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AMENDMENT NO. 5 TO
FACILITY A 364-DAY COMPETITIVE ADVANCE,
REVOLVING CREDIT AND GUARANTY AGREEMENT
dated as of
May 21, 2004
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. 5 TO FACILITY A
364-DAY COMPETITIVE ADVANCE, REVOLVING CREDIT AND GUARANTY
AGREEMENT
THIS AMENDMENT NO. 5 (this "Amendment") is dated as
of May 21, 2004, 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, Amendment No. 3 to
Facility A 364-Day Competitive Advance, Revolving Credit and
Guaranty Agreement dated as of May 24, 2002, and Amendment No.
4 to Facility A 364-Day Competitive Advance, Revolving Credit
and Guaranty Agreement dated as of May 23, 2003 (the "Facility
A Credit Agreement").
BACKGROUND
The parties hereto desire to amend the Facility A
Credit Agreement to (i) permanently reduce the Total Commitment
by $125,000,000, as permitted by Section 2.12(a) of the
Facility A Credit Agreement, (ii) extend the maturity date as
permitted by Section 2.12(e) of the Facility A Credit
Agreement, and (iii) amend certain other provisions 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 20, 2005 or such other
Maturity Date then in effect pursuant to Section
2.12(e).
1.03. Optional Conversion to Term Loan. As of
the date hereof, Section 2.12 of the Facility A Credit
Agreement shall be amended by inserting a new paragraph (f)
immediately preceding Section 2.13 of the Facility A Credit
Agreement to read as follows:
"(f) The Borrower may elect, by written notice
received by the Administrative Agent no later than
forty-five (45) days prior to the Maturity Date, to
convert all Revolving Credit Loans outstanding on the
Maturity Date to a term loan of one year's duration with
interest payable thereon, and rights of prepayment
permitted with respect thereto, in the manner established
hereby for Revolving Credit Loans and with principal
amounts thereunder amortizing during such one (1) year
term as the Borrower and the Required Banks shall agree
(the "Term Loan"). Borrower agrees to pay to the
Administrative Agent, for the pro rata benefit of each
Bank, a non-refundable term loan fee (the "Term Loan Fee")
equal to 0.25% per annum (computed on the basis of actual
number of days elapsed in a year of 360 days) of the
average daily aggregate outstanding principal amount of
the Term Loan, which fee shall be payable quarterly in
arrears following the Maturity Date on each June 30,
September 30, December 31, March 31, and on the maturity
date of the Term Loan (or any earlier date on which the
Term Loan shall have been repaid in full). The Term Loan
Fee shall commence to accrue on the Maturity Date and
shall cease to accrue on the maturity date of the Term
Loan or any earlier date on which the Term Loan shall have
been repaid in full. Borrower hereby agrees to execute
such amendments and modifications to the Fundamental
Documents, prior to the Maturity Date, as the
Administrative Agent shall reasonably request to evidence
and govern the Term Loan."
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, which reflects the
permanent reduction of the Total Commitment in the amount of
$125,000,000, and the Commitments existing immediately prior to
the effectiveness of this Amendment, after giving effect to
those assignments made by the Non-Extending Banks effective as
of the date hereof (the "Pre-Amendment Commitments"), shall be
modified in connection with this Amendment as set forth on
Schedule 2.01 and effective as of the date upon which this
Amendment becomes effective in accordance with Section 3.01
hereof and the Borrower, each Guarantor, and each Bank hereby
consents and agrees thereto. Each Bank whose Pre-Amendment
Commitment has been increased or decreased to produce its
Commitment as set forth on Schedule 2.01 shall be deemed to
have executed and delivered an Assignment and Acceptance
effective as of the date hereof, either as an assignee or
assignor, as applicable, and shall be bound by the terms
thereof, and the Agent and the Borrower shall be deemed to have
accepted each such Assignment and Acceptance. Each Bank shall
promptly deliver the Note currently held by it to the Agent to
be exchanged for a new Note reflecting its Commitment after
giving effect to such permanent reduction and assignment.
Promptly after the effective date hereof, Borrower shall issue
and deliver to Agent such replacement Notes.
1.05.Fees. On or before 5:00 p.m. (New York City
time) on May 21, 2004, 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. 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 Facility A 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 Facility A 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 Facility A 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 Facility A Credit Agreement as amended hereby
nor compliance with the terms and provisions hereof or of the
Facility A Credit Agreement as amended hereby, by the Borrower
or any Guarantor (a) violates any Law, (b) conflicts with or
results 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) requires any
consent or approval of any Person or requires 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) results in the creation or
imposition of any Lien upon any property (now owned or
hereafter acquired) of the Borrower or any Guarantor, or
(e) requires 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, (ii) no material adverse change in the business,
assets, condition (financial or otherwise), or results of
operations of the Borrower and its Consolidated Subsidiaries
taken as a whole has occurred since December 31, 2003, and
(iii) 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. This Amendment shall be
effective 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. Upon the effectiveness hereof, 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 14 TO AMENDMENT NO. 5 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 14 TO AMENDMENT NO. 5 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 14 TO AMENDMENT NO. 5 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 14 TO AMENDMENT NO. 5 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 14 TO AMENDMENT NO. 5 TO 364-DAY CREDIT
FACILITY]
CITIBANK, N.A., individually and
as Syndication Agent for the
Banks
By:
Name:
Title:
[SIGNATURE PAGE 6 OF 14 TO AMENDMENT NO. 5 TO 364-DAY CREDIT
FACILITY]
FLEET NATIONAL BANK,
individually and as
Co-Documentation Agent for the
Banks
By:
Name:
Title:
[SIGNATURE PAGE 7 OF 14 TO AMENDMENT NO. 5 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 14 TO AMENDMENT NO. 5 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 14 TO AMENDMENT NO. 5 TO 364-DAY CREDIT
FACILITY]
MANUFACTURERS AND TRADERS TRUST
COMPANY (successor in interest
to Allfirst Bank)
By:
Name:
Title:
[SIGNATURE PAGE 10 OF 14 TO AMENDMENT NO. 5 TO 364-DAY CREDIT
FACILITY]
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By:
Name:
Title:
[SIGNATURE PAGE 11 OF 14 TO AMENDMENT NO. 5 TO 364-DAY CREDIT
FACILITY]
DRESDNER BANK AG IN FRANKFURT AM
MAIN
By:
Name:
Title:
By:
Name:
Title:
[SIGNATURE PAGE 12 OF 14 TO AMENDMENT NO. 5 TO 364-DAY CREDIT
FACILITY]
JPMORGAN CHASE BANK
By:
Name:
Title:
[SIGNATURE PAGE 13 OF 14 TO AMENDMENT NO. 5 TO 364-DAY CREDIT
FACILITY]
NATIONAL CITY BANK
By:
Name:
Title:
SCHEDULE 2.01 - 7
[SIGNATURE PAGE 14 OF 14 TO AMENDMENT NO. 5 TO 364-DAY CREDIT
FACILITY]
UBS AG, CAYMAN ISLANDS BRANCH
By:
Name:
Title:
By:
Name:
Title: