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AMENDMENT NO. 4 TO
FACILITY A 364-DAY COMPETITIVE ADVANCE,
REVOLVING CREDIT AND GUARANTY AGREEMENT
dated as of
May 23, 2003
among
DENTSPLY INTERNATIONAL INC., as Borrower,
THE GUARANTORS NAMED HEREIN,
THE BANKS NAMED HEREIN,
ABN AMRO BANK N.V., as Administrative Agent
and
CITIBANK, N.A., as Syndication FLEET NATIONAL BANK,
Agent
HARRIS TRUST AND SAVINGS BANK,
and
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Co-Documentation Agents
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AMENDMENT NO. 4 TO FACILITY A
364-DAY COMPETITIVE ADVANCE, REVOLVING CREDIT AND GUARANTY
AGREEMENT
THIS AMENDMENT NO. 4 (this "Amendment") is dated as of
May 23, 2003, 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, ABN AMRO BANK N.V., as
administrative agent (the "Agent"), and the other agents party
thereto, as amended by Amendment No. 1 to Facility A 364-Day
Competitive Advance, Revolving Credit and Guaranty Agreement
dated as of May 25, 2001, Amendment No. 2 to Facility A 364-Day
Competitive Advance, Revolving Credit and Guaranty Agreement
dated as of August 30, 2001, and Amendment No. 3 to Facility A
364-Day Competitive Advance, Revolving Credit and Guaranty
Agreement dated as of May 24, 2002 (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:
"Maturity Date" shall mean May 21, 2004 or such other
Maturity Date then in effect pursuant to Section
2.12(e).
1.03. Applicable Percentage. The table set forth
in the definition of "Applicable Percentage" in Section 1.01 of
the Facility A Credit Agreement is hereby deleted and replaced
with the following:
----------------------------------------------------
Facility LIBOR: Usage
Debt Rating: Fee: Applicable Fee:
S&P and Moody's Applicable Percentage Applicable
Respectively Percentage Percentage
----------------------------------------------------
----------------------------------------------------
A or above, or A2 8.0 32.0 10.0
or above
----------------------------------------------------
----------------------------------------------------
A- or A3 10.0 40.0 12.5
----------------------------------------------------
----------------------------------------------------
BBB+ or Baa1 12.5 50.0 12.5
----------------------------------------------------
----------------------------------------------------
BBB or Baa2 15.0 60.0 15.0
----------------------------------------------------
----------------------------------------------------
BBB- or Baa3 25.0 75.0 25.0
----------------------------------------------------
----------------------------------------------------
BB+ or Ba1 35.0 115.0 25.0
----------------------------------------------------
BB or below or 50.0 175.0 25.0
unrated, or Ba2
or below or
unrated
----------------------------------------------------
1.04.Commitments. Schedule 2.01 of the Facility A
Credit Agreement is hereby deleted in its entirety and is
replaced with Schedule 2.01 hereto.
1.05.Fees. On or before 5:00 p.m. (New York City time)
on May 23, 2003, 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.
1.06.Agents. As of the effective date of this
Amendment, the agents are ABN AMRO Bank N.V., as administrative
agent, Citibank, N.A., as syndication agent, and Fleet National
Bank, Harris Trust and Savings Bank, and Wachovia Bank, National
Association, as co-documentation agents.
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. 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.
2.02. 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.
2.03. 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.
2.04. 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.
Article III
Effect, Effectiveness, Consent of Guarantors
3.01. Effectiveness. Upon (i) Borrower's payment and
performance of all obligations in connection herewith, (ii)
Agent's receipt from each of the Banks (other than the
Non-Extending Banks), 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, (iii) Agent's receipt of a
certificate signed by the Secretary or Assistant Secretary of
each Borrower and 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, this Amendment shall be
effective as of the date hereof, and (iv) an opinion of counsel
with respect to the enforceability of, and the due authorization
and capacity of the Borrower and each of the Guarantors to
execute, deliver and perform, this Amendment.
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.
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]
[SIGNATURE PAGE 1 OF 15 TO AMENDMENT NO. 4 TO 364-DAY CREDIT
FACILITY]
IN WITNESS WHEREOF, the parties hereto, have caused
this Amendment to be duly executed by their respective authorized
officers as of the day and year first above written.
[BORROWER:]
DENTSPLY INTERNATIONAL INC., a
Delaware corporation
By:
Name:
Title:
[GUARANTORS:]
CERAMCO INC., a Delaware corporation
By:
Name:
Title:
CERAMCO MANUFACTURING CO., a
Delaware corporation
By:
Name:
Title:
[SIGNATURE PAGE 2 OF 15 TO AMENDMENT NO. 4 TO 364-DAY CREDIT
FACILITY]
G.A.C. INTERNATIONAL, INC., a New
York corporation
By:
Name:
Title:
RANSOM & RANDOLPH COMPANY, a
Delaware corporation
By:
Name:
Title:
TULSA DENTAL PRODUCTS INC., a
Delaware corporation
By:
Name:
Title:
AUSTENAL, INC., an Illinois
corporation
By:
Name:
Title:
[SIGNATURE PAGE 3 OF 15 TO AMENDMENT NO. 4 TO 364-DAY CREDIT
FACILITY]
DENTSPLY FINANCE CO., a Delaware
corporation
By:
Name:
Title:
DENTSPLY RESEARCH & DEVELOPMENT
CORP., a Delaware corporation
By:
Name:
Title:
[SIGNATURE PAGE 4 OF 15 TO AMENDMENT NO. 4 TO 364-DAY CREDIT
FACILITY]
[BANKS:]
ABN AMRO BANK N.V., individually
and as Administrative Agent for the
Banks
By:
Name:
Title:
By:
Name:
Title:
[SIGNATURE PAGE 5 OF 15 TO AMENDMENT NO. 4 TO 364-DAY CREDIT
FACILITY]
CITIBANK, N.A., individually and as
Syndication Agent for the Banks
By:
Name:
Title:
[SIGNATURE PAGE 6 OF 15 TO AMENDMENT NO. 4 TO 364-DAY CREDIT
FACILITY]
FLEET NATIONAL BANK, individually
and as Co-Documentation Agent for
the Banks
By:
Name:
Title:
[SIGNATURE PAGE 7 OF 15 TO AMENDMENT NO. 4 TO 364-DAY CREDIT
FACILITY]
HARRIS TRUST AND SAVINGS BANK,
individually and as
Co-Documentation Agent for the
Banks
By:
Name:
Title:
[SIGNATURE PAGE 8 OF 15 TO AMENDMENT NO. 4 TO 364-DAY CREDIT
FACILITY]
WACHOVIA BANK, NATIONAL
ASSOCIATION, individually and as
Co-Documentation Agent for the Banks
By:
Name:
Title:
[SIGNATURE PAGE 9 OF 15 TO AMENDMENT NO. 4 TO 364-DAY CREDIT
FACILITY]
ALLFIRST BANK
By:
Name:
Title:
[SIGNATURE PAGE 10 OF 15 TO AMENDMENT NO. 4 TO 364-DAY CREDIT
FACILITY]
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
Name:
Title:
[SIGNATURE PAGE 11 OF 15 TO AMENDMENT NO. 4 TO 364-DAY CREDIT
FACILITY]
DRESDNER BANK AG IN FRANKFURT AM
MAIN
By:
Name:
Title:
By:
Name:
Title:
[SIGNATURE PAGE 12 OF 15 TO AMENDMENT NO. 4 TO 364-DAY CREDIT
FACILITY]
JPMORGAN CHASE BANK
By:
Name:
Title:
[SIGNATURE PAGE 13 OF 15 TO AMENDMENT NO. 4 TO 364-DAY CREDIT
FACILITY]
FIFTH THIRD BANK
By:
Name:
Title:
[SIGNATURE PAGE 14 OF 15 TO AMENDMENT NO. 4 TO 364-DAY CREDIT
FACILITY]
NATIONAL CITY BANK
By:
Name:
Title:
[SIGNATURE PAGE 15 OF 15 TO AMENDMENT NO. 4 TO 364-DAY CREDIT
FACILITY]
UBS AG, STAMFORD BRANCH
By:
Name:
Title:
By:
Name:
Title:
SCHEDULE 2.01 - 5
SCHEDULE 2.01
TO FACILITY A CREDIT AGREEMENT (364-DAY)
Part 1 - Commitments of Banks and Addresses for Notices to Banks
Amount of Ratable
Bank Commitment Share
Name:
ABN AMRO Bank N.V. $30,000,000 12.00%
Address for Notices:
55 East 52nd Street
New York, NY 10055
Attn: Todd Miller
Telephone:(212) 409-7046
Telecopy:(212) 409-1641
- ------------------------------------------
Copy to:
208 S. LaSalle Street, Suite 1500
Chicago, IL 60604-1003
Attn: Nemesia Esangga, Agency Services
Telephone:(312) 992-5082
Telecopy:(312) 992-5157
With a copy to:
Attn: Suzanne Smith, Agency Services
Telephone: (312) 992-5095
Telecopy: (312) 992-5157
With a copy to:
Attn: Dominic Blea, Credit
Administration
Telephone: (312) 992-5196
Telecopy: (312) 992-5111
Address of Lending Office:
208 S. LaSalle Street, Suite 1500
Chicago, IL 60604-1003
Attn: Nemesia Esangga, Agency Services
Telephone:(312) 992-5082
Telecopy:(312) 992-5157
Name:
Citibank, N.A. $30,000,000 12.00%
Address for Notices:
388 Greenwich Street, 23rd Floor
New York, NY 10013
Attn: Stuart G. Miller
Telephone:(212) 816-5414
Telecopy:(212) 816-5402
Address of Lending Office:
Same as Notices
Name:
Fleet National Bank $25,000,000 10.00%
Address for Notices:
502 Carnegie Center
Princeton, NJ 08540
Attn: Peter J. Cahill
Telephone:(609) 627-7810
Telecopy:(609) 799-9262
Address of Lending Office:
Same as Notices
Name:
Harris Trust and Savings Bank $25,000,000 10.00%
Address for Notices:
111 W. Monroe Street
Chicago, IL 60603
Attn: Jeffrey C. Nicholson
Telephone:(312) 461-2736
Telecopy:(312) 461-5225
Address of Lending Office:
Same as Notices
Name:
Wachovia Bank, National Association $25,000,000 10.00%
Address for Notices:
1339 Chestnut Street, 12th Floor
Philadelphia, PA 19107
Attn: Jeanette Griffin
Telephone:(267) 321-6615
Telecopy:(267) 321-6702
Address of Lending Office:
3 Bishopsgate, London EC2N 3AB
United Kingdom
Attn: Matthew Vickers
Telephone:011 44 0 207 962 2868
Telecopy:011 44 0 207 929 4645
Name:
Allfirst Bank $20,000,000 8.00%
Address for Notices:
2055 South Queen Street, MC 182-02-01
York, PA 17403
Attn: Theodore K. Oswald
Telephone:(717) 771-4904
Telecopy:(717) 771-4914
Address of Lending Office:
Same as Notices
Name:
Bank of Tokyo-Mitsubishi Trust Company $20,000,000 8.00%
Address for Notices:
1251 Avenue of the Americas, 12th Floor
New York, NY 10020-1104
Attn: Heather Zimmermann
Telephone:(212) 782-4220
Telecopy:(212) 782-6440
Address of Lending Office:
Same as Notices
Name:
Dresdner Bank AG in Frankfurt am Main $20,000,000 8.00%
Address for Notices:
Gallusanlage 2, 3. OG, Fach 6
D - 60613 Frankfurt
Germany
Attn: Rainer Bleek
Telephone:011 49 (69) 263 12876
Telecopy:011 49 (69) 263 12878
Address of Lending Office:
Gallusanlage 2, 3. OG
D - 60613 Frankfurt
Germany
Attn: Juergen Schecke
Telephone:011 49 (69) 263 12879
Telecopy:011 49 (69) 263 12878
Name:
JPMorgan Chase Bank $20,000,000 8.00%
Address for Notices:
One Riverfront Plaza, 2nd Floor
Newark, NJ 07102
Attn: Sherry Misiak
Telephone:(973) 353-6170
Telecopy:(973) 353-6158
Address of Lending Office:
Same as Notices
Name:
Fifth Third Bank $12,500,000 5.00%
Address for Notices:
38 Fountain Square, MD 109054
Cincinnati, OH 45263
Attn: Christine L. Wagner
Telephone:(513) 744-7348
Telecopy:(513) 744-5947
Address of Lending Office:
Same as Notices
Name:
National City Bank $12,500,000 5.00%
Address for Notices:
================
Attn: ___________
Telephone:____________
Telecopy:____________
Address of Lending Office:
Same as Notices
Name:
UBS AG, Stamford Branch $10,000,000 4.00%
Address for Notices:
677 Washington Blvd., 6th Floor South
Stamford, CT 06901
Attn: Susan Brunner
Telephone:(203) 719-4181
Telecopy:(203) 719-4176
Address of Lending Office:
Same as Notices
Total
$250,000,000 100.00%
SCHEDULE 2.01
COMMITMENTS OF BANKS AND ADDRESSES FOR NOTICES
Part 2 - Addresses for Notices to Administrative Agent, Borrower,
and Guarantors:
ADMINISTRATIVE AGENT:
Name:
ABN AMRO Bank N.V.
Address for Notices:
55 East 52nd Street
New York, NY 10055
Attn: Todd Miller
Telephone:(212) 409-7046
Telecopy:(212) 409-1641
Copy to:
208 S. LaSalle Street, Suite 1500
Chicago, IL 60604-1003
Attn: Nemesia Esangga, Agency Services
Telephone:(312) 992-5082
Telecopy:(312) 992-5157
With a copy to:
Attn: Suzanne Smith, Agency Services
Telephone: (312) 992-5095
Telecopy: (312) 992-5157
With a copy to:
Attn: Dominic Blea, Credit Administration
Telephone: (312) 992-5196
Telecopy: (312) 992-5111
BORROWER:
Name: DENTSPLY INTERNATIONAL INC.
Address: 570 West College Avenue
P.O. Box 872
York, PA 17405-0872
Attn: Mr. William E. Reardon, Treasurer
Telephone: (717) 849-4262
Telecopy: (717) 849-4759
With a copy to:
Attn: Brian M. Addison, Esq., General Counsel and Secretary
Telephone: (717) 849-4363
Telecopy: (717) 849-4753
GUARANTORS:
Names and addresses:
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CERAMCO INC. CERAMCO MANUFACTURING CO.
- ----------------------------------- HC-01 Box 8122
Six Terri Lane State Road 183, KM.19.6
Burlington, NJ 08016 Las Piedras, PR 00671-9738
Attention: Secretary Attention: Secretary
- ----------------------------------------------------------------------
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DENTSPLY FINANCE CO. DENTSPLY INTERNATIONAL
2337 S. Yates Avenue PREVENTIVE CARE DIVISION L.P.
Los Angeles, CA 90040 570 West College Avenue
Attention: Secretary York, PA 17404
Attention: Secretary
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
DENTSPLY RESEARCH & DEVELOPMENT G.A.C. INTERNATIONAL, INC.
CORP. 185 Oval Drive
2337 S. Yates Avenue Islandia, NY 11749-1413
Los Angeles, CA 90040 Attention: Secretary
Attention: Secretary
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
MIDWEST DENTAL PRODUCTS CORPORATION RANSOM & RANDOLPH COMPANY
901 West Oakton Street 3535 Briarfield Boulevard
Des Plaines, IL 60018 Maumee, OH 43537
Attention: Secretary Attention: Secretary
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
TULSA DENTAL PRODUCTS INC.
5001 E. 68th Street, Suite 500
Tulsa, OK 74136
Attention: Secretary
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