EXHIBIT 4.2(b)
FIRST AMENDMENT TO NOTE AGREEMENT
This First Amendment, dated as of September 1, 2001 (the
or this "First Amendment") to the Note Agreement dated as of
March 1, 2001 described below, is between Dentsply
International Inc., a Delaware corporation (the "Company"), and
each of the Purchasers party to the Note Agreement referred to
herein (collectively, the "Noteholders").
RECITALS:
A. The Company and each of the Noteholders have heretofore
entered into a Note Purchase and Private Shelf Agreement, dated
as of March 1, 2001 (as in effect from time to time, the "Note
Agreement"). Pursuant to the Note Agreement, the Company has
heretofore issued (i) its Series A Notes in the aggregate
principal amount of 82,450,000 Swiss Francs and (ii) its Series
B Notes in the aggregate principal amount of 84,400,000 Swiss
Francs, maturing, in each case, on March 1, 2007. The
Noteholders are the holders of 100% of the outstanding
principal amount of the Series A Notes and the Series B Notes.
B. The Company and the Noteholders now desire to amend
certain provisions of the Note Agreement as of the date hereof
in the respects, but only in the respects, hereinafter set
forth.
C. Capitalized terms used herein shall have the respective
meanings ascribed thereto in the Note Agreement unless herein
defined or the context shall otherwise require.
D. All requirements of law have been fully complied with and
all other acts and things necessary to make this First
Amendment a valid, legal and binding instrument according to
its terms for the purposes herein expressed have been done or
performed.
NOW, THEREFORE, in consideration of good and valuable
consideration the receipt and sufficiency of which is hereby
acknowledged, the Company and the Noteholders do hereby agree
as follows:
SECTION 1. Amendments.
Paragraph 5H of the Note Agreement shall be and is hereby
amended in its entirety to read as follows:
"5H. Intercreditor Agreement. The Company covenants
that on or before September 30, 2001, the agent under (on
its own behalf and as agent on behalf of each lender party
to) both of the Bank Agreements shall enter into an
intercreditor agreement with Prudential and each holder of
Notes which shall be in form and content satisfactory to
Prudential; provided however that, in the event the
Company replaces, refinances or extends the term of either
or both Bank Agreements with a facility or facilities that
either (a) require guaranties by Subsidiaries of the
Company or (b) provide that Subsidiaries of the Company
may be borrowers thereunder, the Company shall cause each
lender party to any such facility to simultaneously enter
into a replacement intercreditor agreement (the
"Intercreditor Agreement") with Prudential and each holder
of Notes which shall include terms no less favorable to
each holder of Notes than those referenced on the summary
of intercreditor terms attached hereto as Exhibit E, and
shall in any event be in form, scope and content
satisfactory to Prudential."
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Paragraph 6A(3) of the Note Agreement shall be and is hereby
amended in its entirety to read as follows:
"6A(3) Debt and Priority Debt Limitations. (i)
The ratio, expressed as a percentage, of Consolidated Debt
to Consolidated Capitalization to exceed (a) 55% at any
time during the period commencing on the Series A Closing
Day and ending on August 30, 2001, (b) 65% at any time
during the period commencing on August 31, 2001 and ending
on December 31, 2002, (c) 55% at any time during the
period commencing on January 1, 2003 and ending on
December 31, 2003, or (d) 50% at any time thereafter or
(ii) the aggregate amount of Priority Debt to at any time
exceed 15% of Consolidated Net Worth."
Paragraph 6B(8) of the Note Agreement shall be and is hereby
amended in its entirety to read as follows:
"6B(8) Sale-and-Leasebacks. Enter into any transaction,
directly or indirectly, whereby it shall sell or transfer any
property, if at the time of such sale or disposition the
Company or any Subsidiary intends to lease or otherwise acquire
the right to use or possess (except by purchase) such property
or like property for a substantially similar purpose (a "Sale
and Leaseback Transaction") except:
(i) any Sale and Leaseback Transaction in
which the property is sold by the Company to a
Subsidiary or by a Subsidiary to the Company or
another Subsidiary, or
(ii) the Company or any Subsidiary may enter
into any Sale and Leaseback Transaction if (a) at
the time thereof and immediately after giving effect
thereto no Default or Event of Default shall exist
(including any Event of Default under paragraph
6A(3)(ii)) and the proceeds from the sale of the
subject property shall be equal to not less than 80%
of its fair market value (as reasonably determined
by the Company's Board of Directors); or
(iii)following the acquisition of DeGussa
Dental Group by the Company or one or more of its
Subsidiaries, any one or more Sale and Leaseback
Transactions, in an aggregate equivalent amount not
to exceed US$100,000,000, with respect to the
precious metals owned by Degussa Dental Group prior
to such acquisition; provided that any such Sale and
Leaseback Transaction shall be entered into and
effective no later than June 30, 2002; or"
The following shall be added as a new Paragraph 6C of the Note
Agreement:
"6C. Subsidiary Accounts/Cash Management. The
Company will not permit any Subsidiary party to the
Subsidiary Guaranty to establish or maintain any
deposit, checking or other account with any financial
institution that is a party to either or both of the
Bank Agreements; provided however, that such
Subsidiaries may continue to maintain any such
accounts that were in existence on the Series A
Closing Day in accordance with the Company's cash
management practices in effect on the Series A
Closing Day; provided further, however, that the
aggregate daily positive balances maintained therein
on any day shall not exceed US$1,000,000."
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The definition of "Bank Agreements" set forth in Paragraph 10B
of the Note Agreement is hereby amended in its entirety to
read as follows:
"Bank Agreements" shall mean (i) the $250,000,000
Facility A 364-Day Competitive Advance, Revolving Credit
and Guaranty Agreement dated as of May 25, 2001, among the
Company and the other Persons named as parties thereto, as
amended or otherwise modified from time to time, (ii) the
$250,000,000 Five-Year Competitive Advance, Revolving
Credit and Guaranty Agreement dated as of May 25, 2001
among the Company and the other Persons named as parties
thereto, as amended or otherwise modified from time to
time and (iii) the Revolving Credit Agreement dated
September 9, 1994, among the Company and the other Persons
named as party thereto, as amended otherwise modified from
time to time.
SECTION 2. Supplemental interest payments.
(a) In consideration of the agreement of the Noteholders to
consent to amend the Note Agreement in the respects set forth
in Section 1 hereof, the Company hereby agrees to pay, in
addition to the interest payable in respect of the Series A
Notes and Series B Notes pursuant to the respective terms of
such Notes and of the Note Agreement as in effect on the date
hereof, supplemental interest ("Supplemental Interest") on the
respective unpaid principal balances of the Series A Notes and
Series B Notes from and after the date hereof, in accordance
with this Section 2.
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(b) The Supplemental Interest payable on the Series
A Notes and Series B Notes for any day from and after the date
hereof shall be and mean interest (computed on the basis of a
360-day year consisting of twelve 30 day months) on the
respective US Dollar Equivalent (as defined below) of such
unpaid principal balances at the corresponding rate per annum
set forth in the table below, determined by reference to the
respective ratings from time to time assigned to the Company's
long-term, senior, unsecured debt (which is not guarantied or
subject to any other form of credit enhancement) by Standard
and Poor's Ratings Group and Moody's Investor Service, Inc.,
and published by the applicable rating agency:
-------------------------------------------------
Applicable Debt Ratings Supplemental Interest
-------------------------------------------------
-------------------------------------------------
BBB+ or Baa1 (or 0.40%
higher)1
-------------------------------------------------
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BBB or Baa21 0.60%
-------------------------------------------------
-------------------------------------------------
BBB- or Baa3 (or 1.00%
lower) 1
-------------------------------------------------
1 In the event of a split rating, the higher of
the two ratings will determine the applicable
Supplemental Interest.
(c) Supplemental Interest shall be payable in
arrears on each March 1, June 1, September 1 and December 1
subsequent to the date hereof in US Dollars in immediately
available funds by wire transfer for credit to:
Prudential Managed
Account
Account No.
890-0304-391
The Bank of New York
New York, New York
(ABA No.: 021-000-018)
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Each such wire transfer shall also reference the name of the
Company, and the following information for the applicable Note
to which such payment applies " _____% Series __ Notes due
____________, Security No. !INV ____!, PPN _____", and the due
date and application (Supplemental Interest) of the payment
being made.
(d) For purposes hereof, the term "US Dollar
Equivalent" shall mean the amount determined by converting the
aggregate outstanding Swiss Franc balances of the Series A
Notes or the Series B Notes, as the case may be, to the
equivalent in US Dollars using a rate of exchange of (a) in the
case of the Series A Notes, 1.649 Swiss Francs/1.000 US Dollars
and (b) in the case of the Series B Notes, 1.688 Swiss
Francs/1.000 US Dollars.
(e) Changes in the applicable Supplemental Interest
rate shall become effective on the fifth Business Day following
the date Standard and Poor's Ratings Group and/or Moody's
Investor Service, Inc., as the case may be, publishes the
relevant change in its applicable rating.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
3.1 As of the date this First Amendment becomes effective
pursuant to the provisions of Section 4.1 hereof, each of the
Company and each Subsidiary party to the Subsidiary Guaranty,
jointly and severally, represent and warrant to the Noteholders
as follows:
(a) There are no set-offs, claims, defenses,
counterclaims, causes of action, or deductions of any
nature against any of the obligations under the Note
Agreement or the Subsidiary Guaranty or evidenced by the
Notes.
(b) After giving effect to the amendments made
herein: (i) no Event of Default and, to the knowledge of
the Company and the Subsidiaries party to the Subsidiary
Guaranty, no Default, has occurred and is continuing, and
(ii) the representations and warranties set forth in
Paragraph 8 of the Note Agreement and Paragraph 5 of the
Subsidiary Guaranty are true and correct on and as of the
date this First Amendment becomes effective with the same
force and effect as though made on such date, except to
the extent that any such representation or warranty
expressly relates solely to a previous date.
SECTION 4. Miscellaneous.
Upon the date that the Noteholders shall have received from
each of the Company and the Subsidiaries party to the
Subsidiary Guaranty a counterpart hereof signed by such party
or facsimile or other written confirmation (in form
satisfactory to the Noteholders) that such party has signed a
counterpart hereof, this First Amendment shall become effective
as of the date hereof.
This First Amendment shall be construed in connection with and
as part of the Note Agreement, and except as modified and
expressly amended by this First Amendment, all terms,
conditions and covenants contained in the Note Agreement and
the Notes are hereby ratified and shall be and remain in full
force and effect.
Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and
delivery of this First Amendment may refer to the Note
Agreement without making specific reference to this First
Amendment but nevertheless all such references shall include
this First Amendment unless the context otherwise requires.
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The descriptive headings of the various Sections or parts of
this First Amendment are for convenience only and shall not
affect the meaning or construction of any of the provisions
hereof.
This First Amendment shall be governed by and construed in
accordance with New York law.
The execution hereof by you shall constitute a contract between
us for the uses and purposes hereinabove set forth, and this
First Amendment may be executed in any number of counterparts,
each executed counterpart constituting an original, but all
together only one agreement.
Each of the Subsidiaries of the Company party to the Subsidiary
Guaranty hereby joins in this First Amendment to evidence its
consent hereto, and each such Subsidiary of the Company hereby
reaffirms its obligations set forth in the Subsidiary Guaranty
and in each other document given by it in connection with the
Note Agreement and the Notes.
This First Amendment shall be governed by and construed in
accordance with New York law.
[BORROWER:]
DENTSPLY INTERNATIONAL INC., a
Delaware corporation
By:
Name: William R. Jellison
Title: Sr. VP and Chief
Financial Officer
By:
Name: William E. Reardon
Title: Treasurer
[GUARANTORS:]
CERAMCO INC., a Delaware
corporation
By:
Name: William E. Reardon
Title: Treasurer
CERAMCO MANUFACTURING CO., a
Delaware corporation
By:
Name: William E. Reardon
Title: Treasurer
D3
DENTSPLY INTERNATIONAL
PREVENTIVE CARE DIVISION L.P., a
Pennsylvania limited partnership
By:
Dentsply International Inc.,
a Delaware corporation, its
general partner
By:
Name: William E. Reardon
Title: Treasurer
G.A.C. INTERNATIONAL, INC., a
New York corporation
By:
Name: William E. Reardon
Title: Treasurer
MIDWEST DENTAL PRODUCTS CORP., a
Delaware corporation
By:
Name: William E. Reardon
Title: Treasurer
RANSOM & RANDOLPH COMPANY, a
Delaware corporation
By:
Name: William E. Reardon
Title: Treasurer
TULSA DENTAL PRODUCTS INC., a
Delaware corporation
By:
Name: William E. Reardon
Title: Treasurer
D3
DENTSPLY FINANCE CO., a Delaware
corporation
By:
Name:
Title:
DENTSPLY RESEARCH & DEVELOPMENT
CORP., a Delaware corporation
By:
Name:
Title:
ACCEPTED AND AGREED TO:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:______________________________
Title:
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