Exhibit 10.6


 


WAIVER
AND AMENDMENT NO. 3 TO CREDIT AGREEMENT


 


This Waiver and Amendment No. 3
dated as of May 3, 2010 to the Credit Agreement (this “Amendment No. 3”),
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” together with Parent, the “Guarantors”),
the Lenders signatory hereto and Wells Fargo Bank, N.A. (as successor to
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.


 


WITNESSETH:


 


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; and


 


WHEREAS, the Borrower has
requested that the Administrative Agent and Lenders party hereto agree to waive
the Events of Default (the “Designated Events of Default”) that have
arisen due to the Borrower’s failure to comply with Sections 6.1 and 6.2
of the Credit Agreement solely as a result of the fact that the Borrower did
not provide certified quarterly and annual financial statements of the Borrower
to Administrative Agent and Lenders, but rather provided certified quarterly
and annual financial statements of Parent to Administrative Agent and Lenders.


 


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. Amendment to Credit
Agreement


 


Sections 6.1 and 6.2(a),
(b), (c) and (e) of the Credit Agreement shall be amended
by replacing all references of “the Borrower” to “Parent”.


 


Section 2. Waiver of Designated Events
of Default


 


The Administrative Agents
and Lenders party hereto hereby waive enforcement of their rights and remedies
against the Borrower arising from the Designated Events of Default; provided,
however, nothing herein shall be deemed a waiver with respect to any
other future failure of Borrower to comply fully with any provision of the
Credit Agreement or any other provision of any Loan Document. This waiver shall
be effective only for the specific defaults comprising the Designated Events of
Default, and in no event shall this waiver be deemed to be a


 

















 


waiver of enforcement of any
of the Administrative Agent’s or Lenders’ rights or remedies with respect to
any other Defaults or Events of Default now existing or hereafter arising.
Nothing contained in this Amendment No. 3 nor any communications between
Borrower and Administrative Agent or any Lender shall be a waiver of any rights
or remedies that Administrative Agent or any Lender has or may have against
Borrower, except as specifically provided herein. Except as specifically
provided herein, Administrative Agent and each Lender hereby reserves and
preserves all of its rights and remedies against Borrower under the Credit
Agreement and the other Loan Documents.


 


Section 3. Conditions Precedent to the
Effectiveness of this Amendment No. 3


 


This Amendment No. 3
shall become effective as of the date (the “Amendment No. 3 Effective
Date”) when, and only when, the following conditions precedent have been
satisfied:


 


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


 


(b) Except
for the Designated Events of Default, no other Default or Event of De fault
exists and is continuing or would exist immediately after giving effect to this
Amendment No. 3.


 


(c) As
of the Amendment No. 3 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 be true as of such earlier
date) and (y) set forth in Section 4 below are true and
correct in all material respects.


 


Section 4. Representations and
Warranties


 


On and as of the Amendment No. 3
Effective Date, after giving effect to this Amendment No. 3, the Borrower
hereby represents and warrants to the Administrative Agent and each Lender as
follows:


 


(a) this
Amendment No. 3 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. 3, 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. 3; and


 


(c) No
Default or Event of Default has occurred and is continuing under Section 7A
of the Credit Agreement; Parent owns no assets other than the Capital Stock
of Borrower.


 


2

















 


Section 5. Reference to and Effect on
the Loan Documents


 


(a) As of the Amendment
No. 3 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. 3 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. 3 as of the Amendment No. 3
Effective Date.


 


(b) As of the Amendment
No. 3 Effective 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 Amendment No. 3 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. 3
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. 3 and agree
that this Amendment No. 3 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. 3 (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. 3
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. 3.


 


3

















 


Section 9. Lender Signatures


 


Each Lender that signs a
signature page to this Amendment No. 3 shall be deemed to have
approved this Amendment No. 3 and shall be further deemed for the purposes
of the Loan Documents to have approved this Amendment No. 3. 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. 3 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 Amendment No. 3 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. 3 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. 3
shall be binding upon, and shall inure to the benefit of, the Lenders, the
parties hereto and their respective successors and assigns.


 


4

















 


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. 3 OR ANY OTHER LOAN DOCUMENT.


 


[Signature
pages follow.]


 


5














 


IN WITNESS
WHEREOF, the parties hereto have caused this Amendment No. 3
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/ 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

  



 


[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.

  
	
   

  	
  PHOENIX MANAGEMENT
  COMPANY, LLC as Subsidiary Guarantors

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeffrey A. Pakrosnis

  
	
   

  	
   

  	
  Name: JEFFREY A. PAKROSNIS

  
	
   

  	
   

  	
  Title: TREASURER

  



 


[RTS - Amendment]


 

















 


	
   

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

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kent S. Davis

  
	
   

  	
   

  	
  Name: Kent S. Davis

  
	
   

  	
   

  	
  Title: Managing Director

  



 


[RTS - Amendment]


 

















 


	
   

  	
  BARCLAYS BANK PLC, as a
  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Diane Rolfe

  
	
   

  	
   

  	
  Name: Diane Rolfe

  
	
   

  	
   

  	
  Title: Director

  



 


[RTS - Amendment]


 

















 


	
   

  	
  [Citibank,
  N.A.], as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anthony V. Pantina

  
	
   

  	
   

  	
  Name: Anthony V. Pantina

  
	
   

  	
   

  	
  Title: Vice President and
  Director

  



 


[RTS - Amendment]


 

















 


	
   

  	
  GENERAL
  ELECTRIC CAPITAL CORPORATION, as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Dionne Miller

  
	
   

  	
   

  	
  Name: Dionne Miller

  
	
   

  	
   

  	
  Title: Duly Authorized
  Signatory

  



 


[RTS - Amendment]