Exhibit 10.4


 


Execution Version


 


INCREMENTAL AMENDMENT


 


This amendment (this “Incremental
Amendment”), dated as of April 22, 2010 is entered into among
Radiation Therapy Services, Inc., (as successor to RTS Merger Co., Inc.),
a Florida 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” and, together with Parent, the “Guarantors”), Barclays
Bank PLC, as Incremental Revolving Lender (the “Incremental Revolving Lender”)
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 2.23
of the Credit Agreement provides that Borrower may from time to time request
Credit Increases in an aggregate amount not to exceed $75,000,000.00, subject
to the terms and conditions set forth therein;


 


WHEREAS, the Incremental
Revolving Lender has agreed, subject to the terms and conditions set forth
herein and in the Credit Agreement, to provide a Revolving Commitment Increase
in the aggregate principal amount of $7,500,000, (the “Incremental Revolving
Commitment”) the proceeds of which will be used pursuant to Section 6.12
of the Credit Agreement; and


 


WHEREAS, pursuant to Section 2.23
of the Credit Agreement, Borrower and the Administrative Agent may enter into
an Incremental Amendment without the consent of any other Lenders to effect
such amendments to the Credit 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 Section 2.23 of the Credit
Agreement.


 


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.      Incremental Amendment


 


(a)            This
Incremental Amendment is an Incremental Amendment referred to in Section 2.23
of the Credit Agreement, and Borrower, the Administrative Agent and the
Incremental Revolving Lender hereby agree that on the Incremental Closing Date
(as defined below), the Incremental Revolving Commitment shall become effective
and the Revolving Commitments shall be deemed increased by the amount of the
Incremental Revolving Commitment (such increase, the “Incremental Revolving
Commitment Increase”).


 

















 


Section 2.      Covenants


 


(a)      To the extent such items
have not been delivered as of the Incremental Closing Date, within sixty (60)
days after the Incremental Closing Date, unless extended by the Collateral
Agent in its sole discretion, the Borrower shall deliver or cause to be
delivered to the Collateral Agent, with respect to each Mortgaged Property
identified on Schedule 1 hereto, the following:


 


(i)              with respect to
each Mortgage encumbering Mortgaged Property, an amendment (each a “Mortgage Amendment”) duly executed and
acknowledged by the applicable Loan Party, and in form for recording in the
recording office where each such Mortgage was recorded, together with such
certificates, affidavits, questionnaires or returns as shall be required in
connection with the recording or filing thereof under applicable law, in each
case in form and substance reasonably satisfactory to the Collateral Agent;


 


(ii)             with respect to
each Mortgage Amendment, an endorsement to the existing Title Policy assuring
the Collateral Agent that the Mortgage, as amended by the Mortgage Amendment,
is a valid and enforceable first priority lien on such Mortgaged Property in
favor of the Collateral Agent for the benefit of the Secured Parties free and
clear of all Liens except those Liens created or permitted by the Mortgage or
by the Collateral Agent, and such Mortgage Policy shall otherwise be in form
and substance reasonably satisfactory to the Collateral Agent;


 


(iii)            with respect to
each Mortgage Amendment, written confirmation in form and substance reasonably
acceptable to the Collateral Agent from local counsel in each jurisdiction in
which any Mortgaged Property is located that the applicable Mortgage Amendment
is in proper form for recording and otherwise satisfactory under applicable law
for the continued validity, perfection and priority of the Liens granted to the
Collateral Agent under the Mortgages encumbering such Mortgaged Property for
the benefit if the Secured Parties as security for the Secured Obligations, as
amended pursuant to this Incremental Amendment;


 


(iv)            with respect to
each Mortgaged Property, such affidavits, certificates, information and
instruments of indemnification as shall be required to induce the title
insurance company to issue the endorsement to Title Policy contemplated in
subparagraph (ii) of this Section 2; and


 


(v)             evidence
acceptable to the Collateral Agent of payment by the appropriate Loan Party of
all applicable title insurance premiums, search and examination charges and
related charges, mortgage recording taxes, fees, charges, costs and expenses required
for the recording of the Mortgage Amendments and issuance of the endorsements
to Title Policies referred to in sub-paragraph (ii) of this Section 2.


 


(b)      To the extent such items
have not been delivered as of the Incremental Closing Date, within five (5) Business
Days after the Incremental Closing Date, unless extended by the Collateral
Agent in its sole discretion, the Borrower shall deliver or cause to be
delivered to the Collateral Agent such lien searches with respect to the Loan
Parties as it shall have reasonably requested.


 


Section 3.      Conditions Precedent to the Effectiveness of this
Incremental Amendment


 


This Incremental Amendment
shall become effective as of the date (the “Incremental Closing Date”)
when, and only when, the following conditions precedent have been satisfied:


 


2

















 


(a)            Administrative
Agent shall have received counterparts of this Incremental Amendment duly
executed by (1) the Borrower, (2) each Guarantor, (3) the
Administrative Agent and (4) the Incremental Revolving Lender.


 


(b)            As of the
Incremental Closing Date, the representations and warranties (x) set forth
in Section 4 of the Credit Agreement are true and correct in all material
respects to the extent such representation and warranty is not already subject
to a “materiality” or “Material Adverse Effect” qualifier as of the date hereof
(except for those which expressly relate to an earlier date, in which case they
shall be true and correct in material respects as of such earlier date) and (y) set
forth in Section 4 below are true and correct in all material respects.


 


(c)            The statements
in clauses (i) and (ii) of the first proviso to Section 2.23 of
the Credit Agreement shall be true and correct with respect to the Incremental
Revolving Commitment Increase and the Borrower shall have provided a
certificate of a Responsible Officer to such effect.


 


(d)            The
Administrative Agent shall have received such lien searches with respect to the
Loan Parties as it shall have reasonably requested.


 


(e)            (i) The
Administrative Agent shall have received, for the account of the Incremental
Revolving Lender, such fees as the Borrower shall separately have agreed to pay
to the Incremental Revolving Lender in respect of its Incremental Revolving
Commitment and (ii) the costs and expenses in Section 7 shall have
been paid.


 


(f)             The
Administrative Agent shall have received a completed “Life-of-Loan” Federal
Emergency Management Agency Standard Flood Hazard Determination with respect to
each Mortgaged Property (together with a notice about special flood hazard area
status and flood disaster assistance duly executed by the Borrower and each
Loan Party relating thereto).


 


(g)            The
Administrative Agent shall have received a copy of, or a certificate as to
coverage under, the insurance policies required by Section 6.5(b) including,
without limitation, flood insurance policies) 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, in form and substance satisfactory
to the Administrative Agent.


 


(h)            The Administrative
Agent shall have received the executed legal opinion of Kirk-land &
Ellis LLP, counsel to the Borrower and the Guarantors, in form and substance
reasonably satisfactory to the Administrative Agent.


 


(i)             Borrower shall
have prepaid all Revolving Loans (if any) outstanding on the Incremental
Closing Date in accordance with the terms of the Credit Agreement (it being
understood and agreed that 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 the
Revolving Commitment Increase and the Revolving Commitment Increase
contemplated by the Other Incremental Amendment (as defined below)).


 


(j)             The
Administrative Agent shall be satisfied that, substantially simultaneously with
the effectiveness hereof, a financial institution or group of financial
institutions reasonably satisfactory to the Administrative Agent, the Borrower,
the Guarantors and the Administrative


 


3

















 


Agent shall separately have
entered into an Incremental Amendment substantially in the form hereof (the “Other
Incremental Agreement”) pursuant to which it will have agreed to provide a
Revolving Commitment Increase in an amount equal to at least $7,500,000.


 


(k)            The
Administrative Agent shall be satisfied that, on and as of the Incremental
Closing Date, the Revolving Commitments shall have increased by $15,000,000
pursuant to this Incremental Amendment and the Other Incremental Amendment.


 


Section 4.      Representations and Warranties


 


On
and as of the Incremental Closing Date, after giving effect to this Incremental
Amendment, the Borrower hereby represents and warrants to the Administrative
Agent and the Incremental Revolving Lender as follows:


 


(a)            this
Incremental Amendment 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 Incremental Amendment, 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 Incremental Amendment;


 


(c)            this
Incremental Amendment and the transactions contemplated hereby do not violate,
conflict with or breach any term or provision of any Loan Document or
Requirement of Law; and


 


(d)            the Borrower
has no Wholly-Owned Subsidiaries other than (x) the entities identified as
“Subsidiary Guarantors” on the signature page hereto; (y) Immaterial
Subsidiaries and (z) Foreign Subsidiaries.


 


Section 5.      Reference to and Effect on the Loan Documents


 


(a)      As of the Incremental
Closing 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 Incremental
Amendment 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 Incremental Amendment as of the Incremental Closing Date.


 


(b)      As of the Incremental
Closing Date, Borrower hereby acknowledges that it has received and reviewed a
copy of the Credit Agreement and acknowledges and agrees to be bound 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.


 


4

















 


(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 Incremental Amendment 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 Incremental Amendment
shall constitute a Loan Document under the terms of the Credit Agreement.


 


Section 6.      Acknowledgement and Reaffirmation of Guarantors


 


The Guarantors acknowledge
and consent to all terms and conditions of this Incremental Amendment and agree
that this Incremental Amendment and all documents executed in connection herewith
do not operate to reduce or discharge the Guarantors’ obligations under the
Loan Documents. Each Guarantor hereby ratifies and confirms its obligations
under the Guaranty and Collateral Agreement, including, without limitation, its
guarantee of the Obligations, its pledge of the Pledged Stock and its grant of
the Security Interest (as defined in the Guaranty and Collateral Agreement).


 


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
Incremental Amendment (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 Incremental Amendment
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
or PDF shall be effective as delivery of a manually executed counterpart of
this Incremental Amendment.


 


Section 9.      Lender Signatures


 


The Incremental Revolving
Lender shall be deemed to have approved this Incremental Amendment and shall be
further deemed for the purposes of the Loan Documents to have approved this
Incremental Amendment.


 


Section 10.    Governing Law


 


THIS
INCREMENTAL AMENDMENT SHALL BE GOVERNED BY 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.


 


5

















 


Section 11.    Section Titles


 


The section titles contained
in this Incremental Amendment 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, subclause 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 Incremental Amendment 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
Incremental Amendment 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 INCREMENTAL AMENDMENT OR ANY OTHER LOAN DOCUMENT.


 


[Signature
pages follow.]


 


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IN WITNESS
WHEREOF, the parties hereto have caused this Incremental
Amendment 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/ Erin L. Russell

  
	
   

  	
   

  	
  Name:

  	
  Erin L. Russell

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RADIATION THERAPY
  SERVICES, INC.,

  as Borrower

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey A. Pakrosnis

  
	
   

  	
   

  	
  Name:

  	
  Jeffrey A. Pakrosnis

  
	
   

  	
   

  	
  Title:

  	
  Treasurer

  



 














 


	
   

  	
  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

  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/ Jeffrey A. Pakrosnis

  
	
   

  	
   

  	
  Name:

  	
  Jeffrey A. Pakrosnis

  
	
   

  	
   

  	
  Title:

  	
  Treasurer

  



 

















 


	
   

  	
  PHOENIX MANAGEMENT COMPANY,
  LLC

  as Subsidiary Guarantor

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey A. Pakrosnis

  
	
   

  	
   

  	
  Name:

  	
  Jeffrey A. Pakrosnis

  
	
   

  	
   

  	
  Title:

  	
  Treasurer

  
					



 

















 


	
   

  	
  BARCLAYS BANK PLC,

  as Incremental Revolving Lender

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Diane Rolfe

  
	
   

  	
   

  	
  Name:

  	
  Diane Rolfe

  
	
   

  	
   

  	
  Title:

  	
  Director

  
					



 


[RTS — Amendment]


 

















 


	
   

  	
  WELLS FARGO BANK, N.A.
  (formerly known as WACHOVIA BANK, NATIONAL ASSOCIATION),

  as Administrative Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kent S. Davis

  
	
   

  	
   

  	
  Name:

  	
  Kent S. Davis

  
	
   

  	
   

  	
  Title:

  	
  Managing Director

  
					



 


[RTS — Amendment]


 

















 


SCHEDULE
1


 


	
  County/State

  	
   

  	
  Address

  	
   

  	
  Mortgagor

  	
   

  	
  Filing Date

  	
   

  	
  Filing Information

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Westchester County, New
  York

  	
   

  	
  970 North Broadway-Units
  101, 102, 103 & C16 of the Riverhill Professional Pavilion, Yonkers,
  New York

  	
   

  	
  New York Radiation Therapy
  Management Services, Incorporated

  	
   

  	
  1/21/2009

  	
   

  	
  490130469

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Clark County, Nevada

  	
   

  	
  1176 Vegas Valley Drive,
  Las Vegas, Clark County, Nevada

  	
   

  	
  Nevada Radiation Therapy
  Management Services, Incorporated

  	
   

  	
  12/30/2008

  	
   

  	
  20081230-0003528

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Collier County, Florida

  	
   

  	
  820 Goodlette Road North,
  Naples, Collier County, Florida (Ground Lease)

  	
   

  	
  21st Century
  Oncology, Inc.

  	
   

  	
  01/05/2009

  	
   

  	
  4247530

   

  OR 4417, Page 4455

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Broward County, Florida

  	
   

  	
  266 West Hillsboro
  Boulevard, Deerfield Beach, Broward County, Florida

  	
   

  	
  21st Century
  Oncology, Inc.

  	
   

  	
  12/31/2008

  	
   

  	
  10832596

   

  OR BK 45893,
  Pages 1192-1228