AMENDMENT NO. 2 TO FACILITY A
364-DAY COMPETITIVE ADVANCE, REVOLVING CREDIT AND GUARANTY
AGREEMENT
THIS AMENDMENT NO. 2 (this "Amendment") is dated as
of August 30, 2001, and amends the Facility A 364-Day
Competitive Advance, Revolving Credit and Guaranty Agreement,
dated as of May 25, 2001, by and among DENTSPLY INTERNATIONAL
INC. (the "Borrower"), the Guarantors (as such term is defined
therein) from time to time party thereto, the Banks (as such
term is defined therein) from time to time party thereto, and
ABN AMRO BANK N.V., as administrative agent (the "Agent") and
arranger and bookrunner, CREDIT SUISSE FIRST BOSTON and BANK OF
TOKYO-MITSUBISHI TRUST COMPANY, as co-syndication agents, and
FIRST UNION NATIONAL BANK and HARRIS TRUST AND SAVINGS BANK, as
co-documentation agents, as amended by Amendment No. 1 to
Facility A 364-Day Competitive Advance, Revolving Credit and
Guaranty Agreement dated as of May 25, 2001 (the "Facility A
Credit Agreement").
BACKGROUND
In light of the Proposed Acquisition, the parties
hereto desire to amend certain covenants contained in the
Facility A Credit Agreement, as more fully set forth below.
OPERATIVE PROVISIONS
NOW THEREFORE, the parties hereto, in consideration
of their mutual covenants and agreements herein contained,
incorporating the above-defined terms herein and intending to
be legally bound hereby agree as follows:
Article I
Amendment
1.01. Defined Terms; References. Terms not
otherwise defined in this Amendment (including in the
Background section above) shall have the respective meanings
ascribed to them in the Facility A Credit Agreement. Each
reference to "hereof," "hereunder," "herein," and "hereby" and
similar references contained in the Facility A Credit Agreement
and each reference to "this Agreement" and similar references
contained in the Facility A Credit Agreement shall, on and
after the date hereof, refer to the Facility A Credit Agreement
as amended hereby.
1.02. Sale and Leaseback. As of the date hereof,
Section 6.06(a) of the Facility A Credit Agreement shall be
deleted in its entirety and replaced with the following:
"(a) (i) the Des Plaines Lease; and (ii)
following the acquisition of Degussa Dental Group by Borrower
or one or more of its Subsidiaries and no later than June 30,
2002, 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 inventory owned by Degussa
Dental Group prior to such acquisition;"
1.03. Debt Ratio.
(i) As of the date hereof, Section 6.11(a) of the
Facility A Credit Agreement shall be deleted in its entirety
and replaced with the following:
D9
"(a) In the event that the Proposed Acquisition
occurs no later than August 30, 2001, then upon and after the
Proposed Acquisition, permit the Debt Ratio at any such time
through December 31, 2002, to be greater than 0.65 to 1.0 or
permit the Debt Ratio at any time after December 31, 2002,
through December 31, 2003, to be greater than 0.55 to 1.0 or
permit the Debt Ratio at any time after December 31, 2003, to
be greater than 0.50 to 1.0."
(ii) As the Borrower or one or more of its
Subsidiaries has prior to the date hereof expended or committed
to expend an amount in excess of US$1,000,000 (or its
equivalent) in connection with the acquisition of Degussa
Dental Group, the parties hereto acknowledge that, in
accordance with the definition of "Proposed Acquisition" set
forth in the Facility A Credit Agreement for purposes of
Section 6.11, the Proposed Acquisition has occurred.
Article II
Representations and Warranties
As of the date hereof, each of the Borrower and each
of the Guarantors, jointly and severally, represent and warrant
to the Agent and each of the Banks as follows:
2.01. There are no set-offs, claims, defenses,
counterclaims, causes of action, or deductions of any nature
against any of the Obligations.
2.02. After giving effect to the amendments made
herein: (i) no Event of Default under and as defined in the
Facility A Credit Agreement and, to the knowledge of the
Borrower and the Guarantors, no event which upon notice or
lapse of time or both would constitute such an Event of Default
has occurred and is continuing, and (ii) the representations
and warranties of each of Borrower and each of the Guarantors
contained in the Facility A Credit Agreement and the other
Fundamental Documents are true and correct on and as of the
date hereof 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.
Article III
Effect, Effectiveness, Consent of Guarantors
3.01. Effectiveness. Upon the date that Agent shall
have received from each of the Required Banks, the Borrower,
and the Guarantors a counterpart hereof signed by such party or
facsimile or other written confirmation (in form satisfactory
to Agent) that such party has signed a counterpart hereof, this
Amendment shall be effective as of the date hereof.
3.02. Amendment. The Facility A Credit Agreement is
hereby amended in accordance with the terms hereof, and this
Amendment and the Facility A Credit Agreement shall hereafter
be one agreement and any reference to the Facility A Credit
Agreement in any document, instrument, or agreement shall
hereafter mean and include the Facility A Credit Agreement as
amended hereby. In the event of irreconcilable inconsistency
between the terms or provisions hereof and the terms or
provisions of the Facility A Credit Agreement, the terms and
provisions hereof shall control.
D9
3.03. Joinder of Guarantors. Each of the Guarantors
hereby joins in this Amendment to evidence its consent hereto,
and each Guarantor hereby reaffirms its obligations set forth
in the Facility A Credit Agreement, as hereby amended, and in
each other Fundamental Document given by it in connection
therewith.
Article IV
Miscellaneous
4.01. Facility A Credit Agreement. Except as
specifically amended by the provisions hereof, the Facility A
Credit Agreement and all other Fundamental Documents shall
remain in full force and effect and are hereby ratified and
confirmed by the parties hereto.
4.02. Counterparts, Telecopy Signatures. This
Amendment may be signed in any number of counterparts each of
which shall be deemed an original, but all of which together
shall constitute one and the same instrument; and, delivery of
executed signature pages hereof by telecopy transmission from
one party to another shall constitute effective and binding
execution and delivery respectively of this Amendment by such
party.
4.03. Governing Law. This Amendment shall be
governed by and construed and enforced in accordance with the
laws of the State of New York without regard to its conflict
of laws principles.
4.04. Expenses. Each of the Borrower and each of
the Guarantors agree, jointly and severally, to reimburse the
Agent for its reasonable out-of-pocket expenses arising in
connection with the negotiation, preparation and execution of
this Amendment, including the reasonable fees and expenses of
Buchanan Ingersoll PC, counsel for the Agent.
4.05. Severability. If any provision of this
Amendment, or the application thereof to any party hereto,
shall be held invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provisions or
applications of this Amendment which can be given effect
without the invalid and unenforceable provision or application,
and to this end the parties hereto agree that the provisions of
this Amendment are and shall be severable.
4.06. Banks' Consent. Each Bank, by its execution
hereof, hereby consents to this Amendment pursuant Section
10.02 of the Facility A Credit Agreement.
[SIGNATURE PAGES FOLLOW]
D9