the end of subsection (vi)
thereof, delete "." at the end of subsection (vii) thereof and replace it with
";" and add the following subsection (viii) to read as follows:
(viii) dispositions by the Borrower or any Subsidiary of real
property pursuant to sale-leaseback transactions, provided that such
property was acquired for the purpose of constructing or renovating a
cancer radiation facility thereon for sale and leaseback to the Borrower
or any Subsidiary, and including without limitation any such transaction
in which either the end purchaser/lessor under such transaction or the
Borrower or any such Subsidiary funds the construction of the
improvements, and further provided that (A) such disposition is
consummated within 180 days of the issuance of the certificate of
occupancy for such facility, (B) the sale proceeds received by the
Borrower or Subsidiary, as applicable, are not less than the
Borrower/Subsidiary's actual cost of acquisition and construction for such
facility, and (C) the sale proceeds from such disposition are used within
five days of receipt thereof to prepay Revolving Credit Outstandings.
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(r) Effective as of September 30, 2004, Section 11.10 is amended to delete
the reference to "$15,000,000" contained therein and replace it with
"$25,000,000."
(s) Section 11.6 is amended to delete in their entirety clauses (iv), (v)
and (viii) thereof and re-number clauses (vi) and (vii) as appropriate.
(t) Section 11.8 is amended to amend and restate the last sentence thereof
in its entirety to read as follows:
"Notwithstanding the foregoing, Financial Services of Southwest
Florida, Inc. may engage in the business of providing administrative
services for the Borrower and its Subsidiaries; Radiation Therapy School
for Radiation Therapy Technology, Inc. may operate a radiation therapy
school for the Borrower and its Subsidiaries; and Devoto Construction
Company of Southwest Florida, Inc. may engage in the business of
construction of radiation facilities to be operated by the Borrower or any
of its Subsidiaries; provided that, the primary focus of the Borrower and
its Subsidiaries continues to be providing radiation oncology services.
(u) Section 11.16 is amended to change the reference in the sixth line
thereof from "$1,000,000" to "$3,000,000" and to amend and restated clause (v)
in its entirety to read as follows:
(v) Contingent Obligations owing to a seller in connection with a
Permitted Acquisition, which Contingent Obligations are unsecured and shall have
terms, conditions and provisions reasonably satisfactory in form and substance
to the Administrative Agent.
3. Representations, Warranties and Covenants. The Borrower hereby
represents, warrants and covenants that:
(a) The representations and warranties made by the Borrower in
Article VIII of the Credit Agreement are true on and as of the date
hereof;
(b) There has been no Material Adverse Change in the condition,
financial or otherwise, of the Borrower since the Effective Date;
(c) The business and properties of the Borrower are not and have not
been adversely affected in any substantial way as the result of any fire,
explosion, earthquake, accident, strike, lockout, combination of workers,
flood, embargo, riot, activities of armed forces, war or acts of God or
the public enemy, or cancellation or loss of any major contracts; and
(d) No event has occurred and no condition exists which constitutes
a Default or an Event of Default on the part of the Borrower under the
Credit Agreement, the Notes or any other Credit Document either
immediately or with the lapse of time or the giving of notice, or both.
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4. Conditions. This Amendment Agreement shall become effective upon the
Borrower delivering to the Administrative Agent the following; provided,
however, upon such delivery, the amendment set forth in Section 2(r) hereof
shall be deemed effective as of September 30, 2004:
(a) ten (10) counterparts of this Amendment Agreement duly executed
by the Administrative Agent, the Lenders, the Borrower and the Subsidiary
Guarantors;
(b) a certificate of the secretary or an assistant secretary of each
of the Borrower and each Subsidiary Guarantor, in form and substance
satisfactory to the Administrative Agent, certifying (i) that the articles
or certificate of incorporation or articles or certificate of organization
of the Borrower or such Subsidiary Guarantor, as the case may be, have not
been amended since such articles or certificate were delivered on the
Effective Date or attaching any amendments thereto since the Effective
Date, as each may be certified as of a recent date by the Secretary of
State (or comparable Governmental Authority) of its jurisdiction of
organization, (ii) that the bylaws, operating agreement, partnership
agreement or other comparable document of the Borrower or such Subsidiary
Guarantor, as the case may be, have not been amended since such bylaws,
operating agreement, partnership agreement or other comparable document
was delivered on the Effective Date, and that such document has been in
effect at all times from the date on which the resolutions referred to in
clause (iii) below were adopted to and including the date of such
certificate, and (iii) that attached thereto is a true and complete copy
of resolutions adopted by the board of directors, managers, general
partners or other comparable governing body of the Borrower or such
Subsidiary Guarantor, as the case may be, authorizing the execution,
delivery and performance of this Amendment Agreement and the amendments
contemplated herein, and as to the incumbency and genuineness of the
signature of each officer of the Borrower or such Subsidiary Guarantor, as
the case may be, executing this Amendment Agreement, and attaching all
such copies of the documents described above;
(c) amendments or modifications to the existing Mortgages, in form
and substance reasonably satisfactory to the Administrative Agent, dated
as of the date hereof and duly executed by the Borrower, a Subsidiary
Guarantor and the trustee thereunder, as applicable, together in each case
with the Mortgaged Property Support Documents and any additional title
policy endorsements required by the Administrative Agent in its reasonable
discretion;
(d) all fees and expenses payable by the Borrower by reason of this
Amendment Agreement;
(e) such other documentation, instruments, consents and agreements
as the Administrative Agent shall reasonably request including those
described in paragraph 8 of this Amendment Agreement;
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(f) amended and restated or replacement Revolving Notes for each
Revolving Lender whose Revolving Credit Commitment is increasing as a
result of this Amendment Agreement and amended and restated or replacement
Term Loan A Notes reflecting the re-advance of a portion of the Term Loan
A pursuant to this Amendment Agreement; and
(g) irrevocable notice shall have been given to the Administrative
Agent that the Term Loan B will be prepaid in full on or about the
Amendment No. 1 Effective Date but in any event not later than the third
Business Day following the Amendment No. 1 Effective Date, with proceeds
of the Amendment No. 1 Advance and $9,010,000 drawn under the Revolving
Credit Facility.
5. Consent to Interest Period. The Lenders hereby consent and agree that
in connection with the Amendment No. 1 Effective Date, the Borrower may make a
one-time request for an Interest Period for Loans of other than one, two, three
or six months in length; provided that such Interest Period shall begin on or
about the Amendment No. 1 Effective Date and shall end on December 31, 2004.
6. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. None of the terms or conditions of this
Amendment may be changed, modified, waived or canceled orally or otherwise,
except as provided in the Credit Agreement.
7. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Credit Agreement and all of the other
Credit Documents are hereby confirmed and ratified in all respects and shall
remain in full force and effect according to their respective terms.
8. Counterparts. This Amendment Agreement may be executed in any number of
counterparts and all the counterparts taken together shall be deemed to
constitute one and the same instrument.
9. Documentation. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be satisfactory in
form and substance to the Administrative Agent and its counsel; the
Administrative Agent shall have received copies of all additional agreements,
instruments and documents which it may reasonably request in connection
therewith, including copies of resolutions of the Borrowers authorizing the
transactions contemplated by this Amendment Agreement, such documents, when
appropriate, to be certified by appropriate corporate or governmental
authorities; and all proceedings of the Borrower relating to the matters
provided for herein shall be satisfactory to the Administrative Agent and its
counsel.
10. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
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representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by any other party
to the other. None of the terms or conditions of this Amendment Agreement may be
changed, modified, waived or canceled orally or otherwise, except by writing,
signed by all the parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any proceeding or succeeding
breach thereof.
11. Ratification. Except as hereby specifically amended, modified or
supplemented, the Agreement and all of the other Loan Documents are hereby
confirmed and ratified in all respects and shall remain in full force and effect
according to their respective terms.
12. Consent of the Subsidiary Guarantors. Each Subsidiary Guarantor hereby
consents, acknowledges and agrees to the amendments set forth herein and hereby
confirms, reaffirms and ratifies in all respects the Subsidiary Guaranty to
which such Subsidiary Guarantor is a party (including without limitation the
continuation of such Subsidiary Guarantor's payment and performance obligations
thereunder upon and after the effectiveness of this Agreement and the amendments
contemplated hereby) and the enforceability of the Subsidiary Guaranty against
such Subsidiary Guarantor in accordance with its terms.
13. Term Loan B. Notwithstanding anything contained in the Credit
Agreement or any other Credit Documents to the contrary, after giving effect to
this Amendment Agreement, all references contained in the Credit Agreement or
any other Credit Document to any "Term Loan B Lender", the "Term Loan B
Facility", "Term Loan B Outstandings" or any other reference to the Term Loan B
shall be null and void.
15
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their duly authorized officers, all as of the
day and year first above written.
BORROWER:
RADIATION THERAPY SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------
Name:Xxxxx X. Xxxxxxxxx
Title: Executive Vice President
GUARANTORS:
21ST CENTURY ONCOLOGY, INC.
21ST CENTURY ONCOLOGY OF NEW JERSEY, INC.
21ST CENTURY ONCOLOGY OF KENTUCKY, LLC
21ST CENTURY ONCOLOGY OF ALABAMA, INC.
NEW YORK RADIATION THERAPY
MANAGEMENT SERVICES, INC.
NEVADA RADIATION THERAPY
MANAGEMENT SERVICES, INC.
FINANCIAL SERVICES OF SOUTHWEST
FLORIDA, INC.
RADIATION THERAPY SCHOOL FOR
RADIATION THERAPY TECHNOLOGY, INC.
MARYLAND RADIATION THERAPY
MANAGEMENT SERVICES, INC.
NORTH CAROLINA RADIATION THERAPY
MANAGEMENT SERVICES, INC.
CALIFORNIA RADIATION THERAPY
MANAGEMENT SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
16
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/
----------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., as a Lender
By: /s/
----------------------------------------
Name:
Title:
FIFTH THIRD BANK
By: /s/
----------------------------------------
Name:
Title:
SUNTRUST BANK
By: /s/
----------------------------------------
Name:
Title:
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/
----------------------------------------
Name:
Title:
17
REGIONS BANK
By: /s/
----------------------------------------
Name:
Title:
NATIONAL CITY BANK OF KENTUCKY
By: /s/
----------------------------------------
Name:
Title:
18
