EXHIBIT 4.1(f)
EXECUTION COPY
AMENDMENT No. 1, dated as of January 26, 2001 (this
"Amendment"), to the 364-Day Competitive Advance, Revolving Credit and
Guaranty Agreement dated as of October 23, 1997 (the "Credit Agreement"),
among DENTSPLY INTERNATIONAL INC., a Delaware corporation (the
"Borrower"), the Guarantors named therein, the Banks from time to time
party thereto (the "Banks"), THE CHASE MANHATTAN BANK, a
New York banking corporation ("Chase"), as Administrative Agent for the
Banks, and ABN AMRO BANK N.V., as Documentation Agent for the
Banks.
The Borrower has requested that the Required Banks agree to amend the
Credit Agreement as set forth herein and the Required Banks are willing to
agree to such
amendment on the terms and subject to the conditions set forth herein. Each
capitalized term
used and not otherwise defined herein shall have the meaning assigned to
such term in the
Credit Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Amendment to Credit Agreement. (a) Article I of the Credit
Agreement is hereby amended by:
(i) adding to Section 1.01 the following definitions in appropriate
alphabetical
order:
"'Alternate Currency' means British Pounds Sterling, Swiss
Francs, Euro and any other currency requested by the Borrower and approved
by each Bank that is freely tradeable and exchangeable into dollars in the
London market and for which an Exchange Rate can be determined by
reference to the Reuters World Currency Page or another publicly available
service for displaying exchange rates."
"'Calculation Date' means the last Business Day of each
calendar quarter."
"'Competitive Loan Exposure' means, with respect to any
Bank at any time, the aggregate principal amount of the outstanding
Competitive Loans of such Bank."
"'Credit Exposure' means, in respect of any Bank, the sum of
such Bank's Revolving Credit Exposure and its Competitive Loan Exposure."
"'Dollar Equivalent' means (a) as to any Loan denominated in
dollars, the principal amount thereof, and (b) as to any Loan denominated in
an Alternate Currency, the Dollar Equivalent of the principal amount thereof,
determined by the Administrative Agent pursuant to Section 1.03(a) using the
Exchange Rate with respect to such Alternate Currency at the time in effect."
"'Exchange Rate' means, on any day, with respect to any
Alternate Currency, the rate at which such Alternate Currency may be
exchanged into dollars, as set forth at approximately 11:00 a.m., London
time, on such date on the Reuters World Currency Page for such Alternate
Currency. In the event that such rate does not appear on any Reuters World
Currency Page, the Exchange Rate shall be determined by reference to the.
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applicable Bloomberg System page, or, in the event that such rate does not
appear on such page, such other publicly available service for displaying
exchange rates as may be agreed upon by the Administrative Agent and the
Borrower, or, in the absence of such agreement, such Exchange Rate shall
instead be the spot rate of exchange of the Administrative Agent in the
market where its foreign currency exchange operations in respect of such
Alternate Currency are then being conducted, at or about 11:00 a.m., London
time, on such date for the purchase of dollars for delivery two Business Days
later; provided that if at the time of any such determination, for any
reason,
no such spot rate is being quoted, the Administrative Agent may use any
reasonable method it deems appropriate to determine such rate, and such
determination shall be conclusive absent manifest error."
"'Revolving Credit Exposure' means, with respect to any Bank
at any time, the sum of (a) the outstanding principal amount of such Bank's
Revolving Credit Loans denominated in dollars and (b) the Dollar Equivalent
of the outstanding principal amount of such Bank's Revolving Credit Loans
denominated in Alternate Currencies.";
(ii) by replacing in the definition of "LIBOR" in Section 1.01 the
reference to "dollar deposits" with the words "deposits in the applicable
currency"; and
(iii) by adding a new Section 1.02 as follows:
"Section 1.02. Exchange Rates. (a) Not later than
1:00 p.m., London time, on each Calculation Date, the Administrative
Agent shall (i) determine the Exchange Rate as of such Calculation
Date with respect to each Alternate Currency and (ii) give notice
thereof to the Banks and the Borrower. The Exchange Rates so
determined shall become effective on the first Business Day
immediately following the relevant Calculation Date (a "Reset
Date"), shall remain effective until the next succeeding Reset Date,
and shall for all purposes of this Agreement (other than Section 10.12
or any other provision expressly requiring the use of a current
Exchange Rate) be the Exchange Rates employed in converting any
amounts between dollars and Alternate Currencies.
(b) Not later than 5:00 p.m., London time, on each
Reset Date and each date on which a Borrowing shall occur, the
Administrative Agent shall (i) determine the Dollar Equivalent of the
aggregate principal amount of the Loans then outstanding that are
denominated in Alternate Currencies (after giving effect to any Loans
made or repaid on such date) and (ii) notify the Borrower of the
aggregate Credit Exposures of the Banks."
(b) Article II of the Credit Agreement is hereby amended by amending and
restating in their entirety Sections 2.01, 2.02, 2.05, 2.07, 2.08, 2.09,
2.11, 2.13, 2.16, 2.18 and
2.21 as follows:
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"SECTION 2.01. Commitments. (a) Subject to the terms and
conditions hereof and relying upon the representations and warranties herein
set
forth, each Bank agrees, severally and not jointly, to make Revolving Credit
Loans
to the Borrower, in dollars or one or more Alternate Currencies, at any time
and from
time to time on and after the Effective Date and until the earlier of the
Termination
Date or the termination of the Commitment of such Bank, in an aggregate
principal
amount at any time outstanding not to exceed such Bank's Commitment minus the
amount by which the Competitive Loans outstanding at such time shall be
deemed
to have used such Commitment pursuant to Section 2.18, subject, however, to
the
conditions that (a) at no time shall (i) the sum of (A) the outstanding
aggregate
principal amount of all Revolving Credit Exposures of all Banks plus (B) the
outstanding aggregate principal amount of all Competitive Loans made by all
Banks
exceed (ii) the Total Commitment and (b) at all times (except as expressly
contemplated by the last sentence of Section 2.12(d)) the Revolving Credit
Exposure
of each Bank shall equal the product of (i) such Bank's Applicable Commitment
Percentage and (ii) the outstanding aggregate Revolving Credit Exposures.
(b) Within the foregoing limits, the Borrower may borrow, pay or
repay and reborrow hereunder, on and after the Effective Date and prior to
the
Termination Date, upon the terms and subject to the conditions and
limitations set
forth herein."
"SECTION 2.02. Loans. (a) Each Revolving Credit Loan shall be
made as part of a Borrowing consisting of Loans made by the Banks ratably in
accordance with their Commitments; provided, however, that the failure of
any Bank
to make any Revolving Credit Loan shall not in itself relieve any other Bank
of its
obligation to lend hereunder (it being understood, however, that no Bank
shall be
responsible for the failure of any other Bank to make any Loan required to
be made
by such other Bank). Each Competitive Loan shall be made in dollars in
accordance
with the procedures set forth in Section 2.04. The Competitive Loans
comprising any
Borrowing shall be denominated in dollars in an aggregate amount that is at
least
$5,000,000 and in an integral multiple of $1,000,000. The Revolving Credit
Loans
comprising any Borrowing shall be in a minimum amount of $5,000,000 (or the
Dollar Equivalent thereof) and, in the case of Loans denominated in dollars,
an
integral multiple of $1,000,000, or an aggregate principal amount equal to
(or the
Dollar Equivalent of which is equal to) the remaining balance of the
available
Commitments.
(b) Each Competitive Borrowing shall be comprised entirely of
LIBOR Competitive Loans or Fixed Rate Loans, and each Revolving Credit
Borrowing shall be comprised entirely of LIBOR Revolving Credit Loans, or,
in the
case of a Borrowing denominated in dollars, ABR Loans, as the Borrower may
request pursuant to Section 2.04 or 2.05, as applicable. Each Bank may at
its option
make any LIBOR Loan by causing any domestic or foreign branch or Affiliate of
such Bank to make such Loan; provided that any exercise of such option shall
not
affect the obligation of the Borrower to repay such Loan in accordance with
the terms
of this Agreement and the applicable Note. Borrowings of more than one
Interest
Rate Type may be outstanding at the same time; provided, however, that the
Borrower shall not be entitled to request any Borrowing that, if made, would
result
in an aggregate of more than 12 separate Revolving Credit Loans of any one
Bank
being outstanding hereunder at any one time. For purposes of the calculation.
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required by the immediately preceding sentence, LIBOR Revolving Credit Loans
having different Interest Periods, regardless of whether they commence on
the same
date, shall be considered separate Loans and all Loans of a single Interest
Rate Type
made on a single date shall be considered a single Loan if such Loans have a
common Interest Period.
(c) Subject to Section 2.06, each Bank shall make each Loan (other
than Loans denominated in Alternate Currencies) to be made by it hereunder
on the
proposed date thereof by wire transfer of immediately available funds to the
Administrative Agent in New York, New York, not later than 12:00 noon, New
York
City time, and the Administrative Agent shall by 3:00 p.m., New York City
time,
credit the amounts so received to the general deposit account of the
Borrower with
the Administrative Agent or, if a Borrowing shall not occur on such date
because any
condition precedent herein specified shall not have been met, return the
amounts so
received to the respective Banks as soon as practicable. Competitive Loans
shall be
made by the Bank or Banks whose Competitive Bids therefor are accepted
pursuant
to Section 2.04 in the amounts so accepted and Revolving Credit Loans shall
be
made by the Banks pro rata in accordance with Section 2.18. Each Bank shall
make
each Loan denominated in an Alternate Currency to be made by it hereunder on
the
proposed date thereof by wire transfer of such immediately available funds
as may
then be customary for the settlement of international transactions in the
applicable
Alternate Currency, by 11:00 a.m., London time, to an account designated by
the
Administrative Agent. The Administrative Agent will make such Loans
available to
the Borrower by promptly crediting the amounts so received, in like funds,
to an
account of the Borrower maintained with the Administrative Agent in London
and
designated by the Borrower in the applicable Revolving Credit Borrowing
Request
or Competitive Bid Request or to such other account as may be specified in
the
applicable Revolving Credit Borrowing Request or Competitive Bid Request.
Unless
the Administrative Agent shall have received notice from a Bank prior to the
date of
any Borrowing, the Administrative Agent may assume that such Bank has made
such
portion available to the Administrative Agent on the date of such Borrowing
in
accordance with this paragraph (c) and the Administrative Agent may, in
reliance
upon such assumption, make available to the Borrower on such date a
corresponding
amount. If and to the extent that such Bank shall not have made such portion
available to the Administrative Agent, such Bank and the Borrower severally
agree
to repay to the Administrative Agent forthwith on demand such corresponding
amount together with interest thereon, for each day from the date such
amount is
made available to the Borrower until the date such amount is repaid to the
Administrative Agent at (i) in the case of the Borrower, the interest rate
applicable
at the time to the Loans comprising such Borrowing and (ii) in the case of
such Bank,
the Federal Funds Effective Rate, or, in the case of any amount denominated
in an
Alternate Currency, such other rate as shall be specified by the
Administrative Agent
as representing its cost of overnight or short-term funds. If such Bank
shall repay to
the Administrative Agent such corresponding amount, such amount shall
constitute
such Bank's Loan as part of such Borrowing for purposes of this Agreement.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request any Borrowing if the Interest
Period
requested with respect thereto would end after the Maturity Date."
56
"SECTION 2.05. Revolving Credit Borrowing Procedure. (a) In
order to effect a Revolving Credit Borrowing, the Borrower shall hand
deliver or
telecopy to the Administrative Agent a Borrowing notice in the form of
Exhibit A-5
(a) in the case of a LIBOR Revolving Credit Borrowing, not later than 12:00
noon,
New York City time, three Business Days before a proposed Borrowing, and (b)
in
the case of an ABR Borrowing, not later than 10:00 a.m., New York City time,
on the
day of a proposed Borrowing. No Fixed Rate Loan shall be requested or made
pursuant to a Revolving Credit Borrowing Request. Such notice shall be
irrevocable
and shall in each case specify (a) whether the Borrowing then being
requested is to
be a LIBOR Revolving Credit Borrowing or an ABR Borrowing, (b) whether such
Borrowing is to be in dollars or an Alternate Currency (and if in an
Alternate
Currency, such Alternate Currency), (c) the date of such Revolving Credit
Borrowing
(which shall be a Business Day) and the amount thereof and (d) if such
Borrowing
is to be a LIBOR Revolving Credit Borrowing, the Interest Period with respect
thereto (which may not end after the Maturity Date). If no election as to
the Interest
Rate Type of Revolving Credit Borrowing is specified in any such notice,
then the
requested Revolving Credit Borrowing shall be an ABR Borrowing. If no
Interest
Period with respect to any LIBOR Revolving Credit Borrowing is specified in
any
such notice, then the Borrower shall be deemed to have selected an Interest
Period
of one month's duration. If the Borrower shall not have given notice in
accordance
with this Section 2.05 of its election to refinance a Revolving Credit
Borrowing prior
to the end of the Interest Period in effect for such Borrowing, then (a) in
the case of
a Borrowing in dollars, the Borrower shall (unless such Borrowing is repaid
at the
end of such Interest Period) be deemed to have given notice of an election to
refinance such Borrowing with an ABR Borrowing and (b) in the case of a
Borrowing in an Alternate Currency, such Borrowing shall be due and payable
at the
end of such Interest Period. The Administrative Agent shall promptly advise
the
Banks of any notice given pursuant to this Section 2.05 and of each Bank's
portion
of the requested Borrowing.
(b) In the event that any LIBOR Revolving Credit Borrowing
remains outstanding which has an Interest Period ending on any date after the
Termination Date, the Borrower shall elect a new Interest Period for each
such
Borrowing in accordance with the procedures set forth in Section 2.05(a)
above as
if such Borrowing were a new Borrowing; provided that (i) in no event may any
Interest Period so selected end on a date after the Maturity Date, and (ii)
if the
Borrower shall fail to give notice of a new Interest Period for such a
Revolving
Credit Borrowing prior to the end of the Interest Period in effect for such
Borrowing,
then (a) in the case of a Borrowing in dollars, the Borrower shall be deemed
to have
given notice of an election to refinance such Borrowing with an ABR Borrowing
(unless such Borrowing is repaid at the end of such Interest Period) and (b)
in the
case of a Borrowing in an Alternate Currency, such Borrowing shall be due and
payable at the end of such Interest Period."
"SECTION 2.07. Fees. (a) The Borrower agrees to pay to each
Bank, through the Administrative Agent, on each March 31, June 30, September
30
and December 31 and on the Maturity Date or any earlier date on which the
Commitment of such Bank shall have been terminated and the outstanding Loans
of
such Bank repaid in full, a facility fee (a "Facility Fee") on the
Commitment of such
Bank, whether used or unused, and, after the Commitment of such Bank shall
have
been terminated, on the outstanding principal amount of such Bank's Revolving
57
Credit Exposure, during the quarter ending on the date such payment is due
(or
shorter period commencing with the date of this Agreement or ending with the
Maturity Date or any earlier date on which the Commitments shall have been
terminated and the outstanding Loans of such Bank repaid in full), at a rate
per
annum equal to (i) from the date of this Agreement through the Termination
Date,
the Facility Fee Percentage, and (ii) thereafter, the Term-Out Applicable
Percentage
from time to time in effect (as determined in accordance with Section
2.09(e)). All
Facility Fees shall be computed on the basis of the actual number of days
elapsed in
a year of 360 days. The Facility Fee due to each Bank shall commence to
accrue on
the Closing Date and shall cease to accrue on the Maturity Date or any
earlier date
on which the Commitment of such Bank shall have been terminated and the
outstanding Loans of such Bank repaid in full.
(b) The Borrower agrees to pay the Administrative Agent, for its own
account, the fees provided for in the letter agreement, dated September 17,
1997,
between the Borrower and the Administrative Agent.
(c) All fees shall be paid on the dates due, in immediately available
funds, to the Administrative Agent for distribution, if and as appropriate,
among the
Banks. Once paid, none of the fees shall be refundable under any
circumstances."
"SECTION 2.08. Notes; Repayment of Loans. The Competitive
Loans made by each Bank shall be evidenced by a single Competitive Note duly
executed on behalf of the Borrower, dated the Closing Date, in substantially
the form
attached hereto as Exhibit B-1 with the blanks appropriately filled, payable
to the
order of such Bank in a principal amount equal to the Total Commitment. The
Revolving Credit Loans made by each Bank shall be evidenced by a single
Revolving
Credit Note duly executed on behalf of the Borrower, dated the Closing Date,
in
substantially the form attached hereto as Exhibit B-2 with the blanks
appropriately
filled, payable to the order of such Bank in a principal amount equal to the
Commitment of such Bank. The outstanding principal balance of each
Competitive
Loan or Revolving Credit Loan, as evidenced by the relevant Note, shall be
payable
(a) in the case of a Competitive Loan, on the last day of the Interest
Period applicable
to such Competitive Loan and on the Maturity Date and (b) in the case of a
Revolving Credit Loan, on the Maturity Date in the currency of such Loan.
Each
Competitive Note and each Revolving Credit Note shall bear interest from the
date
thereof on the outstanding principal balance thereof as set forth in Section
2.09. Each
Bank shall, and is hereby authorized by the Borrower to, endorse on the
schedule to
the relevant Note held by such Bank (or on a continuation of such schedule
attached
to each such Note and made a part thereof), or otherwise to record in such
Bank's
internal records, an appropriate notation evidencing the date, currency and
amount
of each Competitive Loan or Revolving Credit Loan, as applicable, of such
Bank,
each payment or prepayment of principal of any Competitive Loan or Revolving
Credit Loan, as applicable, and the other information provided on such
schedule;
provided, however, that the failure of any Bank to make such a notation or
any error
therein shall not in any manner affect the obligation of the Borrower to
repay the
Competitive Loans or Revolving Credit Loans, as applicable, made by such
Bank in
accordance with the terms of the relevant Note."
"SECTION 2.09. Interest on Loans. (a) Subject to the provisions of
Sections 2.10 and 2.11, the Loans comprising each LIBOR Borrowing shall bear
58
interest (computed on the basis of the actual number of days elapsed over a
year of
360 days) at a rate per annum equal to (i) in the case of each LIBOR
Revolving
Credit Loan, LIBOR for the Interest Period in effect for such Borrowing plus
the
Applicable Percentage and (ii) in the case of each LIBOR Competitive Loan,
LIBOR
for the Interest Period in effect for such Borrowing plus the Margin offered
by the
Bank making such Loan and accepted by the Borrower pursuant to Section 2.04;
provided, however, that subject to the provisions of Sections 2.10 and 2.11,
all
LIBOR Revolving Credit Loans which shall remain outstanding after the
Termination
Date shall bear interest (computed on the basis of the actual number of days
elapsed
over a year of 360 days) at all times after the Termination Date at a rate
per annum
equal to LIBOR for the Interest Period in effect for such Borrowing plus the
Term-Out
Applicable Percentage.
(b) Subject to the provisions of Section 2.10, the Loans comprising
each ABR Borrowing shall bear interest (computed on the basis of the actual
number
of days elapsed over a year of 365 or 366 days, as the case may be, when
determined
by reference to the Prime Rate and over a year of 360 days at all other
times) at a rate
per annum equal to the Alternate Base Rate.
(c) Subject to the provisions of Section 2.10, each Fixed Rate Loan
shall bear interest at a rate per annum (computed on the basis of the actual
number
of days elapsed over a year of 360 days) equal to the fixed rate of interest
offered by
the Bank making such Loan and accepted by the Borrower pursuant to Section
2.04.
(d) Interest on each Loan shall be payable on each Interest Payment
Date applicable to such Loan in the currency of such Loan. The LIBOR or the
Alternate Base Rate for each Interest Period or day within an Interest
Period shall be
determined by the Administrative Agent, and such determination shall be
conclusive
absent manifest error.
(e) The Term-Out Applicable Percentage shall be determined based
on the Consolidated Interest Coverage Ratio at the end of the most recent
fiscal
quarter for which financial statements have been delivered under Section
5.05 and
based on the period of four fiscal quarters then ended treated as a single
accounting
period."
"SECTION 2.11. Alternate Rate of Interest. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a LIBOR Borrowing, the Administrative Agent shall have
determined that deposits in the applicable currency in the amount of the
requested
principal amount of such LIBOR Borrowing are not generally available in the
London interbank market, or that the rate at which such deposits are being
offered
will not adequately and fairly reflect the cost to any Bank of making or
maintaining
such LIBOR Loans during such Interest Period, or that reasonable means do
not exist
for ascertaining the LIBOR Rate, the Administrative Agent shall, as soon as
practicable thereafter, give written or telecopier notice of such
determination to the
Borrower and the Banks. In the event of any such determination, until the
Administrative Agent shall have determined that circumstances giving rise to
such
notice no longer exist, (a) any request by the Borrower for a LIBOR
Competitive
Borrowing pursuant to Section 2.04, and any request for a LIBOR Revolving
Credit
Borrowing in an Alternate Currency, shall be of no force and effect and
shall be
59
denied by the Administrative Agent and (b) any request by the Borrower for a
LIBOR
Revolving Credit Borrowing in dollars pursuant to Section 2.05 shall be
deemed to
be a request for an ABR Loan. Each determination by the Administrative Agent
hereunder shall be conclusive absent manifest error; provided, however, that
if a
determination is made that dollar deposits in the amount of the requested
principal
amount of such LIBOR Borrowing are not generally available in the London
interbank market, or that the rate at which such dollar deposits are being
offered will
not adequately and fairly reflect the cost to any Bank of making or
maintaining such
LIBOR Loans during such Interest Period, or that reasonable means do not
exist for
ascertaining the LIBOR Rate, the Administrative Agent shall promptly notify
the
Borrower of such determination in writing and the Borrower may, by notice to
the
Administrative Agent given within 24 hours of receipt of such notice,
withdraw the
request for the LIBOR Competitive Borrowing or the LIBOR Revolving Credit
Borrowing, as applicable."
"SECTION 2.13. Prepayment of Loans. (a) Prior to the Maturity
Date the Borrower shall have the right at any time to prepay any Revolving
Credit
Borrowing, or, with the consent of the particular Bank or Banks to receive
the
prepayment, any Competitive Borrowing (which consent may be withheld in such
Bank's or Banks' sole discretion), in whole or in part, subject to the
requirements of
Section 2.17 and 2.18 but otherwise without premium or penalty, upon prior
written
or telecopy notice to the Administrative Agent before 12:00 noon, New York
City
time, at least one Business Day prior to such prepayment in the case of an
ABR Loan
and at least three Business Days prior to such prepayment in the case of a
LIBOR
Loan or Fixed Rate Loan; provided, however, that each such partial
prepayment shall
be in a minimum aggregate principal amount of $5,000,000 (or the Dollar
Equivalent
thereof) and, in the case of a Borrowing denominated in dollars, an integral
multiple
of $1,000,000.
(b) On the date of any termination or reduction of the Total
Commitment pursuant to Section 2.12, the Borrower shall pay or prepay so
much of
the Revolving Credit Loans as shall be necessary in order that the aggregate
Credit
Exposures will not exceed the Total Commitment following such termination or
reduction. Subject to the foregoing, any such payment or prepayment shall be
applied to such Borrowing or Borrowings as the Borrower shall select. All
prepayments under this Section 2.13(b) shall be subject to Sections 2.17 and
2.18.
(c) On any date when the aggregate Credit Exposures (after giving
effect to any Borrowings effected on such date) exceed the Total Commitment,
the
Borrower shall make a mandatory prepayment of the Revolving Credit Loans in
such
amount as may be necessary to eliminate such excess. Any prepayments
required by
this paragraph shall be applied to outstanding ABR Loans up to the full
amount
thereof before they are applied to outstanding LIBOR Revolving Credit Loans.
(d) Each notice of prepayment shall specify the specific Borrowing,
the prepayment date and the aggregate principal amount of each Borrowing to
be
prepaid, shall be irrevocable and shall commit the Borrower to prepay such
Borrowing by the amount stated therein. All prepayments under this Section
2.13
shall be accompanied by accrued interest on the principal amount being
prepaid to
the date of prepayment."
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"SECTION 2.16. Change in Legality. (a) Notwithstanding anything
to the contrary herein contained, if any change in any law or regulation or
in the
interpretation thereof by any Governmental Authority charged with the
administration or interpretation thereof shall make it unlawful for any Bank
to make
or maintain any LIBOR Loan or to give effect to its obligations to make LIBOR
Loans as contemplated hereby, then, by written notice to the Borrower and to
the
Administrative Agent, such Bank may:
(i) declare that LIBOR Loans will not thereafter be made by such
Bank hereunder, whereupon such Bank shall not submit a Competitive Bid
in response to a request for LIBOR Competitive Loans and the Borrower
shall be prohibited from requesting LIBOR Revolving Credit Loans from
such Bank hereunder unless such declaration is subsequently withdrawn;
(ii) require that all outstanding LIBOR Loans made by it and
denominated in dollars be converted to ABR Loans, in which event (A) all
such LIBOR Loans shall be automatically converted to ABR Loans as of the
effective date of such notice as provided in Section 2.16(b) and (B) all
payments and prepayments of principal which would otherwise have been
applied to repay the converted LIBOR Loans shall instead be applied to repay
the ABR Loans resulting from the conversion of such LIBOR Loans; and
(iii) declare all outstanding LIBOR Loans made by it and
denominated in an Alternate Currency due and payable in full.
(b) For purposes of this Section 2.16, a notice to the Borrower by any
Bank pursuant to Section 2.16(a) shall be effective on the date of receipt
thereof by
the Borrower.
(c) Notwithstanding the foregoing, if the affected Bank can continue
to offer LIBOR Loans by transferring LIBOR Loans to another existing lending
office of such Bank, such Bank agrees to so transfer the LIBOR Loans unless
doing
so would, in its good faith judgment, subject it to any expense or liability
or be
otherwise disadvantageous to it."
"SECTION 2.18. Pro Rata Treatment. Except as permitted under
Sections 2.14, 2.15(c), 2.16 and 2.17 with respect to interest, (i) each
Revolving
Credit Borrowing, each payment or prepayment of principal of any Revolving
Credit
Borrowing, each payment of interest on the Revolving Credit Loans, each
payment
of the Facility Fees, each reduction of the Commitments and each refinancing
of any
Borrowing with, conversion of any Borrowing to or continuation of any
Borrowing
as a Revolving Credit Borrowing of any Interest Rate Type shall be allocated
pro rata
among the Banks in accordance with their respective Commitments (or, if such
Commitments shall have expired or been terminated, in accordance with the
respective principal amount of their outstanding Revolving Credit Loans).
Each
payment of principal of any Competitive Borrowing shall be allocated pro
rata among
the Banks participating in such Borrowing in accordance with the respective
principal
amounts of their outstanding Competitive Loans comprising such Borrowing.
Each
payment of interest on any Competitive Borrowing shall be allocated pro rata
among
the Banks participating in such Borrowing in accordance with the respective
amounts
of accrued and unpaid interest on their outstanding Competitive Loans
comprising
61
such Borrowing. For purposes of determining the available Commitments of the
Banks at any time, each outstanding Competitive Borrowing shall be deemed to
have
utilized the Commitments of the Banks (including those Banks that shall not
have
made Loans as part of such Competitive Borrowing) pro rata in accordance
with such
respective Commitments. Each Bank agrees that in computing such Bank's
portion
of any Borrowing to be made hereunder, the Administrative Agent may, in its
discretion, round each Bank's percentage of such Borrowing computed in
accordance
with Section 2.01, to the next higher or lower whole dollar amount (or
amount in the
basic unit of the applicable Alternate Currency)."
"SECTION 2.21. Payments. The Borrower shall make each payment
hereunder and under any instrument delivered hereunder not later than 12:00
noon,
New York City time (or 12:00 noon, London time, in respect of payments with
respect to any Borrowing denominated in any Alternate Currency), on the day
when
due in lawful money of the United States (in freely transferable dollars) to
the
Administrative Agent at its offices at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, (or at its offices at Xxxxxxx Xxxxx, 0 Xxxxxx Xxxxx Xxxxxx, Xxxxxx,
with
respect to any Borrowing denominated in an Alternate Currency) for the
account of
the Banks, in Federal or other immediately available funds. Any payment
received
after such time on any day shall be deemed to be received on the next
Business Day.
The Administrative Agent shall remit each Bank's portion of the Borrower's
payment
to such Bank promptly after receipt thereof. Except as set forth in the
definition of
"Interest Period" as applied to LIBOR Loans, if any payment to be made
hereunder
or under any Note becomes due and payable on a day other than a Business
Day, such
payment may be made on the next succeeding Business Day and such extension of
time shall in such case be included in computing interest, if any, in
connection with
such payment."
(c) Article X of the Credit Agreement is hereby amended by adding new
Sections 10.12 and 10.13 as follows:
"SECTION 10.12. Conversion of Currencies. (a) If, for the purpose
of obtaining judgment in any court, it is necessary to convert a sum owing
hereunder
in one currency into another currency, each party hereto agrees, to the
fullest extent
that it may effectively do so, that the rate of exchange used shall be that
at which in
accordance with normal banking procedures in the relevant jurisdiction the
first
currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of each party hereto in respect of any sum due to
any other party hereto or any holder of the obligations owing hereunder (the
"Applicable Creditor") shall, notwithstanding any judgment in a currency (the
"Judgment Currency") other than the currency in which such sum is stated to
be due
hereunder (the "Agreement Currency"), be discharged only to the extent that,
on the
Business Day following receipt by the Applicable Creditor of any sum
adjudged to
be so due in the Judgment Currency, the Applicable Creditor may in
accordance with
normal banking procedures in the relevant jurisdiction purchase the Agreement
Currency with the Judgment Currency; if the amount of the Agreement Currency
so
purchased is less than the sum originally due to the Applicable Creditor in
the
Agreement Currency, such party agrees, as a separate obligation and
notwithstanding
any such judgment, to indemnify the Applicable Creditor against such loss.
The
62
obligations of the parties contained in this Section 10.12 shall survive the
termination
of this Agreement and the payment of all other amounts owing hereunder."
"SECTION 10.13. European Monetary Union. (a) If, as a result of
the implementation of European monetary union, (i) any currency ceases to be
lawful
currency of the nation issuing the same and is replaced by a European common
currency, or (ii) any currency and a European common currency are at the
same time
recognized by the central bank or comparable authority of the nation issuing
such
currency as lawful currency of such nation and the Administrative Agent or
the
Required Banks shall so request in a notice delivered to the Borrower, then
any
amount payable hereunder by any party hereto in such currency shall instead
be
payable in the European common currency and the amount so payable shall be
determined by translating the amount payable in such currency to such
European
common currency at the exchange rate recognized by the European Central Bank
for
the purpose of implementing European monetary union. Prior to the occurrence
of
the event or events described in clause (i) or (ii) of the preceding
sentence, each
amount payable hereunder in any currency will continue to be payable only in
that
currency. The Borrower agrees, at the request of the Required Banks, at the
time of
or at any time following the implementation of European monetary union, to
enter
into an agreement amending this Agreement in such manner as the Required
Banks
shall reasonably request in order to reflect the implementation of such
monetary
union and to place the parties hereto in the position they would have been
in had such
monetary union not been implemented."
SECTION 2. Representations and Warranties. The Borrower represents and
warrants to each other party hereto that, after giving effect to this
Amendment, (a) the
representations and warranties set forth in Article III of the Credit
Agreement are true and
correct in all material respects on and as of the date of this Amendment,
except to the extent
such representations and warranties expressly relate to an earlier date, and
(b) no Default or
Event of Default has occurred and is continuing.
SECTION 3. Effectiveness. This Amendment shall become effective as of
the date set forth above when the Administrative Agent or its counsel shall
have received
counterparts of this Amendment which, when taken together, bear the
signatures of the
Borrower, the Guarantors and the Required Banks.
SECTION 4. Effect of Amendment. Except as expressly set forth herein, this
Amendment shall not by implication or otherwise limit, impair, constitute a
waiver of, or
otherwise affect the rights and remedies of the Banks or the Administrative
Agent under the
Credit Agreement, and shall not alter, modify, amend or in any way affect
any of the terms,
conditions, obligations, covenants or agreements contained in the Credit
Agreement, all of
which are ratified and affirmed in all respects and shall continue in full
force and effect.
Nothing herein shall be deemed to entitle the Borrower to a consent to, or a
waiver,
amendment, modification or other change of, any of the terms, conditions,
obligations,
covenants or agreements contained in the Credit Agreement in similar or
different
circumstances. This Amendment shall apply and be effective only with respect
to the
provisions of the Credit Agreement specifically referred to herein.
SECTION 5. Amendment Fees. In consideration of the agreements of the
Banks contained herein, the Borrower agrees to pay to each Bank that returns
an executed
signature page of this Amendment not later than 5:00 p.m., New York City
time, on
63
January 26, 2001, through the Administrative Agent, a work fee (a "Work
Fee") equal to
$750; provided, that no Work Fees shall be payable hereunder if this
Amendment shall not
have been executed by Banks constituting the Majority Banks on or prior to
January 26,
2001. The Work Fees shall be payable in immediately available funds on the
next business
day following the effective date of this Amendment. Once paid, the Work Fees
shall not be
refundable.
SECTION 6. Counterparts. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which
when so executed and delivered shall be deemed an original, but all such
counterparts
together shall constitute but one and the same instrument. Delivery of any
executed
counterpart of a signature page of this Amendment by facsimile transmission
shall be as
effective as delivery of a manually executed counterpart hereof.
SECTION 7. Applicable Law. THIS AMENDMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
64
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.
DENTSPLY INTERNATIONAL INC.,
by
Name:
Title:
by
Name:
Title:
CERAMCO INC.,
by
Name:
Title:
CERAMCO MANUFACTURING CO.,
by
Name:
Title:
MIDWEST DENTAL PRODUCTS
CORPORATION,
by
Name:
Title:
XXXXXX & XXXXXXXX COMPANY,
by
Name:
Title:
65
TULSA DENTAL PRODUCTS INC.,
by
Name:
Title:
DENTSPLY RESEARCH & DEVELOPMENT
CORP.,
by
Name:
Title:
DENTSPLY FINANCE CO.,
by
Name:
Title:
DENTSPLY INTERNATIONAL PREVENTIVE
CARE DIVISION, L.P.,
by
Name:
Title:
GAC INTERNATIONAL, INC.,
by
Name:
Title:
66
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent,
by
Name:
Title:
67
SIGNATURE PAGE to
AMENDMENT No. 1 to DENTSPLY
INTERNATIONAL INC. 364-DAY CREDIT
AGREEMENT, dated as of JANUARY 26, 2001
To approve Amendment No. 1:
Name of Institution:
by
Name:
Title:
68
