Exhibit 10.3


 


AMENDMENT NO. 2 TO CREDIT AGREEMENT


 


This
Amendment No. 2 dated as of April 1, 2010 to the Credit Agreement
(this “Amendment No. 2”), is entered into among Radiation Therapy
Services, Inc., (as successor to RTS Merger Co., Inc.), a Delaware corporation
(“Borrower”), Radiation Therapy Services Holdings, Inc., a Delaware
Corporation (“Parent”) the Subsidiaries of the Borrower identified as “Guarantors”
on the signature pages hereto (the “Subsidiary Guarantors” together
with Parent, the “Guarantors”), the Lenders signatory hereto and Wells
Fargo Bank, N.A. (formerly known as Wachovia Bank, National Association), in
its capacity as administrative agent for the Lenders (in such capacity, the “Administrative
Agent”) and amends the Credit Agreement dated as of February 21, 2008
(as amended, supplemented or otherwise modified from time to time, the “Credit
Agreement”) entered into among the Borrower, the institutions from time to
time party thereto as Lenders (the “Lenders”), the Administrative Agent
and the other agents and arrangers named therein. Capitalized terms used herein
and not otherwise defined herein shall have the meanings ascribed to them in
the Credit Agreement.


 


W I T N E S S E T H:


 


WHEREAS,
Section 10.1 of the Credit Agreement provides that the Credit Agreement
may be amended, modified and waived from time to time;


 


WHEREAS,
the Borrower has requested that the Administrative Agent and the Lenders party
hereto agree to amend the Credit Agreement in certain respects as set forth
herein and the Lenders party hereto and the Administrative Agent are agreeable
to the same, subject to the terms and conditions set forth herein;


 


NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration (the receipt and sufficiency of which are hereby acknowledged),
the parties hereto hereby agree as follows:


 


Section 1. Amendments to Credit
Agreement


 


(a)         Section 1.1
of the Credit Agreement shall be amended by adding the following defined terms:


 


“Acquisition
A” means the acquisition by Borrower or a Subsidiary Guarantor of a Person(s) previously
disclosed by the Borrower to the Administrative Agent.


 


“Acquisition
B” means the acquisition by Borrower or a Subsidiary Guarantor of a Person(s) previously
disclosed by the Borrower to the Administrative Agent.


 


“Amendment No. 2 to the Credit Agreement”
means that certain Amendment No. 2 to this Agreement dated as of April 1,
2010 entered into among Borrower, Parent, the Subsidiary Guarantors, the
Lenders signatory thereto and the Administrative Agent.


 


“Deadline” shall mean September 30, 2010; provided
that such date shall automatically be extended to the extent that (x) a
definitive agreement for an Identified Acquisition has been entered into and
not been terminated, (y) a condition to the consummation of such
Identified Acquisition as set forth in such agreement is the receipt of
regulatory approvals and (z) the sole reason such Identified Acquisition
has not been consummated is that such regulatory approvals have not been
obtained; provided that in no event shall such date be extended to a
date that is later than the


 

















 


earlier
of (I) twenty (20) days following receipt of such regulatory approvals and
(II) December 31, 2010.


 


“Fixed Charge Coverage Ratio” shall mean, for
any period, the ratio of (a) Consolidated EBITDA of the Borrower and its
Subsidiaries for such period to (b) the sum of (x) Consolidated
Interest Expense (determined in the same manner as if the Interest Coverage
Ratio is being calculated) of the Borrower and its Subsidiaries, (y) Capital
Expenditures, other than Excluded Capital Expenditures, of the Borrower and its
Subsidiaries and (z) income tax 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 (and, without duplication, Permitted Tax
Distributions) paid in cash by the Borrower and its Subsidiaries, in each case
for such period.


 


“Identified Acquisitions” means Acquisition A
and Acquisition B, and “Identified Acquisition” shall mean either
Acquisition A or Acquisition B.


 


“Medical Developers” means Medical Developers,
LLC.


 


“Required Prepayment Amount” means, with
respect to the gross proceeds of an Applicable Incurrence, the difference
between (A) the sum of (x) $35,000,000 plus (y) to the extent
such gross proceeds exceed $270,000,000, such excess and (B) any
underwriting or initial purchasers’ discounts paid by Borrower in respect of
the sum of gross proceeds referred to in immediately preceding clause (A).


 


“Seller Paper” shall mean Indebtedness of a
Person of which Parent is a Subsidiary, Parent, Borrower, a Subsidiary
Guarantor, or, if reasonably acceptable to the Administrative Agent, any other
Subsidiary, that in each case matures at least six months after the Tranche B
Maturity Date, is subordinated in right of payment to the Obligations on terms
reasonably satisfactory to the Administrative Agent and requires no payments
prior to its maturity other than payments made in kind in additional amounts of
such Indebtedness.


 


“Senior Leverage Ratio” shall mean, as at the
last day of any fiscal quarter, the ratio of (x) Consolidated Total Debt
(other than Consolidated Total Debt that is subordinated in right of payment to
the Obligations) of the Borrower and its Subsidiaries on such day to (y) Consolidated
EBITDA for the four consecutive fiscal quarters of the Borrower and its
Subsidiaries ending on such day; provided that for the purposes of this
definition of Senior Leverage Ratio, the amount of cash and Cash Equivalents
referred to in clause (b) of the definition of Consolidated Total Debt
shall always be deemed to be zero.


 


“Theriac Land Partnerships” means those
partnerships holding real estate properties owned by certain of the Borrower’s
directors and officers and which are leased to the Borrower or one of its
Subsidiaries, as in effect on the Amendment No. 2 Effective Date.


 


(b)         The
following sentence shall be added to end of the first paragraph of the
definition of Consolidated EBITDA: “Notwithstanding the foregoing, in no event
shall the percentage of Consolidated EBITDA of the Borrower and its
Subsidiaries which is derived from Medical Developers and its Subsidiaries for
any period exceed 15%, except to the extent any such Consolidated EBITDA so derived
is actually distributed in cash to the Borrower or a Subsidiary Guarantor in
such period, such Consolidated EBITDA shall not be included in the calculation
of such 15% limitation.”


 


2

















 


(c)         The
following clause (e) shall be added to the end of Section 1.2 of the
Credit Agreement:


 


“(e)       So
long as the financing structure of the Theriac Land Partnerships has not
changed since the Amendment No. 2 Effective Date and none of Borrower or
any Subsidiary shall become liable, on behalf of the owner or otherwise in
connection with the properties held by the Theriac Land Partnerships (the “Theriac
Properties”), for any Indebtedness or other obligation, in each case, owed
by the owner of or secured by the Theriac Properties or shall have any
ownership interest in the Theriac Land Partnerships, solely for the purposes of
Section 7.1, notwithstanding the accounting treatment of the Theriac Land
Partnerships under GAAP, the Borrower and its Subsidiaries shall be deemed to
have been the subject of a Sale-Leaseback Transaction and (x) to the
extent that, under GAAP, interest expense attributable to the Indebtedness of
the Theriac Land Partnership is attributable to Borrower or any Subsidiary,
such interest expense shall be deemed to be rental expense of Borrower and its
Subsidiaries, (y) any depreciation expense that is attributable to
Borrower or any Subsidiary of the Theriac Land Partnerships shall be deemed to
be rental expense of Borrower and its Subsidiaries and (z) Indebtedness of
the Theriac Land Partnerships shall not be deemed to be Indebtedness of the
Borrower and its Subsidiaries.”


 


(d)         The
following proviso shall be added at the end of Section 2.11(a) of the
Credit Agreement; provided that the requirement in clause (x) of
this Section 2.11 (a) that the portion of Net Cash Proceeds (an “Applicable
Portion”) of any incurrence of Permitted Additional Subordinated Debt (an “Applicable
Incurrence”) that is to be applied to fund a Permitted Acquisition or an
Investment pursuant to Section 7.8(u) or (w) be so
applied substantially simultaneously with such Applicable Incurrence in order
to avoid triggering a prepayment obligation with respect to the Tranche B Term
Loans shall not apply to any Applicable Portion to fund the Identified
Acquisitions to the extent (A) the Borrower delivers to the Administrative
Agent a certificate of a Responsible Officer on the date of such Applicable
Incurrence stating the amount of such Applicable Portion and that such
Applicable Portion is intended to be used to fund one or both Identified
Acquisitions and/or pay fees and expenses in connection therewith (the “Specified
Uses”) (and such certificate shall be accompanied by copies of any
definitive agreements that may have been entered into in connection therewith),
(B) on the date of the Applicable Incurrence, the Applicable Portion shall
be deposited into an account with the Administrative Agent that is subject to a
control agreement in form and substance reasonably satisfactory to the Administrative
Agent (which control agreement shall specify that the Applicable Portion may
only be invested in cash or Cash Equivalents) that grants to the Secured
Parties a perfected Lien in such Net Cash Proceeds (subject to no Lien other
than that of the Collateral Agent) and which control agreement only allows the
Applicable Portion to be applied to (x) to the extent such Identified
Acquisition(s) are consummated on or before the Deadline, the Specified
Uses and (y) to the extent not used to fund such Identified Acquisitions
and/or fees and expenses in connection therewith on or before the Deadline, the
repayment of the Tranche B Term Loans on the Deadline (or such earlier date as
may be designated by the Borrower) and (C) the Tranche B Term Loans in a
principal amount not less than the Required Prepayment Amount shall be prepaid
on the date of such Applicable Incurrence”.


 


(e)         If
Acquisition B is consummated on or before the Deadline, Section 7.2(g) of
the Credit Agreement shall be replaced in its entirety with the following: “(A) 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


 


3

















 


Indebtedness
in respect of any such Indebtedness), in an aggregate principal amount not to
exceed $12,000,000 plus (B) no more than $40,000,000 in an aggregate
principal amount of Indebtedness of the Person(s) acquired in Acquisition
B existing at the time thereof and not incurred in contemplation thereof;”


 


(f)          The
reference in Section 7.2(m) of the Credit Agreement to “Section 7.1(f)”
shall be changed to “Section 7.2(f)”.


 


(g)         Section 7.8(w) of
the Credit Agreement shall be replaced in its entirety with the following: “Investments
by Covenant Parties (A) in Joint Ventures not exceeding $25,000,000 in the
aggregate at any time outstanding, plus (B) so long as (I) Section 7.15
shall not have been violated as a result thereof and (II) Medical
Developers shall not be an Affiliate of Borrower other than by reason of such
Investments or any previous Investments by Borrower and its Subsidiaries, in
Medical Developers not exceeding $55,000,000 in the aggregate, plus (C) to
the extent the consideration therefor is Permitted Capital Stock, plus (D) in
Medical Developers, to the extent the consideration therefor is Seller Paper;
provided that in the case of clause (B), upon the making of such Investment and
after giving pro forma effect thereto and any Indebtedness incurred in
connection therewith, (I) the Total Leverage Ratio shall not be greater
than 0.25x less than what it is required to be under Section 7.1 as of the
end of the most recently ended fiscal period of Borrower for which financial
statements under Section 6.1 (a) or (b) are required to have
been delivered, (II) the Senior Leverage Ratio as of the end of the most
recently ended fiscal period of Borrower for which financial statements under Section 6.1(a) or
(b) are required to have been delivered shall not be greater than (x) if
Acquisition B shall have been abandoned or if, following the Deadline,
Acquisition B shall not have been consummated, 2.35 to 1.00 and (y) if
otherwise, 2.25 to 1.00, (III) the Fixed Charge Coverage Ratio for the
four quarter period ending on the last day of the most recent period for which
financial statements were required to be delivered under Section 6.1(a) or
(b) shall not be less than 1.35 to 1.00, (IV) 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 and (V) the Borrower shall have provided to the Administrative
Agent such information regarding Medical Developers as may be reasonably
requested by Administrative Agent in order for the Administrative Agent to
perform its “know your customer” and Patriot Act review.


 


Section 2. Conditions Precedent to the
Effectiveness of this Amendment No. 2


 


This
Amendment No. 2 shall become effective as of the date (the “Amendment No. 2
Effective Date”) when, and only when, the following conditions precedent
have been satisfied:


 


(a)         Administrative
Agent shall have received counterparts of this Amendment No. 2, duly
executed by (1) the Borrower, (2) each Guarantor, (3) the
Administrative Agent and (4) the Required Lenders.


 


(b)         No
Default or Event of Default exists and is continuing or would exist immediately
after giving effect to this Amendment No. 2.


 


(c)         As
of the Amendment No. 2 Effective Date, the representations and warranties (x) set
forth in Section 4 of the Credit Agreement are true and correct in all
material respects as of the date hereof (except for those which expressly
relate to an earlier date, in which case they shall


 


4

















 


be
true as of such earlier date) and (y) set forth in Section 3 below
are true and correct in all material respects.


 


(d)         The
fees set forth in Section 4 and the costs and expenses in Section 7
shall in each case have been paid.


 


(e)         The
materials referred to under Section 6.1(a) and 6.2(b)(i) of the
Credit Agreement with respect to the year ended December 31, 2009 shall
have been delivered to the Administrative Agent.


 


Section 3. Representations and
Warranties


 


On
and as of the Amendment No. 2 Effective Date, after giving effect to this
Amendment No. 2, the Borrower hereby represents and warrants to the
Administrative Agent and each Lender as follows:


 


(a)         this
Amendment No. 2 has been duly authorized, executed and delivered by the
Loan Parties and constitutes the legal, valid and binding obligation of the
Loan Parties enforceable against the Loan Parties in accordance with its terms
and the Credit Agreement, as amended by this Amendment No. 2, constitutes
the legal, valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms;


 


(b)         No
consent, approval, authorization or offer of, or filing, registration or
qualification with, any court or governmental authority or third party is
required by the Borrower in connection with the execution, delivery or
performance by such Person of this Amendment No. 2; and


 


(c)         none
of Parent or any of its Subsidiaries holds any Capital Stock, or is liable for
any Indebtedness, of any of the Theriac Land Partnerships.


 


Section 4. Amendment Fee


 


Each
Lender that delivers a signature page to this Amendment No. 2 at or
prior to noon Eastern Daylight Time on April 1, 2010 (the “Response
Time”) shall be paid a cash fee by Borrower in an amount equal to 0.125% of
the aggregate principal amount of such Lender’s Revolving Commitments (whether
used or unused) and outstanding Tranche B Term Loans as of the Response Time.


 


Section 5. Reference to and Effect on
the Loan Documents


 


(a)      As
of the Amendment No. 2 Effective Date, each reference in the Credit
Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of
like import, and each reference in the other Loan Documents to the Credit
Agreement (including, without limitation, by means of words like “thereunder,” “thereof”
and words of like import), shall mean and be a reference to the Credit
Agreement as amended hereby, and this Amendment No. 2 and the Credit
Agreement shall be read together and construed as a single instrument. Each of
the table of contents and lists of Exhibits and Schedules of the Credit
Agreement shall be amended to reflect the changes made in this Amendment No. 2
as of the Amendment No. 2 Effective Date.


 


(b)      As
of the Amendment No. 2 Effective Date, Borrower hereby acknowledges that
it has received and reviewed a copy of the Credit Agreement and acknowledges
and agrees to be bound


 


5

















 


by
all covenants, agreements and acknowledgments in the Credit Agreement and any
other Loan Document and to perform all obligations and duties required of it by
the Credit Agreement.


 


(c)       Except
as expressly amended hereby or specifically waived above, all of the terms and
provisions of the Credit Agreement and all other Loan Documents are and shall
remain in full force and effect and are hereby ratified and confirmed.


 


(d)      The
execution, delivery and effectiveness of this Amendment No. 2 shall not,
except as expressly provided herein, operate as a waiver of any right, power or
remedy of the Lenders, the Borrower or the Administrative Agent under any of
the Loan Documents, nor constitute a waiver or amendment of any other provision
of any of the Loan Documents or for any purpose except as expressly set forth
herein.


 


(e)       This
Amendment No. 2 shall constitute a Loan Document under the terms of the
Credit Agreement.


 


Section 6. Acknowledgement of
Guarantors


 


The
Guarantors acknowledge and consent to all terms and conditions of this
Amendment No. 2 and agree that this Amendment No. 2 and all documents
executed in connection herewith do not operate to reduce or discharge the
Guarantors’ obligations under the Loan Documents.


 


Section 7. Costs and Expenses


 


The
Borrower agrees to pay all reasonable out-of-pocket costs and expenses of the
Administrative Agent in connection with the preparation, reproduction,
execution and delivery of this Amendment No. 2 (including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Administrative Agent with respect thereto).


 


Section 8. Execution in Counterparts


 


This
Amendment No. 2 may be executed in any number of counterparts and by
different parties in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. Signature pages may be detached
from multiple separate counterparts and attached to a single counterpart so
that all signature pages are attached to the same document. Delivery of an
executed counterpart by telecopy shall be effective as delivery of a manually
executed counterpart of this Amendment No. 2.


 


Section 9. Lender Signatures


 


Each
Lender that signs a signature page to this Amendment No. 2 shall be
deemed to have approved this Amendment No. 2 and shall be further deemed
for the purposes of the Loan Documents to have approved this Amendment No. 2.
Each Lender signatory to this Amendment agrees that such Lender shall not be
entitled to receive a copy of any other Lender’s signature page to this
Amendment, but agrees that a copy of such signature page may be delivered
to the Borrower and the Administrative Agent.


 


Section 10. Governing Law


 


THIS AMENDMENT NO. 2 SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO


 


6

















 


PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE
APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WILL BE REQUIRED THEREBY.


 


Section 11. Section Titles


 


The
section titles contained in this Amendment No. 2 are and shall be without
substantive meaning or content of any kind whatsoever and are not a part of the
agreement between the parties hereto, except when used to reference a section.
Any reference to the number of a clause, subclause or subsection of any Loan
Document immediately followed by a reference in parenthesis to the title of the
section of such Loan Document containing such clause, subclause or subsection
is a reference to such clause, sub-clause or subsection and not to the entire
section; provided, however, that,
in case of direct conflict between the reference to the title and the reference
to the number of such section, the reference to the title shall govern absent
manifest error. If any reference to the number of a section (but not to any
clause, subclause or subsection thereof) of any Loan Document is followed
immediately by a reference in parenthesis to the title of a section of any Loan
Document, the title reference shall govern in case of direct conflict absent
manifest error.


 


Section 12. Notices


 


All
communications and notices hereunder shall be given as provided in the Credit
Agreement.


 


Section 13. Severability


 


The
fact that any term or provision of this Amendment No. 2 is held invalid,
illegal or unenforceable as to any person in any situation in any jurisdiction
shall not affect the validity, enforceability or legality of the remaining
terms or provisions hereof or the validity, enforceability or legality of such
offending term or provision in any other situation or jurisdiction or as
applied to any person.


 


Section 14. Successors


 


The
terms of this Amendment No. 2 shall be binding upon, and shall inure to
the benefit of, the Lenders, the parties hereto and their respective successors
and assigns.


 


Section 15. Waiver of Jury Trial


 


EACH
OF THE PARTIES HERETO IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR
PROCEEDING WITH RESPECT TO THIS AMENDMENT NO. 2 OR ANY OTHER LOAN DOCUMENT.


 


[Signature pages follow.]


 


7

















 


IN WITNESS WHEREOF, the
parties hereto have caused this Amendment No. 2 and Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first written above.


 


	
   

  	
  RADIATION
  THERAPY SERVICES HOLDINGS INC., as Parent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Authorized
  Signatory

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RADIATION
  THERAPY SERVICES, INC., as Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Authorized
  Signatory

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


[RTS - Amendment]


 

















 


	
   

  	
  21ST CENTURY ONCOLOGY
  MANAGEMENT SERVICES, INC.

  
	
   

  	
  21ST CENTURY ONCOLOGY OF
  ALABAMA, LLC

  
	
   

  	
  21ST CENTURY ONCOLOGY
  MANAGEMENT SERVICES OF ARIZONA, INC.

  
	
   

  	
  21ST CENTURY ONCOLOGY OF
  HARFORD COUNTY MARYLAND, LLC

  
	
   

  	
  21ST CENTURY ONCOLOGY OF
  JACKSONVILLE, INC.

  
	
   

  	
  21ST CENTURY ONCOLOGY OF
  NEW JERSEY, INC.

  
	
   

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

  
	
   

  	
  21ST CENTURY ONCOLOGY OF
  SOUTH CAROLINA, LLC

  
	
   

  	
  21ST CENTURY ONCOLOGY, LLC

  
	
   

  	
  AMERICAN CONSOLIDATED
  TECHNOLOGIES, L.L.C.

  
	
   

  	
  ARIZONA RADIATION THERAPY
  MANAGEMENT SERVICES, INC.

  
	
   

  	
  BERLIN RADIATION THERAPY
  TREATMENT CENTER, LLC

  
	
   

  	
  CALIFORNIA RADIATION
  THERAPY MANAGEMENT SERVICES. INC.

  
	
   

  	
  DEVOTO CONSTRUCTION OF
  SOUTHWEST FLORIDA, INC.

  
	
   

  	
  FINANCIAL SERVICES OF
  SOUTHWEST FLORIDA, LLC

  
	
   

  	
  JACKSONVILLE RADIATION
  THERAPY SERVICES, INC.

  
	
   

  	
  MARYLAND RADIATION THERAPY
  MANAGEMENT SERVICES. LLC

  
	
   

  	
  MICHIGAN RADIATION THERAPY
  MANAGEMENT SERVICES, INC.

  
	
   

  	
  NEVADA RADIATION THERAPY
  MANAGEMENT SERVICES, INCORPORATED

  
	
   

  	
  NEW YORK RADIATION THERAPY
  MANAGEMENT SERVICES, INCORPORATED

  
	
   

  	
  NORTH CAROLINA RADIATION
  THERAPY MANAGEMENT SERVICES, LLC

  
	
   

  	
  RADIATION THERAPY SERVICES
  INTERNATIONAL, INC.

  
	
   

  	
  WEST VIRGINIA RADIATION
  THERAPY SERVICES, INC.

  
	
   

  	
  JACKSONVILLE RADIATION
  THERAPY SERVICES, INC.

  
	
   

  	
  as Subsidiary Guarantors

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Authorized
  Signatory

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


[RTS - Amendment]


 

















 


	
   

  	
  WELLS
  FARGO BANK, N.A. (formerly known as Wachovia Bank, National Association), as
  Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Kent Davis

  
	
   

  	
   

  	
  Name:
  Kent Davis

  
	
   

  	
   

  	
  Title:
  Managing Director

  



 


[RTS - Amendment]