EXHIBIT 10.8
AMENDMENT NO. 1 TO FOURTH AMENDED AND RESTATED
CREDIT
AGREEMENT, LIMITED WAIVER AND CONSENT
THIS
AMENDMENT NO. 1 TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT,
LIMITED WAIVER AND CONSENT (the “Amendment Agreement”) is made
and entered into this 14th day of November, 2006, among
RADIATION THERAPY SERVICES, INC. , a Florida corporation
(the “Borrower”), each Subsidiary Guarantor party to a
Subsidiary Guaranty pursuant to the terms of the Credit Agreement
(as defined below), BANK OF AMERICA, N.A. , as
Administrative Agent (the “Administrative Agent”), and
the Lenders party hereto. Unless the context otherwise
requires, capitalized terms used but not defined herein have the
meanings ascribed thereto in the Credit Agreement.
W I T N E S S E T H :
WHEREAS,
the Borrower, the Administrative
Agent and the Lenders have entered into that certain Fourth Amended
and Restated Credit Agreement dated as of December 16, 2005 (as
hereby amended and as may be modified, supplemented, amended or
amended and restated from time to time, the “Credit
Agreement”), whereby the Lenders have made available to the
Borrower a term loan B facility and a revolving credit facility
with a letter of credit subfacility and a swing line subfacility;
and
WHEREAS,
the Borrower has notified the
Administrative Agent that it proposes to acquire (through a newly
created wholly-owned Subsidiary, Michigan Radiation Therapy
Management Services, Inc.) Michigan Institute for Radiation
Oncology, Inc.’s (“MIRO”) equity in Phoenix
Management Company, LLC and American Consolidated Technologies, LLC
and the option to acquire certain assets of and/or MIRO’s
equity in Pontiac Investment Associates, LLC for an aggregate
Acquisition Amount of not to exceed $48,800,000 (collectively, the
“MIRO Acquisition”) (which notification is set forth as
Exhibit A hereto), which Acquisition Amount will cause the
aggregate Acquisition Amounts for 2006 to exceed the limitation set
forth in Section 9.9 of the Credit Agreement, and the Borrower has
requested that Section 9.9 of the Credit Agreement be amended to
exclude the MIRO Acquisition from the limitation set forth therein
for fiscal year 2006; and
WHEREAS,
as set forth in Exhibit A, the
Borrower has requested that Section 11.10 of the Credit Agreement
be amended to increase the Capital Expenditures limitation set
forth therein to $50,000,000 for fiscal year 2006;
WHEREAS,
as further set forth in Exhibit A,
the Borrower has requested that the Credit Agreement be amended to
increase the allowance for purchase money indebtedness to
$70,000,000; and
WHEREAS,
the Lenders have previously
indicated to the Administrative Agent that the real property
subject to the Mortgages has been taken as Collateral out of an
“abundance of caution”, within the meaning of Financial
Institutions Reform Recovery and Enforcement Act (FIRREA), to
secure the Obligations under the Credit Agreement; and
WHEREAS,
the Borrower has requested that the
deadline for receipt of certain of the Mortgages and Mortgage
Property Support Documents with respect to the properties listed in
Part 2 of Schedule 9.15 be extended until November 30, 2006 and any
default under the Credit Agreement with respect to such Part 3 be
waived so long as such requirements are satisfied by November 30,
2006 (the “Mortgage Document Delay”);
WHEREAS
, the Administrative Agent and the
Lenders signatory hereto are willing so to effect such waivers of
certain covenants, amendments to certain provisions and certain
consents under the Credit Agreement, in each case as set forth
below pursuant to the terms and conditions contained in this
Agreement;
NOW,
THEREFORE, the Borrower,
the Administrative Agent and the Lenders do hereby agree as
follows:
1.
Credit Agreement . The term “Credit
Agreement” as used herein and in the Credit Documents (as
defined in the Credit Agreement) shall mean the Credit Agreement as
hereby amended and modified.
2.
Amendment . Subject to the conditions set forth
herein, the Credit Agreement is hereby amended as
follows:
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(a) Section
1.2 of the Credit Agreement is hereby amended to add a new
definition of “MIRO Acquisition” and to amend and
restate in its entirety the definition of “Mortgaged Property
Support Documents”, to read as follows:
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“MIRO
Acquisition” means the acquisition by the Borrower (through
its wholly-owned Subsidiary, Michigan Radiation Therapy Management
Services, Inc.) of Michigan Institute for Radiation Oncology,
Inc.’s (“MIRO”) equity in Phoenix Management
Company, LLC and American Consolidated Technologies, LLC and the
option to acquire certain assets of and/or MIRO’s equity in
Pontiac Investment Associates, LLC for an aggregate Acquisition
Amount not to exceed $48,800,000.
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“Mortgaged
Property Support Documents” shall mean, for each Mortgaged
Property, (i) the Title Policy pertaining thereto, (ii) such
surveys, flood hazard certifications and environmental assessments
thereof as the Administrative Agent may require prepared by
recognized experts in their respective fields selected by the
Borrower and reasonably satisfactory to the Administrative Agent,
(iii) as to the Mortgaged Properties located in a flood hazard
area, such flood hazard insurance as the Administrative Agent may
require, (iv) if required by the Administrative Agent, appraisals
conducted by nationally recognized appraisal experts selected by
the Administrative Agent in its reasonable discretion and
reasonably acceptable to the Borrower, (v) with respect to
facilities leased or
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subleased from third parties,
such lessor’s estoppel, waiver and consent certificates as
the Administrative Agent may reasonably require and the Borrower
can deliver using its best efforts and subordination,
nondisturbance and attornment agreements as the Administrative
Agent may reasonably require, (vi) such owner’s or
lessee’s affidavits as the Administrative Agent may
reasonably require, (vii) such opinions of local counsel with
respect to the Mortgages, as applicable, as the Administrative
Agent may reasonably require, and (viii) such other documentation
as the Administrative Agent may reasonably require, in each case as
shall be in form and substance reasonably acceptable to the
Administrative Agent.
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(b) Section
1.7(a) of the Credit Agreement is hereby amended and restated in
its entirety to read as follows:
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(a)
Covenant Acquisition Adjustments . Except as otherwise
expressly provided herein, for purposes of calculating the Leverage
Ratio and the Fixed Charge Coverage Ratio and, for purposes of
Section 9.9(a)(ii), the prior fiscal year’s Consolidated
EBITDA for any period (or a portion of a period) that includes the
date of the consummation of any Permitted Acquisition, references
to “the Borrower and its Subsidiaries” shall include
each acquired Person, or lines of business, as applicable, the
EBITDA of such acquired Person or line of business (such EBITDA to
be formulated on the basis of the definition of Consolidated EBITDA
set forth herein, subject to such customary adjustments by the
Borrower as to which the Required Lenders do not object) and the
interest expense of such acquired Person or line of business, as if
the Acquisition had been consummated on the first day of any such
period of measurement.
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(c) Section
9.9(a)(ii) of the Credit Agreement is hereby amended and restated
in its entirety to read as follows:
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(ii) the
Required Lenders shall have given their consent to such Acquisition
which consent shall (A) not be unreasonably withheld and (B) be
given within ten (10) Business Days from the Administrative
Agent’s receipt of the information, in form and substance
satisfactory to the Administrative Agent in its reasonable
discretion, referred to in clauses (b) and (c) of this Section
9.9 ; provided that no such consent will be required if
the Acquisition Amount with respect to such Acquisition, (y) shall
not exceed $12,000,000, and (z) together with the aggregate of the
Acquisition Amounts for all other Permitted Acquisitions
consummated during the same fiscal year and the aggregate amount of
any “earnout” payments made in such fiscal year with
respect to any Permitted Acquisition, irrespective of when such
Permitted Acquisition was consummated), shall not exceed (1) in the
case of fiscal year 2005, $50,000,000, or (2) in the case of fiscal
year 2006 and each fiscal year thereafter, 100% of Consolidated
EBITDA for the preceding fiscal year (excluding, for fiscal year
2006 only, the Acquisition Amount attributable to the MIRO
Acquisition in an amount not to exceed $48,800,000).
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