AMENDMENT NO. 3 TO FACILITY A
364-DAY COMPETITIVE ADVANCE, REVOLVING CREDIT AND GUARANTY
AGREEMENT
THIS AMENDMENT NO. 3 (this "Amendment") is dated as
of May 24, 2002, 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
WACHOVIA BANK, NATIONAL ASSOCIATION (as successor by merger to
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 and Amendment No. 2
to Facility A 364-Day Competitive Advance, Revolving Credit and
Guaranty Agreement dated as of August 30, 2001 (the "Facility A
Credit Agreement").
BACKGROUND
The parties hereto desire to amend the Facility A
Credit Agreement to extend the maturity date as permitted by
Section 2.12(e) of 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. Maturity Date. The Maturity Date is
hereby extended for an additional 364 days in accordance with
Section 2.12(e) of the Facility A Credit Agreement and the
definition of "Maturity Date" set forth in Section 1.01 of the
Facility A Credit Agreement is hereby amended and restated in
its entirety to read as follows:
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"Maturity Date" shall mean May 23, 2003 or such other
Maturity Date then in effect pursuant to Section
2.12(e).
1.03. Pro Rata Treatment. Section 2.18 is
hereby amended by inserting the following at the end of such
Section:
Other than as may be expressly set forth in this
Agreement, if at any time insufficient funds are
received by and available to the Administrative Agent
to pay fully all amounts of principal, interest,
expenses, and fees then due hereunder, such funds
shall be applied (i) first, towards payment of
expenses, interest and fees (and in that order) then
due hereunder, ratably among the parties entitled
thereto in accordance with the aggregate respective
amounts of expenses, interest and fees then due to
such parties in connection with all Revolving Credit
Borrowings and all Competitive Borrowings, and (ii)
second, towards payment of principal then due
hereunder, ratably among the parties entitled thereto
in accordance with the aggregate amounts of principal
then due to such parties in connection with all
Revolving Credit Borrowings and all Competitive
Borrowings.
1.04.Payments. The first sentence of Section 2.21 is
hereby amended and restated in its entirety to read as follows:
The Borrower shall make each payment hereunder and
under any instrument delivered hereunder not later
than 12:00 noon, New York City time, on the day when
due in lawful money of the United States (in freely
transferable dollars) to the Administrative Agent at
its offices set forth on Schedule 2.01 therefor, for
the account of the Banks, in federal or other
immediately available funds, without set-off,
counterclaim, or deduction; provided, however, that
each payment of principal and interest under any Loan
made in an Alternate Currency shall be made in
immediately available funds, without set-off,
counterclaim, or deduction, in the currency in which
such Loan was made.
1.05. Commitments. Schedule 2.01 of the
Facility A Credit Agreement is hereby deleted in its entirety
and is replaced with Schedule 2.01 hereto.
1.06.Fees. On or before 5:00 p.m. (New York City
time) on May 24, 2002, and as a condition to the effectiveness
of this Amendment, Borrower shall pay in immediately available
funds to each Bank that executes this Amendment, an amount
equal to one twentieth of one percent (0.05% or 5 basis points)
of the amount of such Bank's Commitment as set forth on
Schedule 2.01 hereto.
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. Dentsply International Preventive Care
Division L.P., a Pennsylvania limited partnership, and Midwest
Dental Products Corp., a Delaware corporation (collectively,
the "Former Guarantors"), each of which were Guarantors under
the Facility A Credit Agreement have been merged out of
existence.
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2.02. The execution and delivery by the Borrower and
the Guarantors of this Amendment, the consummation by the
Borrower and the Guarantors of the transactions contemplated by
the Credit Agreement as amended hereby, and the performance by
each of the Borrower and each Guarantor of its respective
obligations hereunder and thereunder have been duly authorized
by all necessary corporate proceedings on the part of the
Borrower and each Guarantor. On the date of Borrower's
execution hereof, there are no set-offs, claims, defenses,
counterclaims, causes of action, or deductions of any nature
against any of the Obligations.
2.03. This Amendment has been duly and validly
executed and delivered by the Borrower and each Guarantor and
constitutes, and the Credit Agreement as amended hereby
constitutes, the legal, valid and binding obligations of the
Borrower and each Guarantor enforceable in accordance with the
terms hereof and thereof, except as the enforceability of this
Amendment or the Credit Agreement as amended hereby may be
limited by bankruptcy, insolvency or other similar laws of
general application affecting the enforcement of creditors'
rights or by general principles of equity limiting the
availability of equitable remedies.
2.04. Neither the execution and delivery of this
Amendment nor consummation of the transactions contemplated
hereby or by the Credit Agreement as amended hereby nor
compliance with the terms and provisions hereof or of the
Credit Agreement as amended hereby, by the Borrower or any
Guarantor, will (a) violate any Law, (b) conflict with or
result in a breach of or a default under the articles or
certificate of incorporation or bylaws or similar
organizational documents of the Borrower or any Guarantor or
any material agreement or instrument to which the Borrower or
any Guarantor is a party or by which the Borrower or any
Guarantor or any of their respective properties (now owned or
hereafter acquired) may be subject or bound, (c) require any
consent or approval of any Person or require a mandatory
prepayment or any other payment under the terms of any material
agreement or instrument to which the Borrower or any Guarantor
is a party or by which the Borrower or any Guarantor or any of
their respective properties (now owned or hereafter acquired)
may be subject or bound, (d) result in the creation or
imposition of any Lien upon any property (now owned or
hereafter acquired) of the Borrower or any Guarantor, or
(e) require any authorization, consent, approval, license,
permit, exemption or other action by, or any registration,
qualification, designation, declaration or filing with, any
Governmental Authority.
2.05. After giving effect to this Amendment: (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.
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Article III
Effect, Effectiveness, Consent of Guarantors
3.01. Effectiveness. Upon (i) Borrower's payment
and performance of all obligations in connection herewith and
(ii) Agent's receipt from each of the Banks (other than the
Non-Extending Bank), the Borrower, and the Guarantors of 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. Each of the Banks, by its
signature hereto, hereby consents to the effectiveness of this
Amendment notwithstanding any technical requirements for the
timing of notifications and approvals set forth in Section
2.12(e) of the Facility A Credit Agreement. Within forty-five
(45) days of the date hereof, each of the Borrower and each
Guarantor shall have delivered to the Agent a certificate
signed by the Secretary or Assistant Secretary of such Borrower
or Guarantor certifying that the articles of incorporation,
bylaws, resolutions, specimen signatures and incumbency of
officers previously delivered by such Borrower or Guarantor to
the Agent in connection with the Facility A Credit Agreement
remain in effect and have not been amended and are effective to
authorize such Person's execution, delivery, and performance of
this Amendment; provided that, to the extent such articles of
incorporation, bylaws, resolutions, or incumbency are no longer
in effect or have been amended, such certificate shall certify
as to the changes thereto.
The parties hereto acknowledge and agree that the
Former Guarantors are no longer Guarantors under the Facility A
Credit Agreement.
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.
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.
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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]
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