AMENDMENT NO. 1 TO FACILITY B
FIVE-YEAR COMPETITIVE ADVANCE, REVOLVING CREDIT AND
GUARANTY AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment") is dated
as of May 25, 2001, and amends the Facility B Five-Year
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 (the "Original Facility B
Credit Agreement").
BACKGROUND
The parties hereto desire to amend the Original
Facility B Credit Agreement to apply the Usage Fee to the
aggregate of all commitments under the both the Original
Facility B Credit Agreement and 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 shall have the
respective meanings ascribed to them in the Original
Facility B Credit Agreement. Each reference to "hereof,"
"hereunder," "herein," and "hereby" and similar references
contained in the Original Facility B Credit Agreement and
each reference to "this Agreement" and similar references
contained in the Original Facility B Credit Agreement
shall, on and after the date hereof, refer to the Original
Facility B Credit Agreement as amended hereby.
1.02. Usage Fee. As of the date hereof, Section
2.08(b) of the Original Facility B Credit Agreement shall
be deleted in its entirety and replaced with the following:
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"(b) The Borrower agrees to pay to each
Bank, through the Administrative Agent, on each
March 31, June 30, September 30, December 31, and
on the Maturity Date or any earlier date on which
the Commitment of such Bank shall have terminated
and the outstanding Loans of such Bank have been
repaid in full, a usage fee (a "Usage Fee") at a
rate per annum equal to the Applicable Percentage
from time to time in effect on the aggregate
amount of such Bank's Credit Exposure for each
day on which the sum of the aggregate Credit
Exposure of all Banks under this Agreement plus
the aggregate Credit Exposure (as such term is
defined in the Facility A Credit Agreement) of
all Banks under (and as "Banks" is defined in)
the Facility A Credit Agreement shall be greater
than fifty percent (50%) of the aggregate amount
of the total Commitments under this Agreement and
of the total Commitments under (and as such term
is defined in) the Facility A Credit Agreement.
All Usage Fees shall be computed on the basis of
the actual number of days elapsed in a year of
360 days and shall be payable for the actual
number of days elapsed (including the first day
but excluding the last day)."
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
Original Facility B Credit Agreement has occurred and is
continuing, and (ii) the representations and warranties of
each of Borrower and each of the Guarantors contained in
the Original Facility B 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 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
May 25, 2001. Any Usage Fee received by Agent or any Bank
under the Original Facility B Credit Agreement and which is
in excess of the Usage Fee as calculated under this
Amendment shall be promptly returned to Borrower
notwithstanding, solely for the purposes of this sentence,
Section 2.08(e) of the Original Facility B Credit Agreement.
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3.02. Amendment. The Original Facility B Credit
Agreement is hereby amended in accordance with the terms
hereof, and this Amendment and the Original Facility B
Credit Agreement shall hereafter be one agreement and any
reference to the Original Facility B Credit Agreement in
any document, instrument, or agreement shall hereafter mean
and include the Original Facility B Credit Agreement as
amended hereby. In the event of irreconcilable
inconsistency between the terms or provisions hereof and
the terms or provisions of the Original Facility B 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 Original Facility B Credit
Agreement, as hereby amended, and in each other Fundamental
Document given by it in connection therewith.
Article IV
Miscellaneous
4.01. Original Facility B Credit Agreement.
Except as specifically amended by the provisions hereof,
the Original Facility B 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 Original Facility B Credit
Agreement.
[SIGNATURE PAGES FOLLOW]
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