Exhibit 10.2


 


EXECUTION VERSION


 


AMENDMENT NO. 1 TO CREDIT AGREEMENT


 


This
Amendment No. 1 dated as of August 15, 2008 to the Credit Agreement (this “Amendment
No. 1”), 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 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 agree
to amend the Credit Agreement in certain respects as set forth herein and the
Lenders 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. Amendment to Credit Agreement


 


Amendment to Section 7.11 of the Credit Agreement. Section 7.11 of the Credit Agreement is
hereby amended and restated as follows:


 


“7.11 Sales and Leasebacks. Enter into any arrangement with any
Person providing for the leasing by any Covenant Party of any property or
containing an obligation of such Covenant Party to repurchase such property
from such Person, which property (including for the avoidance of doubt real
property) has been or is to be sold or transferred by such Covenant Party to
such Person (or any Affiliate thereof) or to any other Person (or any Affiliate
thereof) to whom funds have been or are to be advanced by such Person (or any
Affiliate thereof) on the security of such property or rental obligations of
such Covenant Party (any such transaction a “Sale Leaseback Transaction”)
except any Sale Leaseback Transaction (a) in respect of property consisting of
capital assets so sold pursuant to such Sale Leaseback Transaction solely for
cash consideration in an amount not less than the cost thereof within 180 days
after the date that such property was initially acquired by such Covenant
Party, (b) in respect of any equipment so sold pursuant to such Sale Leaseback
Transaction for market value and in the ordinary course of business and, in
each case, in respect of which the Borrower shall comply with Section 2.
11(c) or (c) in respect of real property owned by a Covenant Party on the
Closing Date for fair market value, in respect of which such real property has
actually been sold or transferred by such Covenant Party pursuant to such Sale
Leaseback Transaction (and the Net Proceeds of such sale or transfer received
by such


 

















 


Covenant
Party) to any other Person and such Person (or any of its affiliates) has
leased such real property to a Covenant Party on or prior to December 31, 2008
and, in each case, in respect of which the Borrower shall comply with Section
2.1 1(c).”


 


Section 2. Conditions Precedent to the
Effectiveness of this Amendment No. 1


 


This
Amendment shall become effective as of the date hereof (the “Amendment No. 1
Effective Date”) when, and only when, the following condition precedent
shall have been (or is or will be substantially concurrently therewith) satisfied
or waived by the Administrative Agent: The Administrative Agent shall have
received counterparts of this Amendment No. 1, duly executed by (1) the
Borrower, (2) each Guarantor, (3) the Administrative Agent and (4) the Required
Lenders.


 


Section 3. Representations and Warranties


 


On
and as of the Amendment No. 1 Effective Date, after giving effect to this
Amendment No. 1, the Borrower hereby represents and warrants to the
Administrative Agent and each Lender as follows:


 


(a) this 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 Amendment No. 1, constitutes the
legal, valid and binding obligation of the Borrower enforceable against the
Borrower in accordance with its terms;


 


(b) No Default or Event of Default under the Credit Agreement exists or
is continuing or would exist immediately after giving effect to this Amendment
No. 1.


 


(c) 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.


 


(d) The representations and warranties 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).


 


Section 4. Reference to and Effect on the
Loan Documents


 


(a)
As of the Amendment No. 1 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. 1 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. 1 as of the
Amendment No. 1 Effective Date.


 


(b)
As of the Amendment No. 1 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.


 


2

















 


(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. 1 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. 1 shall constitute a Loan Document under the terms of the
Credit Agreement.


 


Section 5. Acknowledgement of Guarantors


 


The
Guarantors acknowledge and consent to all terms and conditions of this
Amendment No. 1 and agree that this Amendment No. 1 and all documents executed
in connection herewith do not operate to reduce or discharge the Guarantors’
obligations under the Loan Documents.


 


Section 6. 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. 1 (including, without limitation,
the reasonable fees and out-of-pocket expenses of counsel for the
Administrative Agent with respect thereto).


 


Section 7. Execution in Counterparts


 


This
Amendment No. 1 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. 1.


 


Section 8. Lender Signatures


 


Each
Lender that signs a signature page to this Amendment No.1 shall be deemed to
have approved this Amendment No.1 and shall be further deemed for the purposes
of the Loan Documents to have approved this Amendment No.1. 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 9. Governing Law


 


THIS AMENDMENT NO. 1 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.


 


3

















 


Section 10. Section Titles


 


The
section titles contained in this Amendment No. 1 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 11. Notices


 


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


 


Section 12. Severability


 


The
fact that any term or provision of this Amendment No. 1 is held invalid,
illegal or unenforceable as to any person in any situation in any jurisdiction
shall not affect the validity, enforce-ability 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 13. Successors


 


The
terms of this Amendment No. 1 shall be binding upon, and shall inure to the
benefit of, the Lenders, the parties hereto and their respective successors and
assigns.


 


Section 14. 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. 1 OR ANY OTHER LOAN DOCUMENT.


 


[Signature pages follow.]


 


4

















 


IN WITNESS WHEREOF, the parties hereto have
caused this Amendment No. 1 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: 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  RADIATION THERAPY
  SERVICES, INC., as Borrowers

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David Watson

  
	
   

  	
   

  	
  Name:  David Watson

  
	
   

  	
   

  	
  Title:  Executive
  Vice President and Chief Financial Officer

  



 


[RTS - Amendment]


 

















 


21ST CENTURY ONCOLOGY
MANAGEMENT SERVICES, INC.


21ST CENTURY ONCOLOGY OF
ALABAMA, INC.


21ST CENTURY ONCOLOGY 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, INC.


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, INC.


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, INC.


RADIATION THERAPY SERVICES
INTERNATIONAL, INC.


WEST VIRGINIA RADIATION
THERAPY SERVICES, INC. as Subsidiary Guarantors


 


 


	
  By:

  	
  /s/ Authorized Signatory

  	
   

  
	
   

  	
  Name: 

  	
   

  
	
   

  	
  Title:

  	
   

  



 


[RTS - Amendment]


 














 


	
   

  	
  WACHOVIA BANK, NATIONAL
  ASSOCIATION, as Administrative Agent

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert C. Rechkemmer

  
	
   

  	
   

  	
  Name: Robert C. Rechkemmer

  
	
   

  	
   

  	
  Title:   Vice
  President

  



 


[RTS - Amendment]


 

















 


	
   

  	
  WACHOVIA
  BANK, N.A., as Lender

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Robert C. Rechkemmer

  
	
   

  	
   

  	
  Name: Robert C. Rechkemmer

  
	
   

  	
   

  	
  Title:   Vice
  President

  



 


[RTS - Amendment]


 

















 


	
   

  	
  BNP
  PARIBAS, as Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Cecile Scherea

  
	
   

  	
   

  	
  Name: Cecile Scherea

  
	
   

  	
   

  	
  Title:   Director
  Merchant Banking Group

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kandice Gu

  
	
   

  	
   

  	
  Name: Kandice Gu

  
	
   

  	
   

  	
  Title:   Vice
  President

  



 


[RTS - Amendment]


 

















 


	
   

  	
  Carolina
  First Bank, as Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Alan T. Ennis

  
	
   

  	
   

  	
  Name: Alan T. Ennis

  
	
   

  	
   

  	
  Title:   Senior
  Vice President

  



 


[RTS - Amendment]


 

















 


	
   

  	
  Citibank
  N.A., as Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott Miller

  
	
   

  	
   

  	
  Name: Scott Miller

  
	
   

  	
   

  	
  Title:   Vice
  President

  



 


[RTS - Amendment]


 

















 


	
   

  	
  Denali Capital LLC,
  managing member of DC Funding Partners LLC, portfolio manager for DENALI
  CAPITAL CLO V, LTD., or an affiliate

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicole D. Kouba

  
	
   

  	
   

  	
  Name: Nicole D. Kouba

  
	
   

  	
   

  	
  Title:   Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Denali Capital LLC,
  managing member of DC Funding Partners LLC, portfolio manager for DENALI
  CAPITAL CLO VI, LTD., or an affiliate

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicole D. Kouba

  
	
   

  	
   

  	
  Name: Nicole D. Kouba

  
	
   

  	
   

  	
  Title:   Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Denali Capital LLC,
  managing member of DC Funding Partners LLC, portfolio manager for DENALI
  CAPITAL CLO VII, LTD. or an affiliate

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicole D. Kouba

  
	
   

  	
   

  	
  Name: Nicole D. Kouba

  
	
   

  	
   

  	
  Title:   Vice
  President

  



 

















 


	
   

  	
  Denali Capital LLC,
  managing member of DC Funding Partners LLC, portfolio manager for DENALI
  CAPITAL CLO V, LTD., or an affiliate

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicole D. Kouba

  
	
   

  	
   

  	
  Name: Nicole D. Kouba

  
	
   

  	
   

  	
  Title:   Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Denali Capital LLC,
  managing member of DC Funding Partners LLC, portfolio manager for DENALI
  CAPITAL CLO VI, LTD., or an affiliate

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicole D. Kouba

  
	
   

  	
   

  	
  Name: Nicole D. Kouba

  
	
   

  	
   

  	
  Title:   Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Denali Capital LLC,
  managing member of DC Funding Partners LLC, portfolio manager for DENALI
  CAPITAL CLO VII, LTD. or an affiliate

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicole D. Kouba

  
	
   

  	
   

  	
  Name: Nicole D. Kouba

  
	
   

  	
   

  	
  Title:   Vice
  President

  



 

















 


	
   

  	
  Denali Capital LLC,
  managing member of DC Funding Partners LLC, portfolio manager for DENALI
  CAPITAL CLO V, LTD., or an affiliate

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicole D. Kouba

  
	
   

  	
   

  	
  Name: Nicole D. Kouba

  
	
   

  	
   

  	
  Title:   Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Denali Capital LLC,
  managing member of DC Funding Partners LLC, portfolio manager for DENALI
  CAPITAL CLO VI, LTD., or an affiliate

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicole D. Kouba

  
	
   

  	
   

  	
  Name: Nicole D. Kouba

  
	
   

  	
   

  	
  Title:   Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Denali Capital LLC,
  managing member of DC Funding Partners LLC, portfolio manager for DENALI
  CAPITAL CLO VII, LTD. or an affiliate

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Nicole D. Kouba

  
	
   

  	
   

  	
  Name: Nicole D. Kouba

  
	
   

  	
   

  	
  Title:   Vice President

  



 














 


	
   

  	
  Fifth
  Third Bank, as Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John Stringfield

  
	
   

  	
   

  	
  Name: John Stringfield

  
	
   

  	
   

  	
  Title:  Vice
  President

  



 


[RTS - Amendment]


 

















 


	
   

  	
  GENERAL
  ELECTRIC CAPITAL CORPORATION, as Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Adam Willis

  
	
   

  	
   

  	
  Name: Adam Willis

  
	
   

  	
   

  	
  Title:   Duly Authorized
  Signatory

  



 


[RTS - Amendment]


 

















 


	
   

  	
  Grand
  Central Asset Trust, LBAM Series, as Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bernard Marasa

  
	
   

  	
   

  	
  Name: Bernard Marasa

  
	
   

  	
   

  	
  Title:   AS
  ATTORNEY-IN-FACT

  



 


[RTS - Amendment]


 

















 


	
   

  	
  Union
  Bank of California, N.A., as Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard A. Lopatt

  
	
   

  	
   

  	
  Name: Richard A. Lopatt

  
	
   

  	
   

  	
  Title:   Vice
  President

  



 


[RTS - Amendment]


 

















 


	
   

  	
  WELLS
  FARGO FOOTHILL, LLC, as Lender

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Ronald Reese

  
	
   

  	
   

  	
  Name: Ronald Reese

  
	
   

  	
   

  	
  Title:   Vice
  President

  



 


[RTS - Amendment]