Exhibit 10.2
AMENDMENT AGREEMENT NO. 2 TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT (the "Amendment Agreement") is made and entered
into this 11th 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. 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 amended by that certain Amendment No. 1 to Third Amended
and Restated Credit Agreement dated as of October 8, 2004 (as the same may be
further 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 amend Section 2.3 of the Credit Agreement to
delete a certain mandatory prepayment; 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, Section 2.3(b)
of the Credit Agreement is hereby amended, effective as of the date hereof, to
delete subsection (v) in its entirety and replace it with the following:
(v) Intentionally deleted.
3. Conditions. This Amendment Agreement shall become effective upon the
Borrower delivering to the Administrative Agent ten (10) counterparts of this
Amendment
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Agreement duly executed by the Administrative Agent, the Lenders, the Borrower
and the Subsidiary Guarantors.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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,
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.
9. 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.
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10. Consent of the Subsidiary Guarantors. Each Subsidiary Guarantor
hereby consent, 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.
[Signatures on following page]
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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
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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:
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REGIONS BANK
By: /s/
----------------------------------------
Name:
Title:
NATIONAL CITY BANK OF KENTUCKY
By: /s/
----------------------------------------
Name:
Title:
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