EXHIBIT 10.12
FIRST AMENDMENT TO CREDIT AGREEMENT
AND CREDIT DOCUMENTS
THIS FIRST AMENDMENT TO CREDIT AGREEMENT AND CREDIT DOCUMENTS, dated as of
the 17th day of February, 2000 (this "Amendment"), is made among ORTHODONTIC
CENTERS OF AMERICA, INC., a Delaware corporation with its principal offices in
Ponte Vedra Beach, Florida ("OCA"), the Subsidiaries (as defined in the Credit
Agreement referred to below) of OCA listed on the signature pages hereto, the
Required Lenders (as defined in the Credit Agreement referred to below), FIRST
UNION NATIONAL BANK, as agent for the Lenders (in such capacity, the "Agent"),
BANK OF AMERICA, FSB, as Documentation Agent (in such capacity, the
"Documentation Agent"), and CITIBANK, N.A., as Syndication Agent (in such
capacity, the "Syndication Agent").
RECITALS
A. OCA, certain banks and other financial institutions, the Agent, the
Documentation Agent and the Syndication Agent are parties to a Credit Agreement,
dated as of October 8, 1998 (the "Credit Agreement"), providing for the
availability of certain credit facilities to OCA and certain other borrowers
from time to time parties thereto upon the terms and conditions set forth
therein. Capitalized terms used herein without definition shall have the
meanings given to them in the Credit Agreement.
B. OCA has requested certain amendments to the Credit Agreement, and
the Required Lenders have agreed to make such amendments, upon the terms and
conditions set forth herein.
STATEMENT OF AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Defined Terms.
(a) The following defined terms are hereby added to the Credit Agreement
in proper alphabetical order:
"`Consolidated Indebtedness' shall mean, as of any date of
determination, the aggregate (without duplication) of all Indebtedness of
OCA and its Subsidiaries as of such date, determined on a consolidated
basis in accordance with GAAP."
"`Permitted Additional Note' shall mean a Promissory Note in the
principal amount of $3,000,000, to be made by OCA in favor of First Union
for the purpose of funding account overdrafts, as the same may be amended,
modified, supplemented or replaced from time to time."
(b) The definition of "Credit Documents" in Section 1.1 of the Credit
Agreement is hereby amended to delete therefrom the words "any Hedge Agreement
to which OCA and any Lender are parties and that is permitted or required to be
entered into by OCA hereunder."
(c) The definition of "Foreign Currency Sublimit" in Section 1.1 of the
Credit Agreement is hereby amended and restated in its entirety as follows:
" `Foreign Currency Sublimit' shall mean $16,000,000 or, if less,
the aggregate Commitments at the time of determination, as such amount may
be reduced at or prior to such time pursuant to the terms hereof."
2. Indebtedness. Section 8.2 of the Credit Agreement is hereby amended
by (a) deleting the word "and" at the end of clause (viii) thereof, (b) adding
the word "and" to the end of clause (ix) thereof, and (c) adding the following
clause (x) to the end thereof:
"(x) Indebtedness under the Permitted Additional Note."
3. Amendments, Waivers, etc. The proviso at the end of Section 12.6 of
the Credit Agreement is hereby amended to delete therefrom the words "and any
Hedge Agreement to which any Lender is a party."
4. Amendments to Subsidiary Guaranty, OCA Pledge Agreement.
(a) Clause (i) of Section 1(a) of the Subsidiary Guaranty is hereby
amended and restated in its entirety as follows:
"(i) guarantees (a) to the Lenders (including the Issuing Lender in
its capacity as such) and the Agent (together with any Lender in the
capacity described in clause (b) or clause (c) below, collectively, the
"Guaranteed Parties") the full and prompt payment, at any time and from
time to time as and when due (whether at the stated maturity, by
acceleration or otherwise), of all Obligations of OCA and the other
Borrowers under the Credit Agreement and the other Credit Documents,
including, without limitation, all principal of and interest on the Loans,
all Reimbursement Obligations in respect of Letters of Credit, all fees,
expenses, indemnities and other amounts payable by OCA or any other
Borrower under the Credit Agreement or any other Credit Document
(including interest accruing after the filing of a petition or
commencement of a case by or with respect to OCA or any other Borrower
seeking relief under any Insolvency Laws (as hereinafter defined), whether
or not the claim for such interest is allowed in such proceeding), and all
Obligations that, but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, would become due, (b) to each
applicable Lender in its capacity as a counterparty to any Hedge Agreement
with OCA required or permitted under the Credit Agreement, all obligations
of OCA under such Hedge Agreement, and (c) to First Union National Bank
("First Union"), in its capacity as lender under the Permitted Additional
Note, all principal of and interest on the loans and advances made by
First Union thereunder and all other obligations and amounts payable by
OCA thereunder (including interest accruing after the filing of a petition
or commencement of a case by or with respect to OCA seeking relief under
any Insolvency Laws, whether or not the claim for such interest is allowed
in such proceeding), and all such obligations that, but for the operation
of the automatic stay under Section 362(a) of the Bankruptcy Code, would
become due, in each case under (a), (b) and (c) whether now existing or
hereafter created or arising and whether direct or indirect, absolute or
contingent, due or to become due (all liabilities and obligations
described in this clause (i), collectively, the "Guaranteed Obligations");
and"
(b) The first parenthetical in Section 1 of the OCA Pledge Agreement is
hereby amended and restated in its entirety as follows:
"(including the Issuing Lender in its capacity as such, and
including any Lender in its capacity as a counterparty to any Hedge
Agreement with OCA required or permitted under the Credit Agreement)"
(c) Section 2 of the OCA Pledge Agreement is hereby amended and restated
in its entirety as follows:
"2. Security for Secured Obligations. This Agreement and the
Collateral secure the full and prompt payment, at any time and from time
to time as and when due (whether at the stated maturity, by acceleration
or otherwise), of (i) in the case of OCA and the other Borrowers, (y) all
Obligations, including, without limitation, all principal of and interest
on the Loans, all fees, expenses, indemnities and other amounts payable by
OCA or any other Borrower under the Credit Agreement, this Agreement, the
Subsidiary Guaranty or any other Credit Document, and all liabilities and
obligations of OCA under the Permitted Additional Note (including, in each
case
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under this clause (y), interest accruing after the filing of a petition or
commencement of a case by or with respect to OCA or any other Borrower
seeking relief under any applicable federal and state laws pertaining to
bankruptcy, reorganization, arrangement, moratorium, readjustment of
debts, dissolution, liquidation or other debtor relief, specifically
including, without limitation, the Bankruptcy Code and any fraudulent
transfer and fraudulent conveyance laws, whether or not the claim for such
interest is allowed in such proceeding), and (z) all liabilities and
obligations of OCA under any Hedge Agreement required or permitted under
the Credit Agreement and to which OCA and any Lender are parties, and (ii)
in the case of any Subsidiary of OCA, all of its liabilities and
obligations (if any) as a Guarantor (as defined in the Subsidiary
Guaranty) in respect of the Obligations; and in each case under (i) and
(ii) above, (a) all such liabilities and obligations that, but for the
operation of the automatic stay under Section 362(a) of the Bankruptcy
Code, would become due, and (b) all fees, costs and expenses payable by
the Pledgors under SECTION 11; and in each case under (i) and (ii) above,
whether now existing or hereafter incurred, created or arising and whether
direct or indirect, absolute or contingent, due or to become due (the
liabilities and obligations described in this SECTION 2, collectively, the
"Secured Obligations")."
5. Representations and Warranties. OCA hereby represents and warrants
as follows:
(a) Each of the representations and warranties contained in the Credit
Agreement and in the other Credit Documents is true and correct on and as of the
date hereof and will be true and correct on and as of the Amendment Effective
Date (as hereinafter defined) and after giving effect to this Amendment with the
same effect as if made on and as of such date (except to the extent any such
representation or warranty is expressly stated to have been made as of a
specific date, in which case such representation or warranty is true and correct
as of such date).
(b) On and as of the date hereof, no Default or Event of Default has
occurred and is continuing, and on and as of the Amendment Effective Date and
after giving effect to this Amendment, no Default or Event of Default will have
occurred and be continuing.
(c) The Subsidiaries of OCA listed on the signature pages to this
Amendment comprise all of the Subsidiaries that, as of the date hereof, are
required to be a party to the Subsidiary Guaranty pursuant to the terms of the
Credit Agreement.
6. Effect of Amendment. From and after the effective date of the
amendments to the Credit Agreement and the other Credit Documents set forth
herein, all references to any such Credit Document set forth in any other Credit
Document or other agreement or instrument shall, unless otherwise specifically
provided, be references to such Credit Document as amended by this Amendment and
as may be further amended, modified, restated or supplemented from time to time.
This Amendment is limited as specified and shall not constitute or be deemed to
constitute an amendment, modification or waiver of any provision of the Credit
Agreement or any other Credit Document except as expressly set forth herein.
Except as expressly amended hereby, the Credit Agreement and each of the other
Credit Documents shall remain in full force and effect in accordance with its
terms.
7. Governing Law. This Amendment shall be governed by and construed and
enforced in accordance with the laws of the State of Florida (without regard to
the conflicts of law provisions thereof).
8. Severability. To the extent any provision of this Amendment is
prohibited by or invalid under the applicable law of any jurisdiction, such
provision shall be ineffective only to the extent of such prohibition or
invalidity and only in any such jurisdiction, without prohibiting or
invalidating such provision in any other jurisdiction or the remaining
provisions of this Amendment in any jurisdiction.
9. Successors and Assigns. This Amendment shall be binding upon, inure
to the benefit of and be enforceable by the respective successors and assigns of
the parties hereto.
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10. Construction. The headings of the various sections and subsections
of this Amendment have been inserted for convenience only and shall not in any
way affect the meaning or construction of any of the provisions hereof.
11. Counterparts; Effectiveness. This Amendment may be executed in any
number of counterparts and by different parties hereto on separate counterparts,
each of which when so executed and delivered shall be an original, but all of
which shall together constitute one and the same instrument. This Amendment
shall become effective on the date (the "Amendment Effective Date") upon which
the Agent shall have received an executed counterpart hereof from each of OCA,
the Subsidiaries listed on the signature pages hereto, and the Required Lenders.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized officers as of the date first above written.
FIRST UNION NATIONAL BANK, as Agent
and as a Lender
By: /s/ Xxxxx Xxxxx
Title: Senior Vice President
CITIBANK, N.A., as Syndication Agent and as
a Lender
By: /s/ Xxxxx Xxxxxx
Title: Director
BANK OF AMERICA, FSB, as Documentation
Agent and as a Lender
By: /s/ Xxxxx X. Xxxxxx
Title: Vice President
BANK ONE, TEXAS, N.A.
By: _______________________________
Title: _______________________________
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxxx X. Xxxxx
Title: Vice President
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[signatures continued]
ORTHODONTIC CENTERS OF AMERICA, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx, Xx.
Title: Secretary
ORTHODONTIC CENTERS OF ALABAMA, INC.
ORTHODONTIC CENTERS OF ARKANSAS, INC.
ORTHODONTIC CENTERS OF ARIZONA, INC.
ORTHODONTIC CENTERS OF CALIFORNIA, INC.
ORTHODONTIC CENTERS OF COLORADO, INC.
ORTHODONTIC CENTERS OF CONNECTICUT, INC.
ORTHODONTIC CENTERS OF FLORIDA, INC.
ORTHODONTIC CENTERS OF GEORGIA, INC.
ORTHODONTIC CENTERS OF HAWAII, INC.
ORTHODONTIC CENTERS OF ILLINOIS, INC.
ORTHODONTIC CENTERS OF INDIANA, INC.
ORTHODONTIC CENTERS OF KANSAS, INC.
ORTHODONTIC CENTERS OF KENTUCKY, INC.
ORTHODONTIC CENTERS OF LOUISIANA, INC.
ORTHODONTIC CENTERS OF MAINE, INC.
ORTHODONTIC CENTERS OF MARYLAND, INC.
ORTHODONTIC CENTERS OF MASSACHUSETTS, INC.
ORTHODONTIC CENTERS OF MICHIGAN, INC.
ORTHODONTIC CENTERS OF MINNESOTA, INC.
ORTHODONTIC CENTERS OF MISSISSIPPI, INC.
ORTHODONTIC CENTERS OF MISSOURI, INC.
ORTHODONTIC CENTERS OF NEVADA, INC.
ORTHODONTIC CENTERS OF NEW HAMPSHIRE, INC.
ORTHODONTIC CENTERS OF NEW JERSEY, INC.
ORTHODONTIC CENTERS OF NEW MEXICO, INC.
ORTHODONTIC CENTERS OF NEW YORK, INC.
ORTHODONTIC CENTERS OF NORTH CAROLINA, INC.
ORTHODONTIC CENTERS OF NORTH DAKOTA, INC.
ORTHODONTIC CENTERS OF OHIO, INC.
ORTHODONTIC CENTERS OF OKLAHOMA, INC.
ORTHODONTIC CENTERS OF OREGON, INC.
ORTHODONTIC CENTERS OF PENNSYLVANIA, INC.
ORTHODONTIC CENTERS OF PUERTO RICO, INC.
ORTHODONTIC CENTERS OF RHODE ISLAND, INC.
ORTHODONTIC CENTERS OF SOUTH CAROLINA, INC.
ORTHODONTIC CENTERS OF TENNESSEE, INC.
ORTHODONTIC CENTERS OF TEXAS, INC.
ORTHODONTIC CENTERS OF UTAH, INC.
ORTHODONTIC CENTERS OF VIRGINIA, INC.
ORTHODONTIC CENTERS OF WASHINGTON, INC.
ORTHODONTIC CENTERS OF WASHINGTON, D.C., INC.
ORTHODONTIC CENTERS OF WEST VIRGINIA, INC.
ORTHODONTIC CENTERS OF WISCONSIN, INC.
ORTHODONTIC CENTERS OF WYOMING, INC.
OCA KENTUCKY MERGERCO, INC.
ORTHODONTIC CENTERS OF WISCONSIN
MERGER COMPANY, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx, Xx.
Title: Secretary
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