Exhibit 10.1
AMENDMENT AGREEMENT NO. 3 TO
THIRD AMENDED AND RESTATED CREDIT AGREEMENT AND CONSENT
THIS AMENDMENT AGREEMENT AND CONSENT (the "Amendment Agreement") is made
and entered into this 18th day of March, 2005, 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 to the Credit Agreement. Unless the context
otherwise requires, capitalized terms used but not defined herein have the
meanings ascribed thereto in the Credit Agreement.
WITNESSETH:
WHEREAS, the Borrower, the Administrative Agent and the Lenders have
entered into that certain Third Amended and Restated Credit Agreement dated as
of March 31, 2004 (as heretofore amended, 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 A facility and a revolving credit facility with a letter of credit
subfacility and a swing line subfacility; and
WHEREAS, the Borrower has requested (A) that the Term Loan A Lenders
readvance a portion of the Term Loan A and increase the Term Loan A Commitments
to $35,000,000 and amend the Maturity Date and amortization schedule of the Term
Loan A and (B) that the Revolving Lenders increase their commitments under the
Revolving Credit Facility such that the Total Revolving Credit Commitments are
$140,000,000; and
WHEREAS, the Borrower has requested that the Lenders consent to a
one-time 41 day Interest Period with respect to a LIBOR Loan and a LIBOR
Segment;
WHEREAS, the Administrative Agent, the Lenders and the Borrower are
willing to amend the Credit Agreement and consent to such Interest Periods in
the manner described herein and subject to the terms and conditions set forth
herein; and
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, effective as of the date hereof, as follows:
(a) Section 1.1 of the Credit Agreement is amended to restate subsection
(e) thereof in its entirety to read as follows:
(e) The parties hereto acknowledge that, notwithstanding
clauses (c) and (d) above, and notwithstanding the provisions regarding
assignments set forth in Section 14.7 hereof, as of the Amendment No. 3
Effective Date, the Term Loan A Commitment, Revolving Credit Commitment and
Applicable Commitment Percentage for each of the Revolving Lenders and Term Loan
A Lenders are as follows:
TERM LOAN A FACILITY
APPLICABLE
TERM LOAN A COMMITMENT
TERM LOAN A LENDER COMMITMENT PERCENTAGE
----------------------------------- ----------------- -----------------
Bank of America, N.A $ 6,600,000.00 18.857142857%
Wachovia Bank, National Association $ 6,600,000.00 18.857142857%
Fifth Third Bank, Florida $ 5,000,000.00 14.285714286%
SunTrust Bank $ 4,800,000.00 13.714285714%
Regions Bank $ 4,500,000.00 12.857142857%
National City Bank $ 3,000,000.00 8.571428571%
Carolina First Bank $ 3,000,000.00 8.571428571%
International Bank of Miami $ 1,500,000.00 4.285714286%
Term Loan A Facility Total $ 35,000,000.00
REVOLVING LOAN FACILITY
REVOLVING APPLICABLE
CREDIT COMMITMENT
REVOLVING LENDER COMMITMENT PERCENTAGE
----------------------------------- ----------------- -----------------
Bank of America, N.A $ 26,400,000.00 18.857142857%
Wachovia Bank, National Association $ 26,400,000.00 18.857142857%
Fifth Third Bank, Florida $ 20,000,000.00 14.285714286%
SunTrust Bank $ 19,200,000.00 13.714285714%
Regions Bank $ 18,000,000.00 12.857142857%
National City Bank $ 12,000,000.00 8.571428571%
Carolina First Bank $ 12,000,000.00 8.571428571%
International Bank of Miami $ 6,000,000.00 4.285714286%
TOTAL FACILITIES $ 175,000,000.00
(b) Section 1.2 of the Credit Agreement is amended to add the
following definitions in the appropriate alphabetical order:
"Amendment No. 3" means that certain Amendment Agreement No. 3
to Third Amended and Restated Credit Agreement dated as of March 18,
2005, by and among the Borrower, the Subsidiary Guarantors, the
Administrative Agent and the Lenders party thereto.
"Amendment No. 3 Effective Date" means the date all the
conditions to the effectiveness of Amendment No. 3 contained in Section
4 of Amendment No. 3 are satisfied.
(c) Section 1.2 of the Credit Agreement is further amended to amend
and restate in their entirety the definitions of "Applicable Margin Percentage",
"Consolidated Cash Flow", "Maturity Date", "Term Loan A Commitment", "Term Loan
A Facility" and "Total Revolving Credit Commitments" to read as follows:
"Applicable Margin Percentage" shall mean, at any time from and
after the Amendment No. 3 Effective Date, with respect to Revolving
Loans and Segments of the Term Loan A and the commitment fee payable
pursuant to Section 5.2(a), the applicable percentage set forth below,
each (i) to be added to the Base Rate pursuant to Section 5.1 for
purposes of determining the Adjusted Base Rate, and (ii) to be added to
the LIBOR Rate pursuant to Section 5.1 for purposes of determining the
Adjusted LIBOR Rate:
APPLICABLE MARGIN APPLICABLE MARGIN
PERCENTAGE FOR PERCENTAGE FOR
LEVERAGE RATIO BASE RATE LOANS LIBOR LOANS
----------------------------------- ----------------- -----------------
Less than 1.50 to 1.00 0.00% 1.50%
Greater than or equal to 0.25% 1.75%
1.50 to 1.00, but less
than 2.00 to 1.00
Greater than or equal to 0.50% 2.00%
2.00 to 1.00, but less
than 2.50 to 1
Greater than or equal to 1.00% 2.50%
2.50 to 1.00
On each Adjustment Date (as hereinafter defined), the Applicable
Margin Percentage for all Revolving Loans and Term Loan A and the
commitment fee payable pursuant to Section 5.2(a) shall be adjusted
effective as of such date (based upon the calculation of the Leverage
Ratio as of the last day of the fiscal period to which such Adjustment
Date relates) in accordance with the above matrix; provided, however,
that, notwithstanding the foregoing or anything else herein to the
contrary, if at any time the Borrower shall have failed to deliver the
financial statements and a Compliance Certificate as required by Section
9.1(a) or Section 9.1(b), as the case may be, and Section 9.2(a), then
at the election of the Required Revolving Lenders and the Required Term
Loan A Lenders, at all times from and including the date on which such
statements and Compliance Certificate are required to have been
delivered to the date on which the same shall have been delivered each
Applicable Margin Percentage shall be determined in accordance with the
above matrix as if the Leverage Ratio were greater than 2.50:1.00
(notwithstanding the actual Leverage Ratio). For purposes of this
definition, "Adjustment Date" shall mean, with respect to any fiscal
period of the Borrower, the tenth (10th) day (or, if such day is not a
Business Day, on the next succeeding Business Day) after delivery by the
Borrower in accordance with Section 9.1 (a), Section 9.1(b) or Section
9.9(b), as the case may be, of (i) financial statements as of the end of
and for such fiscal period, (ii) a duly completed Compliance Certificate
with respect to such fiscal period, and (iii) any pro forma Compliance
Certificate of the Borrower and its Subsidiaries giving effect to a
Permitted Acquisition in accordance with Section 9.9."
"Consolidated Cash Flow" shall mean for any period, the
aggregate of (i) Consolidated Net Income of the Borrower and its
Subsidiaries (including Excluded Subsidiaries) for such period,
determined on a consolidated basis in accordance with GAAP, plus (ii)
the sum of Consolidated Interest Expense, taxes, depreciation,
amortization, and other non-cash expenses or charges (as approved by
each of the Required Lenders) for such period plus (iii) the Acquired
EBITDA, provided, that the calculations of EBITDA and Acquired EBITDA
are supported by information satisfactory to the Administrative Agent,
all as determined in accordance with GAAP plus (iv) the write-off of any
deferred financing costs as a result of the execution and effectiveness
of Amendment No. 2 and this Agreement, plus (v) any non-cash expense
recorded during such period in connection with any issuance of stock
options or awards to employees (or the issuance of stock under the
Borrower's Employee Stock Purchase Plan), but in the case of (ii), (iv)
and (v), only to the extent deducted in determining net income for the
applicable period.
"Maturity Date" shall mean, with respect to the Term Loan A
Facility and the Revolving Credit Facility, March 15, 2010.
"Term Loan A Commitment" shall mean, with respect to each Term
Loan A Lender, the obligation of such Lender to make the Term Loan A to
the Borrower in a principal amount equal to such Lender's Applicable
Commitment Percentage of the Total Term Loan A Commitment as set forth
in Section l.l(e).
"Term Loan A Facility" shall mean the facility described in
Section 2.1 providing for a Term Loan A to the Borrower by the Term Loan
A Lenders in the principal amount of $35,000,000, $23,250,000 of which
is outstanding prior to the effectiveness of Amendment No. 3 hereto.
"Total Revolving Credit Commitment" shall mean a principal
amount equal to $140,000,000, as reduced or increased from time to time
in accordance with Section 3.5 or 3.6.
(d) Section 2.1 is hereby restated in its entirety to read as follows:
2.1 Term Loan A.
(a) The Borrower hereby acknowledges that the Term Loan A has been
advanced and is outstanding in the principal amount of $23,250,000 as of the
Amendment No. 3 Effective Date (but immediately prior to giving effect to such
Amendment No. 3). Notwithstanding anything contained herein to the contrary, the
Term Loan A Lenders agree to readvance $1,750,000 of the Term Loan A to the
Borrower on the Amendment No. 3 Effective Date and to advance an additional
$10,000,000 as part of the Term Loan A (in the aggregate, the "Amendment No. 3
Advance"). The Amendment No. 3 Advance shall be advanced as a Base Rate Segment
on the Amendment No. 3 Effective Date, without additional notice or consent,
including without any Notice of Borrowing. After the Amendment No. 3 Effective
Date and such Amendment No. 3 Advance, the principal amount of each Segment of
the Term Loan A outstanding hereunder from time to time shall bear interest and
the Term Loan A shall be repayable as herein provided. After the Amendment No. 3
Effective Date, no amount of the Term Loan A repaid or prepaid by the Borrower
may be reborrowed hereunder, and no subsequent advances of the Term Loan A
amounts shall be made by any Lender after the Amendment No. 3 Advance.
(b) Payment of Principal. The principal amount of the Term Loan A
shall be repaid in twenty (20) consecutive quarterly installments on the dates
and in the amounts set forth below:
DATE AMOUNT
----------------------------------- -----------------
June 30, 2005 $ 1,750,000.00
September 30, 2005 $ 1,750,000.00
December 31, 2005 $ 1,750,000.00
March 31, 2006 $ 1,750,000.00
June 30, 2006 $ 1,750,000.00
September 30, 2006 $ 1,750,000.00
December 31, 2006 $ 1,750,000.00
March 31, 2007 $ 1,750,000.00
June 30, 2007 $ 1,750,000.00
September 30, 2007 $ 1,750,000.00
December 31, 2007 $ 1,750,000.00
March 31, 2008 $ 1,750,000.00
June 30, 2008 $ 1,750,000.00
September 30, 2008 $ 1,750,000.00
December 31, 2008 $ 1,750,000.00
March 31, 2009 $ 1,750,000.00
June 30, 2009 $ 1,750,000.00
September 30, 2009 $ 1,750,000.00
December 31,2009 $ 1,750,000.00
Maturity Date All remaining
principal outstanding
provided, however, that the entire amount of Term Loan A Outstandings shall be
due and payable in full on the Termination Date.
(e) Section 2.3(a) is hereby amended to delete the introductory
phrase "The Borrower may prepay the Term Loan A or the Term Loan B," and to
replace it with the phrase "The Borrower may prepay the Term Loan A".
(f) Section 10.1 is hereby restated in its entirety to read
as follows:
10.1 Leverage Ratio. The Borrower will not permit the
Leverage Ratio as of the last day of each fiscal quarter for the four
consecutive fiscal quarter period ending on such date to be greater than 3.00 to
1.00.
(g) Section 11.10 is hereby restated in its entirety to read as
follows:
11.10 Capital Expenditures. The Borrower will not permit the
Capital Expenditures of the Borrower and its Subsidiaries to be greater than
$35,000,000 in the aggregate in any fiscal year, excluding any Capital
Expenditures for any Permitted Acquisition during such fiscal year.
(h) A new Section 9.18 is added to read in its entirety as follows:
9.18 Amendment No. 3 Post Closing Real Estate Deliverables.
Within forty-five (45) days of the Amendment No. 3 Effective Date, deliver to
the Administrative Agent the Mortgaged Property Support Documents and any
additional title policy endorsements required by the Administrative Agent in its
reasonable discretion in connection with Amendment No. 3.
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;
(b) There has been no Material Adverse Change in the
condition, financial or otherwise, of the Borrower since the Effective Date;
(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; and
(d) No event has occurred and no condition exists which
constitutes a Default or an Event of Default on the part of the Borrower under
the Credit Agreement, the Notes or any other Credit Document either immediately
or with the lapse of time or the giving of notice, or both.
4. Consent. The Borrower has requested that the Administrative
Agent and the Lender consent to one Long Interest Period (as defined below) for
each of an outstanding LIBOR Loan and a LIBOR Segment. The Administrative Agent
and the Lenders hereby consent to an Interest Period (each, a "Long Interest
Period") commencing on March 23, 2005 and ending on April 30, 2005, which Long
Interest Period shall be applicable to (i) a LIBOR Segment of the Term Loan A in
a principal amount of $34,500,000, and (ii) a LIBOR Loan in a principal amount
of $18,500,000.
5. Conditions. This Amendment Agreement shall become effective upon
the Borrower delivering to the Administrative Agent the following:
(a) ten (10) counterparts of this Amendment Agreement duly
executed by the Administrative Agent, the Lenders, the Borrower and the
Subsidiary Guarantors;
(b) a certificate of the secretary or an assistant secretary
of each of the Borrower and each Subsidiary Guarantor, in form and substance
satisfactory to the Administrative Agent, certifying (i) that the articles or
certificate of incorporation or articles or certificate of organization of the
Borrower or such Subsidiary Guarantor, as the case may be, have not been amended
since such articles or certificate were delivered on the Effective Date or
attaching any amendments thereto since the Effective Date, as each may be
certified as of a recent date by the Secretary of State (or comparable
Governmental Authority) of its jurisdiction of organization, (ii) that the
bylaws, operating agreement, partnership agreement or other comparable document
of the Borrower or such Subsidiary Guarantor, as the case may be, have not been
amended since such bylaws, operating agreement, partnership agreement or other
comparable document was delivered on the Effective Date, and that such document
has been in effect at all times from the date on which the resolutions referred
to in clause (iii) below were adopted to and including the date of such
certificate, and (iii) that attached thereto is a true and complete copy of
resolutions adopted by the board of directors, managers, general partners or
other comparable governing body of the Borrower or such Subsidiary Guarantor, as
the case may be, authorizing the execution, delivery and performance of this
Amendment Agreement and the amendments contemplated herein, and as to the
incumbency and genuineness of the signature of each officer of the Borrower or
such Subsidiary Guarantor, as the case may be, executing this Amendment
Agreement, and attaching all such copies of the documents described above;
(c) amendments or modifications to the existing Mortgages,
in form and substance reasonably satisfactory to the Administrative Agent, dated
as of the date hereof and duly executed by the Borrower, a Subsidiary Guarantor
and the trustee thereunder, as applicable, together in each case with evidence
of recordation thereof;
(d) all fees and expenses payable by the Borrower by reason
of this Amendment Agreement;
(e) such other documentation, instruments, consents and
agreements as the Administrative Agent shall reasonably request including those
described in paragraph 8 of this Amendment Agreement; and
(f) amended and restated or replacement Revolving Notes for
each Revolving Lender whose Revolving Credit Commitment is increasing as a
result of this Amendment Agreement and amended and restated or replacement Term
Loan A Notes reflecting the re-advance of a portion of the Term Loan A pursuant
to this Amendment Agreement.
6. Full Force and Effect of Agreement. Except as hereby
specifically amended, modified or supplemented, the Credit Agreement and all of
the other Credit Documents are hereby confirmed and ratified in all respects and
shall remain in full force and effect according to their respective terms.
7. Counterparts. This Amendment Agreement may be executed in any
number of counterparts and all the counterparts taken together shall be deemed
to constitute one and the same instrument. 8. Documentation. All instruments and
documents incident to the consummation of the transactions contemplated hereby
shall be satisfactory in form and substance to the Administrative Agent and its
counsel; the Administrative Agent shall have received copies of all additional
agreements, instruments and documents which it may reasonably request in
connection therewith, including copies of resolutions of the Borrowers
authorizing the transactions contemplated by this Amendment Agreement, such
documents, when appropriate, to be certified by appropriate corporate or
governmental authorities; and all proceedings of the Borrower relating to the
matters provided for herein shall be satisfactory to the Administrative Agent
and its counsel. 9. Entire Agreement. This Amendment Agreement sets forth the
entire understanding and agreement of the parties hereto in relation to the
subject matter hereof and supersedes any prior negotiations and agreements among
the parties relative to such subject matter. No promise, conditions,
representation or warranty, express or implied, not herein set forth shall bind
any party hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement otherwise expressly stated, no representations,
warranties or commitments, express or implied, have been made by any other party
to the other. None of the terms or conditions of this Amendment Agreement may be
changed, modified, waived or canceled orally or otherwise, except by writing,
signed by all the parties hereto, specifying such change, modification, waiver
or cancellation of such terms or conditions, or of any proceeding or succeeding
breach thereof.
10. Ratification. Except as hereby specifically amended, modified or
supplemented, the Agreement and all of the other Loan Documents are hereby
confirmed and ratified in all respects and shall remain in full force and effect
according to their respective terms.
11. Consent of the Subsidiary Guarantors. Each Subsidiary Guarantor
hereby consents, acknowledges and agrees to the amendments set forth herein and
hereby confirms, reaffirms and ratifies in all respects the Subsidiary Guaranty
to which such Subsidiary Guarantor is a party (including without limitation the
continuation of such Subsidiary Guarantor's payment and performance obligations
thereunder upon and after the effectiveness of this Agreement and the amendments
contemplated hereby) and the enforceability of the Subsidiary Guaranty against
such Subsidiary Guarantor in accordance with its terms.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment Agreement to be duly executed by their duly authorized officers, all
as of the day and year first above written.
BORROWER:
RADIATION THERAPY SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President
GUARANTORS:
21ST CENTURY ONCOLOGY, INC.
21ST CENTURY ONCOLOGY OF NEW JERSEY, INC.
21ST CENTURY ONCOLOGY OF KENTUCKY,
LLC 00 XX XXXXXXX XXXXXXXX XX XXXXXXX,
INC.
NEW YORK RADIATION THERAPY MANAGEMENT
SERVICES, INC.
NEVADA RADIATION THERAPY MANAGEMENT
SERVICES, INC.
FINANCIAL SERVICES OF SOUTHWEST FLORIDA,
INC.
RADIATION THERAPY SCHOOL FOR RADIATION
THERAPY TECHNOLOGY, INC.
MARYLAND RADIATION THERAPY MANAGEMENT
SERVICES, INC.
NORTH CAROLINA RADIATION THERAPY
MANAGEMENT SERVICES, INC.
CALIFORNIA RADIATION THERAPY MANAGEMENT
SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as Administrative
Agent
By: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A., as a Lender
By: /s/ Xxxxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxxxx X. Xxxx
Title: Senior Vice President
FIFTH THIRD BANK
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
SUNTRUST BANK
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
REGIONS BANK
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
NATIONAL CITY BANK OF KENTUCKY
By: /s/ Xxxxx Xxxxx
-----------------------------------
Name: Xxxxx Xxxxx
Title: Senior Vice President
CAROLINA FIRST BANK
By: /s/ Xxxxx X. Short
-----------------------------------
Name: Xxxxx X. Short
Title: Senior Vice President
THE INTERNATIONAL BANK OF MIAMI, N.A.
By: /s/ Panaylotis Ch. Zotos
-----------------------------------
Name: Panaylotis Ch. Zotos
Title: Senior Vice President