SIXTH AMENDMENT TO CREDIT AGREEMENT AND FORBEARANCE
Exhibit 99.1
SIXTH AMENDMENT TO CREDIT AGREEMENT AND FORBEARANCE
This SIXTH AMENDMENT TO CREDIT AGREEMENT AND FORBEARANCE (this “Amendment”) is entered
into as of August 19, 2005 among OCA, INC., a Delaware corporation (the “Borrower”),
certain Domestic Subsidiaries of the Borrower (the “Guarantors”), the Lenders party hereto
and BANK OF AMERICA, N.A., as Administrative Agent, L/C Issuer and Alternative Rate Lender (the
“Administrative Agent”). Capitalized terms used herein and not otherwise defined shall
have the meanings set forth in the Credit Agreement (as defined below).
RECITALS
WHEREAS, the Borrower, the Guarantors, the Lenders and the Administrative Agent are party to
that certain Credit Agreement dated as of January 2, 2003 (as amended pursuant to that certain
First Amendment to Credit Agreement dated as of June 30, 2003, by that certain Second Amendment to
Credit Agreement dated as of March 31, 2005, by that certain Third Amendment to Credit Agreement
dated as of May 10, 2005, by that certain Fourth Amendment to Credit Agreement and Waiver dated as
of May 31, 2005, by that certain Fifth Amendment to Credit Agreement and Waiver dated as of June
30, 2005, and as otherwise amended and modified from time to time, the “Credit Agreement”);
WHEREAS, the Borrower has requested a delay in the delivery to the Lenders of the audited
financial statements for the fiscal year ended December 31, 2004 and quarterly financial statements
for the fiscal quarters ended March 31, 2005 and June 30, 2005 and a forbearance with respect to
any Defaults or Events of Default that may result as a failure to timely (i) file with the
Securities and Exchange Commission its Form 10-Q for the fiscal quarters ended March 31, 2005 and
June 30, 2005 and Form 10-K for the fiscal year ended December 31, 2004 and (ii) deliver its
audited financial statements for the fiscal year ended December 31, 2004 and quarterly financial
statements for the fiscal quarters ended March 31, 2005 and June 30, 2005 pursuant to Section 7.1
of the Credit Agreement; and
WHEREAS, the Required Lenders have conditioned such delay and forbearance upon the execution
of this Amendment, which, among other things, reduces the Revolving Committed Amount to
$90,000,000.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. Amendments to Credit Agreement.
(a) Section 1.1 of the Credit Agreement is amended by amending and restating the
following definitions to read in their entirety as follows:
“Applicable Percentage” means, for (a) Base Rate Loans, 3.50%, (b)
Eurodollar Loans and L/C Fees, 4.50%, and (c) Commitment Fees, 0.550%.
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“Revolving Committed Amount” means NINETY MILLION DOLLARS ($90,000,000)
or such lesser amount as it may be reduced to from time to time in accordance with
Section 2.1(d) and Section 3.3(c).
(b) Section 1.1 of the Credit Agreement is amended by adding the following definitions
in alphabetical order to read in their entirety as follows:
“Additional Revolving Loan Amount” means an amount equal to all
Revolving Loans outstanding after the Sixth Amendment Effective Date in excess of
$86,215,000.
“Budget” means the detailed rolling consolidated four week cash flow
projections of the Credit Parties and their Subsidiaries, which shall include, among
other things, (a) weekly receipts segregated by clinics and other sources, including
any receipts anticipated with respect to Service Agreement Buy-Outs, (b) operating
expenses, including specific line items for payroll and doctor distributions,
Capital Expenditures, rent, clinical supplies, professional fees and expenses, debt
service, and other sales, general, and administrative expenses, and (c) revisions
and updates from the previously submitted Budget and a written explanation of any
material changes in estimates.
“Sixth Amendment Effective Date” means August 19, 2005.
(c) Section 2.5(a) of the Credit Agreement is amended and restated in its entirety to
read as follows:
“(a) each Eurodollar Loan shall be in a minimum amount of $500,000 and in
integral multiples of $100,000 in excess thereof,”
(d) Section 3.3(a)(iii) of the Credit Agreement is amended and restated in its entirety
to read as follows:
“(iii) each such partial prepayment of Eurodollar Loans shall be in the minimum
principal amount of $500,000 and integral multiples of $100,000 and”
(e) Section 3.3(b)(v) of the Credit Agreement is amended by deleting the reference to
35% and replacing it with 80%.
(f) Section 3.3(c) of the Credit Agreement is amended by adding the following sentence
to the end thereof to read in its entirety as follows:
Notwithstanding anything contained in this Section 3.3(c) to the contrary, in
the event that the Additional Revolving Loan Amount is greater than zero, all
amounts voluntarily prepaid or required to be prepaid pursuant to Section 3.3(a) and
(b) (as the case may be) shall be applied first to the Revolving Loans until
the Additional Revolving Loan Amount is equal to zero and second in
accordance with the terms contained herein.
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(g) Section 5.2 of the Credit Agreement is amended by adding subsection (f) to read in
its entirety as follows:
(f) Compliance with the Budget. Such new Revolving Loan or Letter of
Credit, as the case may be, shall be in compliance with the Budget most recently
submitted to the Administrative Agent pursuant to Section 7.2(j).
(h) Section 5.2 of the Credit Agreement is amended by deleting the final sentence
thereof and replacing it to read in its entirety as follows:
The delivery of each Notice of Borrowing or Letter of Credit Application shall
constitute a representation and warranty by the Borrower of the correctness of the
matters specified in subsections (b), (c), (d) and (e) and compliance with
subsection (f) above.
(i) Section 7.1(a) of the Credit Agreement is amended by deleting the final sentence
thereof and replacing it to read in its entirety as follows:
Notwithstanding anything in this Section 7.1(a) to the contrary, for the fiscal
quarters ended March 31, 2005 and June 30, 2005, the financial statements and
reports required to be delivered under Section 7.1(a) shall be delivered on or
before the earlier of (x) October 31, 2005 and (y) the date such financial
statements and reports are available.
(j) Section 7.1(b) of the Credit Agreement is amended by deleting the final sentence
thereof and replacing it to read in its entirety as follows:
Notwithstanding anything in this Section 7.1(b) to the contrary, for the fiscal
year ended December 31, 2004, the financial statements, opinions and reports
required to be delivered under this Section 7.1(b) shall be delivered on or before
the earlier of (x) October 31, 2005 and (y) the date such financial statements,
opinions and reports are available.
(k) Section 7.2(a) of the Credit Agreement is amended and restated in its entirety to
read as follows:
(a) Compliance Certificate. Concurrently with each delivery of the
financial statements described in Section 7.1, a Compliance Certificate with respect
to the period covered by the financial statements then being delivered, executed by
a Financial Officer of the Borrower, together with a Covenant Compliance Worksheet
reflecting the computation of and compliance with the financial covenants set forth
in Section 8.14 as of the last day of the period covered by such financial
statements and compliance with such other covenants set forth in Section 8 as
required in such Covenant Compliance Worksheet. Each such Compliance Certificate
shall contain (i) a schedule setting forth any outstanding litigation between a
Credit Party and an Affiliated Practice (or former Affiliated Practice) that is
pending, at Law, in equity or in arbitration, and any judgment resulting from any
such litigation, in each case to the extent such
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litigation or judgment has not been settled, dismissed, vacated, discharged or
terminated, and (ii) an updated copy of Schedule 6.7.
(l) Section 7.2(h) of the Credit Agreement is amended and restated in its entirety to
read as follows:
(h) Other Information. As promptly as reasonably possible, such other
information about the business, condition (financial or otherwise), operations or
properties of any Credit Party or any of its Subsidiaries (including any Plan and
any information required to be filed under ERISA) as are periodically available or
as the Administrative Agent or any Lender may from time to time reasonably request,
including but not limited to all cash forecasts, cash management reports, thirteen
week cash flows and other reports and documents prepared by any Credit Party or any
of its Subsidiaries or any financial advisor employed by any Credit Party or any of
its Subsidiaries.
(m) Section 7.2 of the Credit Agreement is amended by adding subsections (j), (k), (l),
(m), (n) and (o) to read in their entirety as follows:
(j) Budget. Each Wednesday of each week, commencing on the Wednesday
after the Sixth Amendment Effective Date and thereafter, a Budget in form and
substance satisfactory to the Administrative Agent.
(k) Refinancing Opportunities. As soon as practical but in no event
later than each Monday of each week, commencing on the first Monday after the Sixth
Amendment Effective Date and thereafter, an update to the Lenders (in form and
substance acceptable to the Lenders) regarding all potential refinancing
opportunities of the Credit Party Obligations, including but not limited to
providing the Lenders copies of all term sheets, letters of intent and other
documents associated therewith. Confidential information in such term sheets,
letters of intent and other documents may be redacted, so long as such redaction
method is in form and substance satisfactory to the Administrative Agent and so long
as such redaction method does not prevent the Lenders from analyzing such potential
refinancing opportunities.
(l) Affiliated Practice Notice. Each Wednesday of each week,
commencing on the first Wednesday after the Sixth Amendment Effective Date and
thereafter, a list of all Affiliated Practices, in form and substance satisfactory
to the Lenders, that (i) have failed to make required payments under their Service
Agreements, (ii) have sent a default notice to any Credit Party in connection with
their Service Agreement (such default notices shall be delivered with the list
described herein), and (iii) are considered “inactive”, including but not limited to
date of inactive notification, annual practice revenue, annual service fees, amount
of loans and advances due to any Credit Party or its Subsidiaries and the status of
negotiations with respect to each “inactive” Affiliated Practice; provided,
however, upon any Credit Party’s receipt of a default notice by any
Affiliated
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Practice, the Borrower will provide same day verbal or electronic notice to the
Administrative Agent listing such Affiliated Practice and its address.
(m) Budget Comparison Analysis. Each Wednesday of each week,
commencing on the first Wednesday after the Sixth Amendment Effective Date and
thereafter, a weekly actual to forecast cash flow update for the Credit Parties and
their Subsidiaries, in form and substance acceptable to the Lenders, for the
previous week’s activity, including a brief explanation for each material line item
variance. At this time, the Borrower will also provide a cumulative actual to
Budget comparison analysis since the Sixth Amendment Effective Date, including a
brief explanation of each material line item variance.
(n) Special Committee’s Report. Promptly after the Borrower’s receipt
thereof, a copy of the report and documentation associated therewith provided by
that certain special committee charged with researching certain accounting issues
related to the Credit Parties, including those issues disclosed on the Form 8-K
filed on June 9, 2005. In addition, the Borrower shall provide periodic verbal
status updates regarding the special committee’s progress.
(o) Unaudited Financial Statements. As soon as available but in any
event no later than the date specified below, unaudited financial statements of the
Credit Parties and their Subsidiaries, in form and substance acceptable to the
Lenders and accompanied by a certificate by a Financial Officer or
chief administrative officer that the financial
statements are true and correct to the best of its knowledge, for the following
periods:
| Month | Date Due | |||
June 2005
|
August 23, 2005 | |||
July 2005
|
September 6, 2005 | |||
August 2005
|
September 30, 2005 | |||
September 2005
|
October 31, 2005 |
(n) Section 7.9 of the Credit Agreement is amended by deleting it in its entirety and
replacing it to read as follows:
[Intentionally Deleted]
(o) Section 7.10 of the Credit Agreement is amended by deleting it in its entirety and
replacing it to read as follows:
[Intentionally Deleted]
(p) Section 7.11 of the Credit Agreement is amended by adding the following sentence to
the end thereof to read in its entirety as follows:
Notwithstanding anything contained herein to the contrary, the Borrower will
not use the Revolving Loan proceeds (x) in any manner inconsistent with the
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Budget or (y) for working capital, Capital Expenditures, or general corporate
purposes of any Foreign Subsidiaries.
(q) Section 7.13 of the Credit Agreement is amended and restated in its entirety to
read as follows:
7.13 De Minimis Subsidiaries.
(a) If at any time (i) the aggregate book value of all assets of the De Minimis
Subsidiaries shall exceed $1,000,000 or (ii) the aggregate annual revenues of the De
Minimis Subsidiaries shall exceed $500,000 (which such revenues, in the case of a
newly acquired or formed Subsidiary, shall be calculated (x) on an annualized basis
as of the end of each of the first three complete fiscal quarters following the
acquisition or formation of such Subsidiary and (y) thereafter on a rolling four
fiscal quarter basis as of the end of each fiscal quarter), the Credit Parties will,
as promptly as reasonably possible but in any event within thirty (30) days
thereafter (or such longer period of times agreed to by the Administrative Agent),
take any or all of the following actions to the extent necessary to eliminate such
excess: (A) cause one or more De Minimis Subsidiaries to transfer assets to one or
more Guarantors, (B) merge one or more De Minimis Subsidiaries with and into one or
more Guarantors, or (C) cause one or more De Minimis Subsidiaries to become
Guarantors on terms and conditions satisfactory to the Administrative Agent.
(b) If at any time a Domestic Subsidiary that at one time met the conditions to
satisfy the definition to be a De Minimis Subsidiary no longer meets such
conditions, the Credit Parties and such Domestic Subsidiary shall (i) cause such
Domestic Subsidiary to execute and deliver to the Collateral Agent a Joinder
Agreement, pursuant to which such Domestic Subsidiary shall become a party hereto
and shall guarantee the payment in full of the Credit Party Obligations under this
Credit Agreement and the other Credit Documents, (ii) cause such Domestic Subsidiary
to execute and deliver to the Collateral Agent a Pledge and Security Agreement or an
amendment or supplement to an existing Pledge and Security Agreement pursuant to
which all of the assets of such Domestic Subsidiary shall be pledged to the
Collateral Agent and (iii) cause such Domestic Subsidiary to execute and deliver
Intercompany Notes, as appropriate, and such Intercompany Notes shall be delivered
to the Collateral Agent, together with duly executed allonges in form and substance
satisfactory to the Collateral Agent.
(r) Section 7.14 is added to the Credit Agreement to read in its entirety as follows:
7.14 Strategic Business Plan. On or before September 15, 2005, the
Borrower shall provide a strategic business plan to the Lenders in form and
substance satisfactory to the Lenders. Such strategic business plan shall be
prepared with the assistance of and supported by the financial advisors employed
pursuant to Section 7.16 and shall contain, among other things, monthly projected
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financial statements through December 31, 2006 and detailed assumptions related
thereto.
(s) Section 7.15 is added to the Credit Agreement to read in its entirety as follows:
7.15 Alternative Restructuring Plan. On or before September 30, 2005,
the Borrower shall provide an alternative restructuring plan to the Lenders, in form
and substance satisfactory to Lenders, that provides alternatives to refinancing the
Credit Party Obligations other than entirely from third party financing. Such
alternative restructuring plan shall be prepared with the assistance of and
supported by the financial advisors employed pursuant to Section 7.16.
(t) Section 7.16 is added to the Credit Agreement to read in its entirety as follows:
7.16 Financial Advisors. The Borrower shall employ and maintain the
services of a financial advisor acceptable to the Lenders to assist the Borrower and
other Credit Parties, among other things, in negotiating the refinancing of the
Credit Party Obligations and preparation of a strategic business plan and
alternative restructuring plan to be delivered in accordance with Section 7.14 and
Section 7.15.
(u) Section 7.17 is added to the Credit Agreement to read in its entirety as follows:
7.17 Management. The Borrower shall employ and maintain such
employment of an individual or individuals acceptable to the Lenders to the
positions of Executive Vice President and Chief Administrative Officer of the
Borrower, with no fewer duties and responsibilities than agreed upon with Xxxxxxx &
Marsal as of July 1, 2005.
(v) Section 7.18 is added to the Credit Agreement to read in its entirety as follows:
7.18 FTI Information Request. The Borrower shall fully provide the
Administrative Agent and its advisors with the information requested by that certain
FTI information request dated August 12, 2005 on or before August 26, 2005, or shall
submit in writing by that date an explanation of the reasons that such information
cannot be provided by the required deadline and an expected time for completion.
The Borrower shall also fully comply with other FTI information requests submitted
to the Borrower from time to time.
(w) Section 7.19 is added to the Credit Agreement to read in its entirety as follows:
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7.19 Foreign Subsidiaries. The Borrower and the other Credit Parties
shall use their best efforts to cooperate with the Administrative Agent in (a)
obtaining sufficient information regarding the Foreign Subsidiaries to determine
whether the Administrative Agent will seek to obtain and perfect Liens in the assets
of the Foreign Subsidiaries and (b) granting and perfecting such Liens in the
Foreign Subsidiaries.
(x) Section 8.1 of the Credit Agreement is amended and restated in its entirety to read
as follows:
8.1 Merger; Consolidation. Each of the Credit Parties will not, and
will not permit or cause any of its Subsidiaries to, liquidate, wind up or dissolve,
or engage in any consolidation, merger or other combination; provided,
however, that if no Default or Event of Default exists prior to or after
giving effect thereto then the following actions may be taken:
(a) the Borrower or any other Credit Party or any Subsidiary thereof may merge
or consolidate with a Credit Party; provided that (A) if the transaction
involves the Borrower, the Borrower is the surviving entity and (B) if the
transaction involves a Credit Party other than the Borrower, such Credit Party is
the surviving entity; and
(b) [Intentionally Deleted];
(c) [Intentionally Deleted]; and
(d) any De Minimis Subsidiary may dissolve and thereafter liquidate and wind up
its affairs so long as its assets, if any, are distributed only to a Credit Party.
(y) Section 8.2 of the Credit Agreement is amended and restated in its entirety to read
as follows:
8.2 Indebtedness. Each of the Credit Parties will not, and will not
permit or cause any of its Subsidiaries to, create, incur, assume or suffer to exist
any Indebtedness other than:
(a) Indebtedness incurred under this Credit Agreement, the Notes and the other
Credit Documents;
(b) Indebtedness existing on June 30, 2005, as set forth on Schedule
8.2, and any extensions, renewals, replacements, modifications and refundings
thereof; provided that the principal amount thereof is not increased from
the amount shown on Schedule 8.2;
(c) accrued expenses (including salaries, accrued vacation and other
compensation), current trade or other accounts payable and other current liabilities
arising in the ordinary course of business and not incurred through the
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borrowing of money; provided that the same shall be paid when due
except to the extent being contested in good faith and by appropriate proceedings;
(d) [Intentionally Deleted];
(e) [Intentionally Deleted];
(f) [Intentionally Deleted];
(g) Indebtedness consisting of guarantees made in the ordinary course of
business by any Credit Party or any of its Subsidiaries of leases or other
obligations of any Credit Party or any of its Subsidiaries, which obligations are
otherwise permitted under this Credit Agreement;
(h) Indebtedness of the Borrower under Hedging Agreements entered into in the
ordinary course of business and not for speculative purposes; provided that
the notional amount covered under all such agreements shall not exceed the sum of
the Revolving Committed Amount plus the outstanding principal amount of Term Loans;
(i) purchase money Indebtedness of the Credit Parties and their Subsidiaries
incurred solely to finance the payment of all or part of the purchase price of any
equipment, real property or other fixed assets acquired in the ordinary course of
business, including Indebtedness in respect of capital lease obligations, and any
renewals, refinancings or replacements thereof; provided that the aggregate
amount of such Indebtedness shall not exceed $2,500,000 at any time outstanding;
(j) [Intentionally Deleted];
(k) [Intentionally Deleted];
(l) an overdraft line of credit with a financial institution that handles the
Borrower’s cash management in an amount not to exceed $3,000,000;
(m) [Intentionally Deleted];
(n) other unsecured Indebtedness of the Credit Parties and their Subsidiaries,
including Contingent Obligations (other than Indebtedness specified in subsections
(a) through (m) and subsection (o) hereof); provided that the aggregate amount of
such Indebtedness shall not exceed $500,000 at any time outstanding; and
(o) other unsecured Indebtedness (other than Indebtedness specified in
subsections (a) through (n) above) of Foreign Subsidiaries incurred to support
operations of offices located outside the United States not to exceed (i) $620,000
in the aggregate outstanding at any time for offices located in Spain, (ii) $126,000
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in the aggregate outstanding at any time for offices located in Brazil, and
(iii) $354,000 in the aggregate outstanding at any time for offices located in
Mexico.
(z) Section 8.3 of the Credit Agreement is amended and restated in its entirety to read
as follows:
8.3 Liens. Each of the Credit Parties will not, and will not permit or
cause any of its Subsidiaries to, directly or indirectly, make, create, incur,
assume or suffer to exist, any Lien upon or with respect to any part of its property
or assets, whether now owned or hereafter acquired, or file or permit the filing of,
or permit to remain in effect, any financing statement or other similar notice of
any Lien with respect to any such property, asset, income or profits under the
Uniform Commercial Code of any state or under any similar recording or notice
statute, or agree to do any of the foregoing, other than the following
(collectively, “Permitted Liens”):
(a) Liens in favor of the Collateral Agent, for the benefit of the Lenders;
(b) Liens in existence on the Sixth Amendment Effective Date and set forth on
Schedule 8.3;
(c) Liens imposed by Law, such as Liens of carriers, warehousemen, mechanics,
materialmen and landlords, and other similar Liens incurred in the ordinary course
of business for sums not constituting borrowed money that are not overdue for a
period of more than thirty (30) days or that are being contested in good faith by
appropriate proceedings and for which adequate reserves have been established in
accordance with GAAP (if so required);
(d) Liens (other than any Lien imposed by ERISA, the creation or incurrence of
which would result in an Event of Default under Section 9.1(i)) incurred in the
ordinary course of business in connection with worker’s compensation, unemployment
insurance or other forms of governmental insurance or benefits, or to secure the
performance of letters of credit, bids, tenders, statutory obligations, surety and
appeal bonds, leases, government contracts and other similar obligations (other than
obligations for borrowed money) entered into in the ordinary course of business;
(e) Liens for taxes, assessments or other governmental charges or statutory
obligations that are not delinquent or remain payable without any penalty or that
are being contested in good faith by appropriate proceedings and for which adequate
reserves have been established in accordance with GAAP (if so required);
(f) Liens securing purchase money and capital lease Indebtedness permitted
under Section 8.2(i), provided that any such Lien (i) shall attach to such
property concurrently with or within ten days after the acquisition thereof by any
Credit Party or any of its Subsidiaries, (ii) the Indebtedness secured by such Lien
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shall not exceed the lesser of (A) the fair market value of such property or
(B) the cost thereof to such Credit Party or such Subsidiary and (iii) shall not
encumber any other property of any Credit Party or any of its Subsidiaries;
(g) any attachment or judgment Lien not constituting an Event of Default under
Section 9.1(g) that is being contested in good faith by appropriate proceedings and
for which adequate reserves have been established in accordance with GAAP (if so
required);
(h) Liens arising from the filing, for notice purposes only, of financing
statements in respect of true leases;
(i) with respect to any real property occupied by any Credit Party or any of
its Subsidiaries, all easements, rights of way, licenses and similar encumbrances on
title that do not materially impair the use of such property for its intended
purposes; and
(j) [Intentionally Deleted].
(aa) Section 8.4 of the Credit Agreement is amended and restated in its entirety to
read as follows:
8.4 Disposition of Assets. Each of the Credit Parties will not, and
will not permit or cause any of its Subsidiaries to, sell, assign, lease, convey,
transfer or otherwise dispose of (whether in one or a series of transactions) all or
any portion of its assets, business or properties (including, without limitation,
any Capital Stock of any Subsidiary), or enter into any arrangement with any Person
providing for the lease by a Credit Party or any Subsidiary as lessee of any asset
that has been sold or transferred by such Credit Party or such Subsidiary to such
Person, or agree to do any of the foregoing, except for:
(a) sales of inventory in the ordinary course of business;
(b) the sale or exchange of used or obsolete equipment to the extent (i) the
proceeds of such sale (A) are applied towards, or such equipment is exchanged for,
replacement equipment or (B) do not exceed $25,000 in the aggregate for any fiscal
quarter or (ii) such equipment is no longer necessary for the operations of a Credit
Party or its applicable Subsidiary in the ordinary course of business and
provided, however, Net Cash Proceeds from any Asset Dispositions
pursuant to clause (ii) hereof shall be applied in accordance with Section 3.3(c);
(c) the sale, lease or other disposition of assets by any Subsidiary to any
Credit Party if, immediately after giving effect thereto, no Default or Event of
Default would exist;
(d) [Intentionally Deleted];
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(e) subject to Section 3.3(b)(v), Service Agreement Buy-Outs of Litigating ORAL
Affiliated Practices;
(f) Service Agreement Buy-Outs of Affiliated Practices (other than Litigating
ORAL Affiliated Practices) resulting in proceeds or settlement amounts (whether paid
in cash or otherwise and whether or not accrued or deferred) that have been approved
by the Administrative Agent; provided, that any proceeds with respect to
such Service Agreement Buy-Outs of Affiliated Practices in excess of an aggregate
amount of $500,000 must be forwarded to the Administrative Agent in accordance with
Section 3.3(b)(ii) and applied in accordance with Section 3.3(c) and may not be
reinvested in accordance with the terms of Section 3.3(b)(ii); and
(g) [Intentionally Deleted].
(bb) Section 8.5 of the Credit Agreement is amended and restated in its entirety to
read as follows:
8.5 Investments. Each of the Credit Parties will not, and will not
permit or cause any of its Subsidiaries to, directly or indirectly, (a) purchase,
own, invest in or otherwise acquire any Capital Stock, evidence of indebtedness or
other obligation or security or any interest whatsoever in any other Person, (b)
make or permit to exist any loans, advances or extensions of credit to, or any
investment in cash or by delivery of property in, any other Person, specifically
including overadvances made to any Affiliated Practices, loans to outsourced
practices, and loans to orthodontic or dental students expected to be associated
with Affiliated Practices, or (c) purchase or otherwise acquire (whether in one or a
series of related transactions) any portion of the assets, business or properties of
another Person (including pursuant to an Acquisition), or create or acquire any
Subsidiary, or become a partner or joint venturer in any partnership or joint
venture (collectively, “Investments”), or make a commitment or otherwise
agree to do any of the foregoing, other than:
(a) Investments in Cash Equivalents;
(b) Investments consisting of purchases and acquisitions of inventory,
supplies, materials and equipment in the ordinary course of business;
(c) Investments consisting of loans and advances to employees for reasonable
travel, relocation and business expenses in the ordinary course of business,
extensions of trade credit in the ordinary course of business, and prepaid expenses
incurred in the ordinary course of business;
(d) Investments consisting of (i) intercompany Indebtedness permitted under
Section 8.2(d) and (ii) Hedging Agreements permitted under Section 8.2(h);
(e) Investments in Subsidiaries (including Foreign Subsidiaries) existing as of
the Sixth Amendment Effective Date as set forth on Schedule 6.7
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and Investments in joint ventures existing as of June 30, 2005 as set forth on
Schedule 8.5;
(f) [Intentionally Deleted];
(g) [Intentionally Deleted];
(h) Investments consisting of temporary or overnight investments and other
investment products sold to any Credit Party or any of its Subsidiaries by any
Lender or any Affiliate thereof in order to facilitate such Person’s cash
management;
(i) [Intentionally Deleted];
(j) Investments in Affiliated Practices (and including any practices affiliated
with Foreign Subsidiaries that may not be considered “Affiliated Practices”) as set
forth on Schedule 8.5 (which schedule shall contain Investments through June
30, 2005, with an updated Schedule 8.5 to be provided by September 30,
2005), and Investments made in all such practices after June 30, 2005, in an
aggregate amount not to exceed (i) $1,500,000 in the aggregate or (ii) $500,000 for
any one Affiliated Practice, at any time outstanding for all such Investments;
provided, however, that Investments made between June 30, 2005 and
the Sixth Amendment Effective Date and reflected on Schedule 8.5(a) hereto
shall not be subject to the limitations set forth in clauses (i) and (ii) hereof;
(k) Reimbursable Investments; and
(l) [Intentionally Deleted].
(cc) Section 8.6 of the Credit Agreement is amended and restated in its entirety to
read as follows:
8.6 Restricted Payments. Each of the Credit Parties will not, and will
not permit or cause any of its Subsidiaries to, directly or indirectly, declare or
make any dividend payment, or make any other distribution of cash, property or
assets, in respect of any of its Capital Stock or any warrants, rights or options to
acquire its Capital Stock, or purchase, redeem, retire or otherwise acquire for
value any shares of its Capital Stock or any warrants, rights or options to acquire
its Capital Stock, or set aside funds for any of the foregoing.
(dd) Section 8.7 of the Credit Agreement is amended and restated in its entirety to
read as follows:
8.7 Transactions with Affiliates. Each of the Credit Parties will not,
and will not permit or cause any of its Subsidiaries to, enter into any transaction
(including, without limitation, any purchase, sale, lease or exchange of property or
the rendering of any service) with any officer, director, stockholder or other
Affiliate of any Credit Party or any Subsidiary, except in the ordinary course of
its
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business and upon fair and reasonable terms that are no less favorable to it
than would obtain in a comparable arm’s length transaction with a Person other than
an Affiliate of such Credit Party or such Subsidiary; provided,
however, that nothing contained in this Section shall prohibit (a)
transactions existing as of the Sixth Amendment Effective Date as set forth on
Schedule 8.7 or otherwise expressly permitted under this Credit Agreement;
or (b) the payment by the Borrower of reasonable and customary fees to members of
its board of directors.
(ee) Section 8.15 is added to the Credit Agreement to read in its entirety as follows:
8.15 Acquisitions. None of the Credit Parties will, nor will they
permit or cause any of their Subsidiaries to, consummate any Acquisitions.
(ff) Section 8.16 is added to the Credit Agreement to read in its entirety as follows:
8.16 Creation or Acquisition of Subsidiaries. None of the Credit
Parties will, nor will they permit or cause any of their Subsidiaries to, create or
acquire any new Wholly Owned Subsidiaries in connection with an Acquisition or
otherwise.
(gg) Section 8.17 is added to the Credit Agreement to read in its entirety as follows:
8.17 Settlement and Forgiveness of Indebtedness. Each of the Credit
Parties will not, and will not permit or cause any of its Subsidiaries to, settle,
forgive or write off any amounts due or owed to it by any Affiliated Practice (or
any practice affiliated with Foreign Subsidiaries that may not be considered
“Affiliated Practices”) in an amount exceeding $500,000 in the aggregate for the
Credit Parties and their Subsidiaries during the time period from June 30, 2005
through the Maturity Date; provided, however, that amounts set forth
on Schedule 8.17 hereto shall not be subject to this limitation.
(hh) Section 9.3 of the Credit Agreement is amended and restated in its entirety to
read as follows:
9.3 Allocation of Payments After Event of Default. Notwithstanding any
other provisions of this Credit Agreement, after the occurrence and during the
continuation of an Event of Default, all amounts collected or received by any Agent
or any Lender on account of amounts outstanding under any of the Credit Documents
shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and expenses
(including the reasonable fees and expenses of legal counsel and financial advisors)
of the Agents, the L/C Issuer, the Alternative Rate Lender or any of the Lenders in
connection with enforcing the rights of the Agents, the Alternative Rate Lender, the
L/C Issuer and the Lenders under the Credit Documents, ratably
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among them in proportion to the amounts described in this clause “FIRST”
payable to them;
SECOND, to payment of any fees owed to the Agents, the Alternative Rate Lender,
the L/C Issuer or any Lender, ratably among them in proportion to the amounts
described in this clause “SECOND” payable to them;
THIRD, to the payment of all accrued interest payable to the Lenders, the
Alternative Rate Lender and the L/C Issuer hereunder, ratably among them in
proportion to the amounts described in this clause “THIRD” payable to them;
FOURTH, to the payment of the Revolving Loans in the amount equal to Additional
Revolving Loan Amount, ratably among the Lenders in proportion to the amounts
described in this clause “FOURTH” payable to them;
FIFTH, to the payment of the outstanding principal amount of the Loans and L/C
Obligations and to any principal amounts outstanding under Hedging Agreements
between a Credit Party and a Lender or an Affiliate of a Lender, ratably among them
in proportion to the amounts described in this clause “FIFTH” payable to them;
SIXTH, to the Administrative Agent, for the account of the L/C Issuer, to Cash
Collateralize that portion of the L/C Obligations comprised of the aggregate undrawn
amount of Letters of Credit;
SEVENTH, to all other Credit Party Obligations which shall have become due and
payable under the Credit Documents and not repaid pursuant to clauses “FIRST”
through “SIXTH” above, ratably among the holders of such Credit Party Obligations in
proportion to the amounts described in this clause “SEVENTH” payable to them; and
EIGHTH, the payment of the surplus, if any, to whomever may be lawfully
entitled to receive such surplus.
Amounts used to Cash Collateralize the aggregate undrawn amount of Letters of
Credit pursuant to clause “SIXTH” above shall be applied to satisfy drawings under
such Letters of Credit as they occur. If any amount remains on deposit as cash
collateral after all Letters of Credit have either been fully drawn or expired, such
remaining amount shall be applied to the other Credit Party Obligations, if any, in
the order set forth above.
(ii) Schedule 6.7 of the Credit Agreement is amended and restated in its entirety with
Schedule 6.7 attached hereto and any references in the Credit Documents to Schedule 6.7
shall refer to Schedule 6.7 attached hereto.
(jj) Schedule 8.2 of the Credit Agreement is amended and restated in its entirety with
Schedule 8.2 attached hereto and any references in the Credit Documents to Schedule 8.2
shall refer to Schedule 8.2 attached hereto.
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(kk) Schedule 8.3 of the Credit Agreement is amended and restated in its entirety with
Schedule 8.3 attached hereto and any references in the Credit Documents to Schedule 8.3
shall refer to Schedule 8.3 attached hereto.
(ll) Schedule 8.5 of the Credit Agreement is amended and restated in its entirety with
Schedule 8.5 attached hereto and any references in the Credit Documents to Schedule 8.5
shall refer to Schedule 8.5 attached hereto.
(mm) Schedule 8.7 of the Credit Agreement is amended and restated in its entirety with
Schedule 8.7 attached hereto and any references in the Credit Documents to Schedule 8.7
shall refer to Schedule 8.7 attached hereto.
2. Forbearance. The Required Lenders hereby agree to forbear from exercising any
remedies set forth in Section 9.2 of the Credit Agreement by reason of any Default or Event of
Default that may exist solely as a result of the Borrower’s failure to timely (i) file with the
Securities and Exchange Commission its Form 10-Q for the fiscal quarters ended March 31, 2005 and
June 30, 2005 (the “First and Second Quarter Form 10-Q”) and Form 10-K for the fiscal year
ended December 31, 2004 (the “2004 Form 10-K”), including, without limitation, compliance
with Sections 7.1 and 7.4 of the Credit Agreement with respect thereto (collectively, the
“Filing Default”) and (ii) deliver the unaudited consolidated balance sheets, statements of
income, cash flows and stockholders’ equity for the Credit Parties and their Subsidiaries for the
fiscal quarters ended March 31, 2005 and June 30, 2005 and the audited consolidated balance sheets,
statements of income, cash flows and stockholders’ equity for the Credit Parties and their
Subsidiaries for the fiscal year ended December 31, 2004, together with any opinions and reports
contemplated under Section 7.1 of the Credit Agreement (collectively, the “Delivery
Default”). This forbearance shall be effective as of August 1, 2005 and shall run through
October 31, 2005 (the “Forbearance Period”). This forbearance relates only to the Filing
Default or the Delivery Default and shall not be construed to be (a) a waiver as to future
compliance to timely deliver any future Form 10-Q, Form 10-K or its financial statements,
including, without limitation, as required in the last sentence of this Section 2 and as
required for subsequent fiscal quarters or years, or to otherwise comply with any other covenant in
the Credit Agreement or (b) a waiver of any other Default or Event of Default that may exist. This
forbearance shall not be deemed to be a modification or amendment to the Credit Agreement and the
Credit Agreement is hereby ratified and confirmed in all respects and shall remain in full force
and effect in accordance with its terms except as modified herein. Notwithstanding the foregoing
forbearance, (x) the Borrower shall be in violation of Section 7.4 of the Credit Agreement, and the
forbearance provided for herein shall not apply, if it has not filed its First and Second Quarter
Form 10-Q and 2004 Form 10-K with the Securities and Exchange Commission, on or before October 31,
2005 and (y) the Borrower shall be in violation of Section 7.1 of the Credit Agreement, and the
forbearance provided for herein shall not apply, if it has not delivered the financial statements,
reports and opinions required by Section 7.1 of the Credit Agreement for the fiscal year ended
December 31, 2004 and the fiscal quarters ended March 31, 2005 and June 30, 2005, on or before the
earlier of (1) October 31, 2005 and (2) the date such financial statements, reports and opinions
are available. To the extent the Delivery Default and the Filing Default have been cured on or
before October 31, 2005, such Defaults shall not be the sole basis for any exercise of the Lenders’
rights and remedies against the Borrower. Furthermore, the Forbearance Period shall immediately
terminate upon the occurrence of any of the following:
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(a) a Default or Event of Default (other than the Filing Default and Delivery Default)
under the Credit Documents; or
(b) any Credit Party’s breach of any obligation under this Amendment.
3. Effectiveness; Conditions Precedent. This Amendment shall be and become effective
as of the date hereof when all of the conditions set forth in this Section 3 shall have
been satisfied in form and substance satisfactory to the Administrative Agent.
(a) Execution and Delivery of Amendment. The Administrative Agent shall have
received copies of this Amendment, duly executed by the Borrower, the Guarantors, the
Required Lenders and the Administrative Agent.
(b) Fees and Expenses. Payment by the Borrower of all reasonable fees and
expenses owed by the Borrower to the Lenders and the Administrative Agent including, without
limitation, the reasonable fees and expenses of Xxxxxxxx Xxxxxxxx & Xxxxxx P.C., counsel to
the Administrative Agent, and FTI Consulting, Inc., advisor to the Administrative Agent, to
the extent invoices for such have been provided to the Borrower prior to the date of this
Amendment.
(c) Amendment Fee. The Administrative Agent shall have received an amendment
fee for the account of each Lender returning a copy of this Amendment executed by it to the
Administrative Agent on or prior to 10:00 a.m., Central Time, August 19, 2005, in an amount
equal to 0.10% of the sum of (i) such Lender’s Pro Rata Share of the Revolving Committed
Amount (as reduced herein) and (ii) such Lender’s Pro Rata Share of the then outstanding
Term Loans.
(d) Additional Financing. The Administrative Agent shall have received
executed copies of those certain loan documents evidencing a loan by and between the
Borrower and Xxxx Xxxxxxxxx, Xx. in an amount of not less than $1,000,000 and such amount
has been funded to the Borrower. Such loan documents shall be in form and substance
satisfactory to the Lenders and subordinated to the Credit Documents pursuant to that
certain Subordination Agreement attached hereto as Exhibit A.
(e) Amended and Restated Pledge and Security Agreement. The Administrative
Agent shall have received an executed Amended and Restated Pledge and Security Agreement by
and among the Credit Parties and the Collateral Agent in form and substance substantially
the same as the agreement attached hereto as Exhibit B.
(f) Subordination of Xxxx Xxxxxxxxx, Xx. Indebtedness. The Indebtedness owed
to Xxxx Xxxxxxxxx, Xx., as evidenced by that certain promissory note dated as of June 9,
2005 in the amount of $2,000,000 shall be subordinated to the Credit Party Obligations on
terms and conditions satisfactory to the Lenders in the form of Exhibit A hereto.
(g) Revised Cash Flow Forecast. The Administrative Agent shall have received a
revised thirteen (13) week cash flow forecast after taking into account, among
- 17 -
other things, additional Revolving Loans and the $1,000,000 funded by Xxxx Xxxxxxxxx,
Xx. in form and substance satisfactory to the Administrative Agent.
(h) Initial Budget. The Administrative Agent shall have received the initial
four-week Budget.
(i) Additional Information. Such additional documents, instruments and
information as the Administrative Agent or its legal counsel may reasonably request.
(j) No Default. No Default or Event of Default, other than the Filing Default
and the Delivery Default, shall have occurred and be continuing, or would result from the
execution of this Amendment, the other Credit Documents, or the transactions contemplated
therein.
4. Ratification of Credit Agreement. The term “Credit Agreement” as used in each of
the Credit Documents shall hereafter mean the Credit Agreement as amended and modified by this
Amendment. Except as herein specifically agreed, the Credit Agreement, as amended by this
Amendment, is hereby ratified and confirmed and shall remain in full force and effect according to
its terms. The Credit Parties acknowledge and consent to the modifications set forth herein and
agree that this Amendment does not impair, reduce or limit any of its obligations under the Credit
Documents (including, without limitation, the indemnity obligations set forth therein) and that,
after the date hereof, this Amendment shall constitute a Credit Document.
5. Authority/Enforceability. Each of the Credit Parties represents and warrants as
follows:
(a) It has taken all necessary action to authorize the execution, delivery and
performance of this Amendment.
(b) This Amendment has been duly executed and delivered by such Person and constitutes
such Person’s legal, valid and binding obligations, enforceable in accordance with its
terms, except as such enforceability may be subject to (i) bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws affecting
creditors’ rights generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding at law or in equity).
(c) No consent, approval, authorization or order of, or filing, registration or
qualification with, any court or governmental authority or third party is required in
connection with the execution, delivery or performance by such Person of this Amendment.
(d) The execution and delivery of this Amendment does not (i) violate, contravene or
conflict with any provision of its, or its Subsidiaries’ organizational documents or (ii)
materially violate, contravene or conflict with any Requirement of Law or any other law,
regulation, order, writ, judgment, injunction, decree or permit applicable to it or any of
its Subsidiaries.
- 18 -
6. Representations and Warranties of the Credit Parties. The Credit Parties represent
and warrant to the Administrative Agent and the Lenders that (a) the representations and warranties
of the Credit Parties set forth in Section 6 of the Credit Agreement are true and correct as of the
date hereof, (b) after giving effect to this Amendment, no event has occurred and is continuing
which constitutes a Default or an Event of Default (other than the Filing Default or Delivery
Default) and (c) the Credit Parties are in compliance with all Requirements of Law other than as a
result of the Filing Default or Delivery Default and, except in the case of clauses (a), (b) and
(c) of this Section 6, as to items disclosed in the Credit Parties’ disclosure contained in
one or more 8-K reports filed between June 6, 2005 and the date of this Amendment.
7. Release. In consideration of the Administrative Agent and the Required Lenders
entering into this Amendment on behalf of the Lenders, the Credit Parties hereby release the
Administrative Agent, the L/C Issuer, each of the Lenders, and the Administrative Agent’s, the L/C
Issuer’s and each of the Lenders’ respective officers, employees, representatives, agents, counsel
and directors from any and all actions, causes of action, claims, demands, damages and liabilities
of whatever kind or nature, in law or in equity, now known or unknown, suspected or unsuspected to
the extent that any of the foregoing arises from any action or failure to act solely in connection
with the Credit Documents on or prior to the date hereof.
8. Counterparts/Telecopy. This Amendment may be executed in any number of
counterparts, each of which when so executed and delivered shall be an original, but all of which
shall constitute one and the same instrument. Delivery of executed counterparts of this Amendment
by telecopy shall be effective as an original and shall constitute a representation that an
original shall be delivered promptly upon request.
9. GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTIONS 5 1401 AND 5 1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW,
BUT EXCLUDING ALL OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES).
[Remainder of Page Intentionally Left Blank.
Signature Pages to Follow.]
Signature Pages to Follow.]
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of this Amendment to
be duly executed and delivered and this Amendment shall be effective as of the date first above
written.
BORROWER:
| OCA, INC., | ||||
| a Delaware corporation | ||||
| By: | /s/ Xxxx X. Xxxxxxxxx, Xx. | |||
| Name: | Xxxx X. Xxxxxxxxx, Xx. | |||
| Title: | Chairman and CEO | |||
— Signature Page to Sixth Amendment to Credit Agreement and Forbearance —
GUARANTORS:
| ORTHODONTIC CENTERS OF ALABAMA, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF ARIZONA, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF ARKANSAS, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF CALIFORNIA, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF CALIFORNIA-VISTA, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF COLORADO, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF CONNECTICUT, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF FLORIDA, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF GEORGIA, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF HAWAII, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF IDAHO, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF ILLINOIS, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF INDIANA, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF IOWA, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF KANSAS, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF KENTUCKY, INC., | ||
| a Delaware corporation |
— Signature Page to Sixth Amendment to Credit Agreement and Forbearance —
| ORTHODONTIC CENTERS OF LOUISIANA, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF MAINE, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF MARYLAND, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF MASSACHUSETTS, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF MICHIGAN, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF MINNESOTA, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF MISSISSIPPI, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF MISSOURI, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF NEBRASKA, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF NEVADA, INC., | ||
| a Nevada corporation | ||
| ORTHODONTIC CENTERS OF NEW HAMPSHIRE, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF NEW JERSEY, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF NEW MEXICO, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF NEW YORK, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF NORTH CAROLINA, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF NORTH DAKOTA, INC., | ||
| a Delaware corporation |
— Signature Page to Sixth Amendment to Credit Agreement and Forbearance —
| ORTHODONTIC CENTERS OF OHIO, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF OKLAHOMA, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF OREGON, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF PENNSYLVANIA, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF PUERTO RICO, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF RHODE ISLAND, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF SOUTH CAROLINA, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF TENNESSEE, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF TEXAS, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF UTAH, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF VIRGINIA, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF WASHINGTON, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF WASHINGTON D.C., INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF WEST VIRGINIA, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF WISCONSIN, INC., | ||
| a Delaware corporation | ||
| ORTHODONTIC CENTERS OF WYOMING, INC., | ||
| a Delaware corporation |
— Signature Page to Sixth Amendment to Credit Agreement and Forbearance —
| OCA MERGERCO, INC., | ||
| a Delaware corporation | ||
| OCA INTERNATIONAL, INC., | ||
| a Delaware corporation | ||
| OCA OUTSOURCE, INC., | ||
| a Delaware corporation | ||
| ORTHALLIANCE, INC., | ||
| a Delaware corporation | ||
| ORTHALLIANCE FINANCE, INC., | ||
| a Delaware corporation | ||
| ORTHALLIANCE PROPERTIES, INC., | ||
| a California corporation | ||
| ORTHALLIANCE SERVICES, INC., | ||
| a California corporation | ||
| ORTHALLIANCE HOLDINGS, INC., | ||
| a Texas corporation | ||
| ORTHALLIANCE NEW IMAGE, INC., | ||
| a Delaware corporation | ||
| PEDOALLIANCE, INC., | ||
| a Delaware corporation | ||
| PEDOALLIANCE PROPERTIES, INC., | ||
| a California corporation |
| By: | /s/ Xxxx X. Xxxxxxxxx, Xx. | |||
| Name: | Xxxx X. Xxxxxxxxx, Xx. | |||
| Title: | Chairman and CEO | |||
| of each of the foregoing Guarantors | ||||
— Signature Page to Sixth Amendment to Credit Agreement and Forbearance —
ADMINISTRATIVE AGENT:
| BANK OF AMERICA, N.A., | ||||
| in its capacity as Administrative Agent | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxxx, III | |||
| Name: | Xxxxxxx X. Xxxxxxxxxxx, III | |||
| Title: | Managing Director | |||
LENDERS: |
||||
| BANK OF AMERICA, N.A., | ||||
| in its capacity as a Lender | ||||
| By: | /s/ Xxxxxxx X. Xxxxxxxxxxx, III | |||
| Name: | Xxxxxxx X. Xxxxxxxxxxx, III | |||
| Title: | Managing Director | |||
Signature Page to Sixth Amendment to Credit Agreement and Forbearance —
| GRAND CENTRAL ASSET TRUST, SIL SERIES, | ||||
| in its capacity as a Lender | ||||
| By: | /s/ Xxxxxxx Xxxx | |||
| Name: | Xxxxxxx Xxxx | |||
| Title: | as Attorney-in-Fact | |||
—
Signature Page to Sixth Amendment to Credit Agreement and Forbearance —
| SPCP GROUP, L.L.C., | ||||
| in its capacity as a Lender | ||||
| By: | /s/ Xxxxxxxxx X. Xxxxx | |||
| Name: | Xxxxxxxxx X. Xxxxx | |||
| Title: | Authorized Signatory | |||
—
Signature Page to Sixth Amendment to Credit Agreement and Forbearance —
