Exhibit 10.5


 


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”), Bank of
America, N.A., 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:


 

















 


(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


 

















 


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.


 

















 


(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.


 

















 


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.]


 

















 


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

  



 

















 


	
   

  	
  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]


 

















 


	
   

  	
  BANK OF AMERICA, N.A.,

  
	
   

  	
  as Incremental Revolving
  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert Klawineki

  
	
   

  	
   

  	
  Name:

  	
   Robert Klawineki

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  



 


[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

  



 


[RTS - Amendment]