AMENDMENT NO. 1 TO FACILITY A
364-DAY COMPETITIVE ADVANCE, REVOLVING CREDIT AND GUARANTY
AGREEMENT
THIS AMENDMENT NO. 1 (this "Amendment") is dated as
of May 25, 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 (the "Original Facility A Credit
Agreement").
BACKGROUND
The parties hereto desire to amend the Original
Facility A Credit Agreement to apply the Usage Fee to the
aggregate of all commitments under the both the Original
Facility A Credit Agreement and the Facility B 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 A Credit
Agreement. Each reference to "hereof," "hereunder," "herein,"
and "hereby" and similar references contained in the Original
Facility A Credit Agreement and each reference to "this
Agreement" and similar references contained in the Original
Facility A Credit Agreement shall, on and after the date
hereof, refer to the Original Facility A Credit Agreement as
amended hereby.
1.02. Usage Fee. As of the date hereof, Section
2.07(b) of the Original Facility A Credit Agreement shall be
deleted in its entirety and replaced with the following:
D7
"(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 B Credit Agreement)
of all Banks under (and as "Banks" is defined in) the
Facility B 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 B 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 A 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 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 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 A
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 2.07(d) of the Original Facility A Credit
Agreement.
D7
3.02. Amendment. The Original Facility A Credit
Agreement is hereby amended in accordance with the terms
hereof, and this Amendment and the Original Facility A Credit
Agreement shall hereafter be one agreement and any reference to
the Original Facility A Credit Agreement in any document,
instrument, or agreement shall hereafter mean and include the
Original 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 Original
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 Original Facility A Credit Agreement, as hereby amended,
and in each other Fundamental Document given by it in
connection therewith.
Article IV
Miscellaneous
4.01. Original Facility A Credit Agreement. Except
as specifically amended by the provisions hereof, the Original
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 Original Facility A Credit Agreement.
[SIGNATURE PAGES FOLLOW]
D7