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Exhibit 4.2
LIMITED WAIVER
TO
FOURTH AMENDED AND
RESTATED CREDIT AGREEMENT
THIS LIMITED WAIVER TO
FOURTH AMENDED AND RESTATED CREDIT AGREEMENT (the
“Agreement”), is made and effective as of
November 1, 2007 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 previously amended and as hereby
modified 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,
the Parent and RTS MergerCo, Inc., a Delaware corporation and a
wholly owned subsidiary of Parent entered into an Agreement and
Plan of Merger (the “Merger Agreement”) dated as of
October 19, 2007, along with Radiation Therapy Investments,
LLC, a Florida limited liability company and owner of the Parent
(“RT Investments”) (as a party to the Merger Agreement
for purposes of the termination fee section of the Merger
Agreement), which Merger Agreement provides for Vestar Capital
Partners’ (as owner of RT Investment) purchase of
substantially all of the Capital Stock of the Borrower, which the
Borrower expects to take place in March or April, 2008.
WHEREAS, the Borrower
has requested that the Administrative Agent and the Lenders waive
the Event of Default under Section 12.1(o) of the
Credit Agreement resulting from the execution, delivery and
performance of the Merger Agreement (but not including consummation
of the merger transaction thereunder); and
WHEREAS , the
Administrative Agent and the Lenders signatory hereto are willing
so to effect such waivers as set forth below pursuant to the terms
and conditions contained in this Agreement;
NOW, THEREFORE , in
consideration of the premises and further valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the
parties hereto 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 modified.
2. Waivers to Credit
Agreement . Subject to the terms and conditions set forth
herein, the Administrative Agent and the Lenders hereby waive any
Default or Event of Default arising under
Section 12.1(o) of the Credit Agreement solely as a
result of the execution, delivery and performance of the Merger
Agreement (but not including consummation of the merger transaction
thereunder).
The waiver set forth in this
Section 2 is limited to the extent specifically set
forth above and no other terms, covenants or provisions of the
Credit Agreement or any other Loan Document are intended to be
effected hereby.
3. Representations,
Warranties and Covenants . The Borrower hereby represents,
warrants and covenants that:
(a) The representations and
warranties made by the Borrower in Article VIII of the Credit
Agreement are true on and as of the date hereof, except to the
extent that such representations and warranties expressly relate to
an earlier date;
(b) There has been no
Material Adverse Change in the condition, financial or otherwise,
of the Borrower since the date of the most recent financial reports
of the Borrower delivered pursuant to Section 9.1 of
the Credit Agreement;
(c) The business and
properties of the Borrower are not and have not been adversely
affected in any substantial way as the result of any fire,
explosion, earthquake, accident, strike, lockout, combination of
workers, flood, embargo, riot, activities of armed forces, war or
acts of God or the public enemy, or cancellation or loss of any
major contracts;
(d) No Default or Event of
Default, other than those addressed herein, if any, has occurred
and is continuing immediately prior to the effectiveness of this
Agreement and no Default or Event of Default is continuing
immediately after the effectiveness of this Agreement.
4. Conditions . This
Agreement shall become effective as of the date hereof upon the
Borrower delivering to the Administrative Agent the
following:
(a) a counterpart of this
Agreement duly executed by the Borrower, the Subsidiary Guarantors,
the Administrative Agent and such Lenders as are necessary to
constitute the Required Lender
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