SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
FOR ANNUAL AND TRANSITION REPORTS PURSUANT
TO SECTIONS 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
(Mark One)
[ X ]ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the fiscal year ended December 31, 2001
OR
[ ]TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from __________ to ___________
Commission file number 0-16211
DENTSPLY International Inc.
(Exact name of registrant as specified in its charter)
Delaware 39-1434669
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
570 West College Avenue, York, Pennsylvania 17405-0872
(Address of principal executive offices) (Zip code)
Registrant's telephone number, including area code: (717)845-7511
Securities registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which registered
None Not applicable
Securities registered pursuant to Section 12(g) of the Act:
Common Stock, par value $.01 per share
(Title of class)
Indicate by check mark whether the registrant (1) has
filed all reports required to be filed by Section 13 or 15(d)
of the Securities Exchange Act of 1934 during the preceding 12
months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to
such filing requirements for the past 90 days. Yes [X] No [ ]
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Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of Regulation S-K is not contained herein,
and will not be contained, to the best of registrant's
knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
As of February 22, 2002, the aggregate market value of
voting common stock held by non-affiliates of the registrant,
based upon the last reported sale price for the registrant's
Common Stock on the Nasdaq National Market on such date was
$2,597,726,348 (calculated by excluding shares owned
beneficially by directors and executive officers as a group
from total outstanding shares solely for the purpose of this
response).
The number of shares of the registrant's Common Stock
outstanding as of the close of business on February 22, 2002
was 77,924,485.
DOCUMENTS INCORPORATED BY REFERENCE
Certain portions of the registrant's annual report to
shareholders for fiscal year 2001 (the "2001 Annual Report to
Shareholders") are incorporated by reference into Parts I and
II of this Annual Report on Form 10-K to the extent provided
herein. Certain portions of the definitive Proxy Statement of
DENTSPLY International Inc. to be used in connection with the
2002 Annual Meeting of Stockholders (the "Proxy Statement") are
incorporated by reference into Part III of this Annual Report
on Form 10-K to the extent provided herein. Except as
specifically incorporated by reference herein, neither the 2001
Annual Report to Shareholders nor the Proxy Statement is to be
deemed filed as part of this Annual Report on Form 10-K.
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PART I
Item 1. Business
Certain statements made by the Company, including without
limitation, statements containing the words "plans",
"anticipates", "believes", "expects", or words of similar import
may be deemed to be forward-looking statements and are made
pursuant to the safe harbor provisions of the Private
Securities Litigation Reform Act of 1995. Investors are
cautioned that forward-looking statements involve risks and
uncertainties which may materially affect the Company's
business and prospects.
History and Overview
DENTSPLY International Inc. ("DENTSPLY" or the "Company"), a
Delaware corporation, was created by a merger of Dentsply
International Inc. ("Old Dentsply") and GENDEX Corporation in
1993 (the "Merger"). Old Dentsply, founded in 1899, was a
manufacturer and distributor of artificial teeth, dental
equipment, and dental consumable products. GENDEX, founded in
1983, was a manufacturer of dental x-ray equipment and
handpieces. Today, DENTSPLY is the world's largest designer,
developer, manufacturer and marketer of a broad range of
products for the dental market. The Company's worldwide
headquarters and executive offices are located in York,
Pennsylvania.
The Company operates in a single reporting segment as a
designer, manufacturer and distributor of dental products in
two principal categories: dental consumables and small
equipment, and large equipment. Sales of the Company's dental
products accounted for approximately 97% of DENTSPLY's
consolidated sales for the year ended December 31, 2001.
The Company conducts its business in over 120 foreign
countries, principally through its foreign subsidiaries.
DENTSPLY has a long-established presence in Canada and in the
European market, particularly in Germany, Switzerland, France,
Italy and the United Kingdom. Through its recent acquisitions
the Company has also gained access to other European markets in
the Netherlands and Austria. The Company also has a significant
market presence in Central and South America including Brazil,
Mexico, Argentina, Colombia, and Chile; in South Africa; and in
the Pacific Rim including Australia, New Zealand, China
(including Hong Kong), Thailand, India, Philippines, Taiwan,
Korea, Vietnam, Indonesia and Japan. DENTSPLY has also
established marketing activities in Moscow, Russia to serve the
countries of the former Soviet Union.
For 2001, 2000 and 1999, the Company's sales outside the
United States, including export sales, accounted for
approximately 49%, 42% and 45%, respectively, of consolidated
net sales. The information about the Company's United States
and foreign sales and assets set forth in Note 4 of the Notes
to Consolidated Financial Statements in the Company's 2001
Annual Report to Shareholders is incorporated herein by
reference.
As a result of the Company's significant international
operations, DENTSPLY is subject to fluctuations in exchange
rates of various foreign currencies and other risks associated
with foreign trade. The impact of currency fluctuations in any
given period can be favorable or unfavorable. The impact of
foreign currency fluctuations of European currencies on
operating income is partially offset by sales in the United
States of products sourced from plants and third party
suppliers located overseas, principally in Germany and
Switzerland. The Company enters into forward foreign exchange
contracts to selectively hedge assets, liabilities and
purchases denominated in foreign currencies. The information
regarding foreign exchange risk management activities set forth
in Note 14 of the Notes to Consolidated Financial Statements in
the Company's 2001 Annual Report to Shareholders is
incorporated herein by reference.
DENTSPLY believes that the dental products industry is
experiencing substantial consolidation with respect to both
product manufacturing and distribution, although it continues
to be fragmented. Between January 1999 and December 2001,
DENTSPLY completed nine acquisitions (five in 2000 and four in
2001). The activity in 2001 includes three significant
acquisitions. In January 2001, the Company acquired the
outstanding shares of Friadent GmbH ("Friadent"), a global
dental implant manufacturer and marketer headquartered in
Mannheim, Germany. In March 2001, the Company acquired the
dental injectible anaesthetic assets of AstraZeneca ("AZ
Assets"). In October 2001, the Company acquired the Degussa
Dental Group ("Degussa Dental"), a manufacturer and seller of
dental products, including precious metal alloys, ceramics,
dental laboratory equipment and chairside products
headquartered in Hanau, Germany. Information about these
acquisitions and the other acquisition and divestiture
activities is set forth in Note 3 of the Notes to Consolidated
Financial Statements in the Company's 2001 Annual Report to
Shareholders and is incorporated herein by reference. These
acquisitions are intended to supplement DENTSPLY's core growth
and assure ongoing expansion of its business. In addition,
acquisitions continue to provide DENTSPLY with new technologies
and additional product breadth.
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The acquisitions made by DENTSPLY involve a substantial
degree of risk. They are expected to result in benefits to
DENTSPLY, including expanding the products and services offered
by DENTSPLY to its customers and potential customers and
enhancing DENTSPLY's presence in the European and Japanese
market for dental products. Achieving the benefits of the
acquisitions, however, will depend on a number of factors,
including the integration of the operations and personnel of
DENTSPLY and the acquired companies in a timely and efficient
manner. The integration will be complicated by the need to
integrate geographically diverse operations. In general,
DENTSPLY cannot offer any assurances that it can successfully
integrate or realize the anticipated benefits of the
acquisitions. Failure to do so could result in the loss of key
personnel and have a material adverse effect on the acquired
businesses and DENTSPLY's financial condition and operating
results. In addition, the attention and effort devoted to the
integration of the acquired companies could significantly
divert management's attention from other important tasks and
could seriously harm DENTSPLY. Other risks include
unanticipated expenses related to technology integration,
difficulties in maintaining uniform standards, controls,
procedures and policies, the impairment of relationships with
employees and customers as a result of any integration of new
management personnel and potential unknown liabilities
associated with acquired businesses.
Certain provisions of DENTSPLY's Certificate of
Incorporation and By-laws and of Delaware law could have the
effect of making it difficult for a third party to acquire
control of DENTSPLY. Such provisions include the division of
the Board of Directors of DENTSPLY into three classes, with the
three-year term of a class expiring each year, a provision
allowing the Board of Directors to issue preferred stock having
rights senior to those of the common stock and certain
procedural requirements which make it difficult for
stockholders to amend DENTSPLY's By-laws and which preclude
stockholders from calling special meetings of stockholders. In
addition, members of DENTSPLY's management and participants in
its Employee Stock Ownership Plan collectively own
approximately 11% of the outstanding common stock of DENTSPLY,
which may discourage a third party from attempting to acquire
control of DENTSPLY in a transaction that is opposed by
DENTSPLY's management and employees.
Principal Products
The worldwide professional dental industry encompasses the
diagnosis, treatment and prevention of disease and ailments of
the teeth, gums and supporting bone. DENTSPLY's two principal
dental product lines are consumables and small equipment and
large equipment. These products are produced by the Company in
the United States and internationally and are distributed
throughout the world under some of the most well-established
brand names and trademarks in the industry, including ACUCAM(R),
ANKYLOS(R), AQUASIL(TM), CAULK(R), CAVITRON(R), CERAMCO(R), CERCON(R),
DELTON(R), DENOPTIX(TM), DENTSPLY(R), DETREY(R), ELEPHANT(R), ESTHET.X(R),
FRIALIT(R), GAC ORTHOWORKS(TM), GENDEX(R), IN-OVATION(TM), MAILLEFER(R),
MIDWEST(R), NUPRO(R), PEPGEN P-15(TM), PROFILE(R), RINN(R), R&R(R),
SANI-TIP(R), THERMAFIL(R) and TRUBYTE(R).
Consumables and Small Equipment. Consumable products
consist of dental sundries used in dental offices in the
treatment of patients and in dental laboratories in the
preparation of dental appliances. DENTSPLY's products in this
category include dental prosthetics, including artificial
teeth, endodontic (root canal) instruments and materials,
dental injectable anesthetics, prophylaxis paste, dental
sealants, implants, impression materials, restorative
materials, precious metal dental alloys, dental ceramics, crown
and bridge materials, tooth whiteners, topical fluoride,
cutting instruments, dental needles, and orthodontic appliances
and accessories. The Company manufactures thousands of
different consumable and laboratory products marketed under
more than a hundred brand names. Small equipment products
consist of various durable goods used in dental offices for
treatment of patients as well as in dental laboratories.
DENTSPLY's small equipment products include high and low speed
handpieces, intraoral lighting systems, ultrasonic scalers and
polishers, air abrasion systems and porcelain furnaces. Sales
of consumable and small equipment accounted for approximately
90% of the Company's consolidated sales for the year ended
December 31, 2001.
Large Equipment. Large equipment products consist of various
durable goods used in dental offices primarily for the
diagnosis of patients . DENTSPLY's large equipment product
lines include conventional and digital dental x-ray systems and
related support equipment and accessories, intraoral cameras,
computer imaging systems and related software. Sales of large
equipment accounted for approximately 7% of the Company's
consolidated sales for the year ended December 31, 2001.
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Markets, Sales and Distribution
DENTSPLY distributes approximately 50-60% of its dental
products through domestic and foreign distributors, dealers and
importers. However, certain highly technical products such as
precious metal dental alloys, dental ceramics, crown and bridge
porcelain products, endodontic instruments and materials,
orthodontic appliances, implants and bone substitute and
grafting materials are sold directly to the dental laboratory
or dentist in some markets. Sales to two customers, both
distributors, accounted for 11% and 9%, respectively, of
consolidated net sales in 2001.
The information about the Company's foreign and domestic
operations and export sales set forth in Note 4 of the Notes to
Consolidated Financial Statements in the Company's 2001 Annual
Report to Shareholders is incorporated herein by reference.
Although much of its sales are made to distributors,
dealers, and importers, DENTSPLY focuses its marketing efforts
on the dentists, dental hygienists, dental assistants, dental
laboratories and dental schools who are the end users of its
products. As part of this end-user "pull through" marketing
approach, DENTSPLY employs approximately 1,700 highly trained,
product-specific sales and technical staff to provide
comprehensive marketing and service tailored to the particular
sales and technical support requirements of the dealers and the
end users. The Company conducts extensive distributor and
end-user marketing programs and trains laboratory technicians
and dentists in the proper use of its products, introducing
them to the latest technological developments at its
Educational Centers located in key dental markets. The Company
also maintains ongoing relationships with various dental
associations and recognized worldwide opinion leaders in the
dental field.
DENTSPLY believes that demand in a given geographic market
for dental procedures and products varies according to the
stage of social, economic and technical development that the
market has attained. Geographic markets for DENTSPLY's dental
products can be categorized into the following three stages of
development:
The United States, Canada, Western Europe, the United
Kingdom, Japan, and Australia are highly developed markets that
demand the most advanced dental procedures and products and
have the highest level of expenditure on dental care. In these
markets, the focus of dental care is increasingly upon
preventive care and specialized dentistry. In addition to basic
procedures such as the excavation and filling of cavities and
tooth extraction and denture replacement, dental professionals
perform an increasing volume of preventive and cosmetic
procedures. These markets require varied and complex dental
products, utilize sophisticated diagnostic and imaging
equipment, and demand high levels of attention to protection
against infection and patient cross-contamination.
In certain countries in Central America, South America and
the Pacific Rim, dental care is often limited to the excavation
and filling of cavities and other restorative techniques,
reflecting more modest per capita expenditures for dental care.
These markets demand diverse products such as high and low
speed handpieces, restorative compounds, finishing devices and
custom restorative devices.
In the People's Republic of China, India, Eastern Europe,
the countries of the former Soviet Union, and other developing
countries, dental ailments are treated primarily through tooth
extraction and denture replacement. These procedures require
basic surgical instruments, artificial teeth for dentures and
bridgework, and anchoring devices such as posts.
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The Company offers products and equipment for use in markets
at each of these stages of development. The Company believes
that as each of these markets develop, demand for more
technically advanced products will increase. The Company also
believes that its recognized brand names, high quality and
innovative products, technical support services and strong
international distribution capabilities position it well to
take advantage of any opportunities for growth in all of the
markets that it serves.
The following trends support the Company's confidence in its
industry growth outlook:
o Increasing worldwide population - Population growth
continues throughout the world.
o Growth of the population 65 or older - The percentage of
the United States and European population over age 65 is
expected to nearly double by the year 2030. In addition to
having significant needs for dental care, the elderly are
well positioned to pay for the required procedures since
they control sizable amounts of discretionary income.
o Natural teeth are being retained longer - Individuals with
natural teeth are much more likely to visit a dentist in a
given year than those without any natural teeth remaining.
o The changing dental practice in developed countries -
Dentistry in developed countries has been transformed from a
profession primarily dealing with pain, infections and tooth
decay to one with increased emphasis on preventive care and
cosmetic dentistry. DENTSPLY's product lines are well
positioned to provide the new sophisticated solutions that
these advanced procedures require.
o Per capita and discretionary incomes are increasing in
emerging nations - As personal incomes continue to rise in
the emerging nations of the Pacific Rim and Latin America,
healthcare, including dental services, are a growing
priority.
o Growth in the field of aesthetic dentistry - Those among
the aging "Baby Boomer" population are not only keeping
their natural teeth longer but are interested in looking
their best, increasing the demand for tooth whitening and
other aesthetic procedures.
Product Development
Technological innovation and successful product development
are critical to strengthening the Company's prominent position
in worldwide dental markets, maintaining its leadership
positions in product categories where it has a high market
share, and increasing market share in product categories where
gains are possible. While many of DENTSPLY's innovations
represent sequential improvements of existing products, the
Company also continues to successfully launch products that
represent fundamental change. Its research centers throughout
the world employ approximately 330 scientists, Ph.D.'s,
engineers and technicians dedicated to research and product
development. Approximately $28.3 million, $20.4 million, and
$18.5 million, respectively, was internally invested by the
Company in connection with the development of new products and
in the improvement of existing products in the years ended
2001, 2000 and 1999, respectively. There can be no assurance
that DENTSPLY will be able to continue to develop innovative
products and that regulatory approval of any new products will
be obtained, or that if such approvals are obtained, such
products will be accepted in the marketplace.
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Operating and Technical Expertise
DENTSPLY believes that its manufacturing capabilities are
important to its success. The Company continues to automate
its global manufacturing operations in order to remain a low
cost producer.
The manufacture of the Company's products requires
substantial and varied technical expertise. Complex materials
technology and processes are necessary to manufacture the
Company's products.
DENTSPLY has completed or has in progress a number of key
initiatives around the world that are focused on helping the
Company improve its operating margins.
o The Company's primary operational initiative over the next
1-2 years will be to successfully integrate the recent
acquisitions.
o The Company has recently acquired a plant site outside
Chicago, where it will establish a major dental anesthetic
filling plant. The Company believes that the plant will be
operational, which includes the FDA validation of the
manufacturing practices, at the end of 2003.
o The Company is creating a Corporate Quality and Purchasing
initiative to help ensure product quality and reduce
purchased product costs throughout the organization.
o The Company has centralized its warehousing and
distribution in North America and Europe. This will
minimize both inventory levels and multiple customer
shipments. It also helps improve product forecasting and
service to our customers.
o In the first quarter of 2001, DENTSPLY reorganized certain
functions within Europe, Brazil and North America with the
objective of consolidating duplicative functions and
improving efficiencies within these regions. These measures
have resulted in the elimination of approximately 310
administrative and manufacturing positions in Brazil and
Germany. Most aspects of this plan have been completed.
o The Company continues to focus on improving its
manufacturing processes at several of its manufacturing
locations, providing improved flexibility. This will allow
them to continue to reduce inventories and improve response
times to changes in customer demand.
o DENTSPLY has also completed its North American Shared
Service initiative focused on the consolidation and
centralization of the financial accounting support
functions.
o DENTSPLY is making significant improvements in Information
Technology as well. The new manufacturing and financial
accounting system was implemented in 1999 and provides the
Company with common software systems for nearly all of its
locations around the world excluding Friadent and Degussa
Dental. Worldwide telecommunications are currently a key
focus, as we continue to drive efficiencies.
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Financing
DENTSPLY's long-term debt at December 31, 2001 was $723.5
million and the related long-term debt to total capitalization
was 54.3%. DENTSPLY may incur additional debt in the future,
including the funding of additional acquisitions; however, the
Company's primary focus in 2002 is the integration of its
already competed acquisitions and the repayment of debt.
DENTSPLY's ability to make payments on its indebtedness, and to
fund its operations depends on its future performance and
financial results, which, to a certain extent, are subject to
general economic, financial, competitive, regulatory and other
factors that are beyond its control. There can be no assurance
that DENTSPLY's business will generate sufficient cash flow
from operations in the future to service its debt and operate
its business.
DENTSPLY's existing borrowing documentation contains a
number of covenants and financial ratios which it is required
to satisfy. Any breach of any such covenants or restrictions
would result in a default under the existing borrowing
documentation that would permit the lenders to declare all
borrowings under such documentation to be immediately due and
payable and, through cross default provisions, would entitle
DENTSPLY's other lenders to accelerate their loans. DENTSPLY
may not be able to meet its obligations under its outstanding
indebtedness in the event that any cross default provision is
triggered.
Additional information about DENTSPLY's working capital,
liquidity and capital resources is incorporated herein by
reference to the material under the caption "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" in the Company's 2001 Annual Report to Shareholders.
Competition
The Company conducts its operations, both domestic and
foreign, under highly competitive market conditions.
Competition in the dental products industry is based primarily
upon product performance, quality, safety and ease of use, as
well as price, customer service, innovation and acceptance by
professionals and technicians. DENTSPLY believes that its
principal strengths include its well-established brand names,
its reputation for high-quality and innovative products, its
leadership in product development and manufacturing, and its
commitment to customer service and technical support.
The size and number of the Company's competitors vary by
product line and from region to region. There are many
companies that produce some, but not all, of the same types of
products as those produced by the Company. Certain of
DENTSPLY's competitors may have greater resources than does the
Company in certain of its product offerings.
The worldwide market for dental supplies and equipment is
highly competitive. There can be no assurance that the Company
will successfully identify new product opportunities and
develop and market new products successfully, or that new
products and technologies introduced by competitors will not
render the Company's products obsolete or noncompetitive.
Regulation
The Company's products are subject to regulation by, among
other governmental entities, the United States Food and Drug
Administration (the "FDA"). In general, if a dental "device"
is subject to FDA regulation, compliance with the FDA's
requirements constitutes compliance with corresponding state
regulations. In order to ensure that dental products
distributed for human use in the United States are safe and
effective, the FDA regulates the introduction, manufacture,
advertising, labeling, packaging, marketing and distribution
of, and record-keeping for, such products.
Dental devices of the types sold by DENTSPLY are generally
classified by the FDA into a category that renders them subject
only to general controls that apply to all medical devices,
including regulations regarding alteration, misbranding,
notification, record-keeping and good manufacturing practices.
DENTSPLY's facilities are subject to periodic inspection by the
FDA to monitor DENTSPLY's compliance with these regulations.
There can be no assurance that the FDA will not raise
compliance concerns. Failure to satisfy FDA requirements can
result in FDA enforcement actions, including product seizure,
injunction and/or criminal or civil proceedings. In the
European Union, DENTSPLY's products are subject to the medical
devices laws of the various member states which are based on a
Directive of the European Commission. Such laws generally
regulate the safety of the products in a similar way to the FDA
regulations. DENTSPLY products in Europe bear the CE sign
showing that such products adhere to the European regulations.
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All dental amalgam filling materials, including those
manufactured and sold by DENTSPLY, contain mercury. Various
groups have alleged that dental amalgam containing mercury is
harmful to human health and have actively lobbied state and
federal lawmakers and regulators to pass laws or adopt
regulatory changes restricting the use, or requiring a warning
against alleged potential risks, of dental amalgams. The FDA's
Dental Devices Classification Panel, the National Institutes of
Health and the United States Public Health Service have each
indicated that no direct hazard to humans from exposure to
dental amalgams has been demonstrated. If the FDA were to
reclassify dental mercury and amalgam filling materials as
classes of products requiring FDA pre-market approval, there
can be no assurance that the required approval would be
obtained or that the FDA would permit the continued sale of
amalgam filling materials pending its determination. In Europe,
in particular in Scandinavia and Germany, the contents of
mercury in amalgam filling materials had been the subject of
public discussion. As a consequence, in 1994 the German health
authorities asked suppliers of dental amalgam to amend, as a
precautionary measure, the instructions for use for amalgam
filling materials. DENTSPLY adhered to this request. DENTSPLY
also manufactures and sells non-amalgam dental filling
materials that do not contain mercury.
The introduction and sale of dental products of the types
produced by the Company are also subject to government
regulation in the various foreign countries in which they are
produced or sold. Some of these regulatory requirements are
more stringent than those applicable in the United States.
DENTSPLY believes that it is in substantial compliance with the
foreign regulatory requirements that are applicable to its
products and manufacturing operations.
Sources and Supply of Raw Materials
All of the raw materials used by the Company in the
manufacture of its products are purchased from various
suppliers and are available from numerous sources. No single
supplier, except for the supplier of precious metal raw
materials, accounts for a significant percentage of DENTSPLY's
raw material requirements. There are alternative suppliers of
precious metal raw materials readily available.
Intellectual Property
Products manufactured by DENTSPLY are sold primarily under
its own trademarks and trade names. DENTSPLY also owns and
maintains more than 1,000 patents throughout the world and is
licensed under a small number of patents owned by others.
DENTSPLY's policy is to protect its products and technology
through patents and trademark registrations in the United
States and in significant international markets for its
products. The Company carefully monitors trademark use
worldwide, and promotes enforcement of its patents and
trademarks in a manner that is designed to balance the cost of
such protection against obtaining the greatest value for the
Company. DENTSPLY believes its patents and trademark
properties are important and contribute to the Company's
marketing position but it does not consider its overall
business to be materially dependent upon any individual patent
or trademark.
Employees
As of December 31, 2001, the Company and its subsidiaries
employed approximately 7,500 employees. A small percentage of
the Company's employees are represented by labor unions.
Hourly workers at the Company's Ransom & Randolph facility in
Maumee, Ohio are represented by Local No. 12 of the
International Union, United Automobile, Aerospace and
Agriculture Implement Workers of America under a collective
bargaining agreement that expires on January 31, 2004. Hourly
workers at the Company's Midwest Dental Products facility in
Des Plaines, Illinois are represented by Tool & Die Makers
Local 113 of the International Association of Machinists and
Aerospace Workers under a collective bargaining agreement that
expires on June 1, 2003. In addition, approximately 20% of
Degussa Dental Germany's workforce is represented by labor
unions. The Company believes that its relationship with its
employees is good.
The Company's success is dependent upon its management and
employees. The loss of senior management employees or any
failure to recruit and train needed managerial, sales and
technical personnel could have a material adverse effect on the
Company.
Environmental Matters
DENTSPLY believes that its operations comply in all material
respects with applicable environmental laws and regulations.
Maintaining this level of compliance has not had, and is not
expected to have, a material effect on the Company's capital
expenditures or on its business.
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Item 2. Properties
The following is a list of DENTSPLY's principal
manufacturing locations as of December31, 2001:
Leased
Location Function or Owned
United States:
Los Angeles, California Manufacture and distribution of investment Leased
casting products
Yucaipa , California, Manufacture and distribution of dental Owned
laboratory products and dental ceramics
Lakewood, Colorado Manufacture and distribution of bone grafting Leased
materials and hydroxylapatite plasma-feed
coating materials
Milford, Delaware Manufacture of consumable dental products Owned
Des Plaines, Illinois Manufacture and assembly of dental handpieces Leased
and components and dental x-ray equipment
Elgin, Illinois Manufacture of dental x-ray film holders, film Owned
mounts and accessories
Franklin Park, Illinois Manufacture and distribution of needles and Owned
needle-related products, primarily for the dental
profession
Columbus, Indiana Manufacture and distribution of orthodontic Leased
accessories
Maumee, Ohio Manufacture and distribution of investment Owned
casting products
York, Pennsylvania Manufacture and distribution of artificial teeth Owned
and other dental laboratory products;
corporate headquarters
York, Pennsylvania Manufacture of small dental equipment and Owned
preventive dental products
Johnson City, Tennessee Manufacture and distribution of endodontic Leased
instruments and materials
Foreign:
Catanduva, Brazil Manufacture and distribution of consumable Leased
dental products
Petropolis, Brazil Manufacture and distribution of artificial teeth Owned
and consumable dental products
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Leased
Location Function or Owned
Petropolis, Brazil Manufacture and distribution of dental Owned
anesthetics
Tianjin, China Manufacture and distribution of dental products Leased
Plymouth, England Manufacture of dental hand instruments Leased
Bohmte, Germany Manufacture and distribution of dental Owned
laboratory products
Hanau, Germany Manufacture and distribution of precious metal Owned
dental alloys, dental ceramics and dental
implant products
Konstanz, Germany Manufacture and distribution of consumable Owned
dental products
Mannheim, Germany Manufacture and distribution of dental Owned
implant products
Munich, Germany Manufacture and distribution of endodontic Owned
instruments and materials
Rosbach, Germany Manufacture and distribution of dental ceramics Owned
New Delhi, India Manufacture and distribution of dental products Leased
Milan, Italy Manufacture and distribution of dental Leased
x-ray equipment
Nasu, Japan Manufacture and distribution of precious metal Owned
dental alloys, consumable dental products and
orthodontic products
Hoorn, Netherlands Manufacture and distribution of precious metal Owned
dental alloys and dental ceramics
Las Piedras, Puerto Rico Manufacture of crown and bridge materials Owned
Ballaigues, Switzerland Manufacture and distribution of endodontic Owned
instruments
Ballaigues, Switzerland Manufacture and distribution of plastic Owned
components and packaging material
Le Creux, Switzerland Manufacture and distribution of endodontic Owned
instruments
D1
In addition, the Company maintains sales and distribution
offices at certain of its foreign and domestic manufacturing
facilities, as well as at various other United States and
international locations. Of the various sites around the world
that are used exclusively for sales and distribution, all but
three are leased. The Company also maintains sales offices in
various countries throughout the world.
DENTSPLY believes that its properties and facilities are
well maintained and are generally suitable and adequate for the
purposes for which they are used.
Item 3. Legal Proceedings
DENTSPLY and its subsidiaries are from time to time parties
to lawsuits arising out of their respective operations. The
Company believes that pending litigation to which DENTSPLY is a
party will not have a material adverse effect upon its
consolidated financial position or results of operations.
In June 1995, the Antitrust Division of the United States
Department of Justice initiated an antitrust investigation
regarding the policies and conduct undertaken by the Company's
Trubyte Division with respect to the distribution of artificial
teeth and related products. On January 5, 1999 the Department
of Justice filed a complaint against the Company in the U.S.
District Court in Wilmington, Delaware alleging that the
Company's tooth distribution practices violate the antitrust
laws and seeking an order for the Company to discontinue its
practices. Three follow on private class action suits on
behalf of dentists, laboratories and denture patients in
seventeen states, respectively, who purchased Trubyte teeth or
products containing Trubyte teeth, were filed and transferred
to the U.S. District Court in Wilmington, Delaware. The class
action filed on behalf of the dentists has been dismissed by
the plaintiffs. The private party suits seek damages in an
unspecified amount. The Company filed motions for summary
judgment in all of the above cases, which were argued to the
court in December 2000. The Court denied the Company's motion
for summary judgment regarding the Department of Justice
action, granted the motion on the lack of standing of the
patient class action and granted the motion on the lack of
standing of the laboratory class action to pursue damage
claims. In an attempt to avoid the effect of the Court's
ruling, the attorneys for the laboratory class action filed a
new complaint naming DENTSPLY and its dealers as
co-conspirators with respect to DENTSPLY's distribution policy.
The Company filed a motion to dismiss this re-filed complaint.
The Court again granted DENTSPLY's motion on the lack of
standing of the laboratory class action to pursue damage
claims. The attorneys for the patient class have also filed a
new action to avoid the effect of the Court's ruling. This
action is filed in the U.S. District Court in Delaware. Four
private party class actions on behalf of indirect purchasers
were filed in California state court. These cases are based on
allegations similar to those in the Department of Justice
case. In response to the Company's motion, these cases have
been consolidated in one Judicial District in Los Angeles. It
is the Company's position that the conduct and activities of
the Trubyte division do not violate the antitrust laws.
Item 4. Submission of Matters to a Vote of Security Holders
Not applicable.
Executive Officers of the Registrant
The following table sets forth certain information regarding
the executive officers of the Company as of February 28, 2001.
Name Age Position
John C. Miles II 60 Chairman of the Board and
Chief Executive Officer
Gerald K. Kunkle Jr. 55 President and Chief
Operating Officer
William R. Jellison 44 Senior Vice President
and Chief Financial Officer
Rudolf Lehner 44 Senior Vice President
J. Henrik Roos 44 Senior Vice President
W. William Weston 54 Senior Vice President
Thomas L. Whiting 59 Senior Vice President
Brian M. Addison 48 Vice President, Secretary
and General Counsel
D1
John C. Miles II was named Chairman of the Board effective
May 20, 1998. Prior thereto, he was Vice Chairman of the Board
since January 1, 1997. He was named Chief Executive Officer of
the Company upon the resignation of Burton C. Borgelt from that
position on January 1, 1996. Prior to that he was President and
Chief Operating Officer and a director of the Company since the
Merger. Prior to that he served as President and Chief
Operating Officer and a director of Old Dentsply commencing in
January 1990.
Gerald K. Kunkle Jr. was named President and Chief Operating
Officer effective January 1, 1997. Prior thereto, Mr. Kunkle
served as President of Johnson and Johnson's Vistakon Division,
a manufacturer and marketer of contact lenses, from January
1994 and, from early 1992 until January 1994, was President of
Johnson and Johnson Orthopaedics, Inc., a manufacturer of
orthopaedic implants, fracture management products and trauma
devices.
William R. Jellison was named Senior Vice President and
Chief Financial Officer of the Company effective April 20,
1998. Prior to that time, Mr. Jellison held the position of
Vice President of Finance, Treasurer and Corporate Controller
for Donnelly Corporation of Holland, Michigan since 1994. From
1991 to 1994, Mr. Jellison was Donnelly's Vice President of
Financial Operations, Treasurer and Corporate Controller.
Prior to that, he served one year as Treasurer and Corporate
Controller and in other financial management positions for
Donnelly. Mr. Jellison is a Certified Management Accountant.
Rudolf Lehner was named Senior Vice President effective
December 12, 2001 and oversees the following operating units:
Degussa Dental Germany, DENTSPLY Austria, DENTSPLY Sankin,
Detech, Elephant Dental and Friadent. Prior to that time, Mr
Lehner was Chief Operating Officer of Degussa Dental since
mid-2000. From 1999 to mid 2000, he had the overall
responsibilities for Sales & Marketing at Degussa Dental. From
1994 to 1999, Mr. Lehner held the position of Chief Executive
Officer of Elephant Dental. From 1990 to 1994, he had overall
responsibility for international activities at Degussa Dental.
Prior to that, Mr Lehner held various positions at Degussa
Dental and its parent, Degussa AG, since starting in 1984.
J. Henrik Roos was named Senior Vice President effective
June 1, 1999 and oversees the following operating units:
Ceramco, CeraMed, DENTSPLY Argentina, DENTSPLY Brazil, DENTSPLY
Canada, DENTSPLY Latin America, DENTSPLY Mexico, DENTSPLY
Professional, Ransom & Randolph and Trubyte. Prior to his
Senior Vice President appointment, Mr. Roos served as Vice
President and General Manager of the Company's Gendex division
from June 1995 to June 1999. Prior to that, he served as
President of Gendex European operations in Frankfurt, Germany
since joining the Company in August 1993.
W. William Weston was named Senior Vice President effective
January 1, 1996 and oversees the following operating units:
DeDent, DENTSPLY Asia, DENTSPLY Australia, DENTSPLY France,
DENTSPLY Italy, DENTSPLY Russia, DENTSPLY United Kingdom, L.D.
Caulk, and Middle East/Africa. Prior to his Senior Vice
President appointment, Mr. Weston served as the Vice President
and General Manager of DENTSPLY's DeDent Operations in Europe
from October 1, 1990 to January 1, 1996. Prior to that time he
was Pharmaceutical Director for Pfizer in Germany.
Thomas L. Whiting was named Senior Vice President effective
in early 1995 and oversees the following operating units:
DENTSPLY Anesthetics, ESP LLC, GAC, Gendex, Maillefer, MPL,
Rinn, Tulsa Dental Products and Vereinigte Dentalwerke
("VDW"). Prior to his Senior Vice President appointment, Mr.
Whiting was Vice President and General Manager of the Company's
L.D. Caulk Division from March 1987 to early 1995. Prior to
that time, Mr. Whiting held management positions with Deseret
Medical and the Parker-Davis Company.
Brian M. Addison has been Vice President, Secretary and
General Counsel of the Company since January 1, 1998. Prior to
that he was Assistant Secretary and Corporate Counsel since
December 1994. From August 1994 to December 1994 he was a
Partner at the Harrisburg, Pennsylvania law firm of McNees,
Wallace & Nurick. Prior to that he was Senior Counsel at
Hershey Foods Corporation.
D1
PART II
Item 5. Market for Registrant's Common Equity and Related
Stockholder Matters
The information set forth under the caption "Supplemental
Stock Information" in the Company's 2001 Annual Report to
Shareholders is incorporated herein by reference.
Item 6. Selected Financial Data
The information set forth under the caption "Selected
Financial Data" in the Company's 2001 Annual Report to
Shareholders is incorporated herein by reference.
Item 7. Management's Discussion and Analysis of Financial
Condition and Results of Operations
The information set forth under the caption "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" in the Company's 2001 Annual Report to Shareholders
is incorporated herein by reference.
Item 7A. Quantitative and Qualitative Disclosure About Market
Risk
The information set forth under the caption "Quantitative
and Qualitative Disclosure About Market Risk" in the Company's
2001 Annual Report to Shareholders is incorporated herein by
reference.
Item 8. Financial Statements and Supplementary Data
The information set forth under the captions "Management's
Financial Responsibility," "Report of Independent Accountants,"
"Consolidated Statements of Income," "Consolidated Balance
Sheets," "Consolidated Statements of Stockholders' Equity,"
"Consolidated Statements of Cash Flows," and "Notes to
Consolidated Financial Statements" in the Company's 2001 Annual
Report to Shareholders is incorporated herein by reference. The
Report of KPMG, LLP for the Company's fiscal year ended
December 31, 1999 is attached hereto as Exhibit 99.1.
Item 9. Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure
Previously reported.
PART III
Item 10. Directors and Executive Officers of the Registrant
The information (i) set forth under the caption "Executive
Officers of the Registrant" in Part I of this Annual Report on
Form 10-K and (ii) set forth under the captions "Election of
Directors," "Section 16(a) Beneficial Ownership Reporting
Compliance" and "Other Matters" in the 2002 Proxy Statement is
incorporated herein by reference.
Item 11. Executive Compensation
The information set forth under the caption "Executive
Compensation" in the 2002 Proxy Statement is incorporated
herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and
Management
The information set forth under the caption "Security
Ownership of Certain Beneficial Owners and Management" in the
2002 Proxy Statement is incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions
The information set forth under the subcaptions
"Compensation of Directors", "Human Resources Committee
Interlocks and Insider Participation" and "Human Resources
Committee Report on Executive Compensation" in the 2002 Proxy
Statement is incorporated herein by reference.
D1
PART IV
Item 14. Exhibits, Financial Statement Schedules and Reports
on Form 8-K
(a) Documents filed as part of this Report
1 Financial Statements
The following consolidated financial statements of the
Company set forth in the Company's 2001 Annual Report to
Shareholders are incorporated herein by reference:
Report of Independent Accountants
Consolidated Statements of Income - Years ended December
31, 2001, 2000 and 1999
Consolidated Balance Sheets - December 31, 2001 and 2000
Consolidated Statements of Stockholders' Equity - Years
ended December 31, 2001, 2000 and 1999
Consolidated Statements of Cash Flows - Years ended
December 31, 2001, 2000 and 1999
Notes to Consolidated Financial Statements
2 Financial Statement Schedules
The following financial statement schedule and the Report
of Independent Accountants on Financial Statement Schedule
are filed as part of this Annual Report on Form 10-K:
Report of Independent Accountants on Financial Statement
Schedule
Schedule II -- Valuation and Qualifying Accounts.
All other schedules for which provision is made in the
applicable accounting regulations of the Securities and
Exchange Commission are not required to be included herein
under the related instructions or are inapplicable and,
therefore, have been omitted.
D1
3 Exhibits. The Exhibits listed below are filed or
incorporated by reference as part of this Annual
Report on Form 10-K.
Exhibit
Number Description
3.1 Restated Certificate of
Incorporation (1)
3.2 By-Laws, as amended
4.1. (a) Commercial Paper Issuing and
paying Agency Agreement
dated as of August 12,1999
between the Company and the
Chase Manhattan Bank (13)
(b) Commercial Paper Dealer
Agreement dated as of August 12,
1999 between the Company and
Goldman, Sachs & Co. (13)
4.2 (a) Note Agreement (governing Series
A, Series B and Series C Notes)
dated March 1, 2001 between the
Company and Prudential Insurance
Company of America (14)
(b) First Amendment to Note
Agreement dated September 1, 2001
between the Company and
Prudential Insurance Company of
America.
4.3 (a) 5-Year Competitive Advance,
Revolving Credit and Guaranty
Agreements dated as of May 25,
2001 among the Company, the
guarantors named therein, the
banks named therein, the ABN
Amro Bank, N.V as Administrative
Agent, and First Union National
Bank and Harris Trust and
Savings Bank as Documentation
Agents as Documentation Agents.
(b) 364-Day Competitive Advance,
Revolving Credit and Guaranty
Agreements dated as of May 25,
2001 among the Company, the
guarantors named therein, the
banks named therein, the ABN
Amro Bank, N.V as Administrative
Agent, and First Union National
Bank and Harris Trust and
Savings Bank as Documentation
Agents as Documentation Agents.
4.4 Private placement note dated
December 28, 2001 between the
Company and Massachusetts Mutual
Life Insurance Company and
Nationwide Life Insurance
Company.
4.5 (a) Eurobonds Agency Agreement dated
December 13, 2001 between the
Company and Citibank, N.A.
(b) Eurobond Subscription Agreement
dated December 11, 2001 between
the Company and Credit Suisse
First Boston (Europe) Limited,
UBS AG, ABN AMRO Bank N.V.,
First Union Securities, Inc.;
and Tokyo-Mitsubishi International
plc (the Managers).
(c) Pages 4 through 16 of the
Company's Eurobond Offering
Circular dated December 11, 2001.
10.1 1992 Stock Option Plan adopted
May 26, 1992 (4)
10.2 1993 Stock Option Plan (2)
10.3 1998 Stock Option Plan (1)
10.4 Nonstatutory Stock Option
Agreement between the Company
and Burton C. Borgelt (3)
10.5 (a) Employee Stock Ownership Plan as
amended effective as of December
1, 1982 restated as of January
1, 1991 (7)
(b) Second amendment to the DENTSPLY
Employee Stock Ownership Plan
(10)
(c) Third Amendment to the DENTSPLY
Employee Stock Ownership Plan
(12)
10.6 (a) Trust Agreement for the
Company's Employee Stock
Ownership Plan between the
Company and T. Rowe Price Trust
Company dated as of November 1,
2000. (14)
(b) Plan Recordkeeping Agreement for
the Company's Employee Stock
Ownership Plan between the
Company and T. Rowe Price Trust
Company dated as of November 1,
2000. (14)
D1
10.7 (a) Employment Agreement dated as of
December 31, 1987 between the
Company and John C. Miles II (5)*
(b) Amendment to Employment
Agreement between the Company
and John C. Miles II dated
February 16, 1996, effective
January 1, 1996 (9)*
10.8 Employment Agreement dated as of
December 10, 1992 between the
Company and Michael R. Crane (5)*
10.9 Employment Agreement dated
January 1, 1996 between the
Company and W. William Weston
(9)*
10.10 Employment Agreement dated
January 1, 1996 between the
Company and Thomas L. Whiting
(9)*
10.11 Employment Agreement dated
October 11,1996 between the
Company and Gerald K. Kunkle Jr.
(10)*
10.12 Employment Agreement dated April
20, 1998 between the Company and
William R. Jellison (12)*
10.13 Employment Agreement dated
September 10, 1998 between the
Company and Brian M. Addison
(12)*
10.14 Employment Agreement dated June
1, 1999 between the Company and
J. Henrik Roos (13)*
10.15 Employment Agreement dated
October 1, 2001 between the
Company and Rudolf Lehner*
10.16 DENTSPLY International Inc.
Directors' Deferred Compensation
Plan effective January 1, 1997
(10)*
10.17 Supplemental Executive
Retirement Plan effective
January 1, 1999 (12)*
10.18 Written Description of Year 2001
Incentive Compensation Plan.
10.19 Sale and Purchase Agreement for
all the shares of Friadent Gmbh,
dated December 28, 2000 by and
between Neptuno Verwaltungs und
Treuhand - Gersellschaft GmbH,
Dr. Eberhard Braun and Fria Nu
GmbH (a subsidiary of the
Company). (14)
10.20(a) AZLAD Products Agreement, dated
January 18, 2001 between
AstraZenaca AB and Maillefer
Instruments Holdings, S.A. (a
subsidiary of the Company). (14)
(b) AZLAD Products Manufacturing
Agreement, dated January 18,
2001 between AstraZenaca AB and
Maillefer Instruments Holdings,
S.A. (14)
(c) AZ Trade Marks License
Agreement, dated January 18,
2001 between AstraZenaca AB and
Maillefer Instruments Holdings,
S.A. (14)
10.21 Degussa Dental Group Sale and
Purchase Agreement, dated May
28/29, 2001 between Degussa AG
(Seller) and Dentsply Hanau GmbH
& Co. KG, Dentsply Research &
Development Corporation and
Dentsply EU S.a.r.l. (Purchasers
and subsidiaries of the
Company). (15)
10.22(a) Precious metal inventory
Purchase and Sale Agreement
dated November 30, 2001 between
Fleet Precious Metal Inc. and
the Company.
(b) Precious metal inventory
Purchase and Sale Agreement
dated December 20, 2001 between
JPMorgan Chase Bank and the
Company.
(c) Precious metal inventory
Purchase and Sale Agreement
dated December 20, 2001 between
Mitsui & Co., Precious Metals
Inc. and the Company.
13 Pages 9 through 44 of the
Company's Annual Report to
Shareholders for fiscal year
2001 (only those portions of the
Annual Report incorporated by
reference in this report are
deemed "filed")
21.1 Subsidiaries of the Company
23.1 Consent of Independent
Accountants - PricewaterhouseCoopers LLP
23.2 Consent of Independent Auditors - KPMG LLP
99.1 Audit Report of KPMG LLP
D1
* Management contract or compensatory plan.
(1) Incorporated by reference to exhibit included in the
Company's Registration Statement on Form S-8 (No.
333-56093).
(2) Incorporated by reference to exhibit included in the
Company's Registration Statement on Form S-8 (No.
33-71792).
(3) Incorporated by reference to exhibit included in the
Company's Registration Statement on Form S-8 (No.
33-79094).
(4) Incorporated by reference to exhibit included in the
Company's Registration Statement on Form S-8 (No.
33-52616).
(5) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1993, File No. 0-16211.
(6) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993, File No. 0-16211.
(7) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
December 31, 1994, File No. 0-16211.
(8) Incorporated by reference to exhibit included in the
Company's Current Report on Form 8-K dated January 10,
1996, File No. 0-16211.
(9) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995, File No. 0-16211.
(10) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, File No. 0-16211.
(11) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997, File No. 0-16211.
(12) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998, File No. 0-16211.
(13) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, File No. 0-16211.
(14) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000, File No. 0-16211.
(15) Incorporated by reference to exhibit included in the
Company's Quarterly Report on Form 10-Q for the period
ended June 30, 2001, File No. 0-16211.
D1
Loan Documents
The Company and certain of its subsidiaries have entered
into various loan and credit agreements and issued various
promissory notes and guaranties of such notes, listed below,
the aggregate principal amount of which is less than 10% of its
assets on a consolidated basis. The Company has not filed
copies of such documents but undertakes to provide copies
thereof to the Securities and Exchange Commission
supplementally upon request.
(1) Master Grid Note dated November 4, 1996 executed in
favor of The Chase Manhattan Bank in connection with a
line of credit up to $20,000,000 between the Company and
The Chase Manhattan Bank.
(2) Agreement dated February 26, 1999 between Midland
Bank PLC and Dentsply Limited for GBP 3,000,000 overdraft
and $2,500,000 foreign exchange facility.
(3) Agreement dated June 21, 2001 in the principal
amount of $6,000,000 between Dentsply Research and
Development Corp, Hong Kong Branch and Bank of Tokyo
Mitsubishi.
(4) Form of "comfort letters" to various foreign
commercial lending institutions having a lending
relationship with one or more of the Company's
international subsidiaries.
(b) Reports on Form 8-K
On October 17, 2001, the Company filed a Form 8-K, under
item 2 reporting that it had acquired the Degussa Dental
Group. On December 17, 2001, Amendment 1 to this Form 8-K
was filed on Form 8-K/A. This amendment contained the
financial information required under this form.
On November 23, 2001, the Company furnished a Form 8-K,
under item 9. This report (which is not deemed filed under
the Securities Exchange Act) disclosed financial
information related to the recently-acquired Degussa
Dental Group that was provided in a preliminary offering
circular to prospective purchasers in connection with the
marketing of the Company's planned Eurobond Offering.
D1
Report of Independent Accountants on
Financial Statement Schedule
To the Board of Directors of
DENTSPLY International Inc.
Our audits of the consolidated financial statements referred to
in our report dated January 21, 2002, except for Note 16, as to
which the date is January 31, 2002 appearing in the 2001 Annual
Report to Shareholders of DENTSPLY International Inc. (which
report and consolidated financial statements are incorporated
by reference in this Annual Report on Form 10-K) also included
an audit of the financial statement schedule listed in Item
14(a)(2) of the Form 10-K. In our opinion, this financial
statement schedule presents fairly, in all material respects,
the information set forth therein when read in conjunction with
the related consolidated financial statements.
PricewaterhouseCoopers LLP
Philadelphia, PA
March 28, 2002
D1
SCHEDULE II
DENTSPLY INTERNATIONAL INC.
VALUATION AND QUALIFYING ACCOUNTS
FOR THE THREE YEARS ENDED DECEMBER 31, 2001
Additions
-----------------------
Charged
Balance at (Credited) Charged to Write-offs Balance
Beginning To Costs Other Net of Translation at End
Description of Period And Expenses Accounts Recoveries Adjustment of Period
(in thousands)
Allowance for doubtful accounts:
For Year Ended December 31,
1999 $ 7,891 $ 1,418 $ 541 (a) $ (1,294) $ (404) $ 8,152
2000 8,152 397 34 (b) (2,078) (145) 6,360
2001 6,360 2,844 5,289 (c) (1,638) (253) 12,602
Allowance for trade discounts:
For Year Ended December 31,
1999 1,954 2,061 - (1,538) (183) 2,294
2000 2,294 2,169 - (1,732) (102) 2,629
2001 2,629 555 - (1,194) (124) 1,866
Inventory valuation reserves:
For Year Ended December 31,
1999 12,315 2,116 2,679 (d) (1,209) (537) 15,364
2000 15,364 5,584 52 (e) (5,741) (317) 14,942
2001 14,942 4,369 8,409 (f) (2,996) (365) 24,359
(a) Includes $62 from acquisition of Vereinigte Dentalwerke and $479 for the New Image restructuring.
(b) Includes $34 from acquisition of Midwest Orthodontic Manufacturing.
(c) Includes $389 from acquisition of Friadent and $4,900 from acquisition of Degussa Dental.
(d) Includes $2,679 from acquisition of Vereinigte Dentalwerke and Herpo Productos Dentarios.
(e) Includes $52 from acquisition of Midwest Orthodontic Manufacturing.
(f) Includes $1,580 from acquisition of Friadent and $6,829 from acquisition of Degussa Dental.
D1
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
DENTSPLY INTERNATIONAL INC.
By:/s/ John C. Miles II
-----------------------
John C. Miles II
Chairman of the Board
and Chief Executive
Officer
Pursuant to the requirements of the Securities Exchange Act
of 1934, this report has been signed below by the following
persons on behalf of the Registrant and in the capacities and
on the dates indicated.
/s/ John C. Miles II March 28, 2002
- ------------------------- --------------------
John C. Miles II Date
Chairman of the Board and
Chief Executive Officer and a Director
(Principal Executive Officer)
/s/ Gerald K. Kunkle, Jr. March 28, 2002
- ------------------------- --------------------
Gerald K. Kunkle, Jr. Date
President and Chief
Operating Officer and a Director
/s/ William R. Jellison March 28, 2002
- ------------------------- --------------------
William R. Jellison Date
Senior Vice President and
Chief Financial Officer
(Principal Financial and Accounting Officer)
/s/ Dr. Michael C. Alfano March 28, 2002
- ------------------------- --------------------
Dr. Michael C. Alfano Date
Director
/s/ Burton C. Borgelt March 28, 2002
- ------------------------- --------------------
Burton C. Borgelt Date
Director
D1
/s/ Douglas K. Chapman March 28, 2002
- ------------------------- --------------------
Douglas K. Chapman Date
Director
/s/ Paula H. Cholmondeley March 28, 2002
- ------------------------- --------------------
Paula H. Cholmondeley Date
Director
/s/ Michael J. Coleman March 28, 2002
- ------------------------- --------------------
Michael J. Coleman Date
Director
/s/ C. Frederick Fetterolf March 28, 2002
- ------------------------- --------------------
C. Frederick Fetterolf Date
Director
/s/ William F. Hecht March 28, 2002
- ------------------------- --------------------
William F. Hecht Date
Director
/s/ Leslie A. Jones March 28, 2002
- ------------------------- --------------------
Leslie A. Jones Date
Director
/s/ Betty Jane Scheihing March 28, 2002
- ------------------------- --------------------
Betty Jane Scheihing Date
Director
/s/Edgar H. Schollmaier March 28, 2002
- ------------------------- --------------------
Edgar H. Schollmaier Date
Director
/s/ W. Keith Smith March 28, 2002
- ------------------------- --------------------
W. Keith Smith Date
Director
D1
EXHIBIT INDEX
Exhibit Exhibit
Number Description Reference
3.1 Restated Certificate of
Incorporation (1)
3.2 By-Laws, as amended D2
4.1. (a) Commercial Paper Issuing and
paying Agency Agreement
dated as of August 12,1999
between the Company and the
Chase Manhattan Bank (13)
(b) Commercial Paper Dealer
Agreement dated as of August 12,
1999 between the Company and
Goldman, Sachs & Co. (13)
4.2 (a) Note Agreement (governing Series
A, Series B and Series C Notes)
dated March 1, 2001 between the
Company and Prudential Insurance
Company of America (14)
(b) First Amendment to Note
Agreement dated September 1, 2001
between the Company and
Prudential Insurance Company of
America. D3
4.3 (a) 5-Year Competitive Advance,
Revolving Credit and Guaranty
Agreements dated as of May 25,
2001 among the Company, the
guarantors named therein, the
banks named therein, the ABN
Amro Bank, N.V as Administrative
Agent, and First Union National
Bank and Harris Trust and
Savings Bank as Documentation
Agents as Documentation Agents. D4
(b) 364-Day Competitive Advance,
Revolving Credit and Guaranty
Agreements dated as of May 25,
2001 among the Company, the
guarantors named therein, the
banks named therein, the ABN
Amro Bank, N.V as Administrative
Agent, and First Union National
Bank and Harris Trust and
Savings Bank as Documentation
Agents as Documentation Agents. D5
4.4 Private placement note dated
December 28, 2001 between the
Company and Massachusetts Mutual
Life Insurance Company and
Nationwide Life Insurance
Company. D6
4.5 (a) Eurobonds Agency Agreement dated
December 13, 2001 between the
Company and Citibank, N.A. D7
(b) Eurobond Subscription Agreement
dated December 11, 2001 between
the Company and Credit Suisse
First Boston (Europe) Limited,
UBS AG, ABN AMRO Bank N.V.,
First Union Securities, Inc.;
and Tokyo-Mitsubishi International
plc (the Managers). D8
(c) Pages 4 through 16 of the
Company's Eurobond Offering
Circular dated December 11, 2001.
10.1 1992 Stock Option Plan adopted. D9
May 26, 1992 (4)
10.2 1993 Stock Option Plan (2)
10.3 1998 Stock Option Plan (1)
10.4 Nonstatutory Stock Option
Agreement between the Company
and Burton C. Borgelt (3)
10.5 (a) Employee Stock Ownership Plan as
amended effective as of December
1, 1982 restated as of January
1, 1991 (7)
(b) Second amendment to the DENTSPLY
Employee Stock Ownership Plan
(10)
(c) Third Amendment to the DENTSPLY
Employee Stock Ownership Plan
(12)
10.6 (a) Trust Agreement for the
Company's Employee Stock
Ownership Plan between the
Company and T. Rowe Price Trust
Company dated as of November 1,
2000. (14)
(b) Plan Recordkeeping Agreement for
the Company's Employee Stock
Ownership Plan between the
Company and T. Rowe Price Trust
Company dated as of November 1,
2000. (14)
D1
10.7 (a) Employment Agreement dated as of
December 31, 1987 between the
Company and John C. Miles II (5)*
(b) Amendment to Employment
Agreement between the Company
and John C. Miles II dated
February 16, 1996, effective
January 1, 1996 (9)*
10.8 Employment Agreement dated as of
December 10, 1992 between the
Company and Michael R. Crane (5)*
10.9 Employment Agreement dated
January 1, 1996 between the
Company and W. William Weston
(9)*
10.10 Employment Agreement dated
January 1, 1996 between the
Company and Thomas L. Whiting
(9)*
10.11 Employment Agreement dated
October 11,1996 between the
Company and Gerald K. Kunkle Jr.
(10)*
10.12 Employment Agreement dated April
20, 1998 between the Company and
William R. Jellison (12)*
10.13 Employment Agreement dated
September 10, 1998 between the
Company and Brian M. Addison
(12)*
10.14 Employment Agreement dated June
1, 1999 between the Company and
J. Henrik Roos (13)*
10.15 Employment Agreement dated
October 1, 2001 between the
Company and Rudolf Lehner* D10
10.16 DENTSPLY International Inc.
Directors' Deferred Compensation
Plan effective January 1, 1997
(10)*
10.17 Supplemental Executive
Retirement Plan effective
January 1, 1999 (12)*
10.18 Written Description of Year 2001
Incentive Compensation Plan. D11
10.19 Sale and Purchase Agreement for
all the shares of Friadent Gmbh,
dated December 28, 2000 by and
between Neptuno Verwaltungs und
Treuhand - Gersellschaft GmbH,
Dr. Eberhard Braun and Fria Nu
GmbH (a subsidiary of the
Company). (14)
10.20(a) AZLAD Products Agreement, dated
January 18, 2001 between
AstraZenaca AB and Maillefer
Instruments Holdings, S.A. (a
subsidiary of the Company). (14)
(b) AZLAD Products Manufacturing
Agreement, dated January 18,
2001 between AstraZenaca AB and
Maillefer Instruments Holdings,
S.A. (14)
(c) AZ Trade Marks License
Agreement, dated January 18,
2001 between AstraZenaca AB and
Maillefer Instruments Holdings,
S.A. (14)
10.21 Degussa Dental Group Sale and
Purchase Agreement, dated May
28/29, 2001 between Degussa AG
(Seller) and Dentsply Hanau GmbH
& Co. KG, Dentsply Research &
Development Corporation and
Dentsply EU S.a.r.l. (Purchasers
and subsidiaries of the
Company). (15)
10.22(a) Precious metal inventory
Purchase and Sale Agreement
dated November 30, 2001 between
Fleet Precious Metal Inc. and
the Company. D12
(b) Precious metal inventory
Purchase and Sale Agreement
dated December 20, 2001 between
JPMorgan Chase Bank and the
Company. D13
(c) Precious metal inventory
Purchase and Sale Agreement
dated December 20, 2001 between
Mitsui & Co., Precious Metals
Inc. and the Company. D14
13 Pages 9 through 44 of the
Company's Annual Report to
Shareholders for fiscal year
2001 (only those portions of the
Annual Report incorporated by
reference in this report are
deemed "filed"). D15
21.1 Subsidiaries of the Company D16
23.1 Consent of Independent
Accountants - PricewaterhouseCoopers LLP D17
23.2 Consent of Independent Auditors - KPMG LLP D18
99.1 Audit Report of KPMG LLP D19
D1
* Management contract or compensatory plan.
(1) Incorporated by reference to exhibit included in the
Company's Registration Statement on Form S-8 (No.
333-56093).
(2) Incorporated by reference to exhibit included in the
Company's Registration Statement on Form S-8 (No.
33-71792).
(3) Incorporated by reference to exhibit included in the
Company's Registration Statement on Form S-8 (No.
33-79094).
(4) Incorporated by reference to exhibit included in the
Company's Registration Statement on Form S-8 (No.
33-52616).
(5) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
ended March 31, 1993, File No. 0-16211.
(6) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1993, File No. 0-16211.
(7) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
December 31, 1994, File No. 0-16211.
(8) Incorporated by reference to exhibit included in the
Company's Current Report on Form 8-K dated January 10,
1996, File No. 0-16211.
(9) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995, File No. 0-16211.
(10) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, File No. 0-16211.
(11) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997, File No. 0-16211.
(12) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1998, File No. 0-16211.
(13) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999, File No. 0-16211.
(14) Incorporated by reference to exhibit included in the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000, File No. 0-16211.
(15) Incorporated by reference to exhibit included in the
Company's Quarterly Report on Form 10-Q for the period
ended June 30, 2001, File No. 0-16211.
Company's Quarterly Report on Form 10-Q for the period
ended June 30, 2001, File No. 0-16211.
D1
EXHIBIT 3.2
DENTSPLY International Inc.
BY LAWS
D2
D2
BY-LAWS INDEX
ARTICLE I. STOCKHOLDERS' MEETINGS
SECTION 1. Annual Meetings 1
SECTION 2. Special Meetings 1
SECTION 3. Place of Meeting 1
SECTION 4. Notice of Meeting 1
SECTION 5. Fixing of Record Date 1
SECTION 6. Quorum 2
SECTION 7. Proxies 2
SECTION 8. Voting of Shares 2
SECTION 9. List of Stockholders 3
SECTION 10. Waiver of Notice by Stockholders 3
SECTION 11. Advance Notice of Stockholder-Proposed 3
Business at Annual Meetings
SECTION 12. Procedure for Nomination of Directors 3
ARTICLE II. BOARD OF DIRECTORS 4
SECTION 1. General Powers 4
SECTION 2. Number of Directors, Tenure and 4
Qualifications
SECTION 3. Regular Meetings 5
SECTION 4. Special Meetings 5
SECTION 5. Notice 5
SECTION 6. Quorum 6
SECTION 7. Manner of Acting 6
SECTION 8. Vacancies 6
SECTION 9. Compensation 6
SECTION 10. Presumption of Assent 6
SECTION 11. Committees 6
SECTION 12. Removal of Directors 7
SECTION 13. Informal Action 7
SECTION 14. Conferences 7
D2
ARTICLE III. OFFICERS 7
SECTION 1. Number 7
SECTION 2. Election and Term of Office 7
SECTION 3. Removal 7
SECTION 4. Chairman of the Board 8
SECTION 5. Vice Chairman of the Board 8
SECTION 6. Chief Executive Officer 8
SECTION 7. President 8
SECTION 8. Senior Vice President and Vice 8
Presidents
SECTION 9. Secretary and Assistant Secretaries 8
SECTION 10. Treasurer and Assistant Treasurer 9
SECTION 11. Salaries 9
SECTION 12. Representation in Other Companies 9
ARTICLE IV. CERTIFICATES FOR SHARES AND THEIR TRANSFER 9
SECTION 1. Certificates for Shares 9
SECTION 2. Transfer of Shares 9
ARTICLE V. INDEMNIFICATION OF DIRECTORS, OFFICERS, 10
EMPLOYEES AND AGENTS
SECTION 1. Indemnification Generally 10
SECTION 2. Indemnification in Actions By or In the 10
Right Of the Corporation
SECTION 3. Success on the Merits; Indemnification 11
Against Expenses
SECTION 4. Determination that Indemnification is 11
Proper
SECTION 5. Insurance; Indemnification Agreements 11
SECTION 6. Advancement of Expenses 11
SECTION 7. Rights Not Exclusive 11
SECTION 8. Severability 12
SECTION 9. Modification 12
D2
BY-LAWS
OF
DENTSPLY INTERNATIONAL INC.
(Formerly GENDEX Corporation)
ARTICLE I. STOCKHOLDERS' MEETINGS
SECTION 1. Annual Meetings. The Board of Directors shall, within
seventy-five (75) days following the close of the corporation's fiscal year,
establish a date, time and place for the annual meeting of the stockholders,
for the purpose of electing directors and for the transaction of such other
business as may properly come before the meeting.
SECTION 2. Special Meetings. Except as otherwise required by law and
subject to the rights of the holders of any class or series of capital stock
having a preference over the common stock as to dividends or upon
liquidation, special meetings of stockholders of the corporation may be
called only by the Chairman of the Board, the Chief Executive Officer or the
President pursuant to a resolution adopted by the Board of Directors.
SECTION 3. Place of Meeting. The Board of Directors may designate any
place, either within or without the State of Delaware, as the place of
meeting for any annual meeting, or for any special meeting called pursuant
to Article I, Section 2, above. A waiver of notice signed by all
stockholders entitled to vote at a meeting may designate any place, either
within or without the State of Delaware, as the place for the holding of
such meeting. If no designation is made, or if a special meeting shall be
otherwise called, the place of meeting shall be the principal office of the
corporation.
SECTION 4. Notice of Meeting. Written notice stating the place, day
and hour of the meeting and, in the case of a special meeting, the purpose
or purposes for which the meeting is called, shall be delivered not less
than ten (10) nor more than sixty (60) days before the date of the meeting
either personally or by mail, by or at the discretion of the Chief Executive
Officer, the President or the officer or persons calling the meeting. If
mailed, such notice shall be deemed to be delivered when deposited in the
United States mail, addressed to the stockholder at his address as it
appears on the stock record books of the corporation, with postage thereon
prepaid.
D2
SECTION 5. Fixing of Record Date.
(a) For the purpose of determining stockholders entitled to
notice of or to vote at any meeting of stockholders or any adjournment
thereof, the Board of Directors of the corporation may fix, in advance,
a date as the record date for any such determination of stockholders,
such date in any case to be not more than sixty (60) nor less than ten
(10) days prior to the date of any proposed meeting of stockholders.
In no event shall the stock transfer books be closed. When a
determination of stockholders entitled to vote at any meeting of
stockholders has been made as provided in this Section, such
determination shall be applied to any adjournment thereof.
(b) For the purpose of determining stockholders entitled to
receive payment of any dividend or other distribution or allotment of
any rights, or in order to make a determination of stockholders for any
other lawful purpose, the Board of Directors of the corporation may fix
a date as the record date for any such determination of stockholders,
which record date shall not precede the date upon which the resolution
fixing the record date is adopted, and which record date shall be not
more than sixty (60) days prior to such action. In no event shall the
stock transfer books be closed.
SECTION 6. Quorum. A majority of the outstanding shares of the
corporation entitled to vote, represented in person or by proxy, shall
constitute a quorum at a meeting of stockholders. Provided that a meeting
has been duly convened in accordance herewith, a majority of the shares
represented at the meeting at the time of adjournment, even if such shares
constitute at such time less than a majority of the outstanding shares
entitled to vote, may adjourn the meeting from time to time without further
notice. At any adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted
at the meeting as originally notified. Any meeting (a) at which all of the
outstanding shares are present in person or represented by proxy and at
which none of such shares attend for the purpose of objecting, at the
beginning of the meeting, to the transaction of any business thereat because
the meeting was not lawfully called or convened, or (b) at which all of the
outstanding stock has waived notice, or (c) for which notice shall have been
duly given as provided herein, shall be deemed a properly constituted
meeting of the stockholders.
SECTION 7. Proxies. At all meetings of stockholders, a stockholder
entitled to vote may vote by proxy appointed in writing by the stockholder
or by his duly authorized attorney in fact. Such proxy shall be filed with
the Secretary of the corporation before or at the time of the meeting. An
instrument appointing a proxy shall, unless the contrary is stated thereon,
be valid only at the meeting for which it has been given or any adjournment
thereof.
D2
SECTION 8. Voting of Shares. At each meeting of stockholders, every
stockholder entitled to vote thereat shall be entitled to vote in person or
by a duly authorized proxy, which proxy may be appointed by an instrument in
writing executed by such stockholder or his duly authorized attorney or
through electronic means, if applicable, such as the internet. Subject to
the provisions of applicable law and the Company's Certificate of
Incorporation, each holder of common stock shall be entitled to one (1) vote
for each share of stock standing registered in his name at the close of
business on the day fixed by the Board of Directors as the record date for
the determination of the stockholders entitled to notice of and vote at such
meeting. Shares standing in the name of another corporation may be voted by
any officer of such corporation or any proxy appointed by any officer of
such corporation in the absence of express notice of such corporation given
in writing to the Secretary of this corporation in connection with the
particular meeting, that such officer has no authority to vote such shares.
SECTION 9. List of Stockholders. A complete list of the stockholders
entitled to vote at the ensuing meeting, arranged in alphabetical order and
showing the address of each stockholder and the number of shares registered
in the name of each stockholder, shall be prepared by the Secretary, or
other officer of the corporation having charge of said stock ledger. Such
list shall be open to the examination of any stockholder during ordinary
business hours, for a period of at least ten (10) days prior to the meeting,
either at a place within the city where the meeting is to be held, which
place shall be specified in the notice of the meeting, or, if not so
specified, at the place where said meeting is to be held, and the list shall
be produced and kept at the time and place of the meeting during the whole
time thereof, and shall be subject to the inspection of any stockholder who
may be present.
SECTION 10. Waiver of Notice by Stockholders. Whenever any notice
whatever is required to be given to any stockholder of the corporation under
the provisions of these By-Laws or under the provisions of the Certificate
of Incorporation or under the provisions of any statute, a waiver thereof in
writing, signed at any time, whether before or after the time of meeting, by
the stockholder entitled to such notice, shall be deemed equivalent to the
giving of such notice.
D2
SECTION 11. Advance Notice of Stockholder-Proposed Business at Annual
Meetings. At an annual meeting of stockholders, only such business shall be
conducted as shall have been properly brought before the meeting. To be
properly brought before an annual meeting, business must be either (a)
specified in the notice of meeting (or any supplement thereto) given by or
at the direction of the Board, (b) otherwise properly brought before the
meeting by or at the direction of the Board, or (c) otherwise properly
brought before the meeting by a stockholder. In addition to any other
applicable requirements for business to be properly brought before an annual
meeting by a stockholder, the stockholder must have given timely notice
thereof in writing to the Secretary of the corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the corporation, not less than sixty (60)
days prior to the date that the materials regarding the prior years annual
meeting were mailed to stockholders. A stockholder's notice to the
Secretary shall set forth as to each matter the stockholder proposes to
bring before the annual meeting (i) a brief description of the business
desired to be brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name and record
address of the stockholder proposing such business, (iii) the class and
number of shares of the corporation which are beneficially owned by the
stockholder, and (iv) any material interest of the stockholder in such
business.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 11.
The chairman of an annual meeting shall, if the facts warrant,
determine that business was not properly brought before the meeting in
accordance with the provisions of this Section 11, and if he should so
determine, he shall so declare to the meeting and any such business not
properly brought before the meeting shall not be transacted.
D2
SECTION 12. Procedure for Nomination of Directors. Only persons
nominated in accordance with the following procedures shall be eligible for
election as directors, except as may otherwise be provided by the terms of
the corporation's Certificate of Incorporation with respect to the rights of
holders of any class or series of preferred stock to elect directors under
specified circumstances. Nominations of persons for election to the Board
of Directors of the corporation may be made at a meeting of stockholders by
or at the direction of the Board of Directors, by any nominating committee
or person appointed by the Board, or by any stockholder of the corporation
entitled to vote for election of directors at the meeting who complies with
the notice procedures set forth in this Section 12. Nominations other than
those made by or at the direction of the Board of Directors or any
nominating committee or person appointed by the Board shall be made pursuant
to timely notice in proper written form to the Secretary of the
corporation. To be timely, a stockholder's request to nominate a person for
director, together with the written consent of such person to serve as a
director, must be received by the Secretary of the corporation not less than
sixty (60) days prior to the date fixed for the meeting. To be in proper
written form, such stockholder's notice shall set forth in writing: (a) as
to each person whom the stockholder proposes to nominate for election or
re-election as a director (i) the name, age, business address and residence
address for such person, (ii) the principal occupation or employment of such
person, (iii) the class and number of shares of stock of the corporation
which are beneficially owned by such person and (iv) such other information
relating to such person as is required to be disclosed in solicitations of
proxies for election of directors, or as otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as
amended; and (b) as to the stockholder giving the notice (i) the name and
address, as they appear on the corporation's books, of such stockholder and
(ii) the class and number of shares of stock of the corporation which are
beneficially owned by such stockholder. The corporation may require any
proposed nominee to furnish such other information as may reasonably be
required by the corporation to determine the eligibility of such proposed
nominee to serve as a director of the corporation. No persons shall be
eligible for election as a director of the corporation unless nominated in
accordance with the procedures set forth herein and in the corporation's
Certificate of Incorporation. The chairman of any meeting shall, if the
facts so warrant, determine that a nomination was not made in accordance
with the procedures prescribed by the corporation's Certificate of
Incorporation and By-Laws, and if he should so determine, he shall so
declare to the meeting and the defective nomination(s) shall be disregarded.
ARTICLE II. BOARD OF DIRECTORS
SECTION 1. General Powers. The business and affairs of the corporation
shall be managed by its Board of Directors. The Board of Directors may
adopt, amend or repeal by-laws adopted by the Board or by the stockholders.
D2
SECTION 2. Number of Directors, Tenure and Qualifications. The number
of members of the Board of Directors shall be not less than three (3) nor
more than thirteen (13), as determined from time to time by the Board of
Directors. The directors need not be stockholders of the corporation. The
directors shall be divided into three (3) classes, designated Class I, Class
II and Class III. Each class shall consist, as nearly as may be possible,
of one-third (1/3) of the total number of directors constituting the entire
Board of Directors. Effective immediately upon the filing of the
Certificate of Incorporation of the corporation dated June 11, 1993, Class I
directors shall be elected for a term ending upon the next succeeding annual
meeting of stockholders, Class II directors for a term ending upon the
second succeeding annual meeting of stockholders and Class III directors for
a term ending upon the third succeeding annual meeting of stockholders. At
each succeeding annual meeting of stockholders beginning with the annual
meeting immediately succeeding the filing of the Certificate of
Incorporation, successors to the class of directors whose term expires at
such annual meeting shall be elected for a three-year term. If the number
of directors is changed, any increase or decrease shall be apportioned among
the classes so as to maintain the number of directors in each class as
nearly equal as possible, and any additional director of any class elected
to fill a vacancy resulting from an increase in such class shall hold office
for a term that shall coincide with the remaining term of that class, but in
no case will a decrease in the number of directors shorten the term of any
incumbent director. A director shall hold office until the annual meeting
for the year in which his or her term expires and until his or her successor
shall be elected and shall qualify, subject, however, to prior death,
resignation, incapacitation or removal from office, and except as otherwise
required by law. In the event such election is not held at the annual
meeting of stockholders, it shall be held at any adjournment thereof or a
special meeting.
SECTION 3. Regular Meetings. Regular meetings of the Board of
Directors shall be held without any other notice than this By-Law
immediately after, and at the same place as, the annual meeting of
stockholders, and each adjourned session thereof. The Board of Directors
may designate the time and place, either within or without the State of
Delaware, for the holding of additional regular meetings without other
notice than such designation.
SECTION 4. Special Meetings. Special meetings of the Board of
Directors may be called by or at the request of the Chairman of the Board,
the Chief Executive Officer, the President or by members of the Board of
Directors constituting no less than three-fourths (3/4) of the total number
of directors then in office. The person or persons authorized to call
special meetings of the Board of Directors may fix any place either within
or without the State of Delaware, as the place for holding any special
meeting of the Board of Directors called by them.
D2
SECTION 5. Notice. Notice of any special meeting shall be given at
least five (5) days previously thereto by written notice delivered or mailed
to each director at his last known address, or at least forty-eight (48)
hours previously thereto by personal delivery or by facsimile to a telephone
number provided to the corporation. If mailed, such notice shall be deemed
to be delivered when deposited in the United States mail so addressed, with
postage thereon prepaid. If notice is given by facsimile, such notice shall
be deemed to be delivered when transmitted with receipt confirmed. Whenever
any notice whatever is required to be given to any director of the
corporation under the provisions of these By-Laws or under the provisions of
the Certificate of Incorporation or under the provisions of any statute, a
waiver thereof in writing, signed at any time, whether before or after the
time of meeting, by the director entitled to such notice, shall be deemed
equivalent to the giving of such notice. The attendance of a director at a
meeting shall constitute a waiver of notice of such meeting except where a
director attends a meeting and objects thereat to the transaction of any
business because the meeting is not lawfully called or convened. Neither
the business to be transacted at, nor the purpose of, any regular or special
meeting of the Board of Directors need be specified in the notice or waiver
of notice of such meeting.
SECTION 6. Quorum. Two-Thirds (2/3) of the directors shall constitute
a quorum for the transaction of business at any meeting of the Board of
Directors.
SECTION 7. Manner of Acting. The act of the majority of the directors
then in office shall be the act of the Board of Directors, Unless the act of
a greater number is required by these By-laws or by law.
SECTION 8. Vacancies. Except as otherwise required by law, any
vacancy on the Board of Directors that results from an increase in the
number of directors shall be filled only by a majority of the Board of
Directors then in office, provided that a quorum is present, and any other
vacancy occurring on the Board of Directors shall be filled by a majority of
the directors then in office, even if less than a quorum, or by a sole
remaining director. Any director elected to fill a vacancy not resulting
from an increase in the number of directors shall have the same remaining
term as that of his or her predecessor. The resignation of a director shall
be effective upon receipt by the corporation, unless some subsequent time is
fixed in the resignation, and then from that time. Acceptance of such
resignation by the corporation shall not be required.
SECTION 9. Compensation. The Board of Directors, by affirmative vote
of a majority of the directors, and irrespective of any personal interest of
any of its members, may establish reasonable compensation of all directors
for services to the corporation as directors, officers or otherwise, or may
delegate such authority to an appropriate committee.
SECTION 10. Presumption of Assent. A director of the corporation who
is present at a meeting of the Board of Directors or a committee thereof at
which action on any corporate matter is taken shall be presumed to have
assented to the action taken unless his dissent shall be entered in the
minutes of the meeting or unless he shall file his written dissent to such
action with the person acting as the secretary of the meeting before the
adjournment thereof. Such right to dissent shall not apply to a director
who voted in favor of such action.
D2
SECTION 11. Committees. The Board of Directors by resolution may
designate one (1) or more committees, each committee to consist of one (1)
or more directors elected by the Board of Directors, which to the extent
provided in such resolution, as initially adopted, and as thereafter
supplemented or amended by further resolution adopted by a like vote, shall
have and may exercise, when the Board of Directors is not in session, the
powers of the Board of Directors in the management of the business and
affairs of the Corporation, except action with respect to amendment of the
Certificate of Incorporation or By-Laws, adoption of an agreement of merger
or consolidation (other than the adoption of a Certificate of Ownership and
Merger in accordance with Section 253 of the General Corporation Law of the
State of Delaware, as such law may be amended or supplemented),
recommendation to the stockholders of the sale, lease or exchange of all or
substantially all of the Corporation's property or assets, recommendation to
the stockholders of the dissolution or the revocation of a dissolution of
the Corporation, election of officers or the filling of vacancies on the
Board of Directors or on committees created pursuant to this Section or
declaration of dividends. The Board of Directors may elect one (1) or more
of its members as alternate members of any such committee who may take the
place of any absent or disqualified member or members at any meeting of such
committee, upon request by the Chairman of the Board, the Chief Executive
Officer or the President or upon request by the chairman of such meeting.
Each such committee may fix its own rules governing the conduct of its
activities and shall make such reports to the Board of Directors of its
activities as the Board of Directors may request.
SECTION 12. Removal of Directors. Exclusive of directors, if any,
elected by the holders of one (1) or more classes of preferred stock, no
director of the corporation may be removed from office, except for cause and
by the affirmative vote of two-thirds (2/3) of the outstanding shares of
capital stock of the corporation entitled to vote at a meeting of the
stockholders duly called for such purpose. As used in this Article II, the
meaning of "cause" shall be limited to malfeasance arising from the
performance of a director's duty which has a materially adverse effect on
the business of the corporation.
SECTION 13. Informal Action. Any action required or permitted to be
taken at any meeting of the Board of Directors or any committee thereof may
be taken at any meeting of the Board of Directors or any committee thereof
if prior to such action a written consent thereto is signed by all members
of the Board or of the committee, as the case may be, and such written
consent is filed with the minutes of the proceedings of the Board or the
committee.
SECTION 14. Conferences. Members of the Board of Directors or any
committee designated by the Board may participate in a meeting of such Board
or committee by means of conference telephone or similar communications
equipment by means of which all persons participating in the meeting can
hear each other, and participation in a meeting pursuant to this Section14
shall constitute presence in person at such meeting.
D2
ARTICLE III. OFFICERS
SECTION 1. Number. The officers of the corporation shall consist of a
Chairman of the Board and a Chief Executive Officer. The Board of
Directors may appoint as officers a Vice Chairman of the Board, President,
such number of Senior Vice Presidents and Vice Presidents, a Secretary, a
Treasurer, one (1) or more Assistant Treasurers, one (1) or more Assistant
Secretaries, and such other officers as are created by the Board from time
to time. The same person may hold two (2) or more of such offices.
SECTION 2. Election and Term of Office. The Chairman of the Board and
the Vice Chairman of the Board shall be elected by the directors from among
their own number; other officers need not be directors. In addition to the
powers conferred upon them by these By-Laws, all officers elected or
appointed by the Board of Directors shall have such authority and shall
perform such duties as from time to time may be prescribed by the Board of
Directors by resolution.
SECTION 3. Removal. Any officer or agent elected or appointed by the
Board of Directors may be removed by the Board of Directors, whenever in its
judgment the best interests of the corporation will be served thereby, but
such removal shall be without prejudice to the contract rights, if any, of
the person so removed. Election or appointment shall not of itself create
contract rights.
SECTION 4. Chairman of the Board. The Chairman of the Board shall
preside at all meetings of the Board of Directors and meetings of the
stockholders. He shall also perform such other duties as from time to time
may be assigned to him by the Board of Directors.
SECTION 5. Vice Chairman of the Board. In the absence of the Chairman
of the Board because of death or physical disability which prevents the
Chairman of the Board from performing his duties, or in the event of his
inability or refusal to act, the Vice Chairman of the Board shall perform
the duties of the Chairman of the Board and, when so acting, have the powers
of and be subject to all of the restrictions upon the Chairman of the Board.
SECTION 6. Chief Executive Officer. The Chief Executive Officer shall
be the principal executive officer of the corporation and shall have the
general charge of and control over the business, affairs and personnel of
the corporation, subject to the authority of the Board of Directors. The
Chief Executive Officer may, together with the Secretary, sign all
certificates for shares of the capital stock of the corporation and shall
perform such other duties as shall be delegated to him by the Board of
Directors. Except as may be specified by the Board of Directors, the Chief
Executive Officer shall have the power to enter into contracts and make
commitments on behalf of the corporation and shall have the right to execute
deeds, mortgages, bonds, contracts and other instruments necessary or proper
to be executed in connection with the corporation's regular business and may
authorize the President, and any other officer of the corporation, to sign,
execute and acknowledge such documents and instruments in his place and
stead.
D2
SECTION 7. President. The President shall be the chief operating
officer of the corporation, and shall report to the Chief Executive
Officer. The President may, together with the Secretary, sign all
certificates for shares of the capital stock of the corporation and may,
together with the Secretary, execute on behalf of the corporation any
contract, except in cases where the signing and execution thereof shall be
expressly delegated by the Board of Directors or the Chief Executive Officer
to some other officer or agent, and shall perform such duties as are
assigned to him by the Board of Directors or the Chief Executive Officer.
SECTION 8. Senior Vice President and Vice Presidents. Each Senior
Vice President or Vice President shall perform such duties and have such
authority as from time to time may be assigned to him by the Board of
Directors, the Chief Executive Officer or the President.
SECTION 9. Secretary and Assistant Secretaries. The Secretary shall
have custody of the seal of the corporation and of all books, records and
papers of the corporation, except such as shall be in the charge of the
Treasurer or some other person authorized to have custody and be in
possession thereof by resolution of the Board of Directors. The Secretary
shall record the proceedings of the meetings of the stockholders and of the
Board of Directors in books kept by him for that purpose and may, at the
direction of the Board of Directors, give any notice required by statute or
by these By-Laws of all such meetings. The Secretary shall, together with
the Chief Executive Officer or the President, sign certificates for shares
of the capital stock of the corporation. Any Assistant Secretaries elected
by the Board of Directors, in order of their seniority, shall, in the
absence or disability of the Secretary, perform the duties and exercise the
powers of the Secretary as aforesaid. The Secretary or any Assistant
Secretary may, together with the Chief Executive Officer, the President or
any other authorized officer, execute on behalf of the corporation any
contract which has been approved by the Board of Directors, and shall
perform such other duties as the Board of Directors, the Chief Executive
Officer or the President shall prescribe.
SECTION 10. Treasurer and Assistant Treasurer. The Treasurer shall
keep accounts of all moneys of the corporation received and disbursed, and
shall deposit all monies and valuables of the corporation in its name and to
its credit in such banks and depositories as the Board of Directors shall
designate. Any Assistant Treasurers elected by the Board of Directors, in
order of their seniority, shall, in the absence or disability of the
Treasurer, perform the duties and exercise the powers of the Treasurer, and
shall perform such other duties as the Board of Directors, the Chief
Executive Officer or the President shall prescribe.
SECTION 11. Salaries. The salaries of the officers shall be fixed
from time to time by the Board of Directors and no officer shall be
prevented from receiving such salary by reason of the fact that he is also a
director of the corporation.
D2
SECTION 12. Representation in Other Companies. Unless otherwise
ordered by the Board of Directors, the Chief Executive Officer, the
President or a Vice President designated by the President shall have full
power and authority on behalf of the corporation to attend and to act and to
vote at any meetings of security holders of corporations in which the
corporation may hold securities, and at such meetings shall possess and may
exercise any and all rights and powers incident to the ownership of such
securities, and which as the owner thereof the corporation might have
possessed and exercised, if present. The Board of Directors by resolution
from time to time may confer like powers upon any other person or persons.
ARTICLE IV. CERTIFICATES FOR SHARES AND THEIR TRANSFER
SECTION 1. Certificates for Shares. Certificates representing shares
of the corporation shall be in such form as shall be determined by the Board
of Directors. Such certificates shall be signed by the Chief Executive
Officer or the President and by the Secretary. All certificates for shares
shall be consecutively numbered or otherwise identified. The name and
address of the person to whom the shares represented thereby are issued,
with the number of shares and date of issue, shall be entered on the stock
transfer books of the corporation. All certificates surrendered to the
corporation for transfer shall be canceled and no new certificate shall be
issued until the former certificate for a like number of shares shall have
been surrendered and canceled, except that in case of a lost, destroyed or
mutilated certificate a new one may be issued therefor upon such terms and
indemnity to the corporation as the Board of Directors may prescribe.
SECTION 2.Transfer of Shares. Prior to due presentment of a
certificate for shares for registration of transfer the corporation may
treat the registered owner of such shares as the person exclusively entitled
to vote, to receive notifications and otherwise to exercise all the rights
and powers of an owner. Where a certificate for shares is presented to the
corporation with a request to register for transfer, the corporation shall
not be liable to the owner or any other person suffering loss as a result of
such registration of transfer if (a) there were on or with the certificate
the necessary endorsements, and (b) the corporation had no duty to inquire
into adverse claims or has discharged any such duty. The corporation may
require reasonable assurance that said endorsements are genuine and
effective and in compliance with such other regulations as may be prescribed
under the authority of the Board of Directors.
ARTICLE V. INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS
D2
SECTION 1. Indemnification Generally. The corporation shall indemnify
any person who was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the corporation), by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise, or is alleged to have violated the Employee Retirement Income
Security Act of 1974, as amended, against expenses (including attorneys'
fees), judgments, fines, penalties, and amounts paid in settlement actually
and reasonably incurred by him or her in connection with such action, suit
or proceeding if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon plea of nolo contendere or its equivalent
shall not, of itself, create a presumption that the person did not act in
good faith and in a manner which he or she reasonably believed to be in or
not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had reasonable cause to believe that his
or her conduct was unlawful.
SECTION 2. Indemnification in Actions By or In the Right Of the
Corporation. The corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that he or she is or was a
director, officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection with the defense and
settlement of such action or suit if he or she acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification shall be
made in respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable to the corporation unless and only to the
extent that the Delaware Court of Chancery or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which the Delaware Court of Chancery or such other court shall deem proper.
SECTION 3. Success on the Merits; Indemnification Against Expenses.
To the extent that a director, officer, employee or agent of the corporation
has been successful on the merits or otherwise in defense of any action,
suit or proceeding referred to in Section 1 or Section 2 of this Article V,
or in defense of any claim, issue or matter therein, he or she shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith.
D2
SECTION 4. Determination that Indemnification is Proper. Any
indemnification under Section 1 or Section 2 of this Article V, unless
ordered by a court, shall be made by the corporation only as authorized in
the specific case upon a determination that indemnification of the director,
officer, employee or agent is proper in the circumstances under the standard
of conduct set forth in such Section 1 or Section 2 of this Article V, as
the case may be. Such determination shall be made:
(a) By the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or
proceeding;
(b) If such a quorum is not obtainable, or, even if obtainable
if a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion; or
(c) By the stockholders.
SECTION 5. Insurance; Indemnification Agreements. The corporation
may, but shall not be required to, supplement the right of indemnification
under this Article V by any lawful means, including, without limitation by
reason of enumeration, (i) the purchase and maintenance of insurance on
behalf of any one or more of such indemnities, whether or not the
corporation would be obligated to indemnify such person under this Article V
or otherwise, and (ii) individual or group indemnification agreements with
any one or more of such indemnities.
SECTION 6. Advancement of Expenses. Expenses (including attorneys'
fees) incurred by an indemnitee in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by
the corporation in advance of the final disposition of such action; suit or
proceeding upon receipt of an undertaking by or on behalf of the indemnitee
to repay such amount if it shall ultimately be determined that he or she is
not entitled to be indemnified by the corporation as to such amounts.
SECTION 7. Rights Not Exclusive. The indemnification provided by this
Article V shall be not deemed exclusive of any other right to which an
indemnified person may be entitled under Section 145 of the General
Corporation Law of the State of Delaware (or any successor provision) or
otherwise under applicable law, or under any agreement, vote of stockholders
or disinterested directors or otherwise, both as to action in his or her
official capacity and as to action in another capacity while holding such
office and shall continue as to a person who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
SECTION 8. Severability. To the extent that any court of competent
jurisdiction shall determine that the indemnification provided under this
Article V shall be invalid as applied to a particular claim, issue or
matter, the provisions hereof shall be deemed amended to allow
indemnification to the maximum extent permitted by law.
D2
SECTION 9. Modification. This Article V shall be deemed to be a
contract between the corporation and each previous, current or future
director, officer, employee or agent. The provisions of this Article V
shall be applicable to all actions, claims, suits or proceedings, commenced
after the adoption hereof, whether arising from any action taken or failure
to act before or after such adoption. No amendment, modification or repeal
of this Article V shall diminish the rights provided hereby or diminish the
right to indemnification with respect to any claim, issue or matter in any
then pending or subsequent proceeding which is based in any material respect
from any alleged action or failure to act prior to such amendment,
modification or repeal.
D2
EXHIBIT 4.2(b)
FIRST AMENDMENT TO NOTE AGREEMENT
This First Amendment, dated as of September 1, 2001 (the
or this "First Amendment") to the Note Agreement dated as of
March 1, 2001 described below, is between Dentsply
International Inc., a Delaware corporation (the "Company"), and
each of the Purchasers party to the Note Agreement referred to
herein (collectively, the "Noteholders").
RECITALS:
A. The Company and each of the Noteholders have heretofore
entered into a Note Purchase and Private Shelf Agreement, dated
as of March 1, 2001 (as in effect from time to time, the "Note
Agreement"). Pursuant to the Note Agreement, the Company has
heretofore issued (i) its Series A Notes in the aggregate
principal amount of 82,450,000 Swiss Francs and (ii) its Series
B Notes in the aggregate principal amount of 84,400,000 Swiss
Francs, maturing, in each case, on March 1, 2007. The
Noteholders are the holders of 100% of the outstanding
principal amount of the Series A Notes and the Series B Notes.
B. The Company and the Noteholders now desire to amend
certain provisions of the Note Agreement as of the date hereof
in the respects, but only in the respects, hereinafter set
forth.
C. Capitalized terms used herein shall have the respective
meanings ascribed thereto in the Note Agreement unless herein
defined or the context shall otherwise require.
D. All requirements of law have been fully complied with and
all other acts and things necessary to make this First
Amendment a valid, legal and binding instrument according to
its terms for the purposes herein expressed have been done or
performed.
NOW, THEREFORE, in consideration of good and valuable
consideration the receipt and sufficiency of which is hereby
acknowledged, the Company and the Noteholders do hereby agree
as follows:
SECTION 1. Amendments.
Paragraph 5H of the Note Agreement shall be and is hereby
amended in its entirety to read as follows:
"5H. Intercreditor Agreement. The Company covenants
that on or before September 30, 2001, the agent under (on
its own behalf and as agent on behalf of each lender party
to) both of the Bank Agreements shall enter into an
intercreditor agreement with Prudential and each holder of
Notes which shall be in form and content satisfactory to
Prudential; provided however that, in the event the
Company replaces, refinances or extends the term of either
or both Bank Agreements with a facility or facilities that
either (a) require guaranties by Subsidiaries of the
Company or (b) provide that Subsidiaries of the Company
may be borrowers thereunder, the Company shall cause each
lender party to any such facility to simultaneously enter
into a replacement intercreditor agreement (the
"Intercreditor Agreement") with Prudential and each holder
of Notes which shall include terms no less favorable to
each holder of Notes than those referenced on the summary
of intercreditor terms attached hereto as Exhibit E, and
shall in any event be in form, scope and content
satisfactory to Prudential."
D3
Paragraph 6A(3) of the Note Agreement shall be and is hereby
amended in its entirety to read as follows:
"6A(3) Debt and Priority Debt Limitations. (i)
The ratio, expressed as a percentage, of Consolidated Debt
to Consolidated Capitalization to exceed (a) 55% at any
time during the period commencing on the Series A Closing
Day and ending on August 30, 2001, (b) 65% at any time
during the period commencing on August 31, 2001 and ending
on December 31, 2002, (c) 55% at any time during the
period commencing on January 1, 2003 and ending on
December 31, 2003, or (d) 50% at any time thereafter or
(ii) the aggregate amount of Priority Debt to at any time
exceed 15% of Consolidated Net Worth."
Paragraph 6B(8) of the Note Agreement shall be and is hereby
amended in its entirety to read as follows:
"6B(8) Sale-and-Leasebacks. Enter into any transaction,
directly or indirectly, whereby it shall sell or transfer any
property, if at the time of such sale or disposition the
Company or any Subsidiary intends to lease or otherwise acquire
the right to use or possess (except by purchase) such property
or like property for a substantially similar purpose (a "Sale
and Leaseback Transaction") except:
(i) any Sale and Leaseback Transaction in
which the property is sold by the Company to a
Subsidiary or by a Subsidiary to the Company or
another Subsidiary, or
(ii) the Company or any Subsidiary may enter
into any Sale and Leaseback Transaction if (a) at
the time thereof and immediately after giving effect
thereto no Default or Event of Default shall exist
(including any Event of Default under paragraph
6A(3)(ii)) and the proceeds from the sale of the
subject property shall be equal to not less than 80%
of its fair market value (as reasonably determined
by the Company's Board of Directors); or
(iii)following the acquisition of DeGussa
Dental Group by the Company or one or more of its
Subsidiaries, any one or more Sale and Leaseback
Transactions, in an aggregate equivalent amount not
to exceed US$100,000,000, with respect to the
precious metals owned by Degussa Dental Group prior
to such acquisition; provided that any such Sale and
Leaseback Transaction shall be entered into and
effective no later than June 30, 2002; or"
The following shall be added as a new Paragraph 6C of the Note
Agreement:
"6C. Subsidiary Accounts/Cash Management. The
Company will not permit any Subsidiary party to the
Subsidiary Guaranty to establish or maintain any
deposit, checking or other account with any financial
institution that is a party to either or both of the
Bank Agreements; provided however, that such
Subsidiaries may continue to maintain any such
accounts that were in existence on the Series A
Closing Day in accordance with the Company's cash
management practices in effect on the Series A
Closing Day; provided further, however, that the
aggregate daily positive balances maintained therein
on any day shall not exceed US$1,000,000."
D3
The definition of "Bank Agreements" set forth in Paragraph 10B
of the Note Agreement is hereby amended in its entirety to
read as follows:
"Bank Agreements" shall mean (i) the $250,000,000
Facility A 364-Day Competitive Advance, Revolving Credit
and Guaranty Agreement dated as of May 25, 2001, among the
Company and the other Persons named as parties thereto, as
amended or otherwise modified from time to time, (ii) the
$250,000,000 Five-Year Competitive Advance, Revolving
Credit and Guaranty Agreement dated as of May 25, 2001
among the Company and the other Persons named as parties
thereto, as amended or otherwise modified from time to
time and (iii) the Revolving Credit Agreement dated
September 9, 1994, among the Company and the other Persons
named as party thereto, as amended otherwise modified from
time to time.
SECTION 2. Supplemental interest payments.
(a) In consideration of the agreement of the Noteholders to
consent to amend the Note Agreement in the respects set forth
in Section 1 hereof, the Company hereby agrees to pay, in
addition to the interest payable in respect of the Series A
Notes and Series B Notes pursuant to the respective terms of
such Notes and of the Note Agreement as in effect on the date
hereof, supplemental interest ("Supplemental Interest") on the
respective unpaid principal balances of the Series A Notes and
Series B Notes from and after the date hereof, in accordance
with this Section 2.
D3
(b) The Supplemental Interest payable on the Series
A Notes and Series B Notes for any day from and after the date
hereof shall be and mean interest (computed on the basis of a
360-day year consisting of twelve 30 day months) on the
respective US Dollar Equivalent (as defined below) of such
unpaid principal balances at the corresponding rate per annum
set forth in the table below, determined by reference to the
respective ratings from time to time assigned to the Company's
long-term, senior, unsecured debt (which is not guarantied or
subject to any other form of credit enhancement) by Standard
and Poor's Ratings Group and Moody's Investor Service, Inc.,
and published by the applicable rating agency:
-------------------------------------------------
Applicable Debt Ratings Supplemental Interest
-------------------------------------------------
-------------------------------------------------
BBB+ or Baa1 (or 0.40%
higher)1
-------------------------------------------------
-------------------------------------------------
BBB or Baa21 0.60%
-------------------------------------------------
-------------------------------------------------
BBB- or Baa3 (or 1.00%
lower) 1
-------------------------------------------------
1 In the event of a split rating, the higher of
the two ratings will determine the applicable
Supplemental Interest.
(c) Supplemental Interest shall be payable in
arrears on each March 1, June 1, September 1 and December 1
subsequent to the date hereof in US Dollars in immediately
available funds by wire transfer for credit to:
Prudential Managed
Account
Account No.
890-0304-391
The Bank of New York
New York, New York
(ABA No.: 021-000-018)
D3
Each such wire transfer shall also reference the name of the
Company, and the following information for the applicable Note
to which such payment applies " _____% Series __ Notes due
____________, Security No. !INV ____!, PPN _____", and the due
date and application (Supplemental Interest) of the payment
being made.
(d) For purposes hereof, the term "US Dollar
Equivalent" shall mean the amount determined by converting the
aggregate outstanding Swiss Franc balances of the Series A
Notes or the Series B Notes, as the case may be, to the
equivalent in US Dollars using a rate of exchange of (a) in the
case of the Series A Notes, 1.649 Swiss Francs/1.000 US Dollars
and (b) in the case of the Series B Notes, 1.688 Swiss
Francs/1.000 US Dollars.
(e) Changes in the applicable Supplemental Interest
rate shall become effective on the fifth Business Day following
the date Standard and Poor's Ratings Group and/or Moody's
Investor Service, Inc., as the case may be, publishes the
relevant change in its applicable rating.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
3.1 As of the date this First Amendment becomes effective
pursuant to the provisions of Section 4.1 hereof, each of the
Company and each Subsidiary party to the Subsidiary Guaranty,
jointly and severally, represent and warrant to the Noteholders
as follows:
(a) There are no set-offs, claims, defenses,
counterclaims, causes of action, or deductions of any
nature against any of the obligations under the Note
Agreement or the Subsidiary Guaranty or evidenced by the
Notes.
(b) After giving effect to the amendments made
herein: (i) no Event of Default and, to the knowledge of
the Company and the Subsidiaries party to the Subsidiary
Guaranty, no Default, has occurred and is continuing, and
(ii) the representations and warranties set forth in
Paragraph 8 of the Note Agreement and Paragraph 5 of the
Subsidiary Guaranty are true and correct on and as of the
date this First Amendment becomes effective 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.
SECTION 4. Miscellaneous.
Upon the date that the Noteholders shall have received from
each of the Company and the Subsidiaries party to the
Subsidiary Guaranty a counterpart hereof signed by such party
or facsimile or other written confirmation (in form
satisfactory to the Noteholders) that such party has signed a
counterpart hereof, this First Amendment shall become effective
as of the date hereof.
This First Amendment shall be construed in connection with and
as part of the Note Agreement, and except as modified and
expressly amended by this First Amendment, all terms,
conditions and covenants contained in the Note Agreement and
the Notes are hereby ratified and shall be and remain in full
force and effect.
Any and all notices, requests, certificates and other
instruments executed and delivered after the execution and
delivery of this First Amendment may refer to the Note
Agreement without making specific reference to this First
Amendment but nevertheless all such references shall include
this First Amendment unless the context otherwise requires.
D3
The descriptive headings of the various Sections or parts of
this First Amendment are for convenience only and shall not
affect the meaning or construction of any of the provisions
hereof.
This First Amendment shall be governed by and construed in
accordance with New York law.
The execution hereof by you shall constitute a contract between
us for the uses and purposes hereinabove set forth, and this
First Amendment may be executed in any number of counterparts,
each executed counterpart constituting an original, but all
together only one agreement.
Each of the Subsidiaries of the Company party to the Subsidiary
Guaranty hereby joins in this First Amendment to evidence its
consent hereto, and each such Subsidiary of the Company hereby
reaffirms its obligations set forth in the Subsidiary Guaranty
and in each other document given by it in connection with the
Note Agreement and the Notes.
This First Amendment shall be governed by and construed in
accordance with New York law.
[BORROWER:]
DENTSPLY INTERNATIONAL INC., a
Delaware corporation
By:
Name: William R. Jellison
Title: Sr. VP and Chief
Financial Officer
By:
Name: William E. Reardon
Title: Treasurer
[GUARANTORS:]
CERAMCO INC., a Delaware
corporation
By:
Name: William E. Reardon
Title: Treasurer
CERAMCO MANUFACTURING CO., a
Delaware corporation
By:
Name: William E. Reardon
Title: Treasurer
D3
DENTSPLY INTERNATIONAL
PREVENTIVE CARE DIVISION L.P., a
Pennsylvania limited partnership
By:
Dentsply International Inc.,
a Delaware corporation, its
general partner
By:
Name: William E. Reardon
Title: Treasurer
G.A.C. INTERNATIONAL, INC., a
New York corporation
By:
Name: William E. Reardon
Title: Treasurer
MIDWEST DENTAL PRODUCTS CORP., a
Delaware corporation
By:
Name: William E. Reardon
Title: Treasurer
RANSOM & RANDOLPH COMPANY, a
Delaware corporation
By:
Name: William E. Reardon
Title: Treasurer
TULSA DENTAL PRODUCTS INC., a
Delaware corporation
By:
Name: William E. Reardon
Title: Treasurer
D3
DENTSPLY FINANCE CO., a Delaware
corporation
By:
Name:
Title:
DENTSPLY RESEARCH & DEVELOPMENT
CORP., a Delaware corporation
By:
Name:
Title:
ACCEPTED AND AGREED TO:
THE PRUDENTIAL INSURANCE
COMPANY OF AMERICA
By:______________________________
Title:
D3
EXHIBIT 4.3(a)
FACILITY B
5-YEAR
FACILITY B FIVE-YEAR
COMPETITIVE ADVANCE, REVOLVING CREDIT
AND GUARANTY AGREEMENT
dated as of
May 25, 2001
among
DENTSPLY INTERNATIONAL INC., as Borrower,
THE GUARANTORS NAMED HEREIN,
THE BANKS NAMED HEREIN,
ABN AMRO BANK N.V., as Administrative Agent and
Arranger and Bookrunner
and
CREDIT SUISSE FIRST BOSTON and FIRST UNION NATIONAL BANK and
BANK OF TOKYO-MITSUBISHI TRUST HARRIS TRUST AND SAVINGS BANK,
COMPANY, as Co-Syndication as Co-Documentation Agents
Agents
D4
iv
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
SECTION 1.01. Definitions 1
SECTION 1.02. Accounting Terms and Determinations 15
SECTION 1.03. Exchange Rates 16
ARTICLE II LOANS 16
SECTION 2.01. Commitments 16
SECTION 2.02. Loans 16
SECTION 2.03. Use of Proceeds 18
SECTION 2.04. Competitive Bid Procedure 18
SECTION 2.05. Revolving Credit Borrowing Procedure 20
SECTION 2.06. Letters of Credit 21
SECTION 2.07. Refinancings 25
SECTION 2.08. Fees 25
SECTION 2.09. Notes; Repayment of Loans 26
SECTION 2.10. Interest on Loans 27
SECTION 2.11. Interest on Overdue Amounts 27
SECTION 2.12. Alternate Rate of Interest 28
SECTION 2.13.Termination, Reduction, Increase and Extension
of Commitments 28
SECTION 2.14. Prepayment of Loans 29
SECTION 2.15. Eurodollar Reserve Costs 30
SECTION 2.16. Reserve Requirements; Change in Circumstances 30
SECTION 2.17. Change in Legality 31
SECTION 2.18. Indemnity 32
SECTION 2.19. Pro Rata Treatment 32
SECTION 2.20. Right of Setoff 33
SECTION 2.21. Sharing of Setoffs 33
SECTION 2.22. Payments 34
SECTION 2.23. United States Withholding 34
SECTION 2.24. Participations; Assignments 35
SECTION 2.25. Taxes 39
ARTICLE III REPRESENTATIONS AND WARRANTIES 40
SECTION 3.01. Organization; Corporate Powers 40
SECTION 3.02. Authorization 40
SECTION 3.03. Enforceability 41
SECTION 3.04. Governmental Approvals 41
SECTION 3.05. Financial Statements and Condition 41
SECTION 3.06. No Material Adverse Change 42
SECTION 3.07. Title to Properties 42
SECTION 3.08. Litigation 42
SECTION 3.09. Tax Returns 43
SECTION 3.10. Agreements 43
SECTION 3.11. Employee Benefit Plans 43
D4
SECTION 3.12.Investment Company Act; Public Utility Holding
Company Act; Federal Power Act 44
SECTION 3.13. Federal Reserve Regulations 44
SECTION 3.14. Defaults; Compliance with Laws 44
SECTION 3.15. Use of Proceeds 44
SECTION 3.16. Affiliated Companies 45
SECTION 3.17. Environmental Liabilities 45
SECTION 3.18. Disclosure 46
SECTION 3.19. Insurance 46
ARTICLE IV CONDITIONS OF LENDING 46
SECTION 4.01. All Borrowings 46
SECTION 4.02. Closing Date 47
ARTICLE V AFFIRMATIVE COVENANTS 48
SECTION 5.01. Corporate Existence 48
SECTION 5.02. Maintenance of Property 49
SECTION 5.03. Insurance 49
SECTION 5.04. Obligations and Taxes 49
SECTION 5.05. Financial Statements; Reports, etc. 49
SECTION 5.06. Defaults and Other Notices 51
SECTION 5.07. ERISA 51
SECTION 5.08. Access to Premises and Records 52
SECTION 5.09. Compliance with Laws, etc. 52
SECTION 5.10. Security Interests 52
SECTION 5.11. Subsidiary Guarantors 52
SECTION 5.12. Environmental Laws 53
SECTION 5.13. Existing Credit Agreements 53
ARTICLE VI NEGATIVE COVENANTS 53
SECTION 6.01. Liens 54
SECTION 6.02. Indebtedness 55
SECTION 6.03.Mergers, Consolidations, Sales of Assets
and Acquisitions 55
SECTION 6.04. Change of Business 56
SECTION 6.05. Transactions with Affiliates 56
SECTION 6.06. Sale and Leaseback 56
SECTION 6.07. Dividends by Subsidiaries 57
SECTION 6.08. Amendments to Certain Documents 57
SECTION 6.09. Minimum Consolidated Net Worth 57
SECTION 6.10. Interest Coverage 57
SECTION 6.11. Debt Ratio 57
SECTION 6.12. Fiscal Year 58
ARTICLE VII EVENTS OF DEFAULT 58
ARTICLE VIII GUARANTY 61
SECTION 8.01. Guaranty 61
SECTION 8.02. No Impairment of Guaranty 61
SECTION 8.03. Continuation and Reinstatement, etc. 61
SECTION 8.04. Payment, etc. 61
D4
SECTION 8.05. Benefit to Guarantors 62
ARTICLE IX ADMINISTRATIVE AGENT 63
SECTION 9.01. Appointment of Administrative Agent 63
SECTION 9.02. Exculpation 63
SECTION 9.03. Consultation with Counsel 64
SECTION 9.04. The Administrative Agent, Individually 64
SECTION 9.05. Reimbursement and Indemnification 64
SECTION 9.06. Resignation 64
ARTICLE X MISCELLANEOUS 65
SECTION 10.01. Notices 65
SECTION 10.02. No Waivers; Amendments 65
SECTION 10.03.Applicable Law; Submission to Jurisdiction;
Service of Process; Waiver of Jury Trial 66
SECTION 10.04. Expenses; Documentary Taxes 66
SECTION 10.05. Indemnity 67
SECTION 10.06. Successors and Assigns
67
SECTION 10.07.Survival of Agreements, Representations and
Warranties, etc. 67
SECTION 10.08. Severability 67
SECTION 10.09. Cover Page and Section Headings 68
SECTION 10.10. Counterparts 68
SECTION 10.11. Confidentiality 68
SECTION 10.12. Conversion of Currencies 69
SECTION 10.13. European Monetary Union 69
D4
EXHIBITS
- ----------------------------------------------------------------------
Exhibit A-1 Form of Competitive Bid Request
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Exhibit A-2 Form of Notice of Competitive Bid Request
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Exhibit A-3 Form of Competitive Bid
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Exhibit A-5 Form of Revolving Credit Borrowing Request
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Exhibit B-1 Form of Competitive Note
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Exhibit B-2 Form of Revolving Credit Note
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Exhibit C Form of Contribution Agreement
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Exhibit D Form of Opinion of Brian M. Addison, Esq.
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Exhibit E Form of Assignment and Acceptance
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Exhibit F Form of Draft Intercreditor Agreement
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Exhibit G Form of Joinder and Assumption Agreement
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Exhibit H Form of Compliance Certificate
- ----------------------------------------------------------------------
SCHEDULES
- ----------------------------------------------------------------------
Schedule 1.01 Guarantors
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Schedule 2.01 Commitments, Addresses for Notices
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Schedule 3.16 Affiliates
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Schedule 3.17 Environmental Liabilities
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Schedule 4.02 Consents
- ----------------------------------------------------------------------
- ----------------------------------------------------------------------
Schedule 6.01 Liens
- ----------------------------------------------------------------------
D4
THIS FACILITY B FIVE-YEAR COMPETITIVE ADVANCE, REVOLVING
CREDIT AND GUARANTY AGREEMENT, dated as of May 25, 2001, is made
by and among DENTSPLY INTERNATIONAL INC., a Delaware corporation
(the "Borrower"), the Guarantors (as hereinafter defined), the
Banks from time to time party hereto (individually a "Bank" and
collectively the "Banks"), ABN AMRO BANK N.V., as Administrative
Agent for the Banks (the "Administrative Agent") and arranger and
bookrunner, and CREDIT SUISSE FIRST BOSTON and BANK OF
TOKYO-MITSUBISHI TRUST COMPANY, as Co-Syndication Agents (the
"Co-Syndication Agents"), and FIRST UNION NATIONAL BANK and HARRIS
TRUST AND SAVINGS BANK, as Co-Documentation Agents (the
"Co-Documentation Agents").
INTRODUCTORY STATEMENT
All terms not otherwise defined herein are defined in
Article I hereof.
The Borrower has requested that the Banks extend credit to
the Borrower in order to enable the Borrower to borrow on a
standby revolving credit basis a principal amount not in excess
of $250,000,000 at any time outstanding and to obtain Letters of
Credit.
The Borrower has also requested that the Banks provide a
procedure pursuant to which the Borrower may invite the Banks to
bid on an uncommitted basis on short-term borrowings by the
Borrower.
The proceeds of all such borrowings and all Letters of
Credit are to be used (a) to refinance outstanding Indebtedness
of the Borrower, or to back existing letters of credit issued,
under the Borrower's Existing Credit Agreements, (b) for general
working capital and corporate purposes, including acquisitions in
the industry of Borrower or any of its Material Subsidiaries, and
(c) to facilitate borrowings by offshore Subsidiaries.
To provide assurance for the repayment of the Loans and all
related interest, fees, charges, expenses, reimbursement
obligations and other amounts payable with respect thereto, the
Guarantors will guaranty the Obligations pursuant to Article VIII
hereof.
Accordingly, the Borrower, the Guarantors, the Banks and the
Administrative Agent agree as follows:
ARTICLE I DEFINITIONS
SECTION 1.01. Definitions. As used in this Agreement,
the following words and terms shall have the respective meanings
specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR
Loans.
"ABR Loan" shall mean any Revolving Credit Loan bearing
interest at a rate determined by reference to the Alternate Base
Rate in accordance with the provisions of Article II.
D4
"Administrative Agent" shall mean ABN AMRO Bank N.V.,
in its capacity as agent for the Banks hereunder and not in its
individual capacity as a Bank, or such successor Administrative
Agent as may be appointed pursuant to Section 9.06.
"Affiliate" shall mean, with respect to the person in
question, (a) any person (including any member of the immediate
family of any such natural person) which (i) directly or
indirectly beneficially owns or controls 10% or more of the total
voting power of shares of capital stock having the right to vote
for directors under ordinary circumstances (if such person is a
corporation), (ii) is a general partner (if such person is a
partnership) or (iii) is otherwise empowered, by contract, voting
trust or otherwise, to direct the business or affairs of such
person, (b) any person controlling, controlled by or under common
control with any such person (within the meaning of Rule 405
under the Securities Act of 1933), and (c) any director, general
partner or executive officer of any such person.
"Agreement" shall mean this Facility B Five-Year
Competitive Advance, Revolving Credit and Guaranty Agreement,
dated as of May 25, 2001, among DENTSPLY International Inc., as
Borrower, the Guarantors (as hereinafter defined), the Banks from
time to time party hereto, ABN AMRO Bank N.V., as Administrative
Agent and arranger and bookrunner, and 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, as the same may be
amended, modified or supplemented from time to time.
"Alternate Base Rate" shall mean for any day, a rate
per annum (rounded upwards, if not already a whole multiple of
1/16 of 1%, to the next higher 1/16 of 1%) equal to the greatest
of (a) the Prime Rate in effect on such day or (b) the Federal
Funds Effective Rate in effect for such day plus 1/2 of 1%. For
purposes hereof, the term "Prime Rate" shall mean the rate per
annum announced by ABN AMRO Bank N.V. from time to time as its
prime rate in effect at its principal office in Chicago,
Illinois; each change in the Prime Rate shall be effective on the
date such change is announced as effective. "Federal Funds
Effective Rate" shall mean, for any period, a fluctuating
interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by
the Administrative Agent from three Federal funds brokers of
recognized standing selected by it. Any change in the Alternate
Base Rate due to a change in the Federal Funds Effective Rate
shall be effective on the effective date of such change in the
Federal Funds Effective Rate. If for any reason the
Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the Administrative Agent to
obtain sufficient publications or quotations in accordance with
the terms hereof, the Alternate Base Rate shall be the Prime Rate
until the circumstances giving rise to such inability no longer
exist.
D4
"Alternate Currency" means (i) with respect to any Loan
and Letter of Credit (other than a Subsidiary Borrowing Letter of
Credit), the euro, British Pounds Sterling, Swiss Francs,
Deutsche Marks 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, or (ii) with respect to any Subsidiary
Borrowing Letter of Credit, any currency other than Dollars that
is freely tradeable and exchangeable into Dollars, and for which
an Exchange Rate can be determined, in each case by Issuing Bank
in its sole judgment.
"Applicable Commitment Percentage" means, with respect
to any Bank, the percentage of the total Commitments represented
by such Bank's Commitment. If the Commitments have been
terminated or expired, the Applicable Commitment Percentages
shall be determined based upon the Commitments most recently in
effect, giving effect to any assignments.
"Applicable Percentage" shall mean on any date, with
respect to the Facility Fee or the Usage Fee or the Loans
comprising any LIBOR Revolving Credit Borrowing or the Drawn Cost
pertaining to the participation fee with respect to Letters of
Credit, as the case may be, the corresponding applicable
percentage set forth in the table below based upon the Debt
Rating of the Borrower (determined in accordance with
Section 2.10(e)):
- -----------------------------------------------------------------
Facility Fully
Debt Rating: Fee: LIBOR: Usage Drawn
S&P and Moody's Applicable Applicable Drawn Fee Cost
Respectively Percentage Percentage Cost Applicable (>50%)
Applicable Percentage
Percentage
- -----------------------------------------------------------------
- -----------------------------------------------------------------
A or above, or A2 10.0 30.0 40.0 10.0 50.0
or above
- -----------------------------------------------------------------
- -----------------------------------------------------------------
A- or A3 10.0 40.0 50.0 12.5 62.5
- -----------------------------------------------------------------
- -----------------------------------------------------------------
BBB+ or Baa1 12.5 50.0 62.5 12.5 75.0
- -----------------------------------------------------------------
- -----------------------------------------------------------------
BBB or Baa2 17.5 57.5 75.0 15.0 90.0
- -----------------------------------------------------------------
- -----------------------------------------------------------------
BBB- or Baa3 30.0 70.0 100.0 25.0 125.0
- -----------------------------------------------------------------
- -----------------------------------------------------------------
BB+ or Ba1 40.0 110.0 150.0 25.0 175.0
- -----------------------------------------------------------------
BB or below or 50.0 175.0 225.0 25.0 250.0
unrated, or Ba2 or
below or unrated
- -----------------------------------------------------------------
For purposes of determining the Applicable Percentage:
(a) If a difference exists in the Debt Ratings of Moody's
and Standard & Poor's, the higher of such Debt Ratings will
determine the relevant pricing level,
(b) Any change in the Applicable Percentage shall become
effective five (5) Business Days after any public announcement of
the change in the Debt Rating.
D4
"Assignment and Acceptance" shall mean an agreement in the
form of Exhibit E hereto entered into pursuant to Section 2.24
executed by the assignor, assignee and other parties as
contemplated thereby.
"Availability Period" means the period from and
including the Effective Date to but excluding the earlier of the
Maturity Date and the date of termination of the Commitments.
"Bank" and "Banks" shall mean the financial
institutions listed on Schedule 2.01 and any assignee of a Bank
pursuant to Section 2.24(b) or (c).
"Board" shall mean the Board of Governors of the
Federal Reserve System of the United States.
"Borrowing" shall mean a group of Loans of a single
Interest Rate Type made by the Banks (or in the case of a
Competitive Borrowing, by the Bank or Banks whose Competitive
Bids have been accepted pursuant to Section 2.04) on a single
date and as to which a single Interest Period is in effect.
"Business Day" shall mean any day not a Saturday,
Sunday or legal holiday in the States of Illinois or New York or
the Commonwealth of Pennsylvania on which banks and the Federal
Reserve Bank of New York are open for business in New York City;
provided, however, that when used in connection with a LIBOR
Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in deposits in the relevant
currency in the London interbank market and when used in
connection with a LIBOR Loan denominated in euro, the term
"Business Day" shall also exclude any day which is not a TARGET
Day.
"Calculation Date" means the last Business Day of each
calendar quarter, provided that during the continuance of an
Event of Default, "Calculation Date" means each Business Day
during which such Event of Default continues to exist.
"Capitalized Lease Obligations" shall mean any
obligation of a Person as lessee of any property (real, personal
or mixed), which, in accordance with generally accepted
accounting principles, is or should be accounted for as a capital
lease on the balance sheet of such Person.
"Change in Law" means (a) the adoption of any law,
rule, or regulation after the date of this Agreement, (b) any
change in any law, rule, or regulation or in the interpretation
or application thereof by any Governmental Authority after the
date if this Agreement or (c) compliance by any Bank or the
Issuing Bank (or for purposes of Section 2.16(b), by any lending
office of such Bank or by such Bank's or the Issuing Bank's
holding company, if any) with any request, guideline, or
directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this
Agreement.
"Closing Date" shall mean the date of the first
Borrowing hereunder.
"Code" shall mean the Internal Revenue Code of 1986, as
the same shall be amended from time to time.
D4
"Commitment" shall mean, with respect to each Bank, the
commitment of such Bank hereunder as initially set forth on
Schedule 2.01 (and thereafter on Schedule 2.01 to the most recent
Assignment and Acceptance) as such Bank's Commitment may be
permanently terminated, reduced, increased or extended from time
to time pursuant to Section 2.13. Subject to Section 2.13, the
Commitments shall automatically and permanently terminate on the
Maturity Date.
"Competitive Bid" shall mean an offer by a Bank to make
a Competitive Loan pursuant to Section 2.04.
"Competitive Bid Accept/Reject Letter" shall mean a
notification made by the Borrower pursuant to Section 2.04(d) in
the form of Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any
Competitive Bid made by a Bank pursuant to Section 2.04(b),
(a) in the case of a LIBOR Loan, the Margin and (b) in the case of
a Fixed Rate Loan, the fixed rate of interest offered by the Bank
making such Competitive Bid.
"Competitive Bid Request" shall mean a request made
pursuant to Section 2.04 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a borrowing
consisting of a Competitive Loan or concurrent Competitive Loans
from the Bank or Banks whose Competitive Bids for such Borrowing
have been accepted by the Borrower under the bidding procedure
described in Section 2.04.
"Competitive Loan" shall mean a Loan from a Bank to the
Borrower pursuant to the bidding procedure described in
Section 2.04. Each Competitive Loan shall be a LIBOR Competitive
Loan or a Fixed Rate Loan.
"Competitive Loan Exposure" means, with respect to any
Bank at any time, the aggregate principal amount of the
outstanding Competitive Loans of such Bank.
"Competitive Note" shall mean a promissory note of the
Borrower in the form of Exhibit B-1 executed and delivered as
provided in Section 2.09.
"Consolidated" shall mean, as applied to any financial
or accounting term, such term determined on a consolidated basis
in accordance with generally accepted accounting principles
(except as otherwise required herein) for the Borrower and each
Subsidiary which is a Consolidated Subsidiary of the Borrower.
"Consolidated EBITDA" shall mean for any period
"Operating income" as set forth in the DENTSPLY International
Inc. Consolidated Statements of Income, plus depreciation and
amortization (to the extent previously deducted), determined in
accordance with generally accepted accounting principles and in a
manner consistent with the accounting principles used to prepare
the audited DENTSPLY International Inc. Consolidated Statements
of Income for the year ended December 31, 2000, and delivered to
the Administrative Agent; provided that there shall be excluded:
(a) the income (or loss) from operations of any person, accrued
prior to the date it becomes a Subsidiary or is merged into or
consolidated with the person whose income is being determined or
a subsidiary of such person; and
D4
(b) the income (or loss) from operations of any person
(other than a Subsidiary) in which the person whose operating
income is being determined or any subsidiary of such person has
an ownership interest, except to the extent that any such income
has actually been received by such person in the form of cash
dividends or similar distributions.
"Consolidated Interest Coverage Ratio" shall mean, in
respect of any fiscal period of the Borrower, (a) Consolidated
EBITDA divided by (b) Consolidated Interest Expense.
"Consolidated Interest Expense" shall mean, for any
fiscal period of the Borrower, without duplication of expense
among fiscal periods (a) the aggregate amount determined on a
Consolidated basis of (i) all interest on Indebtedness of the
Borrower and its Consolidated Subsidiaries accrued during such
period, (ii) all rentals imputed as interest accrued under
Capitalized Lease Obligations during such period by such person
and (iii) all amortization of discount and expense relating to
Indebtedness of the Borrower and its Consolidated Subsidiaries
which amortization was accounted for during such period,
(b) adjusted downward for capital gains and upward for capital
losses on maturing U.S. Treasury obligations and (c) adjusted
downward for interest income (to the extent not previously
excluded), as determined in accordance with generally accepted
accounting principles.
"Consolidated Net Income" shall mean the net income (or
net loss) of the Borrower and its Consolidated Subsidiaries for
the period in question (taken as a whole), as determined in
accordance with generally accepted accounting principles;
provided that there shall be excluded:
(a) the net income (or net loss) of any person, accrued
prior to the date it becomes a Subsidiary or is merged into or
consolidated with the person whose net income is being determined
or a subsidiary of such person; and
(b) the net income (or net loss) of any person (other
than a Subsidiary) in which the person whose net income is being
determined or any subsidiary of such person has an ownership
interest, except to the extent that any such income has actually
been received by such person in the form of cash dividends or
similar distributions.
"Consolidated Net Worth" shall mean, as at any date of
determination, the sum of the capital stock (less treasury stock)
and additional paid-in capital plus retained earnings (or minus
accumulated deficit) of the Borrower and its Consolidated
Subsidiaries on a Consolidated basis.
"Consolidated Subsidiary" means, in the case of the
Borrower at any date, any Subsidiary or other entity the accounts
of which are Consolidated with those of the Borrower in the
Consolidated financial statements of the Borrower as of such date.
"Consolidated Total Capitalization" shall mean the sum
of (a) Consolidated Total Indebtedness and (b) Consolidated Net
Worth.
"Consolidated Total Indebtedness" shall mean the
Consolidated Indebtedness of the Borrower and its Consolidated
Subsidiaries.
"Contribution Agreement" shall mean a Contribution
Agreement among the Borrower and the Guarantors substantially in
the form of Exhibit C hereto.
D4
"Credit Exposure" means, in respect of any Bank, the
sum of such Bank's Revolving Credit Exposure and its Competitive
Loan Exposure.
"Debt Rating" shall mean the rating by each of Standard
& Poor's and Moody's of the Borrower's senior unsecured long-term
debt which is not guarantied by any Person or subject to any
other credit enhancement.
"Debt Ratio" shall mean the ratio of Consolidated Total
Indebtedness to Consolidated Total Capitalization.
"Default" shall mean an Event of Default or any event,
act or condition which with notice or lapse of time, or both,
would constitute an Event of Default.
"Des Plaines Lease" shall mean the Amended and Restated
Sale and Leaseback Agreement, dated as of August 1, 1991 between
McDonough Partners I as Buyer and Midwest Dental Products
Corporation, as Seller.
"Dollar Equivalent" means
(a) as to any Loan denominated in Dollars, the principal amount
thereof,
(b) as to any Loan denominated in an Alternate
Currency, the amount in Dollars which is equivalent to 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,
(c) as to any Subsidiary Borrowing Letter of Credit or
other Letter of Credit denominated in an Alternate Currency prior
to the time of payment thereunder, the amount in Dollars
(i) which is stated to be paid in Dollars under the Letter of
Credit, and (ii) which is equivalent to the maximum amount that
may be paid in an Alternate Currency under the Letter of Credit
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, and
(d) as to any Subsidiary Borrowing Letter of Credit or
other Letter of Credit denominated in an Alternate Currency at
the time of a payment thereunder, the amount in Dollars
calculated in accordance with clause (c) directly above for that
portion, if any, remaining unpaid and available thereunder plus,
with respect to the portion paid thereunder, the amount in
Dollars (i) which is actually paid in Dollars under the Letter of
Credit, and (ii) which is equivalent to the amount actually paid
in an Alternate Currency under the Letter of Credit computed at
the Issuing Bank's then current rate of exchange (based on the
market rates then prevailing and available to Issuing Bank), as
reasonably determined by Issuing Bank, utilized for payment
thereunder to or at the place of payment in the currency in which
payment is made under the Letter of Credit, plus any costs,
premiums, and expenses arising from all currency conversions
incurred by Issuing Bank in connection therewith.
"Dollars", "dollars" and the symbol "$" shall mean the
lawful currency of the United States of America.
"Effective Date" shall mean the date on which the
conditions to borrowing set forth in Sections 4.01 and 4.02 are
first satisfied.
D4
"Environmental Laws" shall mean all statutes,
ordinances, orders, rules and regulations relating to
environmental matters, including those relating to fines, orders,
injunctions, penalties, damages, contribution, cost recovery
compensation, losses or injuries resulting from the release or
threatened release of Hazardous Materials and to the generation,
use, storage, transportation, or disposal of Hazardous Materials
or in any manner applicable to the Borrower or any of the
Subsidiaries or any of their respective properties, including the
Comprehensive Environmental Response, Compensation, and Liability
Act (42 U.S.C. ss. 9601 et seq.), the Hazardous Material
Transportation Act (49 U.S.C. ss. 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C.ss. 6901 et seq.), the
Federal Water Pollution Control Act (33 U.S.C.ss. 1251 et seq.),
the Clean Air Act (42 U.S.C. ss. 7401 et seq.), the Toxic
Substances Control Act (15 U.S.C. ss. 2601 et seq.), the
Occupational Safety and Health Act (29 U.S.C.ss. 651 et seq.) and
the Emergency Planning and Community Right-to-Know Act (42 U.S.C.
ss. 11001 et seq.), each as amended or supplemented, and any
analogous current or future Federal, state or local statutes and
regulations promulgated pursuant thereto.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as the same may from time to time be
amended.
"ERISA Affiliate" shall mean with respect to the
Borrower, any trade or business (whether or not incorporated)
which is a member of a group of which the Borrower is a member
and which is under common control within the meaning of
Section 414 of the Code.
"ESOP" shall mean the DENTSPLY Employee Stock Ownership
Plan effective as of December 1, 1982 and restated as of
January 1, 1991.
"Event of Default" shall mean any of the events
described in clauses (a) through (m) of Article VII.
"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 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.
"Execution Date" shall mean the date of this Agreement.
"Existing Credit Agreements" shall mean the Existing
Revolving Credit Agreement, the Existing Master Letter of Credit
Agreement, and the Existing Multicurrency Revolving Credit
Agreement.
D4
"Existing Master Letter of Credit Agreement" shall mean
that Master Letter of Credit Agreement, dated as of February 21,
2001, between ABN AMRO Bank N.V. and Borrower, as amended and
supplemented by that Addendum to Master Letter of Credit
Agreement, dated as of February 23, 2001, among the same parties,
as amended, modified, and supplemented through the date hereof.
"Existing Multicurrency Revolving Credit Agreement"
shall mean the Revolving Credit Agreement, dated as of September
9, 1994, among Borrower, the Guarantors named therein, and ABN
AMRO Bank N.V., as amended, modified, and supplemented through
the date hereof.
"Existing Revolving Credit Agreement" shall mean the
5-Year Competitive Advance, Revolving Credit and Guaranty
Agreement, dated as of October 23, 1997, as amended, modified,
and supplemented through the date hereof, among the Borrower, the
guarantors and banks, party thereto, and The Chase Manhattan
Bank, as Agent, and ABN AMRO Bank N.V., as Documentation Agent,
together with any agreement between The Chase Manhattan Bank, as
a letter of credit issuing bank, that addresses any letters of
credit issued thereunder.
"Facility A Credit Agreement" shall mean the
$250,000,000, Facility A 364-Day Competitive Advance, Revolving
Credit and Guaranty Agreement, dated as of the date hereof among
the Borrower, the guarantors and the banks party thereto, ABN
AMRO BANK N.V., as administrative agent and arranger and
bookrunner, and 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, as amended, modified and supplemented
from time to time.
"Facility Fee" shall have the meaning given such term
in Section 2.08 hereof.
"Fee Letter" shall mean that letter, dated as of March
19, 2001, given by Administrative Agent to, and executed by,
Borrower, as amended, modified, and supplemented from time to
time.
"Financial Officer" of any person shall mean its Senior
Vice President-Chief Financial Officer, Treasurer or Controller.
"Fixed Rate Borrowing" shall mean a Borrowing comprised
of Fixed Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan
bearing interest at a fixed percentage rate per annum (expressed
in the form of a decimal to no more than four decimal places)
specified by the Bank making such Loan in its Competitive Bid.
"Fundamental Documents" shall mean this Agreement, the
Contribution Agreement, the Competitive Notes, the Letters of
Credit, the Revolving Credit Notes, and the Fee Letter.
"Governmental Authority" shall mean any federal, state,
municipal or other governmental department, commission, board,
bureau, agency or instrumentality, or any central bank or court,
in each case whether of the United States or other jurisdiction,
or any political subdivision thereof.
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"Guarantors" shall mean all Material Subsidiaries which
are incorporated in the United States, all of which are listed on
Schedule 1.01, and any other Subsidiaries of the Borrower which
become Guarantors pursuant to Section 5.11.
"Guaranty", "Guarantied" or to "Guaranty" as applied to
any obligation shall mean and include (a) a guaranty (other than
by endorsement of negotiable instruments for collection in the
ordinary course of business), directly or indirectly, in a
manner, of any part (to the extent of such part) or all of such
obligation and (b) an agreement, direct or indirect, contingent
or otherwise, and whether or not constituting a guaranty, the
intention or practical effect of which is to assure the payment
or performance (or payment of damages or compensation in the
event of nonperformance) of any part (to the extent of such part)
or all of such obligation whether by (i) the purchase of
securities or obligations, (ii) the purchase, sale or lease (as
lessee or lessor) of property or the purchase or sale of services
primarily for the purpose of enabling the obligor with respect to
such obligation to make any payment or performance (or payment of
damages or compensation in the event of nonperformance) of or on
account of any part or all of such obligation, or to assure the
owner of such obligation against loss, (iii) the supplying of
funds to or in any other manner investing in the obligor or any
other person with respect to or on account of such obligation,
(iv) repayment of amounts drawn by beneficiaries of letters of
credit or arising out of the import of goods or (v) the
indemnifying or holding harmless, in any way, of a person against
any part (to the extent of such part) or all of such person's
obligation under a Guaranty except for hold harmless agreements
with vendors with respect to product liability and warranties to
customers.
"Hazardous Materials" shall mean any hazardous
substances or wastes as such terms are defined in any applicable
Environmental Law, including (a) oil, petroleum and any
by-product thereof and (b) asbestos and asbestos-containing
material.
"Indebtedness" shall mean, with respect to any person
(a) all obligations of such person for borrowed money or with
respect to bankers' acceptances, deposits, or advances of any
kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or other similar instruments, (c) all
obligations of such person upon which interest charges are
customarily paid, except for debt obligations of any Subsidiary
of Borrower located in Brazil which are related to foreign
accounts receivable sold to certain banks, (d) all obligations of
such person for the deferred purchase price of property or
services (except (i) accounts payable to suppliers incurred in
the ordinary course of business and paid within one year,
(ii) non-interest-bearing notes payable to suppliers incurred in
the ordinary course of business and having a maturity date not
later than one year after the date of issuance thereof, and
(iii) payroll and other accruals arising in the ordinary course of
business), (e) all obligations of such person under conditional
sale or other title retention agreements relating to property
purchased by such person, (f) all Capitalized Lease Obligations,
including obligations arising from sale and leaseback
transactions which are required to be accounted for as
Capitalized Lease Obligations, (g) all Indebtedness of others
which is secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by)
a Lien on the property or assets of the person in question (the
amount of such Indebtedness taken into account for the purposes
of this clause (g) not to exceed the book value of such property
or assets), (h) all Guaranties of such person, and (i) all
obligations of such person in respect of interest rate protection
agreements, foreign currency exchange agreements, or other
interest, exchange rate, or commodity hedging
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transactions (the amount of such Indebtedness for purposes of
this clause (i) to be the termination value of such agreement or
arrangement); provided, however, that there shall be excluded
from this definition (x) Indebtedness between the Borrower and
any domestic Subsidiary and (y) Indebtedness between domestic
Subsidiaries; provided further, however, that any Indebtedness
owed to a domestic Subsidiary remaining outstanding after that
Subsidiary ceases to be a Subsidiary shall be included as
Indebtedness hereunder.
"Intercreditor Agreement" shall mean an Intercreditor
Agreement, by and among Administrative Agent on behalf of the
Banks and itself, The Prudential Insurance Company of America, on
behalf of Noteholders described therein, Borrower, and the
Guarantors, as the same may be amended, modified or supplemented
from time to time.
"Interest Payment Date" shall mean, with respect to any
Loan, the last day of the Interest Period applicable thereto and,
in the case of a LIBOR Loan with an Interest Period of more than
three months' duration or a Fixed Rate Loan with an Interest
Period of more than 90 days' duration, each day that would have
been an Interest Payment Date had successive Interest Periods of
three months' duration or 90 days' duration, as the case may be,
been applicable to such Loan, and, in addition, the date of any
continuation or conversion of the Interest Rate Type applicable
to such Loan with or to a Loan of a different Interest Rate Type.
"Interest Period" shall mean (a) as to any LIBOR
Borrowing, the period commencing on the date of such Borrowing or
on the last day of the immediately preceding Interest Period
applicable to such Borrowing, as the case may be, and ending on
the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is
1, 2, 3 or 6 months thereafter, as the Borrower may elect, (b) as
to any ABR Borrowing, the period commencing on the date of such
Borrowing and ending on the earliest of (i) the next succeeding
March 31, June 30, September 30 or December 31, (ii) the Maturity
Date and (iii) the date such Borrowing is continued or converted
to a Borrowing of a different Interest Rate Type in accordance
with Section 2.07 or prepaid in accordance with Section 2.14 and
(c) as to any Fixed Rate Borrowing, the period commencing on the
date of such Borrowing and ending on the date specified in the
Competitive Bids in which the offer to make the Fixed Rate Loans
comprising such Borrowing were extended, which shall not be
earlier than 7 days after the date of such Borrowing or later
than 360 days after the date of such Borrowing; provided,
however, that if any Interest Period would end on a day other than
a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of LIBOR Loans
only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on
the next preceding Business Day. Interest shall accrue from and
including the first day of an Interest Period to but excluding
the last day of such Interest Period.
"Interest Rate Type", when used in respect of any Loan
or Borrowing, shall refer to the Rate by reference to which
interest on such Loan or on the Loans comprising such Borrowing
is determined. For purposes hereof, "Rate" shall mean LIBOR, the
Alternate Base Rate or the Fixed Rate, as applicable.
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"Issuing Bank" means ABN AMRO Bank N.V., in its
capacity as the issuer of Letters of Credit hereunder, and its
successors in such capacity as provided in Section 2.06(i), or
The Chase Manhattan Bank, in its capacity as the issuer of
Letters of Credit hereunder, and its successors in such capacity
as provided in Section 2.06(i), provided that with respect to any
Letters of Credit issued hereunder on or after the date hereof
other than those Letters of Credit deemed to be issued hereunder
pursuant to Section 2.06(a) hereof, the Issuing Bank shall mean
only ABN AMRO Bank N.V. The Issuing Bank may, in its discretion,
arrange for one or more Letters of Credit to be issued by
Affiliates of the Issuing Bank, in which case the term "Issuing
Bank" shall include any such Affiliate with respect to Letters of
Credit issued by such Affiliate.
"Law" shall mean any law (including common law),
constitution, statute, treaty, regulation, rule, ordinance,
opinion, release, ruling, order, injunction, writ, decree, bond,
judgment, authorization or approval, lien or award of or
settlement agreement with any Governmental Authority.
"LC Disbursement" means a payment made by the Issuing
Bank pursuant to a Letter of Credit.
"LC Exposure" means, at any time, the sum of the Dollar
Equivalent of (a) the aggregate undrawn amount of all outstanding
Letters of Credit at such time plus (b) the aggregate amount of
all LC Disbursements that have not yet been reimbursed by or on
behalf of the Borrower at such time. The LC Exposure of any Bank
at any time shall be its Applicable Commitment Percentage of the
total LC Exposure at such time.
"LC Sublimit" means $50,000,000.
"Letter of Credit" means any letter of credit issued
pursuant to this Agreement and includes Subsidiary Borrowing
Letters of Credit.
"LIBOR" shall mean, with respect to any LIBOR Borrowing
for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16th of 1%) equal to the
rate at which deposits in the applicable currency approximately
equal in principal amount to (a) in the case of a Revolving
Credit Borrowing, the Administrative Agent's portion of such
LIBOR Borrowing and (b) in the case of a Competitive Borrowing, a
principal amount that would have been the Administrative Agent's
portion of such Competitive Borrowing had such Competitive
Borrowing been a Revolving Credit Borrowing, and for a maturity
comparable to such Interest Period are offered to the principal
London office of the Administrative Agent in immediately
available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIBOR Borrowing" shall mean a Borrowing comprised of
LIBOR Loans.
"LIBOR Competitive Loan" shall mean any Competitive
Loan bearing interest at a rate determined by reference to LIBOR
in accordance with the provisions of Article II.
"LIBOR Loan" shall mean any LIBOR Competitive Loan or
LIBOR Revolving Credit Loan.
"LIBOR Revolving Credit Loan" shall mean any Revolving
Credit Loan bearing interest at a rate determined by reference to
LIBOR in accordance with the provisions of Article II.
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"Lien" shall mean any mortgage, pledge, security
interest, encumbrance, lien or charge of any kind whatsoever
(including any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing or
agreement to give any financing statement under the Uniform
Commercial Code of any jurisdiction other than a financing
statement filed or given as a precautionary measure in respect of
a lease which is not required to be accounted for as a
Capitalized Lease Obligation and which does not otherwise secure
an obligation that constitutes Indebtedness).
"Loan" shall mean a Competitive Loan or a Revolving
Credit Loan, whether made as a LIBOR Loan, an ABR Loan or a Fixed
Rate Loan, as permitted hereby.
"Margin" shall mean, as to any LIBOR Competitive Loan,
the margin (expressed as a percentage rate per annum in the form
of a decimal to four decimal places) to be added to or subtracted
from LIBOR in order to determine the interest rate applicable to
such Loan, as specified in the Competitive Bid relating to such
Loan.
"Material Subsidiary" shall mean any Subsidiary
incorporated or otherwise organized in the United States (i) the
consolidated net income of which for the most recent fiscal year
of the Borrower for which audited financial statements have been
delivered pursuant to Section 5.05 were greater than or equal to
5% of Consolidated Net Income for such fiscal year, (ii) the
consolidated tangible assets of which as of the last day of the
Borrower's most recently ended fiscal year were greater than or
equal to 5% of the Borrower's consolidated tangible assets as of
such date or (iii) the net worth of which as of the last day of
the Borrower's most recently ended fiscal year was greater than
or equal to 5% of Consolidated Net Worth as of such date;
provided that, if at any time the aggregate amount of the
consolidated net income, consolidated tangible assets or
consolidated net worth of all Subsidiaries incorporated or
otherwise organized in the United States that are not Material
Subsidiaries exceeds 15% of consolidated net income for any such
fiscal year, 15% of the Borrower's consolidated tangible assets
as of the end of any such fiscal year or 15% of Consolidated Net
Worth for any such fiscal year, the Borrower (or, in the event
the Borrower has failed to do so within 10 days, the
Administrative Agent) shall designate as "Material Subsidiaries"
Subsidiaries incorporated or otherwise organized in the United
States sufficient to eliminate such excess, and such designated
Subsidiaries incorporated in the United States shall for all
purposes of this Agreement constitute Material Subsidiaries.
"Maturity Date" shall mean the fifth anniversary of the
Execution Date, subject to any extension made pursuant to
Section 2.13.
"Moody's" shall mean Moody's Investors Service, Inc.,
and its successors.
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Borrower or
any ERISA Affiliate of the Borrower is making or accruing an
obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions.
"Multiple Employer Plan" shall mean a Plan which has
two or more contributing sponsors (including the Borrower or any
ERISA Affiliate) at least two of which are not under common
control, as such a Plan is described in Sections 4063 and 4064 of
ERISA.
"Notes" shall mean the Competitive Notes and the
Revolving Credit Notes.
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"Obligations" shall mean the obligation of the Borrower
to make due and punctual payments of principal of and interest on
the Loans, the Facility Fee and all other monetary obligations of
the Borrower to the Administrative Agent or any Bank under this
Agreement, the Notes or the Fundamental Documents.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.
"person" or "Person" shall mean any natural person,
corporation, trust, association, company, partnership, limited
liability company, joint venture or government, or any agency or
political subdivision thereof.
"Plan" shall mean any employee plan (including a
Multiple Employer Plan but not a Multiemployer Plan) which is
subject to the provisions of Title IV of ERISA and which is
maintained for employees of the Borrower or any ERISA Affiliate
of the Borrower.
"Pro Forma Basis" shall mean, in connection with an
acquisition or disposition by or merger involving the Borrower or
any Subsidiary, a computation of compliance with the requirements
of this Agreement for the immediately preceding four full fiscal
quarters or other relevant period assuming that such acquisition,
disposition or merger had occurred at the beginning of such
period. Such computation shall take into account the relevant
financial information with respect to the acquired, disposed of,
or merged entity for such period and shall assume that any
Indebtedness incurred in connection with such acquisition,
disposition or merger had been incurred at the beginning of such
period; provided, however, in order to avoid double-counting, it
is acknowledged that if the Borrower or any Subsidiary incurs
Indebtedness in connection with such a transaction and repays
Indebtedness of the acquired, disposed of or merged entity, the
Indebtedness so repaid shall not be included as Indebtedness of
such entity for such period.
"Prohibited Transaction" shall mean any prohibited
transaction as described in Section 4975 of the Code or section
406 of ERISA for which neither an individual nor a class
exemption has been issued by the U.S. Department of Labor.
"Proposed Acquisition" shall mean that acquisition
reflected in the confidential projected income statement,
statement of cash flow, and balance sheet, dated as of May 9,
2001, and entitled, "Acquisition Consolidated," which has been
made available to the Banks and Administrative Agent, provided
that in making the Proposed Acquisition, Borrower and its
Subsidiaries shall not violate Regulations T, U, or X and, to the
extent that any credit provided hereunder shall be utilized to
purchase or carry margin stock (as such terms are defined in
Regulation U) in connection with the Proposed Acquisition,
Borrower shall provide to Administrative Agent such forms as are
required by Regulation U and the value of such margin stock,
together with all other margin stock, held by Borrower (if it is
making the acquisition) or of any Subsidiary which is making the
acquisition shall not exceed 25% of the value of the assets (as
such values are determined in accordance with Regulation U) of
the person making the acquisition; and, for purposes of Section
6.11, the Proposed Acquisition shall be deemed to occur on the
date on which an amount in excess of $1,000,000 (or its Dollar
Equivalent) is expended or committed to be expended by any one or
more of Borrower or any of its Subsidiaries in consideration of
such acquisition.
"Reduction Date" shall have the meaning given in
Section 2.13(c) hereof.
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"Register" shall be as defined in Section 2.24(e).
"Regulation D" shall mean Regulation D of the Board, as
the same is from time to time in effect, and all official rulings
and interpretations thereunder or thereof.
"Regulation T" shall mean Regulation T of the Board, as
the same is from time to time in effect, and all official rulings
and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board, as
the same is from time to time in effect, and all official rulings
and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board, as
the same is from time to time in effect, and all official rulings
and interpretations thereunder or thereof.
"Reportable Event" shall mean any reportable event as
defined in Section 4043(c) of ERISA or the regulations issued
thereunder.
"Required Banks" shall mean at any time Banks holding
(i) greater than 50% of the Commitments and (ii) greater than 50%
of the principal amount of Loans then outstanding; provided that
in order to terminate the Commitments or declare the Notes to be
forthwith due and payable pursuant to Article VII hereof,
"Required Banks" shall mean Banks holding greater than 50% of the
aggregate principal amount then outstanding of Credit Exposures.
"Reset Date" is defined at Section 1.03.
"Revolving Credit Borrowing" shall mean a Borrowing
consisting of simultaneous Revolving Credit Loans from each of
the Banks.
"Revolving Credit Borrowing Request" shall mean a
request made pursuant to Section 2.05 in the form of Exhibit A-5.
"Revolving Credit Exposure" means, with respect to any
Bank at any time, the sum of (a) the outstanding Dollar
Equivalent principal amount of such Bank's Revolving Credit Loans
denominated in Dollars, (b) the Dollar Equivalent of the
outstanding principal amount of such Bank's Revolving Credit
Loans denominated in Alternate Currencies, and (c) such Bank's LC
Exposure at such time.
"Revolving Credit Loans" shall mean the revolving loans
made by the Banks to the Borrower pursuant to Section 2.05. Each
Revolving Credit Loan shall be a LIBOR Revolving Credit Loan or
an ABR Loan.
"Revolving Credit Note" shall mean a promissory note of
the Borrower in the form of Exhibit B-2, executed and delivered
as provided in Section 2.09.
"Senior Officer" shall mean the Chairman, Vice
Chairman, President and Senior Vice Presidents of the Borrower.
"Standard & Poor's" shall mean Standard & Poor's Rating
Services, a division of The McGraw-Hill Companies, Inc., and its
successors.
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"Statutory Reserves" shall mean with respect to LIBOR,
a fraction (expressed as a decimal) the numerator of which is the
number one and the denominator of which is one minus the
aggregate of the maximum reserve requirements (including any
marginal, special, emergency or supplemental reserves)
established by the Board or any other banking authority to which
a Bank is subject for Eurocurrency Liabilities (as defined in
Regulation D). Such reserve percentages shall include those
imposed under Regulation D. LIBOR Loans shall be deemed to
constitute Eurocurrency Liabilities and as such shall be deemed
to be subject to such reserve requirements without benefit of or
credit for proration, exceptions or offsets which may be
available from time to time to any Bank under Regulation D.
Statutory Reserves shall be adjusted automatically on and as of
the effective date of any change in any reserve percentage.
"subsidiary" shall mean, with respect to any person,
any corporation, association or other business entity of which
more than 50% of the securities or other ownership interests
having ordinary voting power is, at the time of which any
determination is being made, owned or controlled by such person
or one or more subsidiaries of such person.
"Subsidiary" shall mean a subsidiary of the Borrower.
"Subsidiary Borrowing Letters of Credit" shall mean
those Letters of Credit denominated in an Alternate Currency
which are issued for the account of Borrower to facilitate the
borrowing by Subsidiaries not organized under the Laws of the
United States or any state thereof.
"TARGET Day" shall mean any day on which the
Trans-European Automated Real-time Gross Settlement Express
Transfer (TARGET) System (or, if such clearing system ceases to
be operative, such other clearing system (if any) determined by
the Administrative Agent to be a suitable replacement) is
operating.
"Total Commitment" shall mean the aggregate amount of
the Banks' Commitments, as in effect at such time.
"Withdrawal Liability" shall mean liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA, or
liability to a Multiple Employer Plan pursuant to Section
4062(e), 4063, or 4064 of ERISA.
SECTION 1.02. Accounting Terms and Determinations.
All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting
principles and practices consistent in all material respects
(except for changes with which the Borrower's independent
auditors concur and as to which Borrower shall notify
Administrative Agent in writing prior to the effectiveness
thereof) with those applied in the preparation of the financial
statements referred to in Section 3.05(a) (and references herein
to generally accepted accounting principles shall mean generally
accepted accounting principles as so applied) and all financial
data submitted pursuant to this Agreement shall be prepared in
accordance with such principles and practices, except as
otherwise expressed herein. The definitions in this Article I
shall apply equally to both the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter
forms. The words "include", "includes" and "including" as used
in this Agreement and any Exhibit or Schedule hereto shall be
deemed in each case to be followed by the phrase "without
limitation."
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SECTION 1.03. 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 or issuance of any
Letter of Credit shall occur, the Administrative Agent shall
(i) determine the Dollar Equivalent of the LC Exposure and of the
aggregate principal amount of the Loans then outstanding that are
denominated in Alternate Currencies (after giving effect to any
reimbursement of LC Disbursements and Loans made or repaid on
such date) and (ii) notify the Borrower of the aggregate Credit
Exposures of the Banks.
ARTICLE II LOANS
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 during the Availability Period, in an aggregate
principal amount at any time outstanding not to exceed such
Bank's Commitment minus (i) the amount by which the Competitive
Loans outstanding at such time shall be deemed to have used such
Commitment pursuant to Section 2.19, and (ii) the amount of such
Bank's LC Exposure, 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 , (b) at all times (except as expressly contemplated
by the last sentence of Section 2.13(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 Maturity 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
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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 or the amount required to
finance the reimbursement of an LC Disbursement as contemplated
by Section 2.06(e)).
(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 15 separate Revolving Credit Loans of
any one Bank being outstanding hereunder at any one time. For
purposes of the calculation 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) 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 Chicago, Illinois,
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 as directed in writing from time to time by
Borrower; (provided that ABR Loans made to finance the
reimbursement of an LC Disbursement as provided in
Section 2.06(e) shall be remitted by the Administrative Agent to
the Issuing Bank), 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 2.19. 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 12:00 noon,
New York City 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 as
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,
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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 in such currency. 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 and all Revolving Credit Loans
shall be due and payable on the Maturity Date.
SECTION 2.03. Use of Proceeds. The proceeds of the
Loans shall be used to refinance outstanding Indebtedness of the
Borrower under the Existing Credit Agreements and for general
working capital and corporate purposes, including acquisitions in
the industry of Borrower or any of its Material Subsidiaries.
Letters of Credit shall be used for the general corporate
purposes of Borrower or any of its Material subsidiaries
(including covering existing letters of credit issued under the
Borrower's Existing Credit Agreements) or as Subsidiary Borrowing
Letters of Credit.
SECTION 2.04. Competitive Bid Procedure. (a) In
order to request Competitive Bids, the Borrower shall hand
deliver or telecopy (or deliver by comparable means) to the
Administrative Agent a duly completed Competitive Bid Request in
the form of Exhibit A-1, to be received by the Administrative
Agent (i) in the case of a LIBOR Competitive Borrowing, not later
than 11:00 a.m., New York City time, four Business Days before a
proposed Competitive Borrowing and (ii) in the case of a Fixed
Rate Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before a proposed Competitive Borrowing. No ABR
Loan shall be requested in, or made pursuant to, a Competitive
Bid Request. A Competitive Bid Request that does not conform
substantially to the format of Exhibit A-1 may be rejected in the
Administrative Agent's sole discretion, and the Administrative
Agent shall promptly notify the Borrower of such rejection by
telecopier or in a comparable manner. Such request shall in each
case refer to this Agreement and specify (i) whether the
Borrowing then being requested is to be a LIBOR Borrowing or a
Fixed Rate Borrowing, (ii) the date of such Borrowing (which
shall be a Business Day) and the aggregate principal amount
thereof, which shall be in an aggregate amount that is at least
$5,000,000 and, in an integral multiple of $1,000,000, and
(iii) the Interest Period with respect thereto (which may not end
after the Maturity Date). Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the
Administrative Agent shall invite by telecopier in the form set
forth in Exhibit A-2, or in a comparable manner, the Banks to
bid, on the terms and subject to the conditions of this
Agreement, to make Competitive Loans pursuant to the Competitive
Bid Request.
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(b) Each Bank may, in its sole discretion, make one or
more Competitive Bids to the Borrower responsive to a Competitive
Bid Request. Each Competitive Bid by a Bank must be received by
the Administrative Agent via telecopier (or in a comparable
manner), in the form of Exhibit A-3, (i) in the case of a LIBOR
Competitive Borrowing, not later than 10:30 a.m., New York City
time, three Business Days before a proposed Competitive Borrowing
and (ii) in the case of a Fixed Rate Borrowing, not later than
10:30 a.m., New York City time, on the day of a proposed
Competitive Borrowing. Multiple bids will be accepted by the
Administrative Agent. Competitive Bids that do not conform
substantially to the format of Exhibit A-3 may be rejected by the
Administrative Agent after conferring with, and upon the
instruction of, the Borrower, and the Administrative Agent shall
notify the Bank making such nonconforming bid of such rejection
as soon as practicable. Each Competitive Bid shall refer to this
Agreement and specify (i) the principal amount (which shall be a
minimum principal amount of $5,000,000 and an integral multiple
of $1,000,000 and which may equal the entire principal amount of
the Competitive Borrowing requested by the Borrower) of the
Competitive Loan or Loans that the Bank is willing to make to the
Borrower, (ii) the Competitive Bid Rate or Rates at which the
Bank is prepared to make the Competitive Loan or Loans and
(iii) the Interest Period and the last day thereof. If any Bank
shall elect not to make a Competitive Bid, such Bank shall so
notify the Administrative Agent via telecopier or in a comparable
manner (i) in the case of LIBOR Competitive Loans, not later than
10:30 a.m., New York City time, three Business Days before a
proposed Competitive Borrowing and (ii) in the case of Fixed Rate
Loans, not later than 10:30 a.m., New York City time, on the day
of a proposed Competitive Borrowing; provided, however, that
failure by any Bank to give such notice shall not cause such Bank
to be obligated to make any Competitive Loan as part of such
Competitive Borrowing. A Competitive Bid submitted by a Bank
pursuant to this paragraph (b) shall be irrevocable.
(c) The Administrative Agent shall promptly notify the
Borrower by telecopier, or in a comparable manner, of all the
Competitive Bids made, the Competitive Bid Rate and the principal
amount of each Competitive Loan in respect of which a Competitive
Bid was made and the identity of the Bank that made each bid.
The Administrative Agent shall send a copy of all Competitive
Bids to the Borrower for its records as soon as practicable after
completion of the bidding process set forth in this Section 2.04.
(d) The Borrower may in its sole and absolute
discretion, subject only to the provisions of this paragraph (d),
accept or reject any Competitive Bid referred to in paragraph (b)
above. The Borrower shall notify the Administrative Agent by
telephone, confirmed by telecopier, or in a comparable manner, in
the form of a Competitive Bid Accept/Reject Letter in the form of
Exhibit A-4, whether and to what extent it has decided to accept
or reject any of or all the bids referred to in paragraph (b)
above, (i) in the case of a LIBOR Competitive Borrowing, not
later than 11:30 a.m., New York City time, three Business Days
before a proposed Competitive Borrowing and (ii) in the case of a
Fixed Rate Borrowing, not later than 11:30 a.m., New York City
time, on the day of a proposed Competitive Borrowing; provided,
however, that (A) the failure by the Borrower to give such notice
shall be deemed to be a rejection of all the bids referred to in
paragraph (b) above, (B) the Borrower shall not accept a bid made
at a particular Competitive Bid Rate if the Borrower has decided
to reject a bid made at a lower Competitive Bid Rate, (C) the
aggregate amount of the Competitive Bids accepted by the Borrower
shall not exceed the principal amount specified in the
Competitive Bid Request, (D) if
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the Borrower shall accept a bid or bids made at a particular
Competitive Bid Rate but the amount of such bid or bids shall
cause the total amount of bids to be accepted by the Borrower to
exceed the amount specified in the Competitive Bid Request, then
the Borrower shall accept a portion of such bid or bids in an
amount equal to the amount specified in the Competitive Bid
Request less the amount of all other Competitive Bids accepted at
lower Competitive Bid Rates with respect to such Competitive Bid
Request (it being understood that acceptance, in the case of
multiple bids at such Competitive Bid Rate, shall be made pro
rata in accordance with the amount of each such bid at such
Competitive Bid Rate) and (E) except pursuant to clause (D)
above, no bid shall be accepted for a Competitive Loan unless
such Competitive Loan is in an aggregate amount that is at least
$5,000,000 and an integral multiple of $1,000,000, provided
further, however, that if a Competitive Loan must be in an amount
less than $5,000,000 because of the provisions of clause (D)
above, such Competitive Loan may be in an aggregate amount that
is at least $1,000,000 or any integral multiple thereof, and in
calculating the pro rata allocation of acceptances of portions of
multiple bids at a particular Competitive Bid Rate pursuant to
clause (D) the amounts shall be rounded to integral multiples of
$1,000,000 in a manner that shall be in the discretion of the
Borrower. A notice given by the Borrower pursuant to this
paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify
each bidding Bank whether its Competitive Bid has been accepted
(and if so, in what amount and at what Competitive Bid Rate) by
telecopy, or in a comparable manner, sent by the Administrative
Agent, and each successful bidder will thereupon become bound,
subject to the other applicable conditions hereof, to make the
Competitive Loan in respect of which its bid has been accepted.
(f) A Competitive Bid Request shall not be made within
four Business Days after the date of any previous Competitive Bid
Request.
(g) If the Administrative Agent shall elect to submit
a Competitive Bid in its capacity as a Bank, it shall submit such
bid directly to the Borrower one quarter of an hour earlier than
the latest time at which the other Banks are required to submit
their bids to the Administrative Agent pursuant to paragraph (b)
above.
(h) All notices required by this Section 2.04 shall be
given in accordance with Section 10.01.
(i) Notwithstanding any other provisions of this
Agreement, the Borrower shall not be entitled to request any
Competitive Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date and each
Competitive Borrowing shall be due and payable on the last day of
the Interest Period applicable thereto.
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SECTION 2.05. Revolving Credit Borrowing Procedure.
In order to effect a Revolving Credit Borrowing or the
continuation or conversion of an Interest Rate Type applicable
thereto, the Borrower shall hand deliver or telecopy (or deliver
by comparable means) to the Administrative Agent a Borrowing
notice in the form of Exhibit A-5 (a) in the case of a LIBOR
Revolving Credit Borrowing or the continuation or conversion of
an Interest Rate Type applicable thereto, not later than 12:00
noon, New York City time, three Business Days before a proposed
Borrowing or before the last day of the Interest Period
applicable to a Revolving Credit Borrowing for which the Interest
Rate Type is to be continued or converted, 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 or LIBOR
Competitive 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, or the Borrowing with
respect to which the Interest Rate Type is being continued or
converted is, 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 or continuation or conversion (which shall be a
Business Day) and the amount thereof in Dollars (notwithstanding
that the request may be for a Borrowing in an Alternate Currency)
and (d) if such Borrowing is to be a LIBOR Revolving Credit
Borrowing or if the Borrowing with respect to which the Interest
Rate Type being continued or converted is 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 continue or convert the Interest Rate Type for 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 continue or convert, as the case
may be, such Borrowing as 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.
SECTION 2.06. Letters of Credit. (a) General.
Subject to the terms and conditions set forth herein, the
Borrower may request at any time and from time to time during the
Availability Period, subject to Subsection 2.06(c), the issuance
of Letters of Credit in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank denominated in Dollars
or an Alternate Currency for its own account for use by Borrower
or any Guarantor or as a Subsidiary Borrowing Letter of Credit.
In the event of any inconsistency between the terms and
conditions of this Agreement and the terms and conditions of any
form of letter of credit application or other agreement submitted
by the Borrower to, or entered into by the Borrower with, the
Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control. All Letters of
Credit issued, and outstanding as of the date hereof, in
connection with any of the Existing Credit Agreements are hereby
deemed to be Letters of Credit issued hereunder by an Issuing
Bank as of the date hereof.
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(b) Notice of Issuance, Amendment, Renewal, Extension;
Certain Conditions. To request the issuance of a Letter of
Credit (or the amendment, renewal or extension of an outstanding
Letter of Credit), the Borrower shall hand deliver or telecopy
(or deliver by comparable means) to the Issuing Bank and the
Administrative Agent (reasonably in advance of the requested date
of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the
date of issuance, amendment, renewal or extension (which shall be
a Business Day), the date on which such Letter of Credit is to
expire (which shall comply with paragraph (c) of this Section),
the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be
necessary to prepare, amend, renew or extend such Letter of
Credit. If requested by the Issuing Bank, the Borrower also
shall submit a letter of credit application on the Issuing Bank's
standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or
extension of each Letter of Credit the Borrower shall be deemed
to represent and warrant that), after giving effect to such
issuance, amendment, renewal or extension (i) the LC Exposure
shall not exceed the LC Sublimit and in no event shall the Dollar
Equivalent of Subsidiary Borrowing Letters of Credit exceed
$20,000,000, and (ii) the sum of the total Revolving Credit
Exposures plus the aggregate principal amount of outstanding
Competitive Loans will not exceed the Total Commitment.
(c) Expiration Date. Each Letter of Credit shall
expire at or prior to the close of business at the place of
presentation under the relevant Letter of Credit on the earlier
of (i) the date one year after the date of the issuance of such
Letter of Credit (or, in the case of any renewal or extension
thereof, one year after such renewal or extension) and (ii) the
date that is five Business Days prior to the Maturity Date,
except that each Subsidiary Borrowing Letter of Credit may have
an expiration date that extends beyond such one year period for a
duration that reflects the foreign Subsidiary borrowing which it
facilitates provided, however, that no Subsidiary Borrowing
Letter of Credit shall expire later than five days prior to the
Maturity Date.[changed to track the Term Sheet]
(d) Participations. By the issuance of a Letter of
Credit (or any amendment to a Letter of Credit other than an
amendment that extends the expiration date of such Letter of
Credit beyond the expiration date as provided by Clause (c)
directly above) and without any further action on the part of the
Issuing Bank or the Banks, the Issuing Bank hereby grants to each
Bank, and each Bank hereby acquires from the Issuing Bank, a
participation in such Letter of Credit equal to such Bank's
Applicable Commitment Percentage of the aggregate amount
available to be drawn under such Letter of Credit. In
consideration and in furtherance of the foregoing, each Bank
hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such
Bank's Applicable Commitment Percentage of the Dollar Equivalent
of the amount of each LC Disbursement made by the Issuing Bank
and not reimbursed by the Borrower on the date due as provided in
paragraph (e) of this Section, or of any reimbursement payment
required to be refunded or rescinded to or for the Borrower for
any reason. Each Bank acknowledges and agrees that its obligation
to acquire participations pursuant to this paragraph in respect
of Letters of Credit is absolute and unconditional and shall not
be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the
occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction
whatsoever.
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(e) Reimbursement. If the Issuing Bank shall make any
LC Disbursement in respect of a Letter of Credit, the Borrower
shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to the Dollar Equivalent of
the amount of such LC Disbursement not later than 12:00 noon, New
York City time, on the date that such LC Disbursement is made, if
the Borrower shall have received notice of such LC Disbursement
prior to 10:00 a.m., New York City time, on such date, or, if
such notice has not been received by the Borrower prior to such
time on such date, then not later than 12:00 noon, New York City
time, on (i) the Business Day that the Borrower receives such
notice, if such notice is received prior to 10:00 a.m., New York
City time, on the day of receipt, or (ii) the Business Day
immediately following the day that the Borrower receives such
notice, if such notice is not received prior to such time on the
day of receipt; provided that if the Dollar Equivalent of the
amount of such LC Disbursement is not less than $5,000,000, the
Borrower may, subject to the conditions to borrowing set forth
herein, request in accordance with Section 2.03 that such payment
be financed with an ABR Borrowing in an equivalent Dollar amount
and, to the extent so financed, the Borrower's obligation to make
such payment shall be discharged and replaced by the resulting
ABR Borrowing. If the Borrower fails to make such payment at the
time set forth above, the Administrative Agent shall notify each
Bank of the applicable LC Disbursement, the payment then due from
the Borrower in respect thereof and such Bank's Applicable
Commitment Percentage thereof. Promptly following receipt of
such notice, each Bank shall pay to the Administrative Agent its
Applicable Commitment Percentage of the payment then due from the
Borrower, in the same manner as provided in Section 2.02 with
respect to Loans made by such Bank (and Section 2.02 shall apply,
mutatis mutandis, to the payment obligations of the Banks), and
the Administrative Agent shall promptly pay to the Issuing Bank
the amounts so received by it from the Banks. Promptly following
receipt by the Administrative Agent of any payment from the
Borrower pursuant to this paragraph, the Administrative Agent
shall distribute such payment to the Issuing Bank or, to the
extent that Banks have made payments pursuant to this paragraph
to reimburse the Issuing Bank, then to such Banks and the Issuing
Bank as their interests may appear. Any payment made by a Bank
pursuant to this paragraph to reimburse the Issuing Bank for any
LC Disbursement (other than the funding of ABR Loans as
contemplated above) shall not constitute a Loan and shall not
relieve the Borrower of its obligation to reimburse such LC
Disbursement.
(f) Obligations Absolute. The Borrower's obligation
to reimburse LC Disbursements as provided in paragraph (e) of
this Section shall be absolute, unconditional and irrevocable,
and shall be performed strictly in accordance with the terms of
this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any
Letter of Credit or this Agreement, or any term or provision
therein, (ii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in
any respect or any statement therein being untrue or inaccurate
in any respect, (iii) payment by the Issuing Bank under a Letter
of Credit against presentation of a draft or other document that
does not comply with the terms of such Letter of Credit, or
(iv) any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable
discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder. Neither the Administrative
Agent, the Banks nor the Issuing Bank shall have any liability or
responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to
make any payment thereunder
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(irrespective of any of the circumstances referred to in the
preceding sentence), or any error, omission, interruption, loss
or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder),
any error in interpretation of technical terms or any consequence
arising from causes beyond the control of the Issuing Bank.
Notwithstanding the foregoing, the Issuing Bank shall not be
excused from liability to the Borrower to the extent of any
direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent
permitted by applicable law) suffered by the Borrower that are
caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a
Letter of Credit comply with the terms thereof. The parties
hereto expressly agree that, in the absence of gross negligence
or willful misconduct on the part of the Issuing Bank (as finally
determined by a court of competent jurisdiction), the Issuing
Bank shall be deemed to have exercised care in each such
determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with
respect to documents presented which appear on their face to be
in substantial compliance with the terms of a Letter of Credit,
the Issuing Bank may, in its sole discretion, either accept and
make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to
the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall,
promptly following its receipt thereof, examine all documents
purporting to represent a demand for payment under a Letter of
Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by
telecopy or comparable means) of such demand for payment and
whether the Issuing Bank has made or will make an LC Disbursement
thereunder; provided that any failure to give or delay in giving
such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Banks with respect to any such
LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make
any LC Disbursement, then, unless the Borrower shall reimburse
such LC Disbursement in full on the date such LC Disbursement is
made, the unpaid amount thereof shall bear interest, for each day
from and including the date such LC Disbursement is made to but
excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Loans;
provided that, if the Borrower fails to reimburse such LC
Disbursement at the applicable time pursuant to paragraph (e) of
this Section, then Section 2.11 shall apply. Interest accrued
pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date
of payment by any Bank pursuant to paragraph (e) of this Section
to reimburse the Issuing Bank shall be for the account of such
Bank to the extent of such payment.
(i) Replacement of the Issuing Bank. The Issuing Bank
may be replaced at any time by written agreement among the
Borrower, the Administrative Agent, the replaced Issuing Bank and
the successor Issuing Bank. The Administrative Agent shall
notify the Banks of any such replacement of the Issuing Bank. At
the time any such replacement shall become effective, the
Borrower shall pay all unpaid fees accrued for the account of the
replaced Issuing Bank pursuant to Section 2.08(c). From and
after the effective date of any such replacement, (i) the
successor Issuing Bank shall have all the rights and obligations
of the Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to
the term "Issuing Bank" shall be deemed to refer to such
successor or to any previous Issuing
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Bank, or to such successor and all previous Issuing Banks, as the
context shall require. After the replacement of an Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto
and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of
Credit issued by it prior to such replacement, but shall not be
required to issue additional Letters of Credit.
(j) Cash Collateralization.
(A) If any Event of Default shall have occurred and be
continuing, on the Business Day that the Borrower receives notice
from the Administrative Agent or the Required Banks (or, if the
maturity of the Loans has been accelerated, Banks with LC
Exposures representing greater than 50% of the total LC Exposure)
demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with or at
the direction of the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Banks, an amount
in cash equal to the LC Exposure as of such date (supplemented
from time to time immediately upon the occurrence of any currency
fluctuation that results in such amount on deposit being less
than the LC Exposure) plus any accrued and unpaid interest
thereon; provided that the obligation to deposit such cash
collateral shall become effective immediately and such deposit
shall become immediately due and payable, without demand or other
notice of any kind, upon the occurrence of any Event of Default
with respect to the Borrower described in clause (g) or (h) of
Article VII.
(B) If, on any Reset Date, and solely as a result of
currency fluctuations relating to one or more Letters of Credit
denominated in an Alternate Currency, the LC Exposure exceeds the
LC Sublimit, the Borrower shall deposit in an account with or at
the direction of the Administrative Agent, in the name of the
Administrative Agent and for the benefit of the Banks, an amount
in cash such that the LC Exposure minus the amount so deposited
does not exceed the LC Sublimit.
(C) If, on any Reset Date, and solely as a result of
currency fluctuations relating to one or more Letters of Credit
denominated in an Alternate Currency, the LC Exposure for
Subsidiary Borrowing Letters of Credit exceeds $20,000,000, the
Borrower shall deposit in an account with or at the direction of
the Administrative Agent, in the name of the Administrative Agent
and for the benefit of the Banks, an amount in cash such that the
LC Exposure for Subsidiary Borrowing Letters of Credit minus the
amount so deposited does not exceed $20,000,000.
(D) Each such deposit shall be held by the
Administrative Agent as collateral for, and Borrower hereby
grants to Agent for the benefit of the Banks and Agent a security
interest in and Lien upon such deposit to secure, the payment and
performance of the Obligations. The Administrative Agent shall
have exclusive dominion and control, including the exclusive
right of withdrawal, over such account. Such deposits shall not
bear interest other than any interest earned on the investment of
such deposits, which investments shall be made at the option and
sole discretion of the Administrative Agent and at the Borrower's
risk and expense and if any investments of such deposit shall be
made, Borrower hereby grants a security interest to Agent for the
benefit of the Banks and Agent in all such investment property to
secure the payment and performance of the Obligations and
Borrower shall do such other things as may be reasonably
necessary to provide Agent for the benefit of the Banks and Agent
with a first
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perfected security interest in such investment property (and
Borrower hereby authorizes Agent to file for the benefit of the
Banks and Agent, with or without the signature of Borrower,
Uniform Commercial Code financing statements with respect to such
investment property or deposit); provided that such deposits may
be invested only in United States Treasury obligations having a
maturity of less than or equal to one year or other comparable
money-market instruments. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse
the Issuing Bank for LC Disbursements for which it has not been
reimbursed and, to the extent not so applied, shall be held for
the satisfaction of the reimbursement obligations of the Borrower
for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Banks with LC
Exposure representing greater than 50.1% of the total LC
Exposure), be applied to satisfy other Obligations. If the
Borrower is required to provide an amount of cash collateral
hereunder as a result of the occurrence of an Event of Default,
such amount (to the extent not applied as aforesaid) shall be
returned to the Borrower within three Business Days after all
Events of Default have been cured or waived and if Borrower is
required to provide an amount of cash collateral hereunder as a
result of Clause (B) or Clause (C) directly above, such amount
(to the extent not applied in accordance with the terms hereof)
shall be returned to Borrower within three (3) Business Days
after the LC Exposure no longer exceeds the LC Sublimit or after
the LC Exposure for Subsidiary Borrowing Letters of Credit no
longer exceeds $20,000,000, respectively, as the case may be.
(k) Letters of Credit, Governing Law. Letters of
Credit issued hereunder on or after the date hereof shall, except
to the extent inconsistent with the express terms thereof, be
subject to and incorporate: (i) the Uniform Customs And Practice
For Documentary Credits, 1993 Revision, International Chamber of
Commerce Publication No.500 (the "UCP") other than Articles 41
and 43 thereof; (ii) to the extent not inconsistent with the UCP,
Article 5 of the Uniform Commercial Code as in effect from time
to time in New York ("Article 5"); and, (iii) Section
5-102(a)(10) of the 1995 Official Text With Comments of the
Uniform Commercial Code Revised Article 5, as promulgated by the
American Law Institute And National Conference Of Commissioners
On Uniform State Laws ("Revised Article 5"), which Section of
Revised Article 5 shall govern and control over any inconsistent
provision of the UCP or Article 5.
SECTION 2.07. [Reserved] . [RESERVED]
SECTION 2.08. 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 have been
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 Credit
Exposure, during the quarter ending on the date such payment is
due (or shorter period commencing with the date hereof or ending
with the Maturity Date or any earlier date on which the
Commitments shall have been terminated and the outstanding
Revolving Credit Exposure of such Bank eliminated), at the
Applicable Percentage from time to time in effect. 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 Revolving Credit Exposure of such Bank eliminated.
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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 aggregate
Credit Exposure of all Banks shall be greater than fifty percent
(50%) of the total Commitments. 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).
(c) The Borrower agrees to pay the Administrative
Agent, for its own account, the fees provided for in the Fee
Letter.
(d) The Borrower agrees to pay (i) to the
Administrative Agent for the account of each Bank a participation
fee with respect to its participations in Letters of Credit,
which shall accrue at the Applicable Percentage used in
determining the "Drawn Cost", on the average daily amount of such
Bank's LC Exposure (excluding any portion thereof attributable to
unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the
date on which such Bank's Commitment terminates and the date on
which such Bank ceases to have any LC Exposure, and (ii) to the
Issuing Bank, the Issuing Bank's standard fees with respect to
the issuance, amendment, renewal or extension of any Letter of
Credit or processing of drawings thereunder. Participation fees
and fronting fees shall be payable on each March 31, June 30,
September 30 and December 31, commencing on the first such date
to occur after the Effective Date; provided that all such fees
shall be payable on the date on which the Commitments terminate
and any such fees accruing after the date on which the
Commitments terminate shall be payable on demand. Any other fees
payable to the Issuing Bank pursuant to this paragraph shall be
payable within 10 days after demand. All participation fees and
other fees relating to Letters of Credit set forth in any
Fundamental Document shall be calculated with respect to the
Dollar Equivalent amount of such Letters of Credit and shall be
computed on the basis of 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).
(e) All fees shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to
the Issuing Bank, in the case of fees payable to it) for
distribution, if and as appropriate, among the Banks. Once paid,
none of the fees shall be refundable under any circumstances.
SECTION 2.09. 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
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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 2.10. 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 2.10. Interest on Loans. (a) Subject to the
provisions of Sections 2.11 and 2.12, the Loans comprising each
LIBOR Borrowing shall bear interest (computed on the basis of the
actual number of days elapsed over a year of 360 days, provided
that, for Loans comprising LIBOR Borrowings denominated in an
Alternate Currency for which a 365-day basis is the only market
practice available, interest shall be calculated on the basis of
a year of 365 or 366 days, as the case may be) 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.
(b) Subject to the provisions of Section 2.11, 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 2.11, 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 Applicable Percentage shall be determined
based on the Debt Rating.
(f) Borrower may call Administrative Agent on or
before the date on which a Revolving Credit Borrowing Request is
to be delivered to receive an indication of the interest rates
and applicable Alternate Currency exchange rates then in effect,
but it is acknowledged that such indication shall not be binding
on Administrative Agent or the Banks nor affect the rate of
interest or the calculation of exchange rates which thereafter
are actually in effect when the request is made.
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SECTION 2.11. Interest on Overdue Amounts. If the
Borrower shall default in the payment of the principal of or
interest on any Loan or any other amount becoming due hereunder,
the Borrower shall on demand from time to time pay interest, to
the extent permitted by law, on such defaulted amount up to (but
not including) the date of actual payment (after as well as
before judgment) at a rate per annum computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as
applicable, in the case of amounts bearing interest determined by
reference to the Prime Rate (and a year of 360 days in all other
cases) equal to (a) in the case of any Loan, the rate applicable
to such Loan under Section 2.10 plus 2% per annum and (b) in the
case of any other amount, the rate that would at the time be
applicable to an ABR Loan under Section 2.10 plus 2% per annum.
SECTION 2.12. Alternate Rate of Interest. In the
event, and on each occasion, that 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 or
comparable 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 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. Termination, Reduction, and Increase of
Commitments. (a) The Commitments shall be automatically
terminated on the earlier of (i) the Maturity Date or (ii) 30
days after the date hereof if the Closing Date has not occurred.
(b) Subject to Section 2.14(b), upon at least three
Business Days' prior irrevocable written or telecopy notice to
the Administrative Agent, the Borrower may at any time in whole
permanently terminate, or from time to time in part permanently
reduce, the Total Commitment; provided, however, that (i) each
partial reduction of the Total Commitment shall be in an integral
multiple of $1,000,000 and in a minimum principal amount of
$10,000,000 and (ii) the Borrower shall not be entitled to make
any such termination or reduction that would reduce the Total
Commitment to an amount less than the aggregate outstanding
principal amount of the Competitive Loans.
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(c) Each reduction in the Total Commitment hereunder
shall be made ratably among the Banks in accordance with their
respective Commitments. The Borrower shall pay to the
Administrative Agent for the account of the Banks on the date of
each termination or reduction (in the case of a reduction, the
"Reduction Date"), the Facility Fees on the amount of the
Commitments so terminated or reduced accrued to the date of such
termination or reduction.
(d) The Borrower may from time to time, and
notwithstanding any prior reductions in the Total Commitment by
the Borrower, by notice to the Administrative Agent (which shall
promptly deliver a copy to each of the Banks), request that the
Total Commitment be increased by an amount that is not less than
$25,000,000 and will not result in the Total Commitment under
this Agreement and the Facility A Credit Agreement exceeding
$575,000,000 in the aggregate. Each such notice shall set forth
the requested amount of the increase in the Total Commitment and
the date on which such increase is to become effective (which
shall be not fewer than 20 days after the date of such notice),
and shall offer each Bank the opportunity to increase its
Commitment by its ratable share, based on the amounts of the
Banks' Commitments, of the requested increase in the Total
Commitment. Each Bank shall, by notice to the Borrower and the
Administrative Agent given not more than 15 Business Days after
the date of the Borrower's notice, either agree to increase its
Commitment by all or a portion of the offered amount or decline
to increase its Commitment (and any Bank that does not deliver
such a notice within such period of 15 Business Days shall be
deemed to have declined to increase its Commitment); provided,
however, that no Bank may agree to increase its Commitment
hereunder unless it shall have agreed to ratably increase its
Commitment under the Facility A Credit Agreement (if the
Facility A Credit Agreement is then in effect). In the event
that, on the 15th Business Day after the Borrower shall have
delivered a notice pursuant to the first sentence of this
paragraph, the Banks shall have agreed pursuant to the preceding
sentence to increase their Commitments by an aggregate amount
less than the increase in the Total Commitment requested by the
Borrower, the Borrower shall have the right to arrange for one or
more banks or other financial institutions (any such bank or
other financial institution being called an "Augmenting Bank"),
which may include any Bank, to extend Commitments or increase
their existing Commitments in an aggregate amount equal to all or
part of the unsubscribed amount; provided that each Augmenting
Bank, if not already a Bank hereunder, shall be subject to the
approval of the Borrower and the Administrative Agent (which
approval shall not be unreasonably withheld) and shall execute
all such documentation as the Administrative Agent shall specify
to evidence its status as a Bank hereunder. If (and only if)
Banks (including Augmenting Banks) shall have agreed to increase
their Commitments or to extend new Commitments in an aggregate
amount not less than $25,000,000, such increases and such new
Commitments shall become effective on the date specified in the
notice delivered by the Borrower pursuant to the first sentence
of this paragraph, and shall be deemed added to the Commitments
set forth in Schedule 2.01 hereof. Notwithstanding the
foregoing, no increase in the Total Commitment (or in the
Commitment of any Bank) shall become effective under this
paragraph unless, on the date of such increase, (i) the
conditions set forth in paragraphs (b) and (c) of Section 4.01
shall be satisfied (with all references in such paragraphs to a
Borrowing being deemed to be references to such increase) and the
Administrative Agent shall have received a certificate to that
effect dated such date and executed by a Financial Officer of the
Borrower and (ii) on the effective date of such increase the
Total Commitment under and as defined in the Facility A Credit
Agreement shall be proportionately increased (if the Facility A
Credit Agreement is then in effect) in accordance with the terms
of such Agreement. Following any increase in the Commitments of
any of the Banks pursuant to this paragraph, any Revolving Credit
Loans outstanding prior to the effectiveness of such increase
shall continue outstanding until the ends of the respective
interest periods applicable thereto, and shall then be repaid or
refinanced with new Revolving Credit Loans made pursuant to
Sections 2.01 and 2.05.
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SECTION 2.14. 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 2.18 and 2.19 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. In all instances
under this Agreement, each payment and prepayment of any Loan
shall be made in the currency in which such Loan was made.
(b) On the date of any termination or reduction of the
Total Commitment pursuant to Section 2.13, 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 2.14(b) shall be subject to Sections 2.18 and 2.19.
(c) On the earlier of any Reset Date or the last day
of any Interest Period when the aggregate Credit Exposures (after
giving effect to any Borrowings effected on such date) exceed the
Total Commitment minus any cash collateral received by the
Administrative Agent pursuant to Section 2.06(j), 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 and the currency
thereof, shall be irrevocable and shall commit the Borrower to
prepay such Borrowing by the amount stated therein. All
prepayments under this Section 2.14 shall be accompanied by
accrued interest on the principal amount being prepaid to the
date of prepayment.
SECTION 2.15. Eurodollar Reserve Costs. The Borrower
shall pay to the Administrative Agent for the account of each
Bank, so long as such Bank shall be required under regulations of
the Board to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (as
defined in Regulation D), additional interest on the unpaid
principal amount of each LIBOR Loan made to the Borrower by such
Bank, from the date of such Loan until such Loan is paid in full,
at an interest rate per annum equal at all times during the
Interest Period for such Loan to the remainder obtained by
subtracting (i) LIBOR for such Interest Period from (ii) the rate
obtained by multiplying LIBOR as referred to in clause (i) above
by the Statutory Reserves of such Bank for such Interest Period.
Such additional interest shall be determined by such Bank and
notified to the Borrower (with a copy to the Administrative
Agent) not later than five Business Days before the next Interest
Payment Date for such Loan, and such additional interest so
notified to the Borrower by any Bank shall be payable to the
Administrative Agent for the account of such Bank on each
Interest Payment Date for such Loan.
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SECTION 2.16. Reserve Requirements; Change in
Circumstances. (a) Notwithstanding any other provision herein,
if any Change in Law (i) shall subject any Bank (for purposes of
this Section 2.16, the defined term "Bank" shall be deemed to
include as applicable the Issuing Bank) to, or increase the net
amount of, any tax, levy, impost, duty, charge, fee, deduction or
withholding with respect to any LIBOR Loan, Fixed Rate Loan, or
Letter of Credit, or shall change the basis of taxation of
payments to any Bank of the principal of or interest on any LIBOR
Loan, Fixed Rate Loan, or Letter of Credit made by such Bank or
any other fees or amounts payable hereunder (other than (x) taxes
imposed on the overall net income of such Bank by the
jurisdiction in which such Bank has its principal office or by
any political subdivision or taxing authority therein (or any tax
which is enacted or adopted by such jurisdiction, political
subdivision or taxing authority as a direct substitute for any
such taxes) or (y) any tax, assessment, or other governmental
charge that would not have been imposed but for the failure of
any Bank to comply with any certification, information,
documentation or other reporting requirement), (ii) shall impose,
modify or deem applicable any reserve, special deposit or similar
requirement (other than requirements as to which the Borrower is
obligated to make payments pursuant to Section 2.15) against
assets of, deposits with or for the account of, or credit
extended by, such Bank, or (iii) shall impose on such Bank or the
London interbank market any other condition affecting this
Agreement or any LIBOR Loan, Fixed Rate Loan, or Letter of Credit
made by such Bank, and the result of any of the foregoing shall
be to increase the cost to such Bank of issuing, participating
in, making or maintaining any LIBOR Loan, Fixed Rate Loan, or
Letter of Credit, as the case may be, or to reduce the amount of
any sum received or receivable by such Bank hereunder (whether of
principal, interest or otherwise) in respect thereof by an amount
deemed in good faith by such Bank to be material, then the
Borrower shall pay such additional amount or amounts as will
compensate such Bank for such increase or reduction to such Bank
upon demand by such Bank.
(b) If, after the date of this Agreement, any Bank
shall have determined in good faith that any Change in Law
regarding capital requirements has or would have the effect of
reducing the rate of return on such Bank's capital or on the
capital of the Bank's holding company (or any lending office of
such Bank), if any, as a consequence of its obligations hereunder
to a level below that which such Bank (or holding company or
office) could have achieved but for such Change in Law (taking
into consideration such Bank's policies or the policies of its
holding company, as the case may be, with respect to capital
adequacy) by an amount deemed by such Bank to be material, then,
from time to time, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank (or
holding company or office) for such reduction upon demand by such
Bank.
(c) A certificate of a Bank setting forth in
reasonable detail (i) such amount or amounts as shall be
necessary to compensate such Bank (or participating banks or
other entities pursuant to Sections 2.06 and 2.24) as specified
in paragraph (a) or (b) above, as the case may be, and (ii) the
calculation of such amount or amounts under clause (c)(i), shall
be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Bank the amount
shown as due on any such certificate within 30 days after its
receipt of the same.
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(d) Failure on the part of any Bank to demand
compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital with
respect to any Interest Period shall not constitute a waiver of
such Bank's rights to demand compensation for any increased costs
or reduction in amounts received or receivable or reduction in
return on capital with respect to such Interest Period or any
other Interest Period. The protection of this Section 2.16 shall
be available to each Bank regardless of any possible contention
of invalidity or inapplicability of the law, regulation or
condition which shall have been imposed.
SECTION 2.17. Change in Legality.
(a) Notwithstanding anything to the contrary herein contained, if
any Change in Law 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;
and
(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 2.17(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.
(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 2.17, a notice to the
Borrower by any Bank pursuant to Section 2.17(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. Indemnity. The Borrower shall indemnify
each Bank against any loss or reasonable expense which such Bank
may sustain or incur as a consequence of (u) the assignment of
any LIBOR Loan or Fixed Rate Loan other than on the last day of
the Interest Period applicable thereto, (v) any failure by the
Borrower to fulfill on the date of any Borrowing hereunder the
applicable conditions set forth in Article IV, (w) any failure by
the Borrower to borrow, convert, continue, or prepay hereunder
after a notice thereof pursuant to Article II has been given
(regardless whether such notice may be revoked hereunder),
(x) any payment, prepayment or conversion of a LIBOR Loan or Fixed
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Rate Loan (including as a result of an Event of Default) made on
a date other than the last day of the applicable Interest Period,
(y) any default in the payment or prepayment of the principal
amount of any Loan or any part thereof or interest accrued
thereon, as and when due and payable (at the due date thereof, by
notice of prepayment or otherwise), or (z) the occurrence of any
Event of Default, including in any such event any loss or
reasonable expense sustained or incurred or to be sustained or
incurred in liquidating or employing deposits from third parties
acquired to effect or maintain such Loan or any part thereof as a
LIBOR Loan or a Fixed Rate Loan. Such loss or reasonable expense
shall include an amount equal to the excess, if any, as
reasonably determined by each Bank of (i) its cost of obtaining
the funds for the Loan being paid, prepaid or converted or not
borrowed (based on LIBOR or, in the case of a Fixed Rate Loan,
the fixed rate of interest applicable thereto) for the period
from the date of such payment, prepayment or conversion or
failure to borrow to the last day of the Interest Period for such
Loan (or, in the case of a failure to borrow, the Interest Period
for the Loan which would have commenced on the date of such
failure to borrow) over (ii) the amount of interest (as
reasonably determined by such Bank) that would be realized by
such Bank in re-employing the funds so paid, prepaid or converted
or not borrowed for such period or Interest Period, as the case
may be. A certificate of each Bank setting forth any amount or
amounts which such Bank is entitled to receive pursuant to this
Section 2.18 shall be delivered to the Borrower and shall be
conclusive, if made in good faith, absent manifest error. The
Borrower shall pay each Bank the amount shown as due on any
certificate containing no manifest error within 30 days after its
receipt of the same.
SECTION 2.19. Pro Rata Treatment. Except as permitted
under Sections 2.13, 2.15 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 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).
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SECTION 2.20. Right of Setoff. If any Event of
Default shall have occurred and be continuing, each Bank is
hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Bank to or for the credit or the account of the Borrower
against any of and all the Obligations now or hereafter existing
under this Agreement and the Notes held by such Bank,
irrespective of whether or not such Bank shall have made any
demand under this Agreement or such Notes and although such
obligations may be unmatured. Each Bank agrees promptly to
notify the Borrower after any such setoff and application made by
such Bank, but the failure to give such notice shall not affect
the validity of such setoff and application. The rights of each
Bank under this Section 2.20 are in addition to other rights and
remedies (including other rights of setoff) which such Bank may
have.
SECTION 2.21. Sharing of Setoffs. Each Bank agrees
that if it shall, through the exercise of a right of banker's
lien, setoff or counterclaim against the Borrower including, but
not limited to, a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising
from, or in lieu of, such secured claim, received by such Bank
under any applicable bankruptcy, insolvency or other similar law
or otherwise, obtain payment (voluntary or involuntary) in
respect of any Revolving Credit Note held by it (it being
understood that each Bank shall be permitted to exercise any such
right with respect to any obligation of the Borrower to it other
than the Revolving Credit Notes prior to the exercise of such
right with respect to any Revolving Credit Note) as a result of
which the unpaid principal portion of all the Revolving Credit
Notes held by it shall be proportionately less than the unpaid
principal portion of all the Revolving Credit Notes held by any
other Bank, it shall be deemed to have simultaneously purchased
from such other Bank a participation in each Revolving Credit
Note held by such other Bank, so that the aggregate unpaid
principal amount of each Revolving Credit Note and participations
in each Revolving Credit Note held by each Bank shall be in the
same proportion to the aggregate unpaid principal amount of all
the Revolving Credit Notes then outstanding as the principal
amount of all the Revolving Credit Notes held by it prior to such
exercise of banker's lien, setoff or counterclaim was to the
principal amount of all Revolving Credit Notes outstanding prior
to such exercise of banker's lien, setoff or counterclaim;
provided, however, that if any such purchase or purchases or
adjustments shall be made pursuant to this Section 2.21 and the
payment recovered by a Bank giving rise thereto shall thereafter
be recovered from such Bank, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustments paid by such Bank
restored to such Bank without interest. The Borrower expressly
consents to the foregoing arrangements and agrees that any Bank
holding a participation in a Revolving Credit Note deemed to have
been so purchased may exercise any and all rights of banker's
lien, setoff or counterclaim to the extent of the participation
so purchased in such Revolving Credit Note with respect to any
and all moneys owing by the Borrower as fully as if such Bank had
made a Loan directly to the Borrower in the amount of the
participation.
SECTION 2.22. Payments. The Borrower shall make each
payment hereunder and under any instrument delivered hereunder
not later than 12:00 noon, New York City time, on the day when
due in lawful money of the United States (in freely transferable
dollars) to the Administrative Agent at its offices set forth on
Schedule 2.01 therefor for the account of the Banks, in federal
or other immediately available funds; provided, however that each
payment of principal and interest under any Loan made in an
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Alternate Currency shall be made in immediately available funds
in the currency in which such Loan was made. 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.
SECTION 2.23. United States Withholding. Each Bank or
assignee or participant of a Bank that is not incorporated under
the Laws of the United States of America or a state thereof (and,
upon the written request of the Administrative Agent, each other
Bank or assignee or participant of a Bank) agrees that it will
deliver to each of the Borrower and the Administrative Agent two
(2) duly completed appropriate valid Withholding Certificates (as
defined under ss.1.1441-1(c)(16) of the Income Tax Regulations
promulgated under the Code ("Regulations")) certifying its status
(i.e., U.S. or foreign person) and, if appropriate, making a
claim of reduced, or exemption from, U.S. withholding tax on the
basis of an income tax treaty or an exemption provided by the
Code. The term "Withholding Certificate" means a Form W-9; a
Form W-8BEN; a Form W-8ECI; a Form W-8IMY and the related
statements and certifications as required under ss.1.1441-1(e)(3)
of the Regulations; a statement described in ss.1.871-14(c)(2)(v)
of the Regulations; or any other certificates under the Code or
Regulations that certify or establish the status of a payee or
beneficial owner as a U.S. or foreign person. Each Bank,
assignee or participant required to deliver to the Borrower and
the Administrative Agent a valid Withholding Certificate pursuant
to the preceding sentence shall deliver such valid Withholding
Certificate as follows: (A) each Bank which is a party hereto on
the Closing Date shall deliver such valid Withholding Certificate
at least five (5) Business Days prior to the first date on which
any interest or fees are payable by the Borrower hereunder for
the account of such Bank; (B) each assignee or participant shall
deliver such valid Withholding Certificate at least five (5)
Business Days before the effective date of such assignment or
participation (unless the Administrative Agent in its sole
discretion shall permit such assignee or participant to deliver
such Withholding Certificate less than five (5) Business Days
before such date in which case it shall be due on the date
specified by the Administrative Agent). Each Bank, assignee or
participant which so delivers a valid Withholding Certificate
further undertakes to deliver to each of the Borrower and the
Administrative Agent two (2) additional copies of such
Withholding Certificate (or a successor form) on or before the
date that such Withholding Certificate expires or becomes
obsolete or after the occurrence of any event requiring a change
in the most recent Withholding Certificate so delivered by it,
and such amendments thereto or extensions or renewals thereof as
may be reasonably requested by the Borrower or the Administrative
Agent. Notwithstanding the submission of a Withholding
Certificate claiming a reduced rate of, or exemption from, U.S.
withholding tax, the Administrative Agent shall be entitled to
withhold United States federal income taxes at the full 30%
withholding rate if in its reasonable judgment it is required to
do so under the due diligence requirements imposed upon a
withholding agent under ss.1.1441-7(b) of the Regulations.
Further, the Administrative Agent is indemnified under
ss.1.1461-1(e) of the Regulations against any claims and demands of
any Bank or assignee or participant of a Bank for the amount of
any tax it deducts and withholds in accordance with regulations
under ss.1441 of the Code. In the event the Borrower or the
Administrative Agent shall so determine that deduction or
withholding of taxes is required, it shall advise the affected
Bank as to the basis of such determination prior to actually
deducting and withholding such taxes.
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(b)Each Bank agrees (i) that as between it and the
Borrower or the Administrative Agent unless otherwise required by
Law, it shall be the Person to deduct and withhold taxes (and to
the extent required by Law it shall deduct and withhold taxes) on
amounts that such Bank may remit to any other Person(s) by reason
of any undisclosed transfer or assignment of an interest in this
Agreement to such other Person(s) pursuant to Section 2.24 and
(ii) to indemnify the Borrower and the Administrative Agent and
any officers, directors, agents, or employees of the Borrower or
the Administrative Agent against and to hold them harmless from
any tax, interest, additions to tax, penalties, reasonable
counsel and accountants' fees, disbursements or payments arising
from the assertion by any appropriate taxing authority of any
claim against them relating to a failure to withhold taxes as
required by law with respect to amounts described in clause (i)
of this paragraph (c).
(d) Each assignee of a Bank's interest in this
Agreement in conformity with Section 2.24 shall be bound by this
Section 2.23, so that such assignee will have all of the
obligations and provide all of the forms and statements and all
indemnities, representations and warranties required to be given
under this Section 2.23.
(e) In the event that any withholding or similar taxes
shall become payable as a result of any change in any statute,
treaty, ruling, judicial decision, determination or regulation or
other change in law (other than a change in the rate of taxes
imposed on the overall net income of any Bank) occurring after
the Initial Date in respect of any sum payable hereunder or under
any other Fundamental Document to any Bank or the Administrative
Agent or as a result of any payment being made by a Guarantor
organized in or subject to any taxing jurisdiction outside the
United States (i) the sum payable by the Borrower shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 2.23) such Bank or the Administrative
Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law. For
purposes of this Section 2.23, the term "Initial Date" shall mean
(i) in the case of the Administrative Agent, the date hereof,
(ii) in the case of each Bank as of the date hereof, the date
hereof and (iii) in the case of any other Bank, the date of the
Assignment and Acceptance pursuant to which it became a Bank.
SECTION 2.24. Participations; Assignments. (a) Each
Bank (for purposes of this Section 2.24, the defined term "Bank"
shall be deemed to include as applicable the Issuing Bank) may
without the consent of the Borrower sell participations to one or
more banks or other entities in all or a portion of its rights
and obligations under this Agreement (including all or a portion
of its Commitment and the Loans owing to it and the Notes held by
it); provided, however, that (i) such Bank's obligations under
this Agreement shall remain unchanged, (ii) such Bank shall
remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or
other entities shall be entitled to the cost protection
provisions contained in Section 2.16 and Section 2.18 but shall
not be entitled to receive pursuant to such provisions an amount
larger than its share of the amount to which the Bank granting
such participation would have been entitled and (iv) the
Borrower, the Administrative Agent and the other Banks shall
continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement;
provided further that each Bank shall retain the sole right and
responsibility vis-a-vis the Borrower to enforce the obligations
of the Borrower relating to the
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Loans or Letters of Credit and shall retain all voting rights,
including the right to approve any amendment, modification or
waiver of any provision of this Agreement other than amendments,
modifications or waivers with respect to any Facility Fees, the
amount of principal or the rate of interest payable on, or the
maturity of, the Loans or Letters of Credit as applicable to the
participating banks or other entities (as to which such
participating banks or other entities may be afforded the right
to vote).
(b) Each of the Banks may (but only with the prior
written consent of the Borrower and the Issuing Bank, which
consent shall not be unreasonably withheld, provided that no
consent of Borrower shall be required if any Event of Default
shall have occurred and be continuing), and (unless the assignee
is a bank or trust company with a combined capital and surplus of
at least $100,000,000) with the written consent of the
Administrative Agent, which consent shall not be unreasonably
withheld, assign to one or more banks or other entities all or a
portion of its interests, rights and obligations under this
Agreement (including all or a portion of its Commitment and the
same portion of the Revolving Credit Loans at the time owing to
it and the Revolving Credit Note held by it); provided, however,
that (i) each such assignment shall be of a constant, and not a
varying, percentage of the assigning Bank's rights and
obligations under this Agreement, and (ii) the amount of the
Commitment of the assigning Bank subject to each such assignment
(determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Bank) shall be
either the entire Commitment of such Bank or a portion thereof in
a principal amount of $10,000,000 or a larger integral multiple
of $1,000,000, and (iii) the parties to each such assignment
shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register (as defined below), an
Assignment and Acceptance, together with any Note or Notes
subject to such assignment and a processing and recordation fee
of $4,000. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be not
earlier than five Business Days after the date of acceptance and
recording by the Administrative Agent, (x) the assignee
thereunder shall be a party hereto and, to the extent provided in
such Assignment and Acceptance, have the rights and obligations
of a Bank hereunder and under the other Fundamental Documents and
(y) the assigning Bank thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion
of the assigning Bank's rights and obligations under this
Agreement, such assigning Bank shall cease to be a party
hereto). Notwithstanding the foregoing, any Bank assigning its
rights and obligations under this Agreement may retain any
Competitive Loans made by it outstanding at such time, and in
such case shall retain its rights hereunder in respect of any
Loans so retained until such Loans have been repaid in full in
accordance with this Agreement.
(c) Notwithstanding the other provisions of this
Section 2.24, each Bank may at any time assign all or a portion
of its interests, rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment and the same portion of the Loans at any time owing to
it and the Notes held by it) to (i) any Affiliate of such Bank
described in clause (b) of the definition of Affiliate or
(ii) any other Bank hereunder.
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(d) By executing and delivering an Assignment and
Acceptance, the assigning Bank thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than the representation and
warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse
claim, the assigning Bank makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Fundamental Documents or
any other instrument or document furnished pursuant hereto or
thereto; (ii) such Bank assignor makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any of the Subsidiaries or
any other obligor under the Fundamental Documents or the
performance or observance by the Borrower (on behalf of itself or
the Subsidiaries) or any of the Guarantors or any other obligor
under the Fundamental Documents of any of their respective
obligations under the Fundamental Documents or any other
instrument or document furnished pursuant hereto or thereto;
(iii) such assignee confirms that it has received a copy of this
Agreement, together with copies of the most recent financial
statements delivered pursuant to Sections 5.05(a) and 5.05(b) (or
if none of such financial statements shall have then been
delivered, then copies of the financial statements referred to in
Section 3.05 hereof) and such other documents and information as
it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the
assigning Bank, the Administrative Agent or any other person that
has become a Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this
Agreement; (v) such assignee appoints and authorizes the
Administrative Agent to take such action on its behalf as the
Administrative Agent deems appropriate and to exercise such
powers under the Fundamental Documents as are delegated to the
Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement
are required to be performed by it as a Bank.
(e) The Administrative Agent shall maintain at its
address at which notices are to be given to it pursuant to
Section 10.01 a copy of each Assignment and Acceptance and a
register for the recordation of the names and addresses of the
Banks and the Commitments of, and principal amount of the Loans
owing to, each Bank from time to time (the "Register"). The
entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and
the Banks may treat each person whose name is recorded in the
Register as a Bank hereunder for all purposes of the Fundamental
Documents. The Register shall be available for inspection by the
Borrower or any Bank at any reasonable time and from time to time
upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance
executed by an assigning Bank and an assignee together with any
Notes subject to such assignment and evidence of the Borrower's
written consent to such assignment, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and
is in the form of Exhibit E hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt written notice thereof to the
Borrower. Within five Business Days after receipt of the notice,
the Borrower, at its own expense, shall execute and deliver to
the Bank, in
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exchange for the surrendered Notes, as applicable (x) a new
Competitive Note to the order of such assignee in an amount equal
to the Total Commitment and a new Revolving Credit Note to the
order of such assignee in an amount equal to the portion of the
Commitment assumed by it pursuant to such Assignment and
Acceptance and, (y) a new Revolving Credit Note to the order of
the assigning Bank in an amount equal to the Commitment retained
by it hereunder. Such new Revolving Credit Notes shall be in an
aggregate principal amount equal to the aggregate principal
amount of such assumed Commitment and retained Commitment, such
new Notes shall be dated the date of the surrendered Notes and
shall otherwise be in substantially the forms of Exhibits B-1 and
B-2 hereto, as the case may be. In addition, the Borrower will
promptly, at its own expense, execute such amendments to the
Fundamental Documents to which it is a party and such additional
documents and cause the Guarantors to execute amendments to the
Fundamental Documents to which it is a party, and take such other
actions as the Administrative Agent or the assignee Bank may
reasonably request in order to confirm that such assignee Bank is
entitled to the full benefit of the guaranties contemplated
hereby to the extent of such assignment.
(g) Notwithstanding any other provision herein, any
Bank may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this
Section 2.24, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Borrower
or any of the Subsidiaries furnished to such Bank or the
Administrative Agent by or on behalf of the Borrower; provided
that prior to any such disclosure, each such assignee or
participant or proposed assignee or participant shall agree in
writing to preserve the confidentiality of any confidential
information relating to the Borrower or any of their Subsidiaries
received from such Bank on the terms of Section 10.11.
(h) Any Bank may at any time pledge or assign all or
any portion of its rights under this Agreement and the Notes to a
Federal Reserve Bank.
(i) SPV Designation.
(i) Notwithstanding anything to the contrary
contained herein, any Bank (a "Designating Bank") may grant to
one or more special purpose funding vehicles (each, a "SPV"),
identified as such in writing from time to time by the
Designating Bank to the Administrative Agent and the Borrower,
the option to provide to the Borrower all or any part of any Loan
that such Designating Bank would otherwise be obligated to make
to the Borrower pursuant to this Agreement; provided that
(A) nothing herein shall constitute a commitment by any SPV to
make any Loan, (B) if an SPV elects not to exercise such option
or otherwise fails to provide all or any part of such Loan, the
Designating Bank shall be obligated to make such Loan pursuant to
the terms hereof and (C) the Designating Bank shall remain liable
for any indemnity or other payment obligation with respect to its
Commitment hereunder. The making of a Loan by an SPV hereunder
shall utilize the Commitment of the Designating Bank to the same
extent, and as if, such Loan were made by such Designating Bank.
(ii) As to any Loans or portion thereof made by
it, each SPV shall have all the rights that a Bank making such
Loans or portion thereof would have had under this Agreement;
provided, however, that each SPV shall have granted to its
Designating Bank an irrevocable power of attorney, to deliver and
receive all communications and notices under this Agreement (and
any Fundamental Documents) and to exercise, exclusively in the
place and stead of such SPV, all of such SPV's voting rights
under this Agreement in the discretion of such
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Designating Bank, until the occurrence and continuation of an
Event of Default. No additional Note shall be required to
evidence the Loans or portion thereof made by an SPV; and the
related Designating Bank shall be deemed to hold its Note as
agent for such SPV to the extent of the Loans or portion thereof
funded by such SPV. In addition, any payments for the account of
any SPV shall be paid to its Designating Bank as agent for such
SPV. Notwithstanding any term or condition hereof, no SPV,
unless it shall have become a Bank hereunder in accordance with
the terms of Section 2.24(b), shall be a party hereto or have any
right to vote or give or withhold its consent under this
Agreement.
(iii) Each party hereto hereby agrees that no SPV
shall be liable for any indemnity or payment under this Agreement
for which a Bank would otherwise be liable. In furtherance of
the foregoing, each party hereto hereby agrees (which agreements
shall survive the termination of this Agreement) that, prior to
the date that is one year and one day after the later of (A)
payment in full of all outstanding commercial paper or other
senior indebtedness of any SPV, (B) the payment in full of all
Obligations, and (C) the termination of all Commitments and the
expiration or termination of all Letters of Credit, it will not
institute against, or join any other person in instituting
against, such SPV any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the
United States or any State thereof.
(iv) In addition, notwithstanding anything to the
contrary contained in these Clauses (i) through (iv) of this
Section 2.24(i) or otherwise in this Agreement (other than the
proviso set forth directly below in this Clause, any SPV may
(A) with notice to, but without the prior written consent of the
Borrower or the Administrative Agent, at any time and without
paying any processing fee therefor, assign or participate all or
a portion of its interest in any Loans to the Designating Bank or
to any financial institutions providing liquidity and/or credit
support to or for the account of such SPV to support the funding
or maintenance of Loans and (B) disclose on a confidential basis
information relating to its Loans that pertains to Borrower's
performance under the Fundamental Documents and all other
information relating to its Loans provided by Borrower pursuant
hereto, other than non-public information provided pursuant to
Section 3.05 hereof and other than any other non-public
information provided pursuant hereto, to any rating agency,
commercial paper dealer or provider of any surety, guaranty or
credit or liquidity enhancements to such SPV; provided, however,
that in no event may any non-public financial information
provided by the Borrower or any Guarantor under this Agreement be
provided by any SPV to any other Person. In no event shall the
Borrower be obligated to pay to any SPV that has made a Loan any
greater amount than the Borrower would have been obligated to pay
under this Agreement if the Designating Bank had made such Loan.
These Clauses (i) through (iv) of this Section 2.24(i) may not be
amended without the written consent of any Designating Bank
affected thereby.
SECTION 2.25. Taxes.
(a) No Deductions. All payments made by Borrower
hereunder and under each Note shall be made free and clear of and
without deduction for any present or future taxes, levies,
imposts, deductions, charges, or withholdings, and all
liabilities with respect thereto, excluding taxes imposed on the
net income of any Bank and all income and franchise taxes
applicable to any Bank of the United States (all such
non-excluded taxes, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as
"Taxes"). If Borrower shall be required by Law to deduct any
Taxes from or in respect of any sum payable hereunder or under
any Note, (i) the sum payable shall be increased as may be
necessary so that
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after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.25)
each Bank receives an amount equal to the sum it would have
received had no such deductions been made, (ii) Borrower shall
make such deductions and (iii) Borrower shall timely pay the full
amount deducted to the relevant tax authority or other authority
in accordance with applicable Law.
(b) Stamp Taxes. In addition, Borrower agrees to pay
any present or future stamp or documentary taxes or any other
excise or property taxes, charges, or similar levies which arise
from any payment made hereunder or from the execution, delivery,
or registration of, or otherwise with respect to, this Agreement
or any Note (hereinafter referred to as "Other Taxes").
(c) Indemnification for Taxes Paid by a Bank.
Borrower shall indemnify each Bank for the full amount of Taxes
or Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this
Section 2.25) paid by any Bank and any liability (including
penalties, interest, and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be
made within 30 days from the date a Bank makes written demand
therefor.
(d) Certificate. Within 30 days after the date of any
payment of any Taxes by Borrower, Borrower shall furnish to each
Bank, at its address referred to herein, the original or a
certified copy of a receipt evidencing payment thereof. If no
Taxes are payable in respect of any payment by Borrower, such
Borrower shall, if so requested by a Bank, provide a certificate
of an officer of Borrower to that effect.
(e) Survival. Without prejudice to the survival of
any other agreement of Borrower hereunder, the agreements and
obligations of Borrower contained in Clauses (a) through (d) of
this Section 2.25 shall survive the payment in full of principal
and interest hereunder and under any instrument delivered
hereunder.
ARTICLE III REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Banks that:
SECTION 3.01. Organization; Corporate Powers.
(a) Each of the Borrower and the Subsidiaries is a corporation or
other business entity duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
organization; (b) each of the Borrower and the Subsidiaries
(i) has the corporate or other appropriate organizational power
and authority to own its property and to carry on its business as
now conducted and (ii) is qualified to do business in every
jurisdiction where such qualification is necessary except where
the failure so to qualify would not have a materially adverse
effect on the condition, financial or otherwise, of the Borrower
or of the Borrower and its Consolidated Subsidiaries taken as a
whole; (c) each of the Borrower and the Guarantors has the
corporate or other appropriate organizational power to execute,
deliver and perform its obligations under the Fundamental
Documents to which it is a party and the Borrower has the
corporate power to borrow hereunder and to execute and deliver
the Notes; and (d) each of the Guarantors has the corporate or
other appropriate organizational power and authority to guaranty
the Obligations as contemplated by Article VIII hereof.
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SECTION 3.02. Authorization. The execution, delivery
and performance of this Agreement and the other Fundamental
Documents to which the Borrower or any of the Guarantors is or is
to be a party, by each such party; in the case of the Borrower,
the Borrowings hereunder and the execution and delivery of the
Notes; and in the case of each Guarantor, the guaranty of the
Obligations as contemplated in Article VIII (a) have been duly
authorized by all requisite corporate or other appropriate
organizational action on the part of the Borrower and each
Guarantor; and (b) will not (i) violate (A) any law, rule or
regulation of the United States or any state or political
subdivision thereof, the certificate of incorporation or By-laws
or other appropriate organizational documents of the Borrower or
any of the Consolidated Subsidiaries, (B) any applicable order of
any court or other agency of government or (C) any indenture, any
agreement for borrowed money, any bond, note or other similar
instrument or any other material agreement or contract to which
the Borrower or any of the Consolidated Subsidiaries is a party
or by which the Borrower or any of the Consolidated Subsidiaries
or any of their respective properties are bound, (ii) be in
conflict with, result in a breach of or constitute (with notice
or lapse of time or both) a default under any such indenture,
agreement, bond, note, instrument or other material agreement or
contract or (iii) result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any
property or assets of the Borrower or any of the Consolidated
Subsidiaries except that, in the case of all the above, for any
such violations, conflicts, breaches, defaults, liens, charges or
encumbrances which would not have a material adverse effect on
the Borrower and its Consolidated Subsidiaries taken as a whole
or adversely affect the rights or interest of the Banks.
SECTION 3.03. Enforceability. This Agreement and each
other Fundamental Document to which the Borrower or any of the
Guarantors is a party, is a legal, valid and binding obligation
of each such party thereto, and is enforceable against each such
party thereto in accordance with its terms, except as the
enforceability thereof may be limited by the effect of any
applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by general principles of equity.
SECTION 3.04. Governmental Approvals. No action,
consent or approval of, or registration or filing with, or any
other action by any Governmental Authority is required in
connection with the execution, delivery and performance by the
Borrower and any of the Guarantors of this Agreement or of any
other Fundamental Document to which it is a party, the Borrowings
hereunder, the guaranty by the Guarantors of the Obligations
under Article VIII or the execution and delivery of the Notes.
SECTION 3.05. Financial Statements and Condition.
(a) The Borrower has heretofore furnished to each of the Banks
audited Consolidated balance sheets of the Borrower and its
Consolidated Subsidiaries as of December 31, 2000 and the related
audited Consolidated statements of income, Consolidated
statements of stockholders' equity and Consolidated statements of
cash flows for the fiscal period then ended, together with
related notes and supplemental information. The audited
consolidated balance sheet, statement of income, statement of
stockholders' equity and statement of cash flows are referred to
herein as the "Audited Financial Statements." The Audited
Financial Statements and the notes thereto were prepared in
accordance with generally accepted accounting principles
consistently applied, and present fairly the Consolidated
financial position and results of operations and cash flows of
the Borrower and its Consolidated Subsidiaries as of the dates
and for the periods indicated, and such balance sheets and
related
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notes show all known direct liabilities and all known contingent
liabilities of a material nature of the Borrower and its
Consolidated Subsidiaries as of such dates which are required to
be included in such financial statements and the notes thereto in
accordance with generally accepted accounting principles.
(b) The Borrower has delivered to each of the Banks
pro forma consolidated projected financial results for the years
2001-2005. Such projected financial results are based on good
faith estimates and assumptions believed to be reasonable by
senior management of the Borrower as of the Execution Date.
(c) None of the Borrower or any Guarantor (each, a
"Credit Party") is entering into the arrangements contemplated
hereby and by the other Fundamental Documents or intends to make
any transfer or incur any obligations hereunder or thereunder,
with actual intent to hinder, delay or defraud either present or
future creditors. On and as of the date of the initial Borrowing
hereunder on a Pro Forma Basis after giving effect to all
Indebtedness (including the Loans hereunder and the Indebtedness
incurred by each Credit Party in connection therewith) (w) each
Credit Party expects the cash available to such Credit Party and
its Subsidiaries on a Consolidated basis, after taking into
account all other anticipated uses of the cash of such Credit
Party (including the payments on or in respect of debt referred
to in clause (y) of this Section 3.05(c)), will be sufficient to
satisfy all final judgments for money damages which have been
docketed against such Credit Party and such Subsidiaries or which
such Credit Party believes may be rendered against such Credit
Party and such Subsidiaries in any action in which such Credit
Party is a defendant on the Closing Date (taking into account the
reasonably anticipated maximum amount of any such judgment and
such Credit Party's belief as to the earliest time at which such
judgment might be entered); (x) the sum of the present fair
saleable value of the assets of each Credit Party and its
Subsidiaries on a Consolidated basis will exceed the probable
liability of such Credit Party and such Subsidiaries on their
debts (including their obligations under the Guaranty); (y) no
Credit Party and its Subsidiaries on a Consolidated basis will
have incurred or intends to incur, or believes that it will
incur, debts beyond its ability to pay such debts as such debts
mature (taking into account the timing and amounts of cash to be
received by such Credit Party and such Subsidiaries from any
source, and amounts to be payable on or in respect of debts of
such Credit Party and such Subsidiaries and the amounts referred
to in clause (w)); and (z) each Credit Party and its Subsidiaries
on a Consolidated basis have sufficient capital with which to
conduct their present and proposed business and the property of
such Credit Party and such Subsidiaries does not constitute
unreasonably small capital with which to conduct their present or
proposed business. For purposes of this Section 3.05, "debt"
means any liability on a claim, and "claim" means (i) right to
payment whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed (other than those being disputed in good faith),
undisputed, legal, equitable, secured or unsecured, or (ii) right
to an equitable remedy for breach of performance if such breach
gives rise to a payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or
unsecured. For purposes of this Section 3.05, "present fair
saleable value" means the amount that may be realized if any
person's assets are sold as an entirety with reasonable
promptness in an arm's-length transaction under conditions for
the sale of comparable business enterprises obtaining at the time
of determination.
SECTION 3.06. [Reserved].
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SECTION 3.07. Title to Properties. All assets of the
Borrower and the Subsidiaries are free and clear of Liens, except
such as are permitted by Section 6.01.
SECTION 3.08. Litigation. There are no actions, suits
or proceedings (whether or not purportedly on behalf of the
Borrower or any of the Subsidiaries), pending or, to the
knowledge of the Borrower, threatened against or affecting the
Borrower or any of the Subsidiaries at law or in equity or before
or by any Federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which involve any of the transactions herein
contemplated, or which have a reasonable likelihood of being
determined adversely and if determined adversely to the Borrower
or any of the Subsidiaries, would result in a material adverse
change in the business, operations, prospects, properties, assets
or condition (financial or otherwise) of the Borrower and its
Consolidated Subsidiaries taken as a whole and neither the
Borrower nor any of the Subsidiaries is in default with respect
to any judgment, writ, injunction, decree, rule or regulation of
any court or Federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which default would have a materially
adverse effect on the Borrower and its Consolidated Subsidiaries
taken as a whole or have an adverse effect on the Borrower's or
the Guarantors' ability to comply with this Agreement or any
other Fundamental Document.
SECTION 3.09. Tax Returns. The Borrower and each of
the Subsidiaries have timely filed or caused to be filed all
Federal, state and local tax returns which, to the knowledge of
the Borrower or such Subsidiary after due inquiry, are required
to be filed and have paid or caused to be paid all taxes required
to be paid with respect to such returns or any assessment
received by it or by any of them to the extent that such taxes
have become due, except taxes the validity of which are being
contested in good faith by appropriate actions or proceedings and
with respect to which the Borrower or such Subsidiary, as the
case may be, shall have made such reserve, or other adequate
provision, if any, as shall be required by generally accepted
accounting principles, and except for the filing of such returns
as to which the failure to file will not, either individually or
in the aggregate, have a material adverse effect on the Borrower
and its Consolidated Subsidiaries taken as a whole, or have an
adverse effect on the Borrower's or the Guarantors' ability to
comply with this Agreement or any other Fundamental Document.
SECTION 3.10. Agreements. (a) None of the Borrower
nor any of the Subsidiaries is subject to any charter or other
corporate restriction materially and adversely affecting its
business, properties, assets, operations or condition (financial
or otherwise) or a party to any agreement or instrument
materially and adversely affecting the business, properties,
assets, operations or condition (financial or otherwise) of the
Borrower and its Consolidated Subsidiaries taken as a whole.
None of the Borrower or any of the Subsidiaries is in default in
the performance, observance or fulfillment of any agreement or
instrument for borrowed money by which it is bound, or any other
agreement or instrument by which it is bound which individually
or in the aggregate materially and adversely affects the
business, properties, assets, operations or condition (financial
or otherwise) of the Borrower and its Consolidated Subsidiaries
taken as a whole.
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(b) The Administrative Agent has been provided at or
prior to the Execution Date (i) copies of all credit agreements,
indentures and other agreements related to Indebtedness for
borrowed money of the Borrower or any of the Subsidiaries in an
amount greater than $10,000,000 and, to the extent requested by
the Administrative Agent, copies of any other credit agreements,
indentures and other agreements related to Indebtedness for
borrowed money of the Borrower or any of the Subsidiaries and
(ii) access to (and copies of, to the extent requested) any other
contracts or purchase agreements (including collective bargaining
agreements) which are material to the Borrower or the
Subsidiaries.
SECTION 3.11. Employee Benefit Plans. (a) The
Borrower and each of its ERISA Affiliates is in compliance in all
material respects with the applicable provisions of ERISA and the
Code and the regulations and published governmental
interpretations thereunder. No Reportable Event has occurred
with respect to any Plan (other than Plans which have been
terminated and as to which the Borrower and its ERISA Affiliates
do not have any significant remaining obligations or liabilities
in connection therewith) as to which the Borrower or any of its
ERISA Affiliates was required to file a report with the PBGC, and
the present value of all benefit liabilities under each Plan
maintained by the Borrower or any of its ERISA Affiliates (based
on those assumptions used to fund such Plan) did not, as of the
last annual valuation date applicable thereto, exceed by a
material amount the value of the assets of such Plan. There has
been no Prohibited Transaction with respect to any employee
benefit plan subject to ERISA, including any Plan or to
Borrower's knowledge any Multiemployer Plan or Multiple Employer
Plan, which could result in any material liability to the
Borrower or an ERISA Affiliate. No Plan has incurred an
"accumulated funding deficiency" within the meaning of
Section 412(a) or sought or obtained a waiver under
Section 412(d)(1) or an extension of time under Section 412(e) of
the Code. No suit, action or other litigation or investigation
or a claim (excluding claims for benefits incurred in the
ordinary course of Plan activities) has been threatened or
brought against or with respect to any Plan. To the best of the
knowledge of the Borrower and each of its ERISA Affiliates (i) no
payment required to be made under any Plan would be nondeductible
under Section 280G of the Code, and (ii) in the case of each Plan
intended to qualify under Section 401(a) of the Code, all
amendments to such Plan required for the continuing qualification
of such Plan have been approved and adopted.
(b) None of the Borrower or any of its ERISA
Affiliates has incurred any Withdrawal Liability that materially
adversely affects the financial condition of the Borrower and its
Consolidated Subsidiaries taken as a whole. None of the Borrower
or any of its ERISA Affiliates has received any notification that
any Multiemployer Plan or Multiple Employer Plan is in
reorganization or has been terminated, within the meaning of
Title IV of ERISA, and no Multiemployer Plan or Multiple Employer
Plan is reasonably expected to be in reorganization or to be
terminated, where such reorganization has resulted or can
reasonably be expected to result in an increase in the
contributions required to be made to such Plan that would
materially and adversely affect the financial condition of the
Borrower and its Consolidated Subsidiaries taken as a whole.
SECTION 3.12. Investment Company Act; Public Utility
Holding Company Act; Federal Power Act. None of the Borrower or
the Subsidiaries is or will during the term of this Agreement be
(i) an "investment company" as the term is defined in the
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Investment Company Act of 1940, as amended, (ii) subject to
regulation under the Investment Company Act of 1940, as amended,
(iii) a "holding company" as that term is defined in the Public
Utility Holding Company Act of 1935 or (iv) subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal
Power Act or any foreign, Federal or local statute or regulation
limiting its ability to incur indebtedness for money borrowed or
guaranty such indebtedness as contemplated hereby.
SECTION 3.13. Federal Reserve Regulations. Subject to
Section 4.01(d), none of the Borrower or any of the Subsidiaries
is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or
carrying any margin stock (within the meaning of Regulation U).
No part of the proceeds of the Loans hereunder will be used,
whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose that violates, or is
inconsistent with, the provisions of Regulations T, U or X. If
requested by any Bank, the Borrower will furnish to such Bank a
statement, in conformity with the regulations, on Federal Reserve
Form U-1 referred to in said Regulation U.
SECTION 3.14. Defaults; Compliance with Laws. None of
the Borrower or any of the Subsidiaries is in default under this
Agreement or otherwise in default under any other agreements with
respect to borrowed money in an aggregate outstanding principal
amount of $10,000,000 or more. The Borrower and each of the
Subsidiaries has conducted its business and affairs so as to
comply in all respects material to the Borrower and its
Consolidated Subsidiaries taken as a whole with all applicable
Federal, state and local laws and regulations.
SECTION 3.15. Use of Proceeds. Proceeds of the Loans
and the Letters of Credit will be used for the purposes referred
to in Section 2.03.
SECTION 3.16. Affiliated Companies. Set forth on
Schedule 3.16 hereto is a complete and accurate list of all of
the Subsidiaries of the Borrower and other persons in which the
Borrower or a Subsidiary holds voting stock or a similar interest
(other than companies as to which the Borrower or a Subsidiary,
as applicable, owns, directly or indirectly, less than 5% of the
outstanding voting stock), showing as of the Closing Date as to
Subsidiaries (i) the jurisdiction of its incorporation, (ii) the
number of shares of each class of capital stock authorized,
(iii) the number of such shares outstanding, (iv) the percentage
of such shares held directly or indirectly by the Borrower or a
Subsidiary, as applicable, and (v) the number of such shares
covered by outstanding options, warrants, or rights held directly
or indirectly by the Borrower or a Subsidiary, as applicable;
provided, however, with respect to Clauses (ii) and (iii)
directly above, Borrower may omit the information requested by
such Clauses for all Subsidiaries having tangible assets in an
amount less than $10,000,000 and, with respect to all other
Subsidiaries organized under the laws of a jurisdiction other
than the United States or a state thereof, Borrower shall have
until forty-five days after the date hereof to provide such
information by way of a supplement to, or amendment and
restatement of, Schedule 3.16 supplementing or amending solely
the information required by such Clauses for such Subsidiaries.
Except as set forth on Schedule 3.16, all of the outstanding
capital stock of all of such Subsidiaries has been validly
issued, is fully paid and nonassessable and is owned as set
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forth in Schedule 3.16 (directly or indirectly) by the Borrower
or a Subsidiary, except for shares required to be owned by other
persons under applicable foreign law (which shares do not exceed,
for any such Subsidiary, 5% of the total outstanding shares of
such Subsidiary), free and clear of all Liens and any options,
warrants and other similar rights except as contemplated by the
Existing Credit Agreements.
SECTION 3.17. Environmental Liabilities. (a) Except
as set forth on Schedule 3.17 hereof, the Borrower and the
Consolidated Subsidiaries have not used, stored, treated,
transported, manufactured, refined, handled, produced or disposed
of any Hazardous Materials on, under, at, from, or in any way
affecting any of their properties or assets, or otherwise, in any
manner which at the time of the action in question violated any
Environmental Law governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or
disposal of Hazardous Materials and to the best of the Borrower's
knowledge, but without independent inquiry, no prior owner of
such property or asset or any tenant, subtenant, prior tenant or
prior subtenant thereof has used Hazardous Materials on, from or
affecting such property or asset, or otherwise, in any manner
which at the time of the action in question violated any
Environmental Law governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or
disposal of Hazardous Materials, except in each instance such
violations as in the aggregate would not have a material adverse
effect upon the Borrower and the Consolidated Subsidiaries taken
as a whole.
(b) Except as set forth on Schedule 3.17, the Borrower
and its Consolidated Subsidiaries do not have any obligations or
liabilities, matured or not matured, absolute or contingent,
assessed or unassessed, which such would reasonably be expected
to have a materially adverse effect on the business or financial
condition of the Borrower and its Consolidated Subsidiaries taken
as a whole and, except as set forth in Schedule 3.17, no claims
have been made against the Borrower or any of its Consolidated
Subsidiaries during the past five years and no presently
outstanding citations or notices have been issued against the
Borrower or its Consolidated Subsidiaries, where such would
reasonably be expected to have a materially adverse effect on the
business or financial condition of the Borrower and its
Consolidated Subsidiaries taken as a whole, which in either case
have been or are imposed by reason of or based upon any provision
of any Environmental Laws, including, without limitation, any
such obligations or liabilities relating to or arising out of or
attributable, in whole or in part, to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of any Hazardous Materials by the Borrower
or the Consolidated Subsidiaries, in their respective capacities
as such, or any of their respective employees, agents,
representatives or predecessors in interest in connection with or
in any way arising from or relating to the Borrower, the
Consolidated Subsidiaries or any of their respective properties,
or relating to or arising from or attributable, in whole or in
part, to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of any such
substance, by any other Person at or on or under any of the real
properties owned or used by the Borrower, the Consolidated
Subsidiaries or any other location where such would have a
materially adverse effect on the business or financial condition
of the Borrower and its Consolidated Subsidiaries taken as whole.
SECTION 3.18. Disclosure. Neither this Agreement nor
any agreement, document, certificate or written statement
furnished to any Bank or to the Administrative Agent for the
benefit of the Banks by or on behalf of the Borrower or any of
the Subsidiaries in connection with the transactions contemplated
hereby, at the time it
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was furnished contained any untrue statement of a material fact
or omitted to state a material fact, under the circumstances
under which it was made, necessary in order to make the
statements contained herein or therein not misleading provided
that no representation or warranty other than that set forth in
Section 3.05(b) is made with respect to the projected financial
results of the Borrower for the years 2001-2005. At the date
hereof, there is no fact known to the Borrower which materially
and adversely affects, or in the future is reasonably expected to
materially and adversely affect, the business, assets or
financial condition, of the Borrower and its Consolidated
Subsidiaries taken as a whole (other than facts or conditions
affecting the economy generally).
SECTION 3.19. Insurance. As of the date of this
Agreement, all insurance maintained by the Borrower and its
Subsidiaries on their insurable properties and all other
insurance maintained by them is in full force and effect and all
premiums required to have been paid have been duly paid.
ARTICLE IV CONDITIONS OF LENDING
SECTION 4.01. All Borrowings. The obligations of each
of the Banks to make Loans and the Issuing Bank to issue, amend,
renew or extend any Letter of Credit hereunder on the date of
each Borrowing or issuance, amendment, renewal or extension of
any Letter of Credit hereunder shall be subject to the following
conditions precedent:
(a) Notice. The Administrative Agent shall have
received a notice of such Borrowing as required by Section 2.04
or 2.05, as applicable.
(b) Representations and Warranties. The
representations and warranties set forth in Article III shall be
true and correct in all material respects on and as of the date
of such Borrowing or issuance, amendment, renewal or extension of
such Letter of Credit with the same effect as if made on and as
of such date, except to the extent that such representations and
warranties expressly relate to an earlier date.
(c) No Default. The Borrower and each of the
Guarantors shall be and the Borrower shall have caused each of
the Subsidiaries to be in compliance with all of the terms and
provisions set forth herein or in any other Fundamental Document
on its part to be observed or performed, and immediately after
such Borrowing no Event of Default or event which upon notice or
lapse of time or both would constitute an Event of Default shall
have occurred and be continuing.
(d) Margin Requirements. If the proceeds of any Loans
(or Letter of Credit) are to be used, directly or indirectly, to
purchase or carry any margin stock or to extend credit or refund
indebtedness incurred for such purpose, the Borrower shall
furnish to the Administrative Agent an opinion of counsel
reasonably satisfactory to the Administrative Agent to the effect
set forth in paragraph 7 of Exhibit D-1 to this Agreement.
(e) Additional Documents. The Banks and Issuing Bank
shall have received from the Borrower on the date of each
Borrowing such documents and information as they may reasonably
request relating to the satisfaction of such conditions.
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Each Borrowing or issuance, amendment, renewal or
extension of Letter of Credit hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of such
Borrowing or issuance, amendment, renewal or extension of Letter
of Credit as to the matters specified in paragraphs (b) and (c)
of this Section 4.01.
SECTION 4.02. Closing Date. The obligations of the
Banks to make Loans and the Issuing Bank to issue Letters of
Credit hereunder are subject to the following additional
conditions precedent:
(a) Closing Date. (i) The Closing Date shall have
occurred on or before the 30th day following the Execution Date,
and (ii) on the Closing Date, there shall have been 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 since December 31,
2000, except as previously disclosed in writing to the Banks
prior to the Execution Date.
(b) Notes. On the Closing Date, each Bank shall have
received a duly executed Competitive Note and Revolving Credit
Note complying with the provisions of Section 2.09.
(c) Opinions of Counsel. On the Closing Date, each
Bank and the Issuing Bank shall have received the favorable
written opinion of Brian M. Addison, Esq., Secretary and General
Counsel of the Borrower, dated the Closing Date, addressed to
each Bank and satisfactory to Buchanan Ingersoll, PC, counsel to
the Administrative Agent, substantially in the form of Exhibit D.
(d) Corporate Documents. On or before the Closing
Date, each Bank and the Issuing Bank shall have received (i) a
copy of the Certificate of Incorporation, as amended, of each of
the Borrower and each Guarantor, certified as of a recent date by
the Secretary of State of the state of incorporation of such
person; (ii) a certificate of such Secretary of State, dated as
of a recent date, as to the good standing of, and payment of
taxes by, the Borrower and each Guarantor, as applicable, and as
to the charter documents of the Borrower and each Guarantor, as
applicable, on file in the office of each such Secretary of
State; (iii) a certificate of the Secretary of each of the
Borrower and each Guarantor, each dated the Closing Date and
certifying (A) that attached thereto is a true and complete copy
of the By-laws of the Borrower or such Guarantor, as applicable,
as in effect on the date of such certification, (B) that attached
thereto is a true and complete copy of resolutions adopted by the
Board of Directors of the Borrower or such Guarantor, authorizing
the execution, delivery and performance of the Fundamental
Documents to which it is a party, (C) that the Certificate of
Incorporation of the Borrower or such Guarantor, as applicable,
has not been amended since the date of the last amendment thereto
indicated on the applicable certificate of the Secretary of State
furnished pursuant to clause (ii) above and (D) as to the
incumbency and specimen signature of each officer of the Borrower
or such Guarantor, as applicable, executing the Fundamental
Documents to which it is a party, or any other document delivered
in connection herewith or therewith, as the case may be, (each
such certificate to contain a certification by another officer of
the Borrower or such Guarantor, as applicable, as to the
incumbency and signature of the officer signing the certificate
referred to in this clause (iii)); and (iv) such other documents
as any Bank or counsel for the Administrative Agent may
reasonably request.
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(e) Required Consents and Approvals. Except as noted
on Schedule 4.02, all required consents and approvals shall have
been obtained on or before the Closing Date with respect to the
transactions contemplated hereby from all Governmental
Authorities with jurisdiction over the business and activities of
the Borrower and the Subsidiaries.
(f) Federal Reserve Regulations. The Administrative
Agent shall be satisfied on or before the Closing Date that the
provisions of Regulations T, U and X of the Board will not be
violated by the transactions contemplated hereby.
(g) Contribution Agreement. The Administrative Agent
shall have received on or before the Closing Date the
Contribution Agreement, duly executed by the Borrower and each
Guarantor.
(h) Fees and Expenses. On the closing Date, all
accrued but unpaid Facility Fees and fees due to the Banks or
Administrative Agent, or both, all as contemplated by
Section 2.08, and all amounts referred to in Section 10.04 then
due, shall have been or shall be simultaneously paid in full.
(i) Existing Indebtedness. Concurrently with the
transactions contemplated hereby, on the Closing Date, the
Existing Revolving Credit Agreement and the Existing Master
Letter of Credit Agreement shall have been terminated (except to
the extent necessary to provide for any letters of credit, if
any, outstanding under the Existing Revolving Credit Agreement).
(j) Officer's Certificate. On the Closing Date. the
Banks shall have received a certificate of Borrower provided on
its behalf by a Financial Officer dated the Closing Date
certifying (i) compliance with Section 4.01(b) and (c) hereof,
and (ii) the veracity of Section 4.02(a)(ii).
(k) Other Documents. On the Closing Date, the
Administrative Agent shall have received such other documents as
the Administrative Agent may reasonably require.
ARTICLE V AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Bank that,
so long as this Agreement shall remain in effect or the principal
of or interest on any Note or any other expenses or amounts
payable hereunder shall be unpaid or the Commitments are in
effect, unless the Required Banks otherwise consent in writing,
it will, and it will cause each of its Subsidiaries and, with
respect to Section 5.07 only, its ERISA Affiliates) to:
SECTION 5.01. Corporate Existence. Do or cause to be
done all things necessary to preserve, renew and keep in full
force and effect its corporate existence, material rights,
licenses, permits and franchises; provided that nothing in this
Section 5.01 shall prevent the abandonment or termination of the
corporate existence, rights or franchises of any Subsidiary or
the Borrower if such abandonment or termination would not have a
material adverse effect upon the business, assets, liabilities,
financial condition, results of operations or business prospects
of the Borrower and its Subsidiaries taken as a whole or the
ability of the Borrower to perform its obligations hereunder or
under any other Fundamental Document.
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SECTION 5.02. Maintenance of Property. At all times
maintain and preserve all property used or useful in working
order and condition, and from time to time make, or cause to be
made, all needful and proper repairs, renewals and replacements
thereto, so that the business carried on in connection therewith
may be properly conducted at all times, except to the extent that
the failure to do so would not have a material adverse effect
upon the business, assets, liabilities, financial condition,
results of operations or prospects of the Borrower and its
Subsidiaries taken as a whole or on the ability of the Borrower
or any Guarantor to perform its obligations hereunder or under
any other Fundamental Document.
SECTION 5.03. Insurance. (a) Keep its insurable
properties adequately insured at all times; (b) maintain such
other insurance, to such extent and against such risks, including
fire and other risks insured against by extended coverage, as is
customary with companies in the same or similar businesses;
(c) maintain in full force and effect public liability insurance
against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any
properties owned, occupied or controlled by the Borrower or any
Subsidiary, as the case may be, in such amount as the Borrower or
such Subsidiary, as the case may be, shall reasonably deem
necessary; and (d) maintain such other insurance as may be
required by law. The Borrower and the Subsidiaries may
self-insure to the extent customary with companies in the same or
similar businesses.
SECTION 5.04. Obligations and Taxes. Pay all its
indebtedness and obligations promptly and in accordance with
their terms except to the extent that the failure to do so would
not have a material adverse effect upon the business, assets,
liabilities, financial condition, results of operations or
prospects of the Borrower and its Subsidiaries taken as a whole
or on the ability of the Borrower or any Guarantor to perform its
obligations hereunder or under any other Fundamental Document and
pay and discharge promptly all taxes, assessments and
governmental charges or levies imposed upon it or upon its income
or profits or in respect of its property (and use its best
efforts to do so), prior to the time penalties would attach
thereto, as well as all lawful claims for labor, materials and
supplies or otherwise which, if unpaid, might become a Lien or
charge upon such properties or any part thereof; provided,
however, that none of the Borrower or any of the Subsidiaries
shall be required to pay and discharge or to cause to be paid and
discharged any such tax, assessment, charge, levy or claim so
long as the validity or amount thereof shall be contested in good
faith by appropriate actions or proceedings and the Borrower or
such Subsidiary, as the case may be, shall have made such
reserve, or other adequate provision, if any, as shall be
required by generally accepted accounting principles with respect
to any such tax, assessment, charge, levy or claim so contested.
SECTION 5.05. Financial Statements; Reports, etc.
Furnish to the Banks:
(a) As soon as available, but in any event within 90
days after the end of each fiscal year of the Borrower, the
Consolidated balance sheet as of the end of such fiscal year of
the Borrower and its Consolidated Subsidiaries, the related
Consolidated statements of income and the Consolidated statements
of cash flows for the year then ended of the Borrower and its
Consolidated Subsidiaries, the foregoing Consolidated financial
statements to be (x) examined by, and to carry the report
reasonably acceptable to the Banks of PriceWaterhouse Coopers LLC
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or other independent public accountants of similar nationally
recognized standing reasonably acceptable to the Banks, and to be
in the form of the financial statements included in the
Borrower's annual report on Form 10-K filed with the Securities
and Exchange Commission for the fiscal year ended December 31,
2000, and (y) accompanied by a certificate of said accountants
stating that in making the examination necessary for expressing
their opinion on such statements they have obtained no knowledge,
of a financial or accounting nature, of any violation of any of
the terms or provisions of this Agreement or any other
Fundamental Document, or of the occurrence of any condition or
event which, with notice or lapse of time or both, would
constitute an Event of Default, or, if such accountants shall
have obtained knowledge of any such violation, condition or
event, they shall specify in such certificate all such
violations, conditions and events, and the nature thereof, it
being understood that said accountants shall not be liable to
anyone for failure to obtain such knowledge. All such
Consolidated financial statements shall be compiled in reasonable
detail in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods
reflected therein, except as stated therein, and fairly present
the financial position and results of operations and cash flows
of the Borrower and its Consolidated Subsidiaries for the
respective periods indicated.
(b) As soon as available, but in any event within 60
days after the end of each of the first three fiscal quarters of
each fiscal year, an unaudited Consolidated condensed balance
sheet, and the related unaudited Consolidated condensed
statements of income for such quarter and for the then elapsed
portion of the fiscal year, and the Consolidated condensed
statements of cash flows of the Borrower and its Consolidated
Subsidiaries for the then-elapsed portion of the fiscal year, the
foregoing Consolidated condensed financial statements to be in
reasonable detail (comparable to the Consolidated condensed
financial statements for the quarter ended June 30, 1997
heretofore delivered to the Banks) and stating (with respect to
the unaudited Consolidated condensed statements of income and
cash flows) in comparative form the figures as at the end of and
for the comparable periods of the preceding fiscal year and to be
certified by a Financial Officer of the Borrower in his capacity
as such as being to the best of his knowledge and belief correct
and complete and as presenting fairly the consolidated financial
position and results of operations of the Borrower and its
Consolidated Subsidiaries in accordance with generally accepted
accounting principles (other than the omission of the notes to
the financial statements required by generally accepted
accounting principles) applied on a basis consistent with
previous fiscal years, in each case subject to normal year-end
adjustments.
(c) Concurrently with (a) and (b) above, a certificate
of a Financial Officer of the Borrower, certifying in his
capacity as such (i) that to the best of his knowledge and belief
no Event of Default, or event which with notice or lapse of time
or both would constitute such an Event of Default or event has
occurred, and, if so, specifying the nature and extent thereof
and specifying any corrective action taken or proposed to be
taken with respect thereto, (ii) that to the best of his
knowledge and belief the Borrower is in compliance with the
covenants set forth in Sections 6.09, 6.10 and 6.11,
(iii) setting forth in reasonable detail calculations
demonstrating compliance with Sections 6.01(x), 6.02, 6.04, and
6.06(c), and (iv) setting forth the calculation in reasonable
detail of the Consolidated Interest Coverage Ratio as at the end
of such fiscal quarter and for the period of four fiscal quarters
then ended treated as a single accounting period, and any change
in pricing anticipated to become effective pursuant to such
notice. In furtherance of the foregoing Clauses (ii), (iii), and
(iv), Borrower shall furnish to the Banks a certificate,
substantially in the form of Exhibit H (a "Compliance
Certificate"), evidencing such compliance and setting forth such
calculations.
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(d) Promptly upon their becoming available, copies of
all financial statements, reports, notices and proxy statements
sent or made available generally by the Borrower to its public
security holders, of all regular and periodic reports and all
registration statements and prospectuses, if any, filed by the
Borrower with any securities exchange or with the Securities and
Exchange Commission, or any comparable foreign bodies, and of all
press releases and other statements made available generally by
any of them to the public concerning material developments in the
business of the Borrower.
(e) Promptly, from time to time, such other
information regarding the financial condition and business
operations of the Borrower and its Consolidated Subsidiaries as
any Bank may reasonably request (with a copy of any such written
information provided to the Administrative Agent).
SECTION 5.06. Defaults and Other Notices. Give the
Administrative Agent prompt (but in any event not later than five
Business Days after an officer of the Borrower shall become aware
of the occurrence of such event) written notice of the following:
(a) any Event of Default and any event which with
notice or lapse of time or both would constitute an Event of
Default; and
(b) any development (other than those specified above
as to which the Administrative Agent has received due
notice) which has resulted in, or which the Borrower
reasonably believes will result in, a material adverse
change in the business, assets, liabilities or financial
condition of the Borrower and its Consolidated Subsidiaries
taken as a whole or the ability of the Borrower to perform
its obligations hereunder.
SECTION 5.07. ERISA. (a) Comply in all material
respects with the applicable provisions of ERISA and the Code,
(b) cause all Plans to be funded in accordance with the minimum
funding standards of the Code and ERISA, and cause all due and
owing contributions to be made to Multiemployer Plans, and
(c) furnish to the Administrative Agent (i) as soon as possible,
and in any event within 30 days after any officer of the Borrower
or any of its ERISA Affiliates knows or has reason to know that
any Reportable Event with respect to any Plan has occurred that
alone or together with any other Reportable Event with respect to
the same or another Plan could reasonably be expected to result
in liability of the Company to the PBGC in an aggregate amount
exceeding $5,000,000, a statement of a Financial Officer setting
forth details as to such Reportable Event and the action that the
Borrower proposes to take with respect thereto, together with a
copy of the notice of such Reportable Event, if any, given to the
PBGC, (ii) promptly after receipt thereof, a copy of any notice
the Borrower or any of its ERISA Affiliates may receive from the
PBGC relating to the intention of the PBGC to terminate any Plan
or Plans or to appoint a trustee to administer any such Plan,
(iii) within 10 days after a filing with the PBGC pursuant to
Section 412(n) of the Code of a notice of failure to make a
required installment or other payment with respect to a Plan, a
statement of a Financial Officer setting forth details as to such
failure and the action that the Borrower proposes to take with
respect thereto, together with a copy of such notice given to the
PBGC and (iv) promptly and in any event within 30 days after
receipt thereof by the Borrower or any of its ERISA Affiliates
from the sponsor of a Multiemployer Plan or Multiple Employer
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Plan, a copy of each notice received by the Borrower or any ERISA
Affiliate of the Borrower concerning (A) the imposition of
Withdrawal Liability by a Multiemployer Plan or Multiple Employer
Plan in an amount exceeding $5,000,000 or (B) a determination
that a Multiemployer Plan or Multiple Employer Plan is, or is
expected to be, terminated or in reorganization, both within the
meaning of Title IV of ERISA, and which, in each case, is
expected to result in an increase in annual contributions of the
Borrower or any of its ERISA Affiliates to such Multiemployer
Plan or Multiple Employer Plan in an amount exceeding $5,000,000.
SECTION 5.08. Access to Premises and Records.
Maintain the financial records of the Borrower and its
Consolidated Subsidiaries in accordance with generally accepted
accounting principles and permit representatives of the Banks to
have access, at all reasonable times upon reasonable notice, to
the Borrower and any of its Subsidiaries and their properties and
to make such excerpts from such financial books and records as
such representatives reasonably request and to discuss the
business, operations, properties and financial and other
condition of the Borrower and such Subsidiaries with officers and
employees of the Borrower and such Subsidiaries and the
independent certified public accountants of the Borrower;
provided that no Bank shall purchase, sell or otherwise acquire or
dispose of any interest in a security of the Borrower in the
public markets on the basis of any material nonpublic information
so obtained.
SECTION 5.09. Compliance with Laws, etc. The Borrower
and its Subsidiaries shall comply in all material respects with
the requirements of all applicable laws, rules, regulations and
orders of any Governmental Authority, except to the extent that
the failure to do so would not have a material adverse effect
upon the business, assets, liabilities, financial condition,
results of operations or prospects of the Borrower and its
Subsidiaries taken as a whole or on the ability of the Borrower
or any Guarantor to perform its obligations hereunder or under
any other Fundamental Document. If any authorization or approval
or other action by, or notice to or filing with, any Governmental
Authority is required for the performance by the Borrower of this
Agreement or any other Fundamental Document, the Borrower will
promptly obtain such approval or make such notice or filing and
shall provide satisfactory evidence thereof to the Administrative
Agent.
SECTION 5.10. Security Interests. If any property of
the Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, is subjected to any Lien not permitted by
Section 6.01, the Borrower will make, or will cause to be made,
effective provision whereby the Obligations shall be secured
equally and ratably with all other obligations secured by such
Lien, and, if such provision is not made, an equitable lien, so
equally and ratably securing the Obligations, shall exist on such
property to the full extent permitted under applicable law; it
being understood that the Borrower's compliance with the
provisions of this Section 5.10 shall not, in any way, constitute
a cure by the Borrower or a waiver by the Banks of the Borrower's
failure to perform or observe any of the covenants or agreements
in Section 6.01.
SECTION 5.11. Subsidiary Guarantors. Promptly upon
any person incorporated in the United States becoming a
Subsidiary that is a Material Subsidiary, or upon any Subsidiary
incorporated in the United States becoming a Material Subsidiary,
the Borrower agrees that it or the other direct owner of such
Subsidiary shall cause such Subsidiary to sign such an instrument
substantially in the form of
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Exhibit G hereto, under which such Subsidiary shall become a
party hereto and to the Contribution Agreement, the other
Fundamental Documents (to the extent that Guarantors are parties
thereto), and the Intercreditor Agreement, in each case as a
Guarantor, and assume all obligations of a Guarantor under the
Credit Agreement, all in a manner satisfactory to the
Administrative Agent and its counsel; provided, however, the
Borrower shall be permitted at any time to cause any of its
Subsidiaries not then subject to this Section 5.11 to become a
party to this Agreement and the other agreements set forth above
in accordance with the requirements hereof, and provided further
that, in the case of any additional Guarantor that is organized
under the laws of a jurisdiction other than the United States or
a state thereof, the Administrative Agent on behalf of the Banks
and itself shall have received an opinion of counsel, admitted to
practice in the relevant foreign jurisdiction, in form and
substance satisfactory to the Administrative Agent.
SECTION 5.12. Environmental Laws. (a) Promptly
notify the Administrative Agent upon any Senior Officer of the
Borrower becoming aware of any violation or noncompliance with,
or liability under any Environmental Laws which, when taken
together with all other pending violations would reasonably be
expected to be materially adverse to the Borrower and the
Consolidated Subsidiaries taken as a whole, and promptly furnish
to the Administrative Agent all notices of any nature which the
Borrower or any Consolidated Subsidiaries may receive from any
Governmental Authority or other Person with respect to any
violation, or potential violation or noncompliance with, or
liability or potential liability under any Environmental Laws
which, in any case or when taken together with all such other
notices, would reasonably be expected to have a material adverse
effect on the Borrower and the Consolidated Subsidiaries taken as
a whole.
(b) Comply with and use reasonable efforts to ensure
compliance by all tenants and subtenants with all Environmental
Laws, and obtain and comply in all material respects with and
maintain and use reasonable efforts to ensure that all tenants
and subtenants obtain and comply in all material respects with
and maintain any and all licenses, approvals, registrations or
permits required by Environmental Laws.
(c) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions
required under all Environmental Laws and promptly comply in all
material respects with all lawful orders and directives of all
Governmental Authorities.
(d) Defend, indemnify and hold harmless the
Administrative Agent and the Banks, and their respective
employees, agents, officers and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature, known or
unknown, contingent or otherwise, arising out of, or in any way
related to the violation of or noncompliance with any
Environmental Laws, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without
limitation, reasonable attorney and consultant fees,
investigation and laboratory fees, court costs and litigation
expenses, but excluding therefrom all claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses
arising out of or resulting from (i) the gross negligence or
willful misconduct of such indemnified party or (ii) any acts or
omissions of any indemnified party occurring after such
indemnified party is in possession of, or controls the operation
of, any property or asset.
SECTION 5.13. Existing Credit Agreements. Terminate
the Existing Multicurrency Revolving Credit Agreement as soon as
practicable.
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SECTION 5.14. Senior Debt Status. Maintain the
Obligations on at least a pari passu basis in priority of payment
with all other Indebtedness of Borrower and the Guarantors,
except with respect to Indebtedness to the extent secured by
Liens permitted by Section 6.01.
ARTICLE VI NEGATIVE COVENANTS
The Borrower covenants and agrees with the Banks that,
so long as this Agreement shall remain in effect or the principal
of or interest on any Note or any other expenses or amount
payable hereunder shall be unpaid or the Commitments are in
effect, unless the Required Banks otherwise consent in writing,
it will not, and it will not cause or permit any of its
Subsidiaries, directly or indirectly, to:
SECTION 6.01. Liens. Incur, create or permit to exist
any Lien on (or sale and leaseback transaction with respect to)
any property, assets or stock owned or hereafter acquired by the
Borrower or any of its Subsidiaries, other than Liens in favor of
the Administrative Agent for the benefit of the Banks and:
(i) Liens for taxes, assessments or governmental
charges or levies not yet delinquent or thereafter payable
without penalty for nonpayment or (if foreclosure,
distraint, sale or other similar proceedings shall not have
been commenced) being contested in good faith and by
appropriate actions or proceedings promptly initiated and
diligently conducted, if such reserve or other appropriate
provision, if any, as shall be required by generally
accepted accounting principles shall have been made therefor;
(ii) Liens of carriers, warehousemen, mechanics and
materialmen incurred in the ordinary course of business for
sums not yet due or being contested in good faith and by
appropriate actions or proceedings promptly initiated and
diligently conducted, if such reserve or other appropriate
provision, if any, as shall be required by generally
accepted accounting principles shall have been made therefor;
(iii) Liens incurred or deposits made in the ordinary
course of business, in connection with workers'
compensation, unemployment insurance and other social
security, or to secure the performance of bids, tenders,
leases, contracts (other than the repayment of borrowed
money), statutory obligations, surety, customs and appeal
bonds;
(iv) zoning restrictions, easements, licenses,
reservations, provisions, covenants, conditions, waivers,
restrictions on the use of real property or minor
irregularities of title to real property (and with respect
to leasehold encumbrances or interests, mortgages,
obligations, liens and other encumbrances incurred, created,
assumed or permitted to exist and arising by, through or
under or asserted by a landlord or owner of the leased
property, with or without consent of the lessee), none of
which materially impairs the use of any parcel of real
property material to the operation of the business of the
owner thereof or the value of such property for the purpose
of such business;
(v) Liens securing purchase money Indebtedness of the
Borrower and its Subsidiaries provided; that (A) such Liens
shall not encumber any property other than the property
acquired, (B) the Indebtedness secured thereby does not
exceed the purchase price of such property, and (C) such
transaction does not otherwise violate this Agreement;
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(vi) Liens upon assets of a corporation existing at the
time such corporation is merged into or consolidated with
the Borrower or a Subsidiary or at the time of its
acquisition by the Borrower or a Subsidiary or its becoming
a Subsidiary; provided that such Lien does not spread to any
other asset at any time owned by the Borrower or any
Subsidiary;
(vii) Liens in existence on the date hereof which are
listed in Schedule 6.01 (which Schedule includes all such
Liens (other than Liens of the types described in
paragraphs (i) through (v) above) securing obligations in
excess of $500,000);
(viii) Liens arising out of the renewal or refunding of
any Indebtedness of the Borrower and its Subsidiaries
secured by Liens permitted by the foregoing; provided that
the aggregate principal amount of such Indebtedness is not
increased and is not secured by additional assets and the
Indebtedness secured by the Lien is permitted under this
Agreement;
(ix) Liens in connection with attachments, judgments or
awards as to which an appeal or other appropriate
proceedings for contest or review are promptly commenced and
diligently pursued in good faith (and as to which
foreclosure and other enforcement proceedings shall not have
been commenced (unless fully bonded or otherwise effectively
stayed)); and
(x) other Liens on assets with an aggregate book value
for all such assets subject to Liens, which when added to
the aggregate book value of assets subject to Sale and
Leaseback Transactions permitted under Section 6.06(c), do
not at the time in effect exceed 10% of Consolidated Net
Worth.
SECTION 6.02. Indebtedness. Permit any of the foreign
Subsidiaries or any domestic Subsidiaries which are not
Guarantors hereunder to incur, create, assume, become or be
liable in any manner with respect to, or permit any of such
Subsidiaries to permit or suffer to exist, any Indebtedness,
unless after giving effect to such Indebtedness the total
Indebtedness of all such Subsidiaries is no greater than 15% of
Consolidated Net Worth; provided, however, this Section 6.02
shall not apply to any Subsidiary which becomes a Guarantor
hereunder in accordance with Section 5.11 hereof.
SECTION 6.03. Mergers, Consolidations, Sales of Assets
and Acquisitions. Neither the Borrower nor any Subsidiary (in
one transaction or series of transactions) will wind-up,
liquidate or dissolve its affairs, or enter into any transaction
of merger or consolidation, or sell or otherwise dispose of all
or any part of its property or assets, except:
(a) mergers between the Borrower and a Subsidiary
(provided that Borrower shall be the surviving corporation)
or between Subsidiaries;
(b) sales of inventory, marketable securities,
receivables owed to a foreign subsidiary and receivables of
the Borrower or any Subsidiary from export sales, in each
case in the ordinary course of business;
(c) sales permitted pursuant to Section 6.06;
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(d) subject to Section 6.03(e) below, any merger (other
than as described in (a) above), consolidation, dissolution
or liquidation; provided, however, that (i) immediately
prior to and on a Pro Forma Basis after giving effect to
such transaction no Default or Event of Default has occurred
or is continuing, (ii) if such transaction involves a Person
other than the Borrower and its Subsidiaries, the
Administrative Agent shall promptly receive a certificate of
a Financial Officer of the Borrower confirming that such
transaction complies with the requirements set forth in this
section and (iii) if such transaction involves the Borrower,
the Borrower is the surviving entity;
(e) a disposition of less than substantially all of the
assets of the Borrower and its Subsidiaries, taken as a
whole, (i) for consideration which represents fair market
value (as reasonably determined in good faith by the
Borrower's Board of Directors) or, at a price determined by
the Board of Directors of the Borrower to be in the best
interests of the Borrower under circumstances where the
Board of Directors of Borrower deems a sale on terms other
than fair market value to be in the best interest of the
Borrower, (ii) immediately prior to and on a Pro Forma Basis
after giving effect thereto, no Event of Default or Default
shall have occurred and be continuing and (iii) if the
transaction involves consideration of $20,000,000 or more,
the Administrative Agent shall promptly receive a
certificate of a Financial Officer of the Borrower
confirming that such transaction complies with the
requirements set forth in this section; and
(f) acquisitions of an interest in any business from
any Person (whether pursuant to a merger, an acquisition of
stock, assets, a business unit or otherwise); provided that
(i) immediately prior to and on a Pro Forma Basis after
giving effect thereto, no Event of Default or Default shall
have occurred and be continuing and (ii) if the transaction
involves consideration equal to or in excess of $10,000,000,
the Administrative Agent shall promptly receive a
certificate of a Financial Officer of the Borrower
confirming that such transaction complies with the
requirements set forth in this section.
SECTION 6.04. Change of Business. Engage in any
business activities other than those related or incidental to its
present business activities, namely, the manufacture and
wholesale distribution of (i) dental supplies and equipment,
(ii) medical/industrial supplies and equipment and (iii) other
healthcare products; provided that (x) the business activities,
described in clause (iii) shall not at any time represent more
than 20% of the Consolidated Net Income of the Borrower and the
Subsidiaries as of the end of the then most recently completed
fiscal year of the Borrower, and (y) the assets of the business
activities described in clause (iii) shall not at any time
represent more than 20% of the Consolidated assets of the
Borrower and the Subsidiaries.
SECTION 6.05. Transactions with Affiliates. Enter
into any transactions with or provide any employee benefits to
any Affiliate of the Borrower or any Subsidiary except (a) in the
ordinary course of business and upon fair and reasonable terms no
less favorable than the Borrower or the Subsidiary concerned
could, in the good faith judgment of senior management of the
Borrower, obtain or could become entitled to in an arm's-length
transaction with a person or entity which was not an Affiliate of
the Borrower or such Subsidiary, (b) transactions involving the
Borrower and one or more Subsidiaries exclusively,
(c) transactions involving two or more Subsidiaries exclusively,
(d) transactions with the ESOP or other similar foreign employee
stock ownership plans of Subsidiaries of the Borrower which do
not materially and adversely affect the interests of the
Administrative Agent or the Banks under the Fundamental
Documents, and (e) transactions otherwise expressly permitted
hereunder.
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SECTION 6.06. Sale and Leaseback. Enter into any
arrangement, directly or indirectly, with any person whereby it
shall sell or transfer any property, whether real or personal,
and used or useful in its business, whether now owned or
hereafter acquired, if the Borrower or any of its Subsidiaries at
the time of such sale or disposition intends to lease or
otherwise acquire the right to use or possess (except by
purchase) such property or like property for a substantially
similar purpose (a "Sale and Leaseback Transaction") except:
(a) the Des Plaines Lease;
(b) for any such Sale and Leaseback Transaction in
which the property is sold by the Borrower to a Subsidiary
or by a Subsidiary to the Borrower or another Subsidiary; or
(c) the Borrower or any Subsidiary may enter into any
Sale and Leaseback Transaction if (i) at the time of such
Sale and Leaseback Transaction no Default or Event of
Default shall have occurred and be continuing, (ii) the
proceeds from the sale of the subject property shall be
equal to not less than 80% of its fair market value (as
reasonably determined by the Borrower's Board of Directors)
and (iii) after giving effect to such Sale and Leaseback
Transaction, the aggregate book value of all assets of the
Borrower and the Subsidiaries subject to Sale and Leaseback
Transactions when added to the aggregate book value of
assets subject to Liens permitted under Section 6.01(x) and
excluding those described in paragraphs (a) and (b) above,
shall not at any time exceed 10% of Consolidated Net Worth.
SECTION 6.07. Dividends by Subsidiaries. Create,
incur, assume or permit to exist any agreement or instrument
which has the effect of restricting or prohibiting the power,
authority or legal right of such Subsidiary to declare or pay any
dividend or other distribution other than, prior to the Closing
Date, the Existing Credit Agreements.
SECTION 6.08. Amendments to Certain Documents. Amend,
modify or otherwise change (a) any covenant or event of default
in any material indenture or other material agreement or material
instrument relating to any Indebtedness or (b) any of its
constitutive documents, in either case in any manner materially
adverse to the interests of the Administrative Agent, the Banks,
or the Issuing Bank under the Fundamental Documents.
SECTION 6.09. Minimum Consolidated Net Worth. Permit
Consolidated Net Worth at any time to be less than
(x) $450,000,000 plus (y) 25% of aggregate Consolidated Net Income
for each full fiscal quarter for which such Consolidated Net
Income is positive that shall have been completed during the
period from the Closing Date to the date of determination.
SECTION 6.10. Interest Coverage. Permit the
Consolidated Interest Coverage Ratio at the end of any fiscal
quarter to be less than 3.5 to 1.0 for the period of the four
consecutive fiscal quarters then ended treated as a single
accounting period.
SECTION 6.11. Debt Ratio.
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(a) In the event that the Proposed Acquisition occurs
no later than August 30, 2001, then upon and after the Proposed
Acquisition, permit the Debt Ratio at any such time through
December 31, 2002, to be greater than 0.60 to 1.0 or permit the
Debt Ratio at any time after December 31, 2002, to be greater
than 0.50 to 1.0.
(b) Prior to the date of the Proposed Acquisition or
in the event that the Proposed Acquisition does not occur by
August 30, 2001, permit the Debt Ratio at any such time
through the first anniversary of the date of this Agreement
to be greater than 0.55 to 1.0 or permit the Debt Ratio at
any time after the first anniversary of the date of this
Agreement to be greater than 0.50 to 1.0.
SECTION 6.12. Fiscal Year. Change its fiscal year or
modify or change accounting treatments or reporting practices
except as otherwise permitted or required by generally accepted
accounting principles.
ARTICLE VII EVENTS OF DEFAULT
In the case of the happening of any of the following
events (hereinafter called "Events of Default"):
(a) any representation or warranty made by the Borrower
or any of the Guarantors in connection with this Agreement
or any other Fundamental Document or with the execution and
delivery of the Notes or the borrowings hereunder or any
statement or representation made in any report, certificate,
financial statement or other instrument furnished by the
Borrower or any of the Guarantors to the Banks, the Issuing
Bank or the Administrative Agent pursuant to this Agreement
or any other Fundamental Document shall prove to have been
false or misleading in any material respect when made or
delivered;
(b) default shall be made in the payment of the
principal of or interest on any Note or of any fees or other
amounts payable by the Borrower hereunder, when and as the
same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise, and, in the case of
interest, such default shall continue unremedied for five
Business Days;
(c) default shall be made with respect to the payment
of any amount due under any agreement or other evidence of
Indebtedness for borrowed money (other than the Notes) of
the Borrower or any of the Subsidiaries in an aggregate
outstanding principal amount of $10,000,000 or more; or any
other default shall be made with respect to any such
Indebtedness and such Indebtedness shall have been
accelerated so that any payment in respect of such
Indebtedness shall be or become due prior to its maturity or
scheduled due date;
(d) default shall be made in the due observance or
performance of any covenant, condition or agreement on the
part of the Borrower on its own behalf or on behalf of any
of the Subsidiaries or any of the Guarantors contained in
Article VI or Article VIII hereof; provided that in the case
of a default under Section 6.01, resulting solely from
incurrence of a prohibited obligation by a Subsidiary
without the approval or knowledge of any officer of the
Borrower, such default shall continue unremedied for 30 days;
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(e) the guaranty under Article VIII hereof shall
(i) not remain in full force and effect, be declared null
and void or shall not be enforceable against the Guarantors
in accordance with its terms and such guaranty shall not be
reinstated to full force and effect and enforceability
against the Guarantors in accordance with its terms within
30 days or (ii) be disaffirmed or repudiated by the Borrower
or any such Guarantor;
(f) default shall be made in the due observance or
performance of any other covenant, condition or agreement to
be observed or performed by the Borrower on its own behalf
or on behalf of any of the Subsidiaries or any of the
Guarantors pursuant to the terms hereof or of any other
Fundamental Document and such default shall continue
unremedied for a period equal to the sum of 30 days after
such failure shall have first occurred plus an additional
three Business Days;
(g) the Borrower or any Material Subsidiary shall
(i) voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code or
any other federal or state bankruptcy, insolvency or similar
law now or hereafter in effect, (ii) consent to the
institution of, or fail to controvert in a timely and
appropriate manner, any such proceeding or the filing of any
such petition, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator or similar
official for the Borrower or any such Material Subsidiary or
for a substantial part of its property, (iv) file an answer
admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its
debts as they become due or (vii) take corporate action for
the purpose of effecting any of the foregoing;
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Borrower
or any Material Subsidiary, or of a substantial part of its
property, under Title 11 of the United States Code or any
other federal or state bankruptcy, insolvency or similar law
now or hereafter in effect, (ii) the appointment of a
receiver, trustee, custodian, sequestrator or similar
official for the Borrower or such Material Subsidiary or for
a substantial part of its property or (iii) the winding-up
or liquidation of the Borrower or such Material Subsidiary;
and such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any
of the foregoing shall continue unstayed and in effect for
30 days;
(i) a final judgment for the payment of money (which
alone, or when aggregated with all other such unpaid
judgments to the extent not fully covered by insurance from
financially sound and reputable insurers against the
Borrower and its Subsidiaries at such time, is for
$10,000,000 or more) shall be rendered against the Borrower
or any of the Subsidiaries and the same shall remain
undischarged for a period of 60 days or any action is taken
by the judgment creditor to levy thereon;
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(j) a Reportable Event or Reportable Events, or a
failure to make a required payment (within the meaning of
Section 412(n)(1)(A) of the Code) shall have occurred with
respect to any one or more Plans or Multiemployer Plans that
reasonably could be expected to result in liability of the
Borrower to the PBGC or to a Plan in an aggregate amount
exceeding $10,000,000 and, within 30 days after the
reporting of any such Reportable Event to the Administrative
Agent or after the receipt by the Administrative Agent of
the statement required pursuant to Section 5.07(b)(iii)
hereof, the Administrative Agent shall have notified the
Borrower in writing that (i) the Required Banks have made a
determination that, on the basis of such Reportable Event or
Reportable Events or the receipt of such statement, there
are reasonable grounds (A) for the termination of such Plan
or Plans by PBGC, (B) for the appointment by the appropriate
United States District Court of a trustee to administer such
Plan or Plans or (C) for the imposition of a Lien in favor
of a Plan and (ii) as a result thereof an Event of Default
exists hereunder; or a trustee shall be appointed by a
United States District Court to administer any such Plan or
Plans; or the PBGC shall institute proceedings to terminate
any Plan or Plans;
(k) (i) the Borrower or any of its ERISA Affiliates
shall have been notified by the sponsor of a Multiemployer
Plan or Multiple Employer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan or Multiple
Employer Plan, (ii) the Borrower or any such ERISA Affiliate
does not have reasonable grounds for contesting such
Withdrawal Liability and is not in fact contesting such
Withdrawal Liability in a timely and appropriate manner, and
(iii) the amount of such Withdrawal Liability specified in
such notice, when aggregated with all other amounts required
to be paid to Multiemployer Plans and Multiple Employer
Plans in connection with Withdrawal Liabilities (determined
as of the date or dates of such notification), exceeds
$10,000,000 or requires payments exceeding $10,000,000 in
any year;
(l) the Borrower or any of its ERISA Affiliates shall
have been notified by the sponsor of a Multiemployer Plan or
Multiple Employer Plan that such Multiemployer Plan or
Multiple Employer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, if
solely as a result of such reorganization or termination the
aggregate annual contributions of the Borrower and its ERISA
Affiliates to all Multiemployer Plans and Multiple Employer
Plans that are then in reorganization or have been or are
being terminated have been or will be increased over the
amounts required to be contributed to such Multiemployer
Plans for their most recently completed plan years by an
amount exceeding $10,000,000 in any year; or
(m) (i) a person or two or more persons acting in
concert (excluding the ESOP and any other person who holds
5% or more of the outstanding shares of voting stock of the
Borrower as of the Closing Date) shall acquire beneficial
ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities
Exchange Act of 1934) of more than 40% of the outstanding
shares of voting stock of the Borrower, or (ii) the
individuals who, as of such Closing Date, are members of the
Board of Directors of the Borrower (the "Incumbent Board")
shall cease to constitute at least a majority of the Board
of Directors of the Borrower; provided, however, that if the
election, or nomination for election of any new director was
approved by a vote of at least a majority of the Incumbent
Board or any nominating committee thereof, such new director
shall, for purposes hereof, be considered as a member of the
Incumbent Board;
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then, and in every such event and at any time
thereafter during the continuance of such event, the
Administrative Agent may (unless, in the case of each Event
of Default other than that specified in paragraph (b) above,
the Required Banks shall have waived such Event of Default
in writing, and, in the case of an Event of Default
specified in paragraph (b) above, each of the Banks shall
have waived such Event of Default in writing), and, upon
direction of the Required Banks, will by written notice to
the Borrower, take any of the following actions, at the same
or different times: (i) terminate the Commitments and
(ii) declare the Notes to be forthwith due and payable,
whereupon the Notes and all other fees and amounts owing
hereunder shall become forthwith due and payable, both as to
principal and interest, without presentment, demand, protest
or any other notice of any kind, all of which are hereby
expressly waived, anything contained herein or in the Notes
to the contrary notwithstanding. Notwithstanding the
foregoing, if an Event of Default specified in paragraph (g)
or (h) above occurs with respect to the Borrower or a
Guarantor, the Notes shall become immediately due and
payable, both as to principal and interest, without any
action by the Administrative Agent and without presentment,
demand, protest or any other notice of any kind, all of
which are hereby expressly waived, anything contained herein
or in the Notes to the contrary notwithstanding.
ARTICLE VIII GUARANTY
SECTION 8.01. Guaranty. (a) Each Guarantor hereby,
jointly and severally, unconditionally and irrevocably guaranties
to the Banks (for purposes of this Article VIII, the defined term
"Bank" shall be deemed to include the Issuing Bank as applicable)
and the Administrative Agent the due and punctual payment by and
performance of the Obligations (including interest accruing on
and after the filing of any petition in bankruptcy or
reorganization of the applicable obligor whether or not
post-filing interest is allowed in such proceeding) by the
Borrower.
(b) Each Guarantor waives notice of acceptance of this
guaranty and also waives presentation to, demand of payment from
and protest to the Borrower of any of the Obligations, as well as
notice of protest for nonpayment and all other formalities. The
obligations of each Guarantor hereunder shall not be affected by
(i) the failure of the Administrative Agent or the Banks to
assert any claim or demand or to enforce any right or remedy
against the Borrower under this Agreement or otherwise; (ii) any
extension or renewal of any of the Obligations; (iii) any
rescission, waiver, amendment or modification of any of the terms
or provisions of this Agreement or any other agreement or
instrument; (iv) the taking or release of any security held by
the Banks or the Administrative Agent for the performance of any
of the Obligations; (v) the failure of the Administrative Agent
or the Banks to exercise any right or remedy against the Borrower
or any other guarantor of the Obligations; (vi) any stay in
bankruptcy or insolvency proceedings of the Borrower or any other
Person; or (vii) the release or substitution of any other
Guarantor.
(c) Each Guarantor agrees that this guaranty
constitutes a guaranty of payment when due and not of collection
and waives any right to require that any resort be had by the
Banks or the Administrative Agent to any security held for
payment of the Obligations or to any balance of any deposit
account or credit on the books of the Banks or the Administrative
Agent in favor of the Borrower or any other person.
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SECTION 8.02. No Impairment of Guaranty. The
obligations of each Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any
reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any
defense, setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without
limiting the generality of the foregoing, the obligations of each
Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Banks or the
Administrative Agent to assert any claim or demand or to enforce
any remedy under this Agreement or any other agreement or
instrument, by any waiver or modification of any thereof by the
Banks or the Administrative Agent, by any default, failure or
delay, willful or otherwise, in the performance of the
Obligations or by any other act or omission or delay to do any
other act which might in any manner or to any extent vary the
risk of any Guarantor or which would otherwise operate as a
discharge of a guarantor as a matter of law.
SECTION 8.03. Continuation and Reinstatement, etc.
Each Guarantor further agrees that this guaranty shall continue
to be effective or be reinstated, as the case may be, if at any
time any payment on any Obligation is rescinded or must otherwise
be restored by the Banks upon the bankruptcy or reorganization of
the Borrower or otherwise.
SECTION 8.04. Payment, etc. (a) In furtherance of
the foregoing and not in limitation of any other right which the
Banks or the Administrative Agent may have at law or in equity
against any Guarantor by virtue hereof, upon the failure of the
Borrower to pay or perform any Obligation when and as the same
shall become due, whether at maturity, by acceleration, after
notice of prepayment or otherwise, each Guarantor hereby promises
to and will, upon receipt of written demand by the Banks or the
Administrative Agent, forthwith pay, or cause to be paid, in
cash, to the Administrative Agent, an amount equal to the sum of
(i) the unpaid principal amount of such Obligations, (ii) accrued
and unpaid interest on such Obligations and (iii) all other
unpaid Obligations of the Borrower to the Administrative Agent
and the Banks.
(b) Each Guarantor agrees that to the fullest extent
permitted by applicable law, all rights against the Borrower
arising as a result of any payment by any Guarantor under this
guaranty by way of right of subrogation or otherwise shall in all
respects be junior and subordinate in right of payment to the
prior indefeasible payment in full of all the Obligations to the
Administrative Agent for the benefit of the Banks. If after the
Borrower has failed to pay any Obligation when due, any amount
shall be paid to any Guarantor for the account of the Borrower,
such amount shall be held in trust for the benefit of the
Administrative Agent and shall forthwith be paid to the
Administrative Agent on behalf of the Banks to be credited and
applied to the Obligations when due and payable.
(c) Each Guarantor waives notice of and hereby
consents to any agreements or arrangements whatsoever by the
Banks or the Administrative Agent with the Borrower, or anyone
else, including agreements and arrangements for payment,
extension, subordination, composition, arrangement, discharge or
release of the whole or any part of the Obligations, or for the
discharge or surrender of any or all security, or for compromise,
whether by way of acceptance of part payment or otherwise, and
the same shall in no way impair such Guarantor's liability
hereunder. Nothing shall discharge or satisfy the liability of
any Guarantor hereunder except the full performance and payment
of the Obligations.
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SECTION 8.05. Benefit to Guarantors. Each Guarantor
acknowledges that it has realized a direct economic benefit as a
result of the refinancing of the loans outstanding under the
Existing Credit Agreements of the Borrower and the availability
to it of Letters of Credit and the proceeds of Loans that have
been or may in the future be made hereunder.
SECTION 8.06. Modification to Conform to Law.
(a) Without limiting the generality of Section 10.08,
to the extent that applicable law (including applicable laws
pertaining to fraudulent or preferential transfer) otherwise
would render the full amount of the Guarantor's obligations
hereunder invalid, voidable, or unenforceable on account of the
amount of a Guarantor's aggregate liability under this guaranty,
then, notwithstanding any other provision of this guaranty to the
contrary, the aggregate amount of such liability shall, without
any further action by the Administrative Agent or any of the
Banks or such Guarantor or any other Person, be automatically
limited and reduced to the highest amount which is valid and
enforceable as determined in such action or proceeding, which
(without limiting the generality of the foregoing) may be an
amount which is equal to the greater of:
(i) the fair consideration actually received by
such Guarantor under the terms and as a result of the Fundamental
Documents (including the Contribution Agreement) and the value of
the benefits derived by such Guarantor from credit granted to its
Affiliates and the synergistic benefits of such affiliation and
including distributions, commitments, and advances made to or for
the benefit of such Guarantor with the proceeds of any credit
extended under the Fundamental Documents, or
(ii) the excess of (1) the amount of the fair
value of the assets of such Guarantor (as of the date of this
guaranty or other date relevant to the applicable law which would
render the full amount of the Guarantor's obligations hereunder
invalid, voidable, or unenforceable) determined in accordance
with applicable federal and state laws governing determinations
of the insolvency of debtors, over (2) the amount of all
liabilities of such Guarantor as of such date, also as determined
on the basis of applicable federal and state laws governing the
insolvency of debtors.
(b) Notwithstanding anything to the contrary in this
Article VIII, the guaranty hereby given in this Agreement shall
be presumptively valid and enforceable to its fullest extent in
accordance with its terms, as if this Section 8.06 were not a
part of this guaranty, and in any related litigation the burden
of proof shall be on the party asserting the invalidity,
voidability, or unenforceability of any provision of this Article
VIII or asserting any limitation on any Guarantor's obligations
hereunder as to each element of such assertion.
SECTION 8.07. Additional Guarantors. At any time
after the initial execution and delivery of this Agreement to the
Administrative Agent and the Banks, additional Persons may become
parties to this guaranty and thereby acquire the duties and
rights of being Guarantors hereunder by executing and delivering
to the Administrative Agent and the Banks a Joinder and
Assumption Agreement, substantially in the form of Exhibit G
hereto. No notice of the addition of any Guarantor shall be
required to be given to any pre-existing Guarantor and each
Guarantor hereby consents thereto and affirms that its
obligations shall continue hereunder undiminished.
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ARTICLE IX ADMINISTRATIVE AGENT
SECTION 9.01. Appointment of Administrative Agent. In
order to expedite the various transactions contemplated by this
Agreement, ABN AMRO Bank N.V. is hereby appointed to act as
Administrative Agent on behalf of the Banks (for purposes of
Article IX, the defined term "Bank" shall be deemed to include
the Issuing Bank as applicable). Each Bank irrevocably
authorizes and directs the Administrative Agent to take such
action on behalf of such Bank under the terms and provisions of
this Agreement and to exercise such powers hereunder as are
specifically delegated to or required of the Administrative Agent
by the terms and provisions hereof, together with such powers as
are reasonably incidental thereto. Without limiting the
generality of the foregoing, each of the Banks hereby agrees to
the provisions of that draft Intercreditor Agreement,
substantially in the form of Exhibit F, and authorizes the
Administrative Agent to execute and deliver an Intercreditor
Agreement substantially in the form of Exhibit F for and on
behalf of each of the Banks.
SECTION 9.02. Exculpation. Neither the Administrative
Agent nor the Documentation Agent, nor any of their directors,
officers, employees or agents shall be liable as such for any
action taken or omitted by any of them hereunder except for its
or his own gross negligence or willful misconduct, or be
responsible for any statement, warranty or representation herein,
or be required to ascertain or to make any inquiry concerning the
performance or observance by the Borrower or the Guarantors of
any of the terms, conditions, covenants or agreements of this
Agreement. Neither the Administrative Agent nor the
Documentation Agent shall be responsible to the Banks for the due
execution, genuineness, validity, enforceability or effectiveness
of this Agreement or any other Fundamental Document, the Notes or
any other instrument to which reference is made herein. The
Administrative Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof until written notice of
transfer shall have been filed with it. The Administrative Agent
shall promptly notify the Borrower of any such notice received by
such Administrative Agent. The Administrative Agent shall in all
cases be fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Banks, and,
except as otherwise specifically provided herein, such
instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Banks. The Administrative
Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any paper or document believed by it to be
genuine and correct and to have been signed or sent by the proper
person or persons. Neither the Administrative Agent nor any of
its directors, officers, employees or agents shall have any
responsibility to the Borrower on account of the failure or delay
in performance or breach by any Bank of any of its obligations
hereunder or to any Bank on account of the failure or delay in
performance or breach by any other Bank, or the Borrower, of any
of their respective obligations hereunder or in connection
herewith.
SECTION 9.03. Consultation with Counsel. The
Administrative Agent may execute any and all duties hereunder by
or through agents or employees and shall be entitled to advice of
legal counsel selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of
such counsel.
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SECTION 9.04. The Administrative Agent, Individually.
With respect to the Loans made by it and the Notes issued to it,
the Administrative Agent in its individual capacity and not as
Administrative Agent shall have the same rights and powers
hereunder and under any other agreement as any other Bank and may
exercise the same as though it were not the Administrative Agent,
and the Administrative Agent and its affiliates may accept
deposits from, lend money to and generally engage in any kind of
business with the Borrower or any of the Subsidiaries or other
Affiliate of the Borrower or any such Subsidiary as if it were
not the Administrative Agent.
SECTION 9.05. Reimbursement and Indemnification. Each
Bank agrees (i) to reimburse the Administrative Agent in the
amount of such Bank's proportionate share of any expenses
incurred for the benefit of the Banks, including counsel fees and
compensation of agents and employees paid for services rendered
on behalf of the Banks, not reimbursed by the Borrower, and
(ii) to indemnify and hold harmless the Administrative Agent and
any of its directors, officers, employees or agents, on demand,
in the amount of its proportionate share, from and against any
and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever which may be imposed on, incurred
by or asserted against it or any of them in any way relating to
or arising out of this Agreement, or under the other Fundamental
Documents or any action taken or omitted by it or any of them
under this Agreement or under the other Fundamental Documents, to
the extent not reimbursed by the Borrower; provided, however,
that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Administrative Agent or
any of its directors, officers, employees or agents.
SECTION 9.06. Resignation. Subject to the appointment
and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by
notifying the Banks and the Borrower. Upon any such resignation,
and with the consent of the Borrower (which shall be deemed to be
granted if an Event of Default shall have occurred and be
continuing), the Required Banks shall have the right to appoint a
successor Administrative Agent which is a Bank hereunder. If no
successor Administrative Agent shall have been so appointed by
such Banks and shall have accepted such appointment within 30
days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on
behalf of the Banks, appoint a successor Administrative Agent
having a combined capital and surplus of at least $300,000,000
and which is a Bank hereunder. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
bank, such successor shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the
retiring Administrative Agent and the retiring Administrative
Agent shall be discharged from its duties and obligations
hereunder and under any other documents executed in connection
herewith. After the Administrative Agent's resignation
hereunder, the provisions of this Article IX shall continue in
effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Administrative Agent.
At all times, any Administrative Agent hereunder shall be a Bank
hereunder.
ARTICLE X MISCELLANEOUS
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SECTION 10.01. Notices. Notices and other
communications provided for herein shall be in writing and shall
be delivered or mailed (or in the case of telegraphic
communication, if by telegram, delivered to the telegraph company
and, if by telex, telecopy, graphic scanning or other telegraphic
or electronic communications equipment, delivered by such
equipment) addressed at its address or number set forth on
Schedule 2.01. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement
shall be effective when received.
SECTION 10.02. No Waivers; Amendments. No failure or
delay of the Administrative Agent or any Bank in exercising any
power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a
right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and
remedies of the Administrative Agent and the Banks hereunder are
cumulative and not exclusive of any rights or remedies which the
Administrative Agent or any such Bank would otherwise have. No
notice or demand on the Borrower shall entitle the Borrower to
any other or further notice or demand in similar or other
circumstances; provided that the foregoing shall not limit the
right of the Borrower to any notice expressly provided for
herein. No modification, amendment or waiver of any provision of
this Agreement or any of the Notes nor consent to any departure
of the Borrower therefrom shall in any event be effective unless
the same shall be in writing and signed by the Required Banks and
then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Any such
modification, amendment, waiver or consent, so given, shall be
effective to bind all the Banks; provided that no such
modification, amendment, waiver or consent may be made which will
(i) reduce or increase the amount or alter the term of any
Commitment of any Bank hereunder without the written consent of
such Bank; (ii) extend the time for reimbursement of any LC
Disbursement or for payment of principal of or interest on any
Note, or reduce the principal amount or decrease the rate of
interest on any Loan or change the method of calculation provided
for herein for determining the rate of interest on any Note, or
vary the time for payment or reduce the amount of fees payable to
any Bank hereunder, or release any Guarantor or any collateral
hereunder, or change the definition of Required Banks set forth
in Article I, or amend this Section 10.02 or Section 2.19,
without the written consent of all the Banks; or (iii) give any
Note preference over any other Note in payment of principal or
interest.
SECTION 10.03. Applicable Law; Submission to
Jurisdiction; Service of Process; Waiver of Jury Trial.
(a) This Agreement and the Notes shall be construed in accordance
with and governed by the laws of the State of New York applicable
to agreements made and to be performed wholly in the State of New
York.
(b) Each of the Borrower and each Guarantor hereby
irrevocably submits itself to the jurisdiction of the Supreme
Court of the State of New York, New York County, and to the
jurisdiction of the United States District Court for the Southern
District of New York, for the purpose of any suit, action or
other proceeding arising out of or relating to this Agreement,
any other Fundamental Document or any related document or any of
the transactions contemplated hereby or thereby, and hereby
waives, and agrees not to assert, by way of motion, as a defense,
or
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otherwise, in any suit, action or proceeding, any claim that it
is not personally subject to the jurisdiction of the above-named
courts for any reason whatsoever, that such suit, action or
proceeding is brought in an inconvenient forum or that the venue
of such suit, action or proceeding is improper or that this
Agreement or any other Fundamental Documents or, to the full
extent permitted by applicable law, any subject matter of any
thereof may not be enforced in or by such courts. Neither this
paragraph (b) nor paragraph (c) below shall restrict the
Administrative Agent or any Bank from bringing suit or
instituting other judicial proceedings against the Borrower or
any Guarantor or any of their assets in any court or jurisdiction
not referred to herein or therein.
(c) Each party to this Agreement irrevocably consents
to service of process in the manner provided for notice in
Section 10.01. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner
permitted by law.
(d) EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS AGREEMENT, ANY OTHER FUNDAMENTAL DOCUMENT
AND ANY OF THE OTHER DOCUMENTS OR TRANSACTIONS CONTEMPLATED
HEREIN OR THEREIN.
(e) Except as prohibited by law, each party hereto
hereby waives any right it may have to claim or recover in any
litigation referred to in paragraph (d) of this Section 10.03 any
special, exemplary, punitive, indirect (including loss of
profits) or consequential damages or any damages other than, or
in addition to, actual damages; provided that if a party hereto
shall obtain a final, nonappealable judgment that another party
shall have intentionally and knowingly breached its obligations
under this Agreement with an intention of injuring the claimant
party, the claimant party may then seek consequential damages
from such breaching party for its losses suffered as a result of
such intentional breach.
(f) Each party hereto (i) certifies that neither any
representative, agent nor attorney of any Bank has represented,
expressly or otherwise, that such Bank would not, in the event of
litigation, seek to enforce the foregoing waivers and
(ii) acknowledges that it has been induced to enter into this
Agreement by, among other things, the mutual waivers and
certifications herein.
SECTION 10.04. Expenses; Documentary Taxes. The
Borrower agrees to pay all reasonable out-of-pocket expenses
(i) incurred by the Administrative Agent in connection with the
preparation, execution and delivery, waiver or modification and
administration of this Agreement, any other Fundamental Document
or any related documents or in connection with the performance of
due diligence by the Administrative Agent or the syndication of
the Loans (whether or not the transactions hereby contemplated
shall be consummated), and (ii) incurred by the Administrative
Agent in connection with the making of the Loans hereunder, or
incurred by the Administrative Agent or the Banks in connection
with the enforcement of this Agreement or the Loans made or the
Notes issued hereunder or any other Fundamental Documents and
with respect to any action which may be instituted by any person
against the Banks or the Administrative Agent in respect of the
foregoing (but not with respect to any act of gross negligence or
willful misconduct of the
D4
Administrative Agent or any Bank), or as a result of any
transaction, action or nonaction arising from the foregoing,
including, but not limited to, the fees and disbursements of
Buchanan Ingersoll, PC, counsel to the Administrative Agent. The
Borrower agrees that it shall indemnify the Banks and the
Administrative Agent from and hold them harmless against any
documentary taxes, assessments or charges made by any
Governmental Authority by reason of the execution and delivery of
this Agreement, the Fundamental Documents or any of the Notes.
The obligations of the Borrower under this Section 10.04 shall
survive the termination of this Agreement and the Commitments
and/or the payment of the Notes.
SECTION 10.05. Indemnity. Further, by the execution
hereof, the Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Banks, and each of their respective
affiliates and their respective directors, officers, employees
and agents (each an "Indemnified Party") from and against any and
all expenses, including reasonable fees and disbursements of
counsel, losses, claims, damages and liabilities arising out of
any claim, litigation, investigation or proceeding (whether or
not the Administrative Agent or any Bank is a party thereto)
relating to the financing contemplated hereby and transactions
related thereto, except that Borrower shall not be required by
this Section 10.05 to indemnify or hold harmless an Indemnified
Party to the extent that the matters for which such Indemnified
Party claims indemnification under this Section 10.05 are the
result of its gross negligence or willful misconduct. The
obligations of the Borrower under this Section 10.05 shall
survive the termination of this Agreement and the Commitments
and/or payments of the Loans.
SECTION 10.06. Successors and Assigns. This Agreement
shall be binding upon and inure to the benefit of the Borrower,
the Guarantors, the Administrative Agent, the Documentation Agent
and the Banks and their respective successors and assigns.
Neither the Borrower nor the Guarantors may assign or transfer
any of their rights or obligations hereunder without the written
consent of the Required Banks.
SECTION 10.07. Survival of Agreements, Representations
and Warranties, etc. All warranties, representations and
covenants made by the Borrower or the Guarantors herein or in any
certificate or other instrument delivered by it or on its behalf
in connection with this Agreement shall be considered to have
been relied upon by the Banks and shall survive the making of the
Loans herein contemplated, the issuance and delivery to the Banks
of the Notes and the issuance, amendment, renewal or extension of
any Letter of Credit regardless of any investigation made by the
Banks or on their behalf and shall continue in full force and
effect so long as any amount due or to become due hereunder is
outstanding and unpaid and so long as the Commitments have not
been terminated. All statements in any such certificate or other
instrument shall constitute representations and warranties by the
Borrower hereunder.
SECTION 10.08. Severability. In case any one or more
of the provisions contained in this Agreement or the Notes should
be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good faith
negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
D4
SECTION 10.09. Cover Page and Section Headings. The
cover page and section headings used herein are for convenience
of reference only, are not part of this Agreement and are not to
affect the construction of or be taken into consideration in
interpreting this Agreement.
SECTION 10.10. Counterparts, Integration, Telecopy
Signatures. This Agreement may be signed in any number of
counterparts with the effect as if the signatures thereto were
upon the same instrument. This Agreement shall become effective
when copies hereof which, when taken together, bear the
signatures of each of the parties hereto shall have been received
by the Administrative Agent. This Agreement, the other
Fundamental Documents, and all other documents, instruments, and
agreements referred to herein or therein constitute the entire
agreement of the parties hereto relating to the subject matter
hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter
hereof. Delivery of an executed counterpart of a signature page
of this Agreement or of any other Fundamental Document by
telecopy transmission shall constitute effective and binding
execution and delivery of this Agreement or such other
Fundamental Document, as the case may be.
SECTION 10.11. Confidentiality. Each Bank agrees
(which agreement shall survive the termination of this Agreement)
that financial information, information from the Borrower's books
and records, information concerning the Borrower's trade secrets
and patents and any other information received from the Borrower
hereunder and designated in writing as confidential shall be
treated as confidential by such Bank, and each Bank agrees to use
its best efforts to ensure that such information is not
published, disclosed or otherwise divulged to anyone other than
employees or officers of such Bank and its counsel and agents
with a need to know such information and who have been informed
of the confidentiality hereunder (as reasonably determined by
such Bank); provided that it is understood that the foregoing
shall not apply to:
(i) disclosure made with the prior written
authorization of the Borrower;
(ii) disclosure of information (other than that
received from the Borrower prior to or under this Agreement)
already known by, or in the possession of such Bank without
restrictions on the disclosure thereof at the time such
information is supplied to such Bank by the Borrower
hereunder;
(iii) disclosure of information which is required by
applicable law or to a governmental agency having
supervisory authority over any party hereto;
(iv) disclosure of information in connection with any
suit, action or proceeding in connection with the
enforcement of rights hereunder or in connection with the
transactions contemplated hereby;
(v) disclosure to any bank (or other financial
institution) which may acquire a participation or other
interest in the Loans or rights of any Bank hereunder;
provided that such bank (or other financial institution)
agrees to maintain any such information to be received in
accordance with the provisions of this Section 10.11;
(vi) disclosure by any party hereto to any other party
hereto or their counsel or agents with a need to know such
information (as reasonably determined by such party);
D4
(vii) disclosure by any party hereto to any entity, or
to any subsidiary of such an entity, which owns, directly or
indirectly, more than 50% of the voting stock of such party,
or to any subsidiary of such an entity; or
(viii) disclosure of information that prior to such
disclosure has been public knowledge through no violation of
this Agreement.
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 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.
D4
SECTION 10.14. Co-Documentation and Co-Syndication
Agents. The Co-Syndication Agents and the Co-Documentation
Agents do not assume any responsibility or obligation under this
Agreement or any of the other Fundamental Documents or any duties
as agents for the Banks. The titles "Co-Syndication Agent" and
"Co-Documentation Agent" imply no fiduciary or similar
responsibility on the part of either of the Co-Syndication Agents
or either of the Co-Documentation Agents to any Person and the
use of such titles does not impose upon the Co-Syndication Agents
or the Co-Documentation Agents any duties or obligations under
this Agreement or any of the other Fundamental Documents.
[THIS AGREEMENT CONTINUES ON THE NEXT PAGE]
D4
1021321
[SIGNATURE PAGE 1 OF __
TO FACILITY B FIVE-YEAR COMPETITIVE ADVANCE, REVOLVING CREDIT AND
GUARANTY AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
D4
EXHIBIT 4.3(b)
FACILITY A 364-DAY
COMPETITIVE ADVANCE, REVOLVING CREDIT
AND GUARANTY AGREEMENT
dated as of
May 25, 2001
among
DENTSPLY INTERNATIONAL INC., as Borrower,
THE GUARANTORS NAMED HEREIN,
THE BANKS NAMED HEREIN,
ABN AMRO BANK N.V., as Administrative Agent and
Arranger and Bookrunner
and
CREDIT SUISSE FIRST BOSTON and FIRST UNION NATIONAL BANK and
BANK OF TOKYO-MITSUBISHI TRUST HARRIS TRUST AND SAVINGS BANK,
COMPANY, as Co-Syndication Agents as Co-Documentation Agents
===================================================================
D5
TABLE OF CONTENTS
Page
INTRODUCTORY STATEMENT............................................1
ARTICLE I Definitions............................................1
SECTION 1.01. Definitions..................................1
SECTION 1.02. Accounting Terms and Determinations..........14
SECTION 1.03. Exchange Rates..............................14
ARTICLE II Loans.................................................15
SECTION 2.01. Commitments.................................15
SECTION 2.02. Loans.......................................15
SECTION 2.03. Use of Proceeds.............................16
SECTION 2.04. Competitive Bid Procedure...................16
SECTION 2.05. Revolving Credit Borrowing Procedure........18
SECTION 2.06. [RESERVED]..................................19
SECTION 2.07. Fees........................................19
SECTION 2.08. Notes; Repayment of Loans...................20
SECTION 2.09. Interest on Loans...........................20
SECTION 2.10. Interest on Overdue Amounts.................21
SECTION 2.11. Alternate Rate of Interest..................21
SECTION 2.12. Termination, Reduction, Increase and
Extension of Commitments..............................21
SECTION 2.13. Prepayment of Loans.........................23
SECTION 2.14. Eurodollar Reserve Costs....................24
SECTION 2.15. Reserve Requirements; Change in Circumstances24
SECTION 2.16. Change in Legality..........................25
SECTION 2.17. Indemnity...................................26
SECTION 2.18. Pro Rata Treatment..........................26
SECTION 2.19. Right of Setoff.............................27
SECTION 2.20. Sharing of Setoffs..........................27
SECTION 2.21. Payments....................................27
SECTION 2.22. United States Withholding...................28
SECTION 2.23. Participations; Assignments.................29
SECTION 2.24. Taxes.......................................33
ARTICLE III..........................Representations and Warranties
33
SECTION 3.01. Organization; Corporate Powers..............33
SECTION 3.02. Authorization...............................34
SECTION 3.03. Enforceability..............................34
SECTION 3.04. Governmental Approvals......................34
SECTION 3.05. Financial Statements and Condition..........34
SECTION 3.07. Reserved....................................34
SECTION 3.07. Title to Properties.........................34
SECTION 3.08. Litigation..................................35
SECTION 3.09. Tax Returns.................................35
D5
SECTION 3.10. Agreements..................................35
SECTION 3.11. Employee Benefit Plans......................35
SECTION 3.12. Investment Company Act; Public Utility
Holding Company Act;
Federal Power Act.....................................36
SECTION 3.13. Federal Reserve Regulations.................36
SECTION 3.14. Defaults; Compliance with Laws..............36
SECTION 3.15. Use of Proceeds.............................37
SECTION 3.16. Affiliated Companies........................37
SECTION 3.17. Environmental Liabilities...................37
SECTION 3.18. Disclosure..................................38
SECTION 3.19. Insurance...................................38
ARTICLE IV Conditions of Lending.................................38
SECTION 4.01. All Borrowings..............................38
SECTION 4.02. Closing Date................................39
ARTICLE V Affirmative Covenants.................................40
SECTION 5.01. Corporate Existence.........................40
SECTION 5.02. Maintenance of Property.....................40
SECTION 5.03. Insurance...................................40
SECTION 5.04. Obligations and Taxes.......................41
SECTION 5.05. Financial Statements; Reports, etc..........41
SECTION 5.06. Defaults and Other Notices..................42
SECTION 5.07. ERISA.......................................42
SECTION 5.08. Access to Premises and Records..............43
SECTION 5.09. Compliance with Laws, etc...................43
SECTION 5.10. Security Interests..........................43
SECTION 5.11. Subsidiary Guarantors.......................43
SECTION 5.12. Environmental Laws..........................44
SECTION 5.13. Senior Debt Status..........................44
ARTICLE VI Negative Covenants....................................45
SECTION 6.01. Liens.......................................45
SECTION 6.02. Indebtedness................................46
SECTION 6.03. Mergers, Consolidations, Sales of Assets and
Acquisitions..........................................46
SECTION 6.04. Change of Business..........................47
SECTION 6.05. Transactions with Affiliates................47
SECTION 6.06. Sale and Leaseback..........................47
SECTION 6.07. Dividends by Subsidiaries...................48
SECTION 6.08. Amendments to Certain Documents.............48
SECTION 6.09. Minimum Consolidated Net Worth..............48
SECTION 6.10. Interest Coverage...........................48
SECTION 6.11. Debt Ratio..................................48
SECTION 6.12. Fiscal Year.................................48
D5
ARTICLE VII.Events of Default....................................48
ARTICLE VIII GUARANTY.........................................51
SECTION 8.01. Guarantee...................................
SECTION 8.02. No Impairment of Guaranty...................52
SECTION 8.03. Continuation and Reinstatement, etc.........52
SECTION 8.04. Payment, etc................................52
SECTION 8.05. Benefit to Guarantors.......................52
SECTION 8.06. Modification to Conform to Law..............53
SECTION 8.07. Additional Guarantors.......................53
ARTICLE IX Administrative Agent..................................53
SECTION 9.01. Appointment of Administrative Agent.........53
SECTION 9.02. Exculpation.................................54
SECTION 9.03. Consultation with Counsel...................54
SECTION 9.04. The Administrative Agent, Individually......54
SECTION 9.05. Reimbursement and Indemnification...........54
SECTION 9.06. Resignation.................................55
ARTICLE X Miscellaneous.........................................55
SECTION 10.01. Notices....................................55
SECTION 10.02. No Waivers; Amendments.....................55
SECTION 10.03. Applicable Law; Submission to Jurisdiction;
Service of Process; Waiver of Jury Trial..............56
SECTION 10.04. Expenses; Documentary Taxes................56
SECTION 10.05. Indemnity..................................57
SECTION 10.06. Successors and Assigns.....................57
SECTION 10.07. Survival of Agreements, Representations and
Warranties, etc.......................................57
SECTION 10.08. Severability...............................57
SECTION 10.09. Cover Page and Section Headings............58
SECTION 10.10. Counterparts, Integration, Telecopy
Signatures............................................58
SECTION 10.11. Confidentiality............................58
SECTION 10.12. Conversion of Currencies...................59
SECTION 10.13. European Monetary Union...................59
SECTION 10.14. Documentation and Syndication Agents......59
D5
EXHIBITS
A-1 Form of Competitive Bid Request
A-2 Form of Notice of Competitive Bid Request
A-3 Form of Competitive Bid
A-4 Form of Competitive Bid Accept/Reject Letter
A-5 Form of Revolving Credit Borrowing Request
B-1 Form of Competitive Note
B-2 Form of Revolving Credit Note
C Form of Contribution Agreement
D Form of Opinion of Brian M. Addison, Esq.
E Form of Assignment and Acceptance
F Form of Draft Intercreditor Agreement
G Form of Joinder and Assumption Agreement
H Form of Compliance Certificate
SCHEDULES
1.01 Guarantors
2.01 Commitments, Addresses for Notices
3.16 Affiliates
3.17 Environmental Liabilities
4.02 Consents
6.01 Liens
D5
THIS FACILITY A 364-DAY COMPETITIVE ADVANCE, REVOLVING
CREDIT AND GUARANTY AGREEMENT dated as of May 25, 2001, is made
by and among DENTSPLY INTERNATIONAL INC., a Delaware corporation
(the "Borrower"), the Guarantors (as hereinafter defined), the
Banks from time to time party hereto (individually a "Bank" and
collectively the "Banks"), ABN AMRO BANK N.V., as Administrative
Agent for the Banks (the "Administrative Agent") and arranger and
bookrunner, and CREDIT SUISSE FIRST BOSTON and BANK OF
TOKYO-MITSUBISHI TRUST COMPANY, as Co-Syndication Agents (the
"Co-Syndication Agents"), and FIRST UNION NATIONAL BANK and HARRIS
TRUST AND SAVINGS BANK, as Co-Documentation Agents (the
"Co-Documentation Agents").
INTRODUCTORY STATEMENT
All terms not otherwise defined herein are as defined in
Article I hereof.
The Borrower has requested that the Banks extend credit to
the Borrower in order to enable the Borrower to borrow on a
standby revolving credit basis a principal amount not in excess
of $250,000,000 at any time outstanding.
The Borrower has also requested that the Banks provide a
procedure pursuant to which the Borrower may invite the Banks to
bid on an uncommitted basis on short-term borrowings by the
Borrower.
The proceeds of all such borrowings are to be used (a) to
refinance outstanding Indebtedness of the Borrower under that
364-Day Competitive Advance, Revolving Credit and Guaranty
Agreement dated as of October 23, 1997, as amended, modified, and
supplemented through the date hereof, among the Borrower, the
guarantors and banks, party thereto, and The Chase Manhattan
Bank, as Agent, and ABN AMRO Bank N.V., as Documentation Agent,
(b) for general working capital and corporate purposes, including
acquisitions in the industry of Borrower or any of its Material
Subsidiaries, and (c) to facilitate borrowings by offshore
Subsidiaries.
To provide assurance for the repayment of the Loans and all
related interest, fees, charges, expenses, reimbursement
obligations and other amounts payable with respect thereto, the
Guarantors will guaranty the Obligations pursuant to Article VIII
hereof.
Accordingly, the Borrower, the Guarantors, the Banks and the
Administrative Agent agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. As used in this Agreement,
the following words and terms shall have the respective meanings
specified below:
D5
"ABR Borrowing" shall mean a Borrowing comprised of ABR
Loans.
"ABR Loan" shall mean any Revolving Credit Loan bearing
interest at a rate determined by reference to the Alternate Base
Rate in accordance with the provisions of Article II.
"Administrative Agent" shall mean ABN AMRO Bank N.V.,
in its capacity as agent for the Banks hereunder and not in its
individual capacity as a Bank, or such successor Administrative
Agent as may be appointed pursuant to Section 9.06.
"Affiliate" shall mean, with respect to the person in
question, (a) any person (including any member of the immediate
family of any such natural person) which (i) directly or
indirectly beneficially owns or controls 10% or more of the total
voting power of shares of capital stock having the right to vote
for directors under ordinary circumstances (if such person is a
corporation), (ii) is a general partner (if such person is a
partnership) or (iii) is otherwise empowered, by contract, voting
trust or otherwise, to direct the business or affairs of such
person, (b) any person controlling, controlled by or under common
control with any such person (within the meaning of Rule 405
under the Securities Act of 1933), and (c) any director, general
partner or executive officer of any such person.
"Agreement" shall mean this Facility A 364-Day
Competitive Advance, Revolving Credit and Guaranty Agreement
dated as of May 25, 2001, among DENTSPLY International Inc., as
Borrower, the Guarantors (as hereinafter defined), the Banks from
time to time party hereto, ABN AMRO Bank N.V., as Administrative
Agent and arranger and bookrunner, and 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, as the same may be
amended, modified or supplemented from time to time.
"Alternate Base Rate" shall mean for any day, a rate
per annum (rounded upwards, if not already a whole multiple of
1/16 of 1%, to the next higher 1/16 of 1%) equal to the greatest
of (a) the Prime Rate in effect on such day or (b) the Federal
Funds Effective Rate in effect for such day plus 1/2 of 1%. For
purposes hereof, the term "Prime Rate" shall mean the rate per
annum announced by ABN AMRO Bank N.V. from time to time as its
prime rate in effect at its principal office in Chicago,
Illinois; each change in the Prime Rate shall be effective on the
date such change is announced as effective. "Federal Funds
Effective Rate" shall mean, for any period, a fluctuating
interest rate per annum equal for each day during such period to
the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged
by federal funds brokers, as published on the succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is
not so published for any day which is a Business Day, the average
of the quotations for the day of such transactions received by
the Administrative Agent from three federal funds brokers of
recognized standing selected by it. Any change in the Alternate
Base Rate due to a change in the Federal Funds Effective Rate
shall be effective on the effective date of such change in the
Federal Funds Effective Rate. If for any reason the
Administrative Agent shall have determined (which determination
shall be conclusive absent manifest error) that it is unable to
ascertain the Federal Funds Effective Rate for any reason,
including the inability or failure of the Administrative Agent to
obtain sufficient publications or quotations in accordance with
the terms hereof, the Alternate Base Rate shall be the Prime Rate
until the circumstances giving rise to such inability no longer
exist.
D5
"Alternate Currency" means, with respect to any Loan,
the euro, British Pounds Sterling, Swiss Francs, Deutsche Marks
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.
"Applicable Commitment Percentage" means, with respect
to any Bank, the percentage of the total Commitments represented
by such Bank's Commitment. If the Commitments have terminated or
expired, the Applicable Commitment Percentages shall be
determined based upon the Commitments most recently in effect,
giving effect to any assignments.
"Applicable Percentage" shall mean on any date, with
respect to the Facility Fee or the Usage Fee or the Loans
comprising any LIBOR Revolving Credit Borrowing, as the case may
be, the corresponding applicable percentage set forth in the
table below based upon the Debt Rating of the Borrower
(determined in accordance with Section 2.09(e)):
----------------------------------------------------
Facility LIBOR: Usage
Debt Rating: Fee: Applicable Fee:
S&P and Moody's Applicable Percentage Applicable
Respectively Percentage Percentage
----------------------------------------------------
----------------------------------------------------
A or above, or A2 7.5 32.5 10.0
or above
----------------------------------------------------
----------------------------------------------------
A- or A3 8.0 42.0 12.5
----------------------------------------------------
----------------------------------------------------
BBB+ or Baa1 10.0 52.5 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
----------------------------------------------------
For purposes of determining the Applicable Percentage:
(a) If a difference exists in the Debt Ratings of
Moody's and Standard & Poor's, the higher of such Debt Ratings
will determine the relevant pricing level,
(b) Any change in the Applicable Percentage shall
become effective five (5) Business Days after any public
announcement of the change in the Debt Rating.
"Assignment and Acceptance" shall mean an agreement in
the form of Exhibit E hereto entered into pursuant to
Section 2.23, executed by the assignor, assignee and other parties
as contemplated thereby.
D5
"Bank" and "Banks" shall mean the financial
institutions listed on Schedule 2.01 and any assignee of a Bank
pursuant to Section 2.23(b) or (c).
"Board" shall mean the Board of Governors of the
Federal Reserve System of the United States.
"Borrowing" shall mean a group of Loans of a single
Interest Rate Type made by the Banks (or in the case of a
Competitive Borrowing, by the Bank or Banks whose Competitive
Bids have been accepted pursuant to Section 2.04) on a single
date and as to which a single Interest Period is in effect.
"Business Day" shall mean any day not a Saturday,
Sunday or legal holiday in the States of Illinois or New York or
the Commonwealth of Pennsylvania on which banks and the Federal
Reserve Bank of New York are open for business in New York City;
provided, however, that when used in connection with a LIBOR Loan
the term "Business Day" shall also exclude any day on which banks
are not open for dealings in deposits in the relevant currency in
the London interbank market and when used in connection with a
LIBOR Loan denominated in euro, the term "Business Day" shall
also exclude any day which is not a TARGET Day.
"Calculation Date" shall mean the last Business Day of
each calendar quarter, provided that during the continuance of an
Event of Default, "Calculation Date" shall mean each Business Day
during which such Event of Default continues to exist.
"Capitalized Lease Obligations" shall mean any
obligation of a Person as lessee of any property (real, personal
or mixed), which, in accordance with generally accepted
accounting principles, is or should be accounted for as a capital
lease on the balance sheet of such Person.
"Change in Law" means (a) the adoption of any law,
rule, or regulation after the date of this Agreement, (b) any
change in any law, rule, or regulation or in the interpretation
or application thereof by any Governmental Authority after the
date if this Agreement or (c) compliance by any Bank or the
Issuing Bank (or for purposes of Section 2.16(b), by any lending
office of such Bank or by such Bank's or the Issuing Bank's
holding company, if any) with any request, guideline, or
directive (whether or not having the force of law) of any
Governmental Authority made or issued after the date of this
Agreement.
"Closing Date" shall mean the date of the first
Borrowing under the Facility B Credit Agreement.
"Code" shall mean the Internal Revenue Code of 1986, as
the same shall be amended from time to time.
"Commitment" shall mean, with respect to each Bank, the
commitment of such Bank hereunder as initially set forth on
Schedule 2.01 (and thereafter on Schedule 2.01 to the most recent
Assignment and Acceptance) as such Bank's Commitment may be
permanently terminated, reduced, increased or extended from time
to time pursuant to Section 2.12. Subject to Section 2.12, the
Commitments shall automatically and permanently terminate on the
Maturity Date.
"Competitive Bid" shall mean an offer by a Bank to make
a Competitive Loan pursuant to Section 2.04.
D5
"Competitive Bid Accept/Reject Letter" shall mean a
notification made by the Borrower pursuant to Section 2.04(d) in
the form of Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any
Competitive Bid made by a Bank pursuant to Section 2.04(b),
(a) in the case of a LIBOR Loan, the Margin and (b) in the case of
a Fixed Rate Loan, the fixed rate of interest offered by the Bank
making such Competitive Bid.
"Competitive Bid Request" shall mean a request made
pursuant to Section 2.04 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a borrowing
consisting of a Competitive Loan or concurrent Competitive Loans
from the Bank or Banks whose Competitive Bids for such Borrowing
have been accepted by the Borrower under the bidding procedure
described in Section 2.04.
"Competitive Loan" shall mean a Loan from a Bank to the
Borrower pursuant to the bidding procedure described in
Section 2.04. Each Competitive Loan shall be a LIBOR Competitive
Loan or a Fixed Rate Loan.
"Competitive Loan Exposure" shall mean, with respect to
any Bank at any time, the aggregate principal amount of the
outstanding Competitive Loans of such Bank.
"Competitive Note" shall mean a promissory note of the
Borrower in the form of Exhibit B-1 executed and delivered as
provided in Section 2.08.
"Consolidated" shall mean, as applied to any financial
or accounting term, such term determined on a consolidated basis
in accordance with generally accepted accounting principles
(except as otherwise required herein) for the Borrower and each
Subsidiary which is a Consolidated Subsidiary of the Borrower.
"Consolidated EBITDA" shall mean for any period
"Operating income" as set forth in the DENTSPLY International
Inc. Consolidated Statements of Income, plus depreciation and
amortization (to the extent previously deducted), determined in
accordance with generally accepted accounting principles and in a
manner consistent with the accounting principles used to prepare
the audited DENTSPLY International Inc. Consolidated Statements
of Income for the year ended December 31, 2000, and delivered to
the Administrative Agent; provided that there shall be excluded:
(a) the income (or loss) from operations of any
person, accrued prior to the date it becomes a Subsidiary or
is merged into or consolidated with the person whose income
is being determined or a subsidiary of such person; and
(b) the income (or loss) from operations of any person
(other than a Subsidiary) in which the person whose
operating income is being determined or any subsidiary of
such person has an ownership interest, except to the extent
that any such income has actually been received by such
person in the form of cash dividends or similar
distributions.
"Consolidated Interest Coverage Ratio" shall mean, in
respect of any fiscal period of the Borrower, (a) Consolidated
EBITDA divided by (b) Consolidated Interest Expense.
D5
"Consolidated Interest Expense" shall mean, for any
fiscal period of the Borrower, without duplication of expense
among fiscal periods (a) the aggregate amount determined on a
Consolidated basis of (i) all interest on Indebtedness of the
Borrower and its Consolidated Subsidiaries accrued during such
period, (ii) all rentals imputed as interest accrued under
Capitalized Lease Obligations during such period by such person
and (iii) all amortization of discount and expense relating to
Indebtedness of the Borrower and its Consolidated Subsidiaries
which amortization was accounted for during such period,
(b) adjusted downward for capital gains and upward for capital
losses on maturing U.S. Treasury obligations and (c) adjusted
downward for interest income (to the extent not previously
excluded), as determined in accordance with generally accepted
accounting principles.
"Consolidated Net Income" shall mean the net income (or
net loss) of the Borrower and its Consolidated Subsidiaries for
the period in question (taken as a whole), as determined in
accordance with generally accepted accounting principles;
provided that there shall be excluded:
(a) the net income (or net loss) of any person,
accrued prior to the date it becomes a Subsidiary or is merged
into or consolidated with the person whose net income is being
determined or a subsidiary of such person; and
(b) the net income (or net loss) of any person (other
than a Subsidiary) in which the person whose net income is being
determined or any subsidiary of such person has an ownership
interest, except to the extent that any such income has actually
been received by such person in the form of cash dividends or
similar distributions.
"Consolidated Net Worth" shall mean, as at any date of
determination, the sum of the capital stock (less treasury stock)
and additional paid-in capital plus retained earnings (or minus
accumulated deficit) of the Borrower and its Consolidated
Subsidiaries on a Consolidated basis.
"Consolidated Subsidiary" means, in the case of the
Borrower at any date, any Subsidiary or other entity the accounts
of which are Consolidated with those of the Borrower in the
Consolidated financial statements of the Borrower as of such date.
"Consolidated Total Capitalization" shall mean the sum
of (a) Consolidated Total Indebtedness and (b) Consolidated Net
Worth.
"Consolidated Total Indebtedness" shall mean the
Consolidated Indebtedness of the Borrower and its Consolidated
Subsidiaries.
"Contribution Agreement" shall mean a Contribution
Agreement among the Borrower and the Guarantors substantially in
the form of Exhibit C hereto.
"Credit Exposure" means, in respect of any Bank, the
sum of such Bank's Revolving Credit Exposure and its Competitive
Loan Exposure.
"Debt Rating" shall mean the rating by each of Standard
& Poor's and Moody's of the Borrower's senior unsecured long-term
debt which is not guarantied by any Person or subject to any
other credit enhancement.
D5
"Debt Ratio" shall mean the ratio of Consolidated Total
Indebtedness to Consolidated Total Capitalization.
"Default" shall mean an Event of Default or any event,
act or condition which with notice or lapse of time, or both,
would constitute an Event of Default.
"Des Plaines Lease" shall mean the Amended and Restated
Sale and Leaseback Agreement, dated as of August 1, 1991 between
McDonough Partners I as Buyer and Midwest Dental Products
Corporation, as Seller.
"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 amount in Dollars which is equivalent to 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.
"Dollars", "dollars" and the symbol "$" shall mean the
lawful currency of the United States of America.
"Effective Date" shall mean the date on which the
conditions to borrowing set forth in Sections 4.01 and 4.02 are
first satisfied.
"Environmental Laws" shall mean all statutes,
ordinances, orders, rules and regulations relating to
environmental matters, including those relating to fines, orders,
injunctions, penalties, damages, contribution, cost recovery
compensation, losses or injuries resulting from the release or
threatened release of Hazardous Materials and to the generation,
use, storage, transportation, or disposal of Hazardous Materials
or in any manner applicable to the Borrower or any of the
Subsidiaries or any of their respective properties, including the
Comprehensive Environmental Response, Compensation, and Liability
Act (42 U.S.C. ss. 9601 et seq.), the Hazardous Material
Transportation Act (49 U.S.C. ss. 1801 et seq.), the Resource
Conservation and Recovery Act (42 U.S.C.ss. 6901 et seq.), the
Federal Water Pollution Control Act (33 U.S.C.ss. 1251 et seq.),
the Clean Air Act (42 U.S.C. ss. 7401 et seq.), the Toxic
Substances Control Act (15 U.S.C. ss. 2601 et seq.), the
Occupational Safety and Health Act (29 U.S.C.ss. 651 et seq.) and
the Emergency Planning and Community Right-to-Know Act (42 U.S.C.
ss. 11001 et seq.), each as amended or supplemented, and any
analogous current or future federal, state or local statutes and
regulations promulgated pursuant thereto.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as the same may from time to time be
amended.
"ERISA Affiliate" shall mean with respect to the
Borrower, any trade or business (whether or not incorporated)
which is a member of a group of which the Borrower is a member
and which is under common control within the meaning of
Section 414 of the Code.
"ESOP" shall mean the DENTSPLY Employee Stock Ownership
Plan effective as of December 1, 1982 and restated as of
January 1, 1991.
D5
"Event of Default" shall mean any of the events
described in clauses (a) through (m) of Article VII.
"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 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.
"Execution Date" shall mean the date of this Agreement.
"Facility B Credit Agreement" shall mean the
$250,000,000, Facility B Five-Year Competitive Advance, Revolving
Credit and Guaranty Agreement dated as of the date hereof among
the Borrower, the guarantors, the banks party thereto, ABN AMRO
Bank N.V., as administrative agent and arranger and bookrunner,
and 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, as
amended, modified and supplemented from time to time.
"Facility Fee" shall have the meaning given such term
in Section 2.07 hereof.
"Fee Letter" shall mean that letter, dated as of March
19, 2001, given by Administrative Agent to, and executed by,
Borrower, as amended, modified, and supplemented from time to
time.
"Financial Officer" of any person shall mean its Senior
Vice President-Chief Financial Officer, Treasurer or Controller.
"Fixed Rate Borrowing" shall mean a Borrowing comprised
of Fixed Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan
bearing interest at a fixed percentage rate per annum (expressed
in the form of a decimal to no more than four decimal places)
specified by the Bank making such Loan in its Competitive Bid.
"Fundamental Documents" shall mean this Agreement, the
Contribution Agreement, the Competitive Notes, the Revolving
Credit Notes, and the Fee Letter.
"Governmental Authority" shall mean any federal, state,
municipal or other governmental department, commission, board,
bureau, agency or instrumentality, or any central bank or court,
in each case whether of the United States or other jurisdiction,
or any political subdivision thereof.
D5
"Guarantors" shall mean all Material Subsidiaries which
are incorporated in the United States, all of which are listed on
Schedule1.01, and any other Subsidiaries of the Borrower which
become Guarantors pursuant to Section 5.11.
"Guaranty", "Guarantied" or to "Guaranty" as applied to
any obligation shall mean and include (a) a guaranty (other than
by endorsement of negotiable instruments for collection in the
ordinary course of business), directly or indirectly, in a
manner, of any part (to the extent of such part) or all of such
obligation and (b) an agreement, direct or indirect, contingent
or otherwise, and whether or not constituting a guaranty, the
intention or practical effect of which is to assure the payment
or performance (or payment of damages or compensation in the
event of nonperformance) of any part (to the extent of such part)
or all of such obligation whether by (i) the purchase of
securities or obligations, (ii) the purchase, sale or lease (as
lessee or lessor) of property or the purchase or sale of services
primarily for the purpose of enabling the obligor with respect to
such obligation to make any payment or performance (or payment of
damages or compensation in the event of nonperformance) of or on
account of any part or all of such obligation, or to assure the
owner of such obligation against loss, (iii) the supplying of
funds to or in any other manner investing in the obligor or any
other person with respect to or on account of such obligation,
(iv) repayment of amounts drawn by beneficiaries of letters of
credit or arising out of the import of goods or (v) the
indemnifying or holding harmless, in any way, of a person against
any part (to the extent of such part) or all of such person's
obligation under a Guaranty except for hold harmless agreements
with vendors with respect to product liability and warranties to
customers.
"Hazardous Materials" shall mean any hazardous
substances or wastes as such terms are defined in any applicable
Environmental Law, including (a) oil, petroleum and any
by-product thereof and (b) asbestos and asbestos-containing
material.
"Indebtedness" shall mean, with respect to any person
(a) all obligations of such person for borrowed money or with
respect to bankers' acceptances, deposits, or advances of any
kind, (b) all obligations of such person evidenced by bonds,
debentures, notes or other similar instruments, (c) all
obligations of such person upon which interest charges are
customarily paid, except for debt obligations of any Subsidiary
of Borrower located in Brazil which are related to foreign
accounts receivable sold to certain banks, (d) all obligations of
such person for the deferred purchase price of property or
services (except (i) accounts payable to suppliers incurred in
the ordinary course of business and paid within one year,
(ii) non-interest-bearing notes payable to suppliers incurred in
the ordinary course of business and having a maturity date not
later than one year after the date of issuance thereof, and
(iii) payroll and other accruals arising in the ordinary course of
business), (e) all obligations of such person under conditional
sale or other title retention agreements relating to property
purchased by such person, (f) all Capitalized Lease Obligations,
including obligations arising from sale and leaseback
transactions which are required to be accounted for as
Capitalized Lease Obligations, (g) all Indebtedness of others
which is secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by)
a Lien on the property or assets of the person in question (the
amount of such Indebtedness taken into account for the purposes
of this clause (g) not to exceed the book value of such property
or assets), (h) all Guaranties of such person, and (i) all
obligations of such person in respect of interest rate protection
agreements, foreign currency exchange agreements, or other
interest, exchange rate, or commodity hedging transactions (the
amount of such Indebtedness for purposes of this clause (i) to be
the termination value of such agreement or arrangement);
provided, however, that there shall be excluded from this
definition (x) Indebtedness between the Borrower and any domestic
Subsidiary and (y) Indebtedness between domestic Subsidiaries;
provided further, however, that any Indebtedness owed to a
domestic Subsidiary remaining outstanding after that Subsidiary
ceases to be a Subsidiary shall be included as Indebtedness
hereunder.
D5
"Intercreditor Agreement" shall mean an Intercreditor
Agreement, by and among the Administrative Agent on behalf of the
Banks and itself, The Prudential Insurance Company of America, on
behalf of Noteholders described therein, Borrower, and the
Guarantors, as the same may be amended, modified or supplemented
from time to time.
"Interest Payment Date" shall mean, with respect to any
Loan, the last day of the Interest Period applicable thereto and,
in the case of a LIBOR Loan with an Interest Period of more than
three months' duration or a Fixed Rate Loan with an Interest
Period of more than 90 days' duration, each day that would have
been an Interest Payment Date had successive Interest Periods of
three months' duration or 90 days' duration, as the case may be,
been applicable to such Loan, and, in addition, the date of any
continuation or conversion of the Interest Rate Type applicable
to such Loan with or to a Loan of a different Interest Rate Type.
"Interest Period" shall mean (a) as to any LIBOR
Borrowing, the period commencing on the date of such Borrowing or
on the last day of the immediately preceding Interest Period
applicable to such Borrowing, as the case may be, and ending on
the numerically corresponding day (or, if there is no numerically
corresponding day, on the last day) in the calendar month that is
1, 2, 3 or 6 months thereafter, as the Borrower may elect, (b) as
to any ABR Borrowing, the period commencing on the date of such
Borrowing and ending on the earliest of (i) the next succeeding
March 31, June 30, September 30 or December 31, (ii) the Maturity
Date and (iii) the date such Borrowing is continued or converted
to a Borrowing of a different Interest Rate Type in accordance
with Section 2.06 or prepaid in accordance with Section 2.13 and
(c) as to any Fixed Rate Borrowing, the period commencing on the
date of such Borrowing and ending on the date specified in the
Competitive Bids in which the offer to make the Fixed Rate Loans
comprising such Borrowing were extended, which shall not be
earlier than 7 days after the date of such Borrowing or later
than 360 days after the date of such Borrowing; provided,
however, that if any Interest Period would end on a day other than
a Business Day, such Interest Period shall be extended to the
next succeeding Business Day unless, in the case of LIBOR Loans
only, such next succeeding Business Day would fall in the next
calendar month, in which case such Interest Period shall end on
the next preceding Business Day. Interest shall accrue from and
including the first day of an Interest Period to but excluding
the last day of such Interest Period.
"Interest Rate Type", when used in respect of any Loan
or Borrowing, shall refer to the Rate by reference to which
interest on such Loan or on the Loans comprising such Borrowing
is determined. For purposes hereof, "Rate" shall mean LIBOR, the
Alternate Base Rate or the Fixed Rate, as applicable.
"Law" shall mean any law (including common law),
constitution, statute, treaty, regulation, rule, ordinance,
opinion, release, ruling, order, injunction, writ, decree, bond,
judgment, authorization or approval, lien or award of or
settlement agreement with any Governmental Authority.
"LIBOR" shall mean, with respect to any LIBOR Borrowing
for any Interest Period, an interest rate per annum (rounded
upwards, if necessary, to the next 1/16th of 1%) equal to the
rate at which deposits in the applicable currency approximately
equal in principal amount to (a) in the case of a Revolving
Credit Borrowing, the Administrative Agent's portion of such
LIBOR Borrowing and (b) in the case of a Competitive Borrowing, a
principal amount that would have been the Administrative Agent's
portion of such Competitive Borrowing had such Competitive
Borrowing been a Revolving Credit Borrowing, and for a maturity
comparable to such Interest Period are offered to the principal
London office of the Administrative Agent in immediately
available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.
"LIBOR Borrowing" shall mean a Borrowing comprised of
LIBOR Loans.
D5
"LIBOR Competitive Loan" shall mean any Competitive
Loan bearing interest at a rate determined by reference to LIBOR
in accordance with the provisions of Article II.
"LIBOR Loan" shall mean any LIBOR Competitive Loan or
LIBOR Revolving Credit Loan.
"LIBOR Revolving Credit Loan" shall mean any Revolving
Credit Loan bearing interest at a rate determined by reference to
LIBOR in accordance with the provisions of Article II.
"Lien" shall mean any mortgage, pledge, security
interest, encumbrance, lien or charge of any kind whatsoever
(including any conditional sale or other title retention
agreement, any lease in the nature thereof, and the filing or
agreement to give any financing statement under the Uniform
Commercial Code of any jurisdiction other than a financing
statement filed or given as a precautionary measure in respect of
a lease which is not required to be accounted for as a
Capitalized Lease Obligation and which does not otherwise secure
an obligation that constitutes Indebtedness).
"Loan" shall mean a Competitive Loan or a Revolving
Credit Loan, whether made as a LIBOR Loan, an ABR Loan or a Fixed
Rate Loan, as permitted hereby.
"Margin" shall mean, as to any LIBOR Competitive Loan,
the margin (expressed as a percentage rate per annum in the form
of a decimal to four decimal places) to be added to or subtracted
from LIBOR in order to determine the interest rate applicable to
such Loan, as specified in the Competitive Bid relating to such
Loan.
"Material Subsidiary" shall mean any Subsidiary
incorporated or otherwise organized in the United States (i) the
consolidated net income of which for the most recent fiscal year
of the Borrower for which audited financial statements have been
delivered pursuant to Section 5.05 were greater than or equal to
5% of Consolidated Net Income for such fiscal year, (ii) the
consolidated tangible assets of which as of the last day of the
Borrower's most recently ended fiscal year were greater than or
equal to 5% of the Borrower's consolidated tangible assets as of
such date or (iii) the net worth of which as of the last day of
the Borrower's most recently ended fiscal year was greater than
or equal to 5% of Consolidated Net Worth as of such date;
provided that, if at any time the aggregate amount of the
consolidated net income, consolidated tangible assets or
consolidated net worth of all Subsidiaries incorporated or
otherwise organized in the United States that are not Material
Subsidiaries exceeds 15% of consolidated net income for any such
fiscal year, 15% of the Borrower's consolidated tangible assets
as of the end of any such fiscal year or 15% of Consolidated Net
Worth for any such fiscal year, the Borrower (or, in the event
the Borrower has failed to do so within 10 days, the
Administrative Agent) shall designate as "Material Subsidiaries"
Subsidiaries incorporated or otherwise organized in the United
States sufficient to eliminate such excess, and such designated
Subsidiaries incorporated in the United States shall for all
purposes of this Agreement constitute Material Subsidiaries.
"Maturity Date" shall mean May 24, 2002 or such other
Maturity Date then in effect pursuant to Section 2.12(e).
"Moody's" shall mean Moody's Investors Service, Inc.
and its successors.
"Multiemployer Plan" shall mean a multiemployer plan as
defined in Section 4001(a)(3) of ERISA to which the Borrower or
any ERISA Affiliate of the Borrower is making or accruing an
obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make
contributions.
D5
"Multiple Employer Plan" shall mean a Plan which has
two or more contributing sponsors (including the Borrower or any
ERISA Affiliate) at least two of which are not under common
control, as such a Plan is described in Sections 4063 and 4064 of
ERISA.
"Notes" shall mean the Competitive Notes and the
Revolving Credit Notes.
"Obligations" shall mean the obligation of the Borrower
to make due and punctual payments of principal of and interest on
the Loans, the Facility Fee and all other monetary obligations of
the Borrower to the Administrative Agent or any Bank under this
Agreement, the Notes or the Fundamental Documents.
"PBGC" shall mean the Pension Benefit Guaranty
Corporation referred to and defined in ERISA.
"person" or "Person" shall mean any natural person,
corporation, trust, association, company, partnership, limited
liability company, joint venture or government, or any agency or
political subdivision thereof.
"Plan" shall mean any employee plan (including a
Multiple Employer Plan but not a Multiemployer Plan) which is
subject to the provisions of Title IV of ERISA and which is
maintained for employees of the Borrower or any ERISA Affiliate
of the Borrower.
"Pro Forma Basis" shall mean, in connection with an
acquisition or disposition by or merger involving the Borrower or
any Subsidiary, a computation of compliance with the requirements
of this Agreement for the immediately preceding four full fiscal
quarters or other relevant period assuming that such acquisition,
disposition or merger had occurred at the beginning of such
period. Such computation shall take into account the relevant
financial information with respect to the acquired, disposed of,
or merged entity for such period and shall assume that any
Indebtedness incurred in connection with such acquisition,
disposition or merger had been incurred at the beginning of such
period; provided, however, in order to avoid double-counting, it
is acknowledged that if the Borrower or any Subsidiary incurs
Indebtedness in connection with such a transaction and repays
Indebtedness of the acquired, disposed of or merged entity, the
Indebtedness so repaid shall not be included as Indebtedness of
such entity for such period.
"Prohibited Transaction" shall mean any prohibited
transaction as described in Section 4975 of the Code or Section
406 of ERISA for which neither an individual nor a class
exemption has been issued by the U.S. Department of Labor.
"Proposed Acquisition" shall mean that acquisition
reflected in the confidential projected income statement,
statement of cash flow, and balance sheet, dated as of May 9,
2001, and entitled, "Acquisition Consolidated," which has been
made available to the Banks and the Administrative Agent,
provided that in making the Proposed Acquisition, Borrower and
its Subsidiaries shall not violate Regulations T, U, or X and, to
the extent that any credit provided hereunder shall be utilized
to purchase or carry margin stock (as such terms are defined in
Regulation U) in connection with the Proposed Acquisition,
Borrower shall provide to the Administrative Agent such forms as
are required by Regulation U and the value of such margin stock,
together with all other margin stock, held by Borrower (if it is
making the acquisition) or of any Subsidiary which is making the
acquisition shall not exceed 25% of the value of the assets (as
such values are determined in accordance with Regulation U) of
the person making the acquisition; and, for purposes of Section
6.11, the Proposed Acquisition shall be deemed to occur on the
date on which an amount in excess of $1,000,000 (or its Dollar
Equivalent) is expended or committed to be expended by any one or
more of Borrower or any of its Subsidiaries in consideration of
such acquisition.
D5
"Reduction Date" shall have the meaning given in
Section 2.12(c) hereof.
"Register" shall be as defined in Section 2.23(e).
"Regulation D" shall mean Regulation D of the Board, as
the same is from time to time in effect, and all official rulings
and interpretations thereunder or thereof.
"Regulation T" shall mean Regulation T of the Board, as
the same is from time to time in effect, and all official rulings
and interpretations thereunder or thereof.
"Regulation U" shall mean Regulation U of the Board, as
the same is from time to time in effect, and all official rulings
and interpretations thereunder or thereof.
"Regulation X" shall mean Regulation X of the Board, as
the same is from time to time in effect, and all official rulings
and interpretations thereunder or thereof.
"Reportable Event" shall mean any reportable event as
defined in Section 4043(c) of ERISA or the regulations issued
thereunder.
"Required Banks" shall mean at any time Banks holding
(i) greater than 50% of the Commitments and (ii) greater than 50%
of the principal amount of Loans then outstanding; provided that
in order to terminate the Commitments or declare the Notes to be
forthwith due and payable pursuant to Article VII hereof,
"Required Banks" shall mean Banks holding greater than 50% of the
aggregate principal amount then outstanding of Credit Exposures.
"Reset Date" is defined at Section 1.03.
"Revolving Credit Borrowing" shall mean a Borrowing
consisting of simultaneous Revolving Credit Loans from each of
the Banks.
"Revolving Credit Borrowing Request" shall mean a
request made pursuant to Section 2.05 in the form of Exhibit A-5.
"Revolving Credit Exposure" shall mean, with respect to
any Bank at any time, the sum of (a) the outstanding Dollar
Equivalent 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.
"Revolving Credit Loans" shall mean the revolving loans
made by the Banks to the Borrower pursuant to Section 2.05. Each
Revolving Credit Loan shall be a LIBOR Revolving Credit Loan or
an ABR Loan.
"Revolving Credit Note" shall mean a promissory note of
the Borrower in the form of Exhibit B-2, executed and delivered
as provided in Section 2.08.
"Senior Officer" shall mean the Chairman, Vice
Chairman, President and Senior Vice Presidents of the Borrower.
"Standard & Poor's" and "S&P" shall mean Standard &
Poor's Rating Services, a division of The McGraw-Hill Companies,
Inc., and its successors.
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"Statutory Reserves" shall mean with respect to LIBOR,
a fraction (expressed as a decimal) the numerator of which is the
number one and the denominator of which is one minus the
aggregate of the maximum reserve requirements (including any
marginal, special, emergency or supplemental reserves)
established by the Board or any other banking authority to which
a Bank is subject for Eurocurrency Liabilities (as defined in
Regulation D). Such reserve percentages shall include those
imposed under Regulation D. LIBOR Loans shall be deemed to
constitute Eurocurrency Liabilities and as such shall be deemed
to be subject to such reserve requirements without benefit of or
credit for proration, exceptions or offsets which may be
available from time to time to any Bank under Regulation D.
Statutory Reserves shall be adjusted automatically on and as of
the effective date of any change in any reserve percentage.
"subsidiary" shall mean, with respect to any person,
any corporation, association or other business entity of which
more than 50% of the securities or other ownership interests
having ordinary voting power is, at the time of which any
determination is being made, owned or controlled by such person
or one or more subsidiaries of such person.
"Subsidiary" shall mean a subsidiary of the Borrower.
"TARGET Day" shall mean any day on which the
Trans-European Automated Real-time Gross Settlement Express
Transfer (TARGET) System (or, if such clearing system ceases to
be operative, such other clearing system (if any) determined by
the Administrative Agent to be a suitable replacement) is
operating.
"Total Commitment" shall mean the aggregate amount of
the Banks' Commitments, as in effect at such time.
"Withdrawal Liability" shall mean liability to a
Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are
defined in Part I of Subtitle E of Title IV of ERISA, or
liability to a Multiple Employer Plan pursuant to Section
4062(e), 4063, or 4064 of ERISA.
SECTION 1.02. Accounting Terms and Determinations.
All accounting terms not specifically defined herein shall be
construed in accordance with generally accepted accounting
principles and practices consistent in all material respects
(except for changes with which the Borrower's independent
auditors concur and as to which Borrower shall notify the
Administrative Agent in writing prior to the effectiveness
thereof) with those applied in the preparation of the financial
statements referred to in Section 3.05(a) (and references herein
to generally accepted accounting principles shall mean generally
accepted accounting principles as so applied) and all financial
data submitted pursuant to this Agreement shall be prepared in
accordance with such principles and practices, except as
otherwise expressed herein. The definitions in this Article I
shall apply equally to both the singular and plural forms of the
terms defined. Whenever the context may require, any pronoun
shall include the corresponding masculine, feminine and neuter
forms. The words "include", "includes" and "including" as used
in this Agreement and any Exhibit or Schedule hereto shall be
deemed in each case to be followed by the phrase "without
limitation".
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SECTION 1.03. 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.
ARTICLE II
LOANS
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 Maturity 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 Maturity 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.
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(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 15 separate Revolving Credit Loans of
any one Bank being outstanding hereunder at any one time. For
purposes of the calculation 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) 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 Chicago, Illinois,
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 as directed in writing from time to time by
Borrower, 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 12:00 noon,
New York City 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 as
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 in such currency. 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 and all Revolving Credit Loans
shall be due and payable on the Maturity Date.
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SECTION 2.03. Use of Proceeds. The proceeds of the
Loans shall be used to refinance outstanding Indebtedness of the
Borrower under that 364-Day Competitive Advance, Revolving Credit
and Guaranty Agreement dated as of October 23, 1997, as amended,
modified, and supplemented through the date hereof, among the
Borrower, the guarantors and banks, party thereto, and The Chase
Manhattan Bank, as Agent, and ABN AMRO Bank N.V., as
Documentation Agent, and for general working capital and
corporate purposes, including acquisitions in the industry of
Borrower or any of its Material Subsidiaries.
SECTION 2.04. Competitive Bid Procedure. (a) In
order to request Competitive Bids, the Borrower shall hand
deliver or telecopy (or deliver by comparable means) to the
Administrative Agent a duly completed Competitive Bid Request in
the form of Exhibit A-1, to be received by the Administrative
Agent (i) in the case of a LIBOR Competitive Borrowing, not later
than 11:00 a.m., New York City time, four Business Days before a
proposed Competitive Borrowing and (ii) in the case of a Fixed
Rate Borrowing, not later than 11:00 a.m., New York City time,
one Business Day before a proposed Competitive Borrowing. No ABR
Loan shall be requested in, or made pursuant to, a Competitive
Bid Request. A Competitive Bid Request that does not conform
substantially to the format of Exhibit A-1 may be rejected in the
Administrative Agent's sole discretion, and the Administrative
Agent shall promptly notify the Borrower of such rejection by
telecopier or in a comparable manner. Such request shall in each
case refer to this Agreement and specify (i) whether the
Borrowing then being requested is to be a LIBOR Borrowing or a
Fixed Rate Borrowing, (ii) the date of such Borrowing (which
shall be a Business Day) and the aggregate principal amount
thereof, which shall be in an aggregate amount that is at least
$5,000,000 and in an integral multiple of $1,000,000, and
(iii) the Interest Period with respect thereto (which may not end
after the Maturity Date). Promptly after its receipt of a
Competitive Bid Request that is not rejected as aforesaid, the
Administrative Agent shall invite by telecopier in the form set
forth in Exhibit A-2, or in a comparable manner, the Banks to
bid, on the terms and subject to the conditions of this
Agreement, to make Competitive Loans pursuant to the Competitive
Bid Request.
(b) Each Bank may, in its sole discretion, make one or
more Competitive Bids to the Borrower responsive to a Competitive
Bid Request. Each Competitive Bid by a Bank must be received by
the Administrative Agent via telecopier (or in a comparable
manner), in the form of Exhibit A-3, (i) in the case of a LIBOR
Competitive Borrowing, not later than 10:30 a.m., New York City
time, three Business Days before a proposed Competitive Borrowing
and (ii) in the case of a Fixed Rate Borrowing, not later than
10:30 a.m., New York City time, on the day of a proposed
Competitive Borrowing. Multiple bids will be accepted by the
Administrative Agent. Competitive Bids that do not conform
substantially to the format of Exhibit A-3 may be rejected by the
Administrative Agent after conferring with, and upon the
instruction of, the Borrower, and the Administrative Agent shall
notify the Bank making such nonconforming bid of such rejection
as soon as practicable. Each Competitive Bid shall refer to this
Agreement and specify (i) the principal amount (which shall be in
a minimum principal amount of $5,000,000 and in an integral
multiple of $1,000,000 and which may equal the entire principal
amount of the Competitive Borrowing requested by the Borrower) of
the Competitive Loan or Loans that the Bank is willing to make to
the Borrower, (ii) the Competitive Bid Rate or Rates at which the
Bank is prepared to make the Competitive Loan or Loans and
(iii) the Interest Period and the last day thereof. If any Bank
shall elect not to make a Competitive Bid, such Bank shall so
notify the Administrative Agent via telecopier or in a comparable
manner (i) in the case of LIBOR Competitive Loans, not later than
10:30 a.m., New York City time, three Business Days before a
proposed Competitive Borrowing and (ii) in the case of Fixed Rate
Loans, not later than 10:30 a.m., New York City time, on the day
of a proposed Competitive Borrowing; provided, however, that
failure by any Bank to give such notice shall not cause such Bank
to be obligated to make any Competitive Loan as part of such
Competitive Borrowing. A Competitive Bid submitted by a Bank
pursuant to this paragraph (b) shall be irrevocable.
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(c) The Administrative Agent shall promptly notify the
Borrower by telecopier, or in a comparable manner, of all the
Competitive Bids made, the Competitive Bid Rate and the principal
amount of each Competitive Loan in respect of which a Competitive
Bid was made and the identity of the Bank that made each bid.
The Administrative Agent shall send a copy of all Competitive
Bids to the Borrower for its records as soon as practicable after
completion of the bidding process set forth in this Section 2.04.
(d) The Borrower may in its sole and absolute
discretion, subject only to the provisions of this paragraph (d),
accept or reject any Competitive Bid referred to in paragraph (b)
above. The Borrower shall notify the Administrative Agent by
telephone, confirmed by telecopier, or in a comparable manner, in
the form of a Competitive Bid Accept/Reject Letter in the form of
Exhibit A-4, whether and to what extent it has decided to accept
or reject any of or all the bids referred to in paragraph (b)
above, (i) in the case of a LIBOR Competitive Borrowing, not
later than 11:30 a.m., New York City time, three Business Days
before a proposed Competitive Borrowing and (ii) in the case of a
Fixed Rate Borrowing, not later than 11:30 a.m., New York City
time, on the day of a proposed Competitive Borrowing; provided,
however, that (A) the failure by the Borrower to give such notice
shall be deemed to be a rejection of all the bids referred to in
paragraph (b) above, (B) the Borrower shall not accept a bid made
at a particular Competitive Bid Rate if the Borrower has decided
to reject a bid made at a lower Competitive Bid Rate, (C) the
aggregate amount of the Competitive Bids accepted by the Borrower
shall not exceed the principal amount specified in the
Competitive Bid Request, (D) if the Borrower shall accept a bid
or bids made at a particular Competitive Bid Rate but the amount
of such bid or bids shall cause the total amount of bids to be
accepted by the Borrower to exceed the amount specified in the
Competitive Bid Request, then the Borrower shall accept a portion
of such bid or bids in an amount equal to the amount specified in
the Competitive Bid Request less the amount of all other
Competitive Bids accepted at lower Competitive Bid Rates with
respect to such Competitive Bid Request (it being understood that
acceptance, in the case of multiple bids at such Competitive Bid
Rate, shall be made pro rata in accordance with the amount of
each such bid at such Competitive Bid Rate) and (E) except
pursuant to clause (D) above, no bid shall be accepted for a
Competitive Loan unless such Competitive Loan is in an aggregate
amount that is at least $5,000,000 and an integral multiple of
$1,000,000; provided further, however, that if a Competitive Loan
must be in an amount less than $5,000,000 because of the
provisions of clause (D) above, such Competitive Loan may be in
an aggregate amount that is at least $1,000,000 or any integral
multiple thereof, and in calculating the pro rata allocation of
acceptances of portions of multiple bids at a particular
Competitive Bid Rate pursuant to clause (D) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner that
shall be in the discretion of the Borrower. A notice given by
the Borrower pursuant to this paragraph (d) shall be irrevocable.
(e) The Administrative Agent shall promptly notify
each bidding Bank whether its Competitive Bid has been accepted
(and if so, in what amount and at what Competitive Bid Rate) by
telecopy, or in a comparable manner, sent by the Administrative
Agent, and each successful bidder will thereupon become bound,
subject to the other applicable conditions hereof, to make the
Competitive Loan in respect of which its bid has been accepted.
(f) A Competitive Bid Request shall not be made within
four Business Days after the date of any previous Competitive Bid
Request.
(g) If the Administrative Agent shall elect to submit
a Competitive Bid in its capacity as a Bank, it shall submit such
bid directly to the Borrower one quarter of an hour earlier than
the latest time at which the other Banks are required to submit
their bids to the Administrative Agent pursuant to paragraph (b)
above.
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(h) All notices required by this Section 2.04 shall be
given in accordance with Section 10.01.
(i) Notwithstanding any other provisions of this
Agreement, the Borrower shall not be entitled to request any
Competitive Borrowing if the Interest Period requested with
respect thereto would end after the Maturity Date and each
Competitive Borrowing shall be due and payable on the last day of
the Interest Period applicable thereto.
SECTION 2.05. Revolving Credit Borrowing Procedure.
In order to effect a Revolving Credit Borrowing or the
continuation or conversion of an Interest Rate Type applicable
thereto, the Borrower shall hand deliver or telecopy (or deliver
by comparable means) to the Administrative Agent a Borrowing
notice in the form of Exhibit A-5 (a) in the case of a LIBOR
Revolving Credit Borrowing or the continuation or conversion of
an Interest Rate Type applicable thereto, not later than 12:00
noon, New York City time, three Business Days before a proposed
Borrowing or before the last day of the Interest Period
applicable to a Revolving Credit Borrowing for which the Interest
Rate Type is to be continued or converted, 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 or LIBOR
Competitive 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, or the Borrowing with
respect to which the Interest Rate Type is being continued or
converted is, 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 or continuation or conversion (which shall be a
Business Day) and the amount thereof in Dollars (notwithstanding
that the request may be for a Borrowing in an Alternate Currency)
and (d) if such Borrowing is to be a LIBOR Revolving Credit
Borrowing or if the Borrowing with respect to which the Interest
Rate Type being continued or converted is 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 continue or convert the Interest Rate Type for 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 continue or convert, as the case
may be, such Borrowing as 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.
SECTION 2.06. [RESERVED].
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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 have been
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 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 the
Applicable Percentage from time to time in effect. 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 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 aggregate
Credit Exposure of all Banks shall be greater than fifty percent
(50%) of the total Commitments. 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).
(c) The Borrower agrees to pay the Administrative
Agent, for its own account, the fees provided for in the Fee
Letter.
(d) 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
D5
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 interest (computed on the basis of the
actual number of days elapsed over a year of 360 days, provided
that, for Loans comprising LIBOR Borrowings denominated in an
Alternate Currency for which a 365-day basis is the only market
practice available, interest shall be calculated on the basis of
a year of 365 or 366 days, as the case may be) 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.
(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 Applicable Percentage shall be determined
based upon the Debt Rating.
(f) Borrower may call Administrative Agent on or
before the date on which a Revolving Credit Borrowing Request is
to be delivered to receive an indication of the interest rates
and applicable Alternate Currency exchange rates then in effect,
but it is acknowledged that such indication shall not be binding
on Administrative Agent or the Banks nor affect the rate of
interest or the calculation of exchange rates which thereafter
are actually in effect when the request is made.
SECTION 2.10. Interest on Overdue Amounts. If the
Borrower shall default in the payment of the principal of or
interest on any Loan or any other amount becoming due hereunder,
the Borrower shall on demand from time to time pay interest, to
the extent permitted by law, on such defaulted amount up to (but
not including) the date of actual payment (after as well as
before judgment) at a rate per annum computed on the basis of the
actual number of days elapsed over a year of 365 or 366 days, as
applicable, in the case of amounts bearing interest determined by
reference to the Prime Rate (and a year of 360 days in all other
cases) equal to (a) in the case of any Loan, the rate applicable
to such Loan under Section 2.09 plus 2% per annum and (b) in the
case of any other amount, the rate that would at the time be
applicable to an ABR Loan under Section 2.09 plus 2% per annum.
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SECTION 2.11. Alternate Rate of Interest. In the
event, and on each occasion, that 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 or
comparable 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 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 2.12. Termination, Reduction, Increase and
Extension of Commitments. (a) The Commitments shall be
automatically terminated on the earlier of (i) the Maturity Date
or (ii) 30 days after the date hereof if the Closing Date has not
occurred.
(b) Subject to Section 2.13(b), upon at least three
Business Days' prior irrevocable written or telecopy notice to
the Administrative Agent, the Borrower may at any time in whole
permanently terminate, or from time to time in part permanently
reduce, the Total Commitment; provided, however, that (i) each
partial reduction of the Total Commitment shall be in an integral
multiple of $1,000,000 and in a minimum principal amount of
$10,000,000 and (ii) the Borrower shall not be entitled to make
any such termination or reduction that would reduce the Total
Commitment to an amount less than the aggregate outstanding
principal amount of the Competitive Loans.
(c) Each reduction in the Total Commitment hereunder
shall be made ratably among the Banks in accordance with their
respective Commitments. The Borrower shall pay to the
Administrative Agent for the account of the Banks on the date of
each termination or reduction (in the case of a reduction, the
"Reduction Date"), the Facility Fees on the amount of the
Commitments so terminated or reduced accrued to the date of such
termination or reduction.
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(d) The Borrower may from time to time, and
notwithstanding any prior reductions in the Total Commitment by
the Borrower, by notice to the Administrative Agent (which shall
promptly deliver a copy to each of the Banks), request that the
Total Commitment be increased by an amount that is not less than
$25,000,000 and will not result in the Total Commitment under
this Agreement and the Facility B Credit Agreement exceeding
$575,000,000 in the aggregate. Each such notice shall set forth
the requested amount of the increase in the Total Commitment and
the date on which such increase is to become effective (which
shall be not fewer than 20 days after the date of such notice),
and shall offer each Bank the opportunity to increase its
Commitment by its ratable share, based on the amounts of the
Banks' Commitments, of the requested increase in the Total
Commitment. Each Bank shall, by notice to the Borrower and the
Administrative Agent given not more than 15 Business Days after
the date of the Borrower's notice, either agree to increase its
Commitment by all or a portion of the offered amount or decline
to increase its Commitment (and any Bank that does not deliver
such a notice within such period of 15 Business Days shall be
deemed to have declined to increase its Commitment); provided,
however, that no Bank may agree to increase its Commitment
hereunder unless it shall have agreed to ratably increase its
Commitment under the Facility B Credit Agreement (if the
Facility B Credit Agreement is then in effect). In the event
that, on the 15th Business Day after the Borrower shall have
delivered a notice pursuant to the first sentence of this
paragraph, the Banks shall have agreed pursuant to the preceding
sentence to increase their Commitments by an aggregate amount
less than the increase in the Total Commitment requested by the
Borrower, the Borrower shall have the right to arrange for one or
more banks or other financial institutions (any such bank or
other financial institution being called an "Augmenting Bank"),
which may include any Bank, to extend Commitments or increase
their existing Commitments in an aggregate amount equal to all or
part of the unsubscribed amount; provided that each Augmenting
Bank, if not already a Bank hereunder, shall be subject to the
approval of the Borrower and the Administrative Agent (which
approval shall not be unreasonably withheld) and shall execute
all such documentation as the Administrative Agent shall specify
to evidence its status as a Bank hereunder. If (and only if)
Banks (including Augmenting Banks) shall have agreed to increase
their Commitments or to extend new Commitments in an aggregate
amount not less than $25,000,000, such increases and such new
Commitments shall become effective on the date specified in the
notice delivered by the Borrower pursuant to the first sentence
of this paragraph, and shall be deemed added to the Commitments
set forth in Schedule 2.01 hereof. Notwithstanding the
foregoing, no increase in the Total Commitment (or in the
Commitment of any Bank) shall become effective under this
paragraph unless, on the date of such increase, (i) the
conditions set forth in paragraphs (b) and (c) of Section 4.01
shall be satisfied (with all references in such paragraphs to a
Borrowing being deemed to be references to such increase) and the
Administrative Agent shall have received a certificate to that
effect dated such date and executed by a Financial Officer of the
Borrower and (ii) on the effective date of such increase the
Total Commitment under and as defined in the Facility B Credit
Agreement shall be proportionately increased (if the Facility B
Credit Agreement is then in effect) in accordance with the terms
of such Agreement. Following any increase in the Commitment of
any of the Banks pursuant to this paragraph, any Revolving Credit
Loans outstanding prior to the effectiveness of such increase
shall continue outstanding until the ends of the respective
interest periods applicable thereto, and shall then be repaid or
refinanced with new Revolving Credit Loans made pursuant to
Sections 2.01 and 2.05.
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(e) (i) The Borrower may, by notice to the
Administrative Agent (which shall promptly deliver a copy to each
of the Banks) not less than 30 days and not more than 45 days
prior to the Maturity Date (the "Anniversary Date"), request that
the Banks extend the Maturity Date for an additional 364 days
from the Maturity Date then in effect hereunder (the "Existing
Maturity Date"). Each Bank shall, by notice to the Borrower and
the Administrative Agent given not more than 15 Business Days
after the date of the Borrower's notice, but in no event more
than 30 days prior to the Maturity Date, advise the Borrower
whether or not such Bank agrees to such extension (and any Bank
that does not advise the Borrower on or before the 15th Business
Day after the date of the Borrower's notice shall be deemed to
have advised the Borrower that it will not agree to such
extension).
(ii) The Borrower shall have the right on or before the
Anniversary Date to require any Bank which shall have advised or
been deemed to advise the Borrower that it will not agree to an
extension of the Maturity Date (each a "Non-Extending Bank") to
transfer without recourse (in accordance with and subject to the
restrictions contained in Section 2.23, except that the $4,000
processing fee set forth in Section 2.23(b)(iii) shall be paid by
the Borrower) all its interests, rights and obligations under
this Agreement to one or more other banks or other financial
institutions (any such bank or other financial institution being
called a "Substitute Bank"), which may include any Bank; provided
that (a) such Substitute Bank, if not already a Bank hereunder,
shall be subject to the approval of the Borrower and the
Administrative Agent (which approval shall not be unreasonably
withheld) and shall execute all such documentation as the
Administrative Agent shall specify to evidence its status as a
Bank hereunder, (b) such assignment shall become effective as of
the Anniversary Date and (c) the Borrower shall pay to such
Non-Extending Bank in immediately available funds on the
effective date of such assignment the principal of and interest
accrued to the date of payment on the Loans made by it hereunder
and all other amounts accrued for its account or owed to it
hereunder.
Notwithstanding the foregoing, no extension of the
Maturity Date shall be effective with respect to any Bank unless,
on and as of the Anniversary Date, the conditions set forth in
paragraphs (b) and (c) of Section 4.01 shall be satisfied (with
all references in such paragraphs to a Borrowing being deemed to
be references to such extension) and the Administrative Agent
shall have received a certificate to that effect, dated the
Anniversary Date, and executed by a Financial Officer of the
Borrower.
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. In all instances
under this Agreement, each payment and prepayment of any Loan
shall be made in the currency in which such Loan was made.
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(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 the earlier of any Reset Date or the last day
of any Interest Period 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 and the currency
thereof, 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.
SECTION 2.14. Eurodollar Reserve Costs. The Borrower
shall pay to the Administrative Agent for the account of each
Bank, so long as such Bank shall be required under regulations of
the Board to maintain reserves with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (as
defined in Regulation D), additional interest on the unpaid
principal amount of each LIBOR Loan made to the Borrower by such
Bank, from the date of such Loan until such Loan is paid in full,
at an interest rate per annum equal at all times during the
Interest Period for such Loan to the remainder obtained by
subtracting (i) LIBOR for such Interest Period from (ii) the rate
obtained by multiplying LIBOR as referred to in clause (i) above
by the Statutory Reserves of such Bank for such Interest Period.
Such additional interest shall be determined by such Bank and
notified to the Borrower (with a copy to the Administrative
Agent) not later than five Business Days before the next Interest
Payment Date for such Loan, and such additional interest so
notified to the Borrower by any Bank shall be payable to the
Administrative Agent for the account of such Bank on each
Interest Payment Date for such Loan.
SECTION 2.15. Reserve Requirements; Change in
Circumstances. (a) Notwithstanding any other provision herein,
if any Change in Law (i) shall subject any Bank to, or increase
the net amount of, any tax, levy, impost, duty, charge, fee,
deduction or withholding with respect to any LIBOR Loan or Fixed
Rate Loan, or shall change the basis of taxation of payments to
any Bank of the principal of or interest on any LIBOR Loan or
Fixed Rate Loan made by such Bank or any other fees or amounts
payable hereunder (other than (x) taxes imposed on the overall
net income of such Bank by the jurisdiction in which such Bank
has its principal office or by any political subdivision or
taxing authority therein (or any tax which is enacted or adopted
by such jurisdiction, political subdivision or taxing authority
as a direct substitute for any such taxes) or (y) any tax,
assessment, or other governmental charge that would not have been
imposed but for the failure of any Bank to comply with any
certification, information, documentation or other reporting
requirement), (ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (other than
requirements as to which the Borrower is obligated to make
payments pursuant to Section 2.14) against assets of, deposits
with or for the account of, or credit extended by, such Bank, or
(iii) shall impose on such Bank
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or the London interbank market any other condition affecting this
Agreement or any LIBOR Loan or Fixed Rate Loan made by such Bank,
and the result of any of the foregoing shall be to increase the
cost to such Bank of making or maintaining any LIBOR Loan or
Fixed Rate Loan or to reduce the amount of any sum received or
receivable by such Bank hereunder (whether of principal, interest
or otherwise) in respect thereof by an amount deemed in good
faith by such Bank to be material, then the Borrower shall pay
such additional amount or amounts as will compensate such Bank
for such increase or reduction to such Bank upon demand by such
Bank.
(b) If, after the date of this Agreement, any Bank
shall have determined in good faith that any Change in Law
regarding capital requirements has or would have the effect of
reducing the rate of return on such Bank's capital or on the
capital of the Bank's holding company (or any lending office of
such Bank), if any, as a consequence of its obligations hereunder
to a level below that which such Bank (or holding company or
office) could have achieved but for such Change in Law (taking
into consideration such Bank's policies or the policies of its
holding company, as the case may be, with respect to capital
adequacy) by an amount deemed by such Bank to be material, then,
from time to time, the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank (or
holding company or office) for such reduction upon demand by such
Bank.
(c) A certificate of a Bank setting forth in
reasonable detail (i) such amount or amounts as shall be
necessary to compensate such Bank (or participating banks or
other entities pursuant to Section 2.23) as specified in
paragraph (a) or (b) above, as the case may be, and (ii) the
calculation of such amount or amounts under clause (c)(i), shall
be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Bank the amount
shown as due on any such certificate within 30 days after its
receipt of the same.
(d) Failure on the part of any Bank to demand
compensation for any increased costs or reduction in amounts
received or receivable or reduction in return on capital with
respect to any Interest Period shall not constitute a waiver of
such Bank's rights to demand compensation for any increased costs
or reduction in amounts received or receivable or reduction in
return on capital with respect to such Interest Period or any
other Interest Period. The protection of this Section 2.15 shall
be available to each Bank regardless of any possible contention
of invalidity or inapplicability of the law, regulation or
condition which shall have been imposed.
SECTION 2.16. Change in Legality. (a) Notwithstanding
anything to the contrary herein contained, if any Change in Law
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;
and
(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
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(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 2.17. Indemnity. The Borrower shall indemnify
each Bank against any loss or reasonable expense which such Bank
may sustain or incur as a consequence of (u) the assignment of
any LIBOR Loan or Fixed Rate Loan other than on the last day of
the Interest Period applicable thereto, (v) any failure by the
Borrower to fulfill on the date of any Borrowing hereunder the
applicable conditions set forth in Article IV, (w) any failure by
the Borrower to borrow, convert, continue, or prepay hereunder
after a notice thereof pursuant to Article II has been given
(regardless whether such notice may be revoked hereunder),
(x) any payment, prepayment or conversion of a LIBOR Loan or Fixed
Rate Loan (including as a result of an Event of Default) made on
a date other than the last day of the applicable Interest Period,
(y) any default in the payment or prepayment of the principal
amount of any Loan or any part thereof or interest accrued
thereon, as and when due and payable (at the due date thereof, by
notice of prepayment or otherwise), or (z) the occurrence of any
Event of Default, including in any such event, any loss or
reasonable expense sustained or incurred or to be sustained or
incurred in liquidating or employing deposits from third parties
acquired to effect or maintain such Loan or any part thereof as a
LIBOR Loan or a Fixed Rate Loan. Such loss or reasonable expense
shall include an amount equal to the excess, if any, as
reasonably determined by each Bank of (i) its cost of obtaining
the funds for the Loan being paid, prepaid or converted or not
borrowed (based on LIBOR or, in the case of a Fixed Rate Loan,
the fixed rate of interest applicable thereto) for the period
from the date of such payment, prepayment or conversion or
failure to borrow to the last day of the Interest Period for such
Loan (or, in the case of a failure to borrow, the Interest Period
for the Loan which would have commenced on the date of such
failure to borrow) over (ii) the amount of interest (as
reasonably determined by such Bank) that would be realized by
such Bank in re-employing the funds so paid, prepaid or converted
or not borrowed for such period or Interest Period, as the case
may be. A certificate of each Bank setting forth any amount or
amounts which such Bank is entitled to receive pursuant to this
Section 2.17 shall be delivered to the Borrower and shall be
conclusive, if made in good faith, absent manifest error. The
Borrower shall pay each Bank the amount shown as due on any
certificate containing no manifest error within 30 days after its
receipt of the same.
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
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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 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 2.19. Right of Setoff. If any Event of
Default shall have occurred and be continuing, each Bank is
hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing
by such Bank to or for the credit or the account of the Borrower
against any of and all the Obligations now or hereafter existing
under this Agreement and the Notes held by such Bank,
irrespective of whether or not such Bank shall have made any
demand under this Agreement or such Notes and although such
obligations may be unmatured. Each Bank agrees promptly to
notify the Borrower after any such setoff and application made by
such Bank, but the failure to give such notice shall not affect
the validity of such setoff and application. The rights of each
Bank under this Section 2.19 are in addition to other rights and
remedies (including other rights of setoff) which such Bank may
have.
SECTION 2.20. Sharing of Setoffs. Each Bank agrees
that if it shall, through the exercise of a right of banker's
lien, setoff or counterclaim against the Borrower including, but
not limited to, a secured claim under Section 506 of Title 11 of
the United States Code or other security or interest arising
from, or in lieu of, such secured claim, received by such Bank
under any applicable bankruptcy, insolvency or other similar law
or otherwise, obtain payment (voluntary or involuntary) in
respect of any Revolving Credit Note held by it (it being
understood that each Bank shall be permitted to exercise any such
right with respect to any obligation of the Borrower to it other
than the Revolving Credit Notes prior to the exercise of such
right with respect to any Revolving Credit Note) as a result of
which the unpaid principal portion of all the Revolving Credit
Notes held by it shall be proportionately less than the unpaid
principal portion of all the Revolving Credit Notes held by any
other Bank, it shall be deemed to have simultaneously purchased
from such other Bank a participation in each Revolving Credit
Note held by such other Bank, so that the aggregate unpaid
principal amount of each Revolving Credit Note and participations
in each Revolving Credit Note held by each Bank shall be in the
same proportion to the aggregate unpaid principal amount of all
the Revolving Credit Notes then outstanding as the principal
amount of all the Revolving Credit Notes held by it prior to such
exercise of banker's lien, setoff or counterclaim was to the
principal amount of all Revolving Credit Notes outstanding prior
to such exercise of banker's lien, setoff or counterclaim;
provided, however, that if any such purchase or purchases or
adjustments shall be made pursuant to this Section 2.20 and the
payment recovered by a Bank giving rise thereto shall thereafter
be recovered from such Bank, such purchase or purchases or
adjustments shall be rescinded to the extent of such recovery and
the purchase price or prices or adjustments paid by such Bank
restored to such Bank without interest. The Borrower expressly
consents to the foregoing arrangements and agrees that any Bank
holding a participation in a Revolving Credit Note deemed to have
been so purchased may exercise any and all rights of banker's
lien, setoff or counterclaim to the extent of the participation
so purchased in such Revolving Credit Note with respect to any
and all moneys owing by the Borrower as fully as if such Bank had
made a Loan directly to the Borrower in the amount of the
participation.
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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, on the day when
due in lawful money of the United States (in freely transferable
dollars) to the Administrative Agent at its offices set forth on
Schedule 2.01 therefor, for the account of the Banks, in federal
or other immediately available funds; provided, however, that
each payment of principal and interest under any Loan made in an
Alternate Currency shall be made in immediately available funds
in the currency in which such Loan was made. 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.
SECTION 2.22. United States Withholding. (a) Each
Bank or assignee or participant of a Bank that is not
incorporated under the Laws of the United States of America or a
state thereof (and, upon the written request of the
Administrative Agent, each other Bank or assignee or participant
of a Bank) agrees that it will deliver to each of the Borrower
and the Administrative Agent two (2) duly completed appropriate
valid Withholding Certificates (as defined under ss.1.1441-1(c)(16)
of the Income Tax Regulations promulgated under the Code
("Regulations")) certifying its status (i.e., U.S. or foreign
person) and, if appropriate, making a claim of reduced, or
exemption from, U.S. withholding tax on the basis of an income
tax treaty or an exemption provided by the Code. The term
"Withholding Certificate" means a Form W-9; a Form W-8BEN; a Form
W-8ECI; a Form W-8IMY and the related statements and
certifications as required under ss.1.1441-1(e)(3) of the
Regulations; a statement described in ss.1.871-14(c)(2)(v) of the
Regulations; or any other certificates under the Code or
Regulations that certify or establish the status of a payee or
beneficial owner as a U.S. or foreign person. Each Bank,
assignee or participant required to deliver to the Borrower and
the Administrative Agent a valid Withholding Certificate pursuant
to the preceding sentence shall deliver such valid Withholding
Certificate as follows: (A) each Bank which is a party hereto on
the Closing Date shall deliver such valid Withholding Certificate
at least five (5) Business Days prior to the first date on which
any interest or fees are payable by the Borrower hereunder for
the account of such Bank; (B) each assignee or participant shall
deliver such valid Withholding Certificate at least five (5)
Business Days before the effective date of such assignment or
participation (unless the Administrative Agent in its sole
discretion shall permit such assignee or participant to deliver
such Withholding Certificate less than five (5) Business Days
before such date in which case it shall be due on the date
specified by the Administrative Agent). Each Bank, assignee or
participant which so delivers a valid Withholding Certificate
further undertakes to deliver to each of the Borrower and the
Administrative Agent two (2) additional copies of such
Withholding Certificate (or a successor form) on or before the
date that such Withholding Certificate expires or becomes
obsolete or after the occurrence of any event requiring a change
in the most recent Withholding Certificate so delivered by it,
and such amendments thereto or extensions or renewals thereof as
may be reasonably requested by the Borrower or the Administrative
Agent. Notwithstanding the submission of a Withholding
Certificate claiming a reduced rate of, or exemption from, U.S.
withholding tax, the Administrative Agent shall be entitled to
withhold United States federal income taxes at the full 30%
withholding rate if in its reasonable judgment it is required to
do so under the due diligence requirements imposed upon a
withholding agent under ss.1.1441-7(b) of the Regulations.
Further, the Administrative Agent is indemnified under
ss.1.1461-1(e) of the Regulations against any claims and demands of
any Bank or assignee or participant of a Bank for the amount of
any tax it deducts and withholds in accordance with regulations
under ss.1441 of the Code. In the event the Borrower or the
Administrative Agent shall so determine that deduction or
withholding of taxes is required, it shall advise the affected
Bank as to the basis of such determination prior to actually
deducting and withholding such taxes.
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(b) Each Bank agrees (i) that as between it and the
Borrower or the Administrative Agent, unless otherwise required
by Law, it shall be the Person to deduct and withhold taxes, and
to the extent required by Law it shall deduct and withhold taxes,
on amounts that such Bank may remit to any other Person(s) by
reason of any undisclosed transfer or assignment of an interest
in this Agreement to such other Person(s) pursuant to
Section 2.23 and (ii) to indemnify the Borrower and the
Administrative Agent and any officers, directors, agents, or
employees of the Borrower or the Administrative Agent against and
to hold them harmless from any tax, interest, additions to tax,
penalties, reasonable counsel and accountants' fees,
disbursements or payments arising from the assertion by any
appropriate taxing authority of any claim against them relating
to a failure to withhold taxes as required by law with respect to
amounts described in clause (i) of this paragraph (c).
(d) Each assignee of a Bank's interest in this
Agreement in conformity with Section 2.23 shall be bound by this
Section 2.22, so that such assignee will have all of the
obligations and provide all of the forms and statements and all
indemnities, representations and warranties required to be given
under this Section 2.22.
(e) In the event that any withholding or similar taxes
shall become payable as a result of any change in any statute,
treaty, ruling, judicial decision, determination or regulation,
or other change in law (other than a change in the rate of taxes
imposed on the overall net income of any Bank) occurring after
the Initial Date in respect of any sum payable hereunder or under
any other Fundamental Document to any Bank or the Administrative
Agent or as a result of any payment being made by a Guarantor
organized in or subject to any taxing jurisdiction outside the
United States (i) the sum payable by the Borrower shall be
increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums
payable under this Section 2.22) such Bank or the Administrative
Agent (as the case may be) receives an amount equal to the sum it
would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law. For
purposes of this Section 2.22, the term "Initial Date" shall mean
(i) in the case of the Administrative Agent, the date hereof,
(ii) in the case of each Bank as of the date hereof, the date
hereof and (iii) in the case of any other Bank, the date of the
Assignment and Acceptance pursuant to which it became a Bank.
SECTION 2.23. Participations; Assignments. (a) Each
Bank may without the consent of the Borrower sell participations
to one or more banks or other entities in all or a portion of its
rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans owing to it and the Notes
held by it); provided, however, that (i) such Bank's obligations
under this Agreement shall remain unchanged, (ii) such Bank shall
remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the participating banks or
other entities shall be entitled to the cost protection
provisions contained in Section 2.15 and Section 2.17 but shall
not be entitled to receive pursuant to such provisions an amount
larger than its share of the amount to which the Bank granting
such participation would have been entitled and (iv) the
Borrower, the Administrative Agent and the other Banks shall
continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement;
provided further that each Bank shall retain the sole right and
responsibility vis-a-vis the Borrower to enforce the obligations
of the Borrower relating to the Loans and shall retain all voting
rights, including the right to approve any amendment,
modification or waiver of any provision of this Agreement other
than amendments, modifications or waivers with respect to any
Facility Fees, the amount of principal or the rate of interest
payable on, or the maturity of, the Loans as applicable to the
participating banks or other entities (as to which such
participating banks or other entities may be afforded the right
to vote).
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(b) Each of the Banks may (but only with the prior
written consent of the Borrower, which consent shall not be
unreasonably withheld, provided that no consent of Borrower shall
be required if any Event of Default shall have occurred and be
continuing), and (unless the assignee is a bank or trust company
with a combined capital and surplus of at least $100,000,000)
with the written consent of the Administrative Agent, which
consent shall not be unreasonably withheld, assign to one or more
banks or other entities all or a portion of its interests, rights
and obligations under this Agreement (including all or a portion
of its Commitment and the same portion of the Revolving Credit
Loans at the time owing to it and the Revolving Credit Note held
by it); provided, however, that (i) each such assignment shall be
of a constant, and not a varying, percentage of the assigning
Bank's rights and obligations under this Agreement, and (ii) the
amount of the Commitment of the assigning Bank subject to each
such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the
Bank) shall be either the entire Commitment of such Bank or a
portion thereof in a principal amount of $10,000,000 or a larger
integral multiple of $1,000,000, and (iii) the parties to each
such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register (as
defined below), an Assignment and Acceptance, together with any
Note or Notes subject to such assignment and a processing and
recordation fee of $4,000. Upon such execution, delivery,
acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, which effective date
shall be not earlier than five Business Days after the date of
acceptance and recording by the Administrative Agent, (x) the
assignee thereunder shall be a party hereto and, to the extent
provided in such Assignment and Acceptance, have the rights and
obligations of a Bank hereunder and under the other Fundamental
Documents and (y) the assigning Bank thereunder shall, to the
extent provided in such Assignment and Acceptance, be released
from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion
of the assigning Bank's rights and obligations under this
Agreement, such assigning Bank shall cease to be a party
hereto). Notwithstanding the foregoing, any Bank assigning its
rights and obligations under this Agreement may retain any
Competitive Loans made by it outstanding at such time, and in
such case shall retain its rights hereunder in respect of any
Loans so retained until such Loans have been repaid in full in
accordance with this Agreement.
(c) Notwithstanding the other provisions of this
Section 2.23, each Bank may at any time assign all or a portion
of its interests, rights and obligations under this Agreement
(including, without limitation, all or a portion of its
Commitment and the same portion of the Loans at any time owing to
it and the Notes held by it) to (i) any Affiliate of such Bank
described in clause (b) of the definition of Affiliate or
(ii) any other Bank hereunder.
(d) By executing and delivering an Assignment and
Acceptance, the assigning Bank thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than the representation and
warranty that it is the legal and beneficial owner of the
interest being assigned thereby free and clear of any adverse
claim, the assigning Bank makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Fundamental Documents or
any other instrument or document furnished pursuant hereto or
thereto; (ii) such Bank assignor makes no representation or
warranty and assumes no responsibility with respect to the
financial condition of the Borrower or any of the Subsidiaries or
any other obligor under the Fundamental Documents or the
performance or observance by the Borrower (on behalf of itself or
the Subsidiaries) or any of the Guarantors or any other obligor
under the Fundamental Documents of any of their respective
obligations under the Fundamental Documents or any other
instrument or document furnished pursuant hereto or thereto;
(iii) such assignee confirms that it has received a copy of this
Agreement, together
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with copies of the most recent financial statements delivered
pursuant to Sections 5.05(a) and 5.05(b) (or if none of such
financial statements shall have then been delivered, then copies
of the financial statements referred to in Section 3.05 hereof)
and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the assigning Bank, the
Administrative Agent or any other person that has become a Bank
and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement;
(v) such assignee appoints and authorizes the Administrative Agent
to take such action on its behalf as the Administrative Agent
deems appropriate and to exercise such powers under the
Fundamental Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; and (vi) such assignee agrees that
it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to
be performed by it as a Bank.
(e) The Administrative Agent shall maintain at its
address at which notices are to be given to it pursuant to
Section 10.01 a copy of each Assignment and Acceptance and a
register for the recordation of the names and addresses of the
Banks and the Commitments of, and principal amount of the Loans
owing to, each Bank from time to time (the "Register"). The
entries in the Register shall be conclusive, in the absence of
manifest error, and the Borrower, the Administrative Agent and
the Banks may treat each person whose name is recorded in the
Register as a Bank hereunder for all purposes of the Fundamental
Documents. The Register shall be available for inspection by the
Borrower or any Bank at any reasonable time and from time to time
upon reasonable prior notice.
(f) Upon its receipt of an Assignment and Acceptance
executed by an assigning Bank and an assignee together with any
Notes subject to such assignment and evidence of the Borrower's
written consent to such assignment, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and
is in the form of Exhibit E hereto, (i) accept such Assignment
and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt written notice thereof to the
Borrower. Within five Business Days after receipt of the notice,
the Borrower, at its own expense, shall execute and deliver to
the Bank, in exchange for the surrendered Notes, as applicable
(x) a new Competitive Note to the order of such assignee in an
amount equal to the Total Commitment and a new Revolving Credit
Note to the order of such assignee in an amount equal to the
portion of the Commitment assumed by it pursuant to such
Assignment and Acceptance and, (y) a new Revolving Credit Note to
the order of the assigning Bank in an amount equal to the
Commitment retained by it hereunder. Such new Revolving Credit
Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such assumed Commitment and
retained Commitment, such new Notes shall be dated the date of
the surrendered Notes and shall otherwise be in substantially the
forms of Exhibits B-1 and B-2 hereto, as the case may be. In
addition, the Borrower will promptly, at its own expense, execute
such amendments to the Fundamental Documents to which it is a
party and such additional documents and cause the Guarantors to
execute amendments to the Fundamental Documents to which it is a
party, and take such other actions as the Administrative Agent or
the assignee Bank may reasonably request in order to confirm that
such assignee Bank is entitled to the full benefit of the
guaranties contemplated hereby to the extent of such assignment.
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(g) Notwithstanding any other provision herein, any
Bank may, in connection with any assignment or participation or
proposed assignment or participation pursuant to this
Section 2.23, disclose to the assignee or participant or proposed
assignee or participant, any information relating to the Borrower
or any of the Subsidiaries furnished to such Bank or the
Administrative Agent by or on behalf of the Borrower; provided
that prior to any such disclosure, each such assignee or
participant or proposed assignee or participant shall agree in
writing to preserve the confidentiality of any confidential
information relating to the Borrower or any of their Subsidiaries
received from such Bank on the terms of Section 10.11.
(h) Any Bank may at any time pledge or assign all or
any portion of its rights under this Agreement and the Notes to a
Federal Reserve Bank.
(i) SPV Designation.
(i) Notwithstanding anything to the contrary
contained herein, any Bank (a "Designating Bank") may grant to
one or more special purpose funding vehicles (each, a "SPV"),
identified as such in writing from time to time by the
Designating Bank to the Administrative Agent and the Borrower,
the option to provide to the Borrower all or any part of any Loan
that such Designating Bank would otherwise be obligated to make
to the Borrower pursuant to this Agreement; provided that
(A) nothing herein shall constitute a commitment by any SPV to
make any Loan, (B) if an SPV elects not to exercise such option
or otherwise fails to provide all or any part of such Loan, the
Designating Bank shall be obligated to make such Loan pursuant to
the terms hereof and (C) the Designating Bank shall remain liable
for any indemnity or other payment obligation with respect to its
Commitment hereunder. The making of a Loan by an SPV hereunder
shall utilize the Commitment of the Designating Bank to the same
extent, and as if, such Loan were made by such Designating Bank.
(ii) As to any Loans or portion thereof made by
it, each SPV shall have all the rights that a Bank making such
Loans or portion thereof would have had under this Agreement;
provided, however, that each SPV shall have granted to its
Designating Bank an irrevocable power of attorney, to deliver and
receive all communications and notices under this Agreement (and
any Fundamental Documents) and to exercise, exclusively in the
place and stead of such SPV , all of such SPV's voting rights
under this Agreement in the discretion of such Designating Bank,
until the occurrence and continuation of an Event of Default. No
additional Note shall be required to evidence the Loans or
portion thereof made by an SPV; and the related Designating Bank
shall be deemed to hold its Note as agent for such SPV to the
extent of the Loans or portion thereof funded by such SPV. In
addition, any payments for the account of any SPV shall be paid
to its Designating Bank as agent for such SPV. Notwithstanding
any term or condition hereof, no SPV, unless it shall have become
a Bank hereunder in accordance with the terms of Section 2.23(b),
shall be a party hereto or have any right to vote or give or
withhold its consent under this Agreement.
(iii)Each party hereto hereby agrees that no SPV
shall be liable for any indemnity or payment under this Agreement
for which a Bank would otherwise be liable. In furtherance of
the foregoing, each party hereto hereby agrees (which agreements
shall survive the termination of this Agreement) that, prior to
the date that is one year and one day after the later of
(a) payment in full of all outstanding commercial paper or other
senior indebtedness of any SPV, (b) the payment in full of all
Obligations, and (c) the termination of all Commitments, it will
not institute against, or join any other person in instituting
against, such SPV any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings under the laws of the
United States or any state thereof.
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(iv) In addition, notwithstanding anything to the
contrary contained in these Clauses (i) through (iv) of this
Section 2.23(i) or otherwise in this Agreement (other than the
proviso set forth directly below in this Clause), any SPV may
(A) with notice to, but without the prior written consent of the
Borrower or the Administrative Agent, at any time and without
paying any processing fee therefor, assign or participate all or
a portion of its interest in any Loans to the Designating Bank or
to any financial institutions providing liquidity and/or credit
support to or for the account of such SPV to support the funding
or maintenance of Loans and (B) disclose on a confidential basis
information relating to its Loans that pertains to Borrower's
performance under the Fundamental Documents and all other
information relating to its Loans provided by Borrower pursuant
hereto, other than non-public information provided pursuant to
Section 3.05 hereof and other than any other non-public
information provided pursuant hereto to any rating agency,
commercial paper dealer or provider of any surety, guaranty or
credit or liquidity enhancements to such SPV; provided, however,
that in no event may any non-public financial information
provided by the Borrower or any Guarantor under this Agreement be
provided by any SPV to any other Person. In no event shall the
Borrower be obligated to pay to any SPV that has made a Loan any
greater amount than the Borrower would have been obligated to pay
under this Agreement if the Designating Bank had made such Loan.
These Clauses (i) through (iv) of this Section 2.23(i) may not be
amended without the written consent of any Designating Bank
affected thereby.
SECTION 2.24. Taxes.
(a) No Deductions. All payments made by Borrower
hereunder and under each Note shall be made free and clear of and
without deduction for any present or future taxes, levies,
imposts, deductions, charges, or withholdings, and all
liabilities with respect thereto, excluding taxes imposed on the
net income of any Bank and all income and franchise taxes
applicable to any Bank of the United States (all such
non-excluded taxes, levies, imposts, deductions, charges,
withholdings, and liabilities being hereinafter referred to as
"Taxes"). If Borrower shall be required by Law to deduct any
Taxes from or in respect of any sum payable hereunder or under
any Note, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 2.24) each Bank receives an amount equal to the sum it
would have received had no such deductions been made,
(ii) Borrower shall make such deductions and (iii) Borrower shall
timely pay the full amount deducted to the relevant tax authority
or other authority in accordance with applicable Law.
(b) Stamp Taxes. In addition, Borrower agrees to pay
any present or future stamp or documentary taxes or any other
excise or property taxes, charges, or similar levies which arise
from any payment made hereunder or from the execution, delivery,
or registration of, or otherwise with respect to, this Agreement
or any Note (hereinafter referred to as "Other Taxes").
(c) Indemnification for Taxes Paid by a Bank.
Borrower shall indemnify each Bank for the full amount of Taxes
or Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed by any jurisdiction on amounts payable under this
Section 2.24) paid by any Bank and any liability (including
penalties, interest, and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. This indemnification shall be
made within 30 days from the date a Bank makes written demand
therefor.
(d) Certificate. Within 30 days after the date of any
payment of any Taxes by Borrower, Borrower shall furnish to each
Bank, at its address referred to herein, the original or a
certified copy of a receipt evidencing payment thereof. If no
Taxes are payable in respect of any payment by Borrower, such
Borrower shall, if so requested by a Bank, provide a certificate
of an officer of Borrower to that effect.
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(e) Survival. Without prejudice to the survival of
any other agreement of Borrower hereunder, the agreements and
obligations of Borrower contained in Clauses (a) through (d) of
this Section 2.24 shall survive the payment in full of principal
and interest hereunder and under any instrument delivered
hereunder.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Banks that:
SECTION 3.01. Organization; Corporate Powers.
(a) Each of the Borrower and the Subsidiaries is a corporation or
other business entity duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
organization; (b) each of the Borrower, and the Subsidiaries
(i) has the corporate or other appropriate organizational power
and authority to own its property and to carry on its business as
now conducted and (ii) is qualified to do business in every
jurisdiction where such qualification is necessary except where
the failure so to qualify would not have a materially adverse
effect on the condition, financial or otherwise, of the Borrower
or of the Borrower and its Consolidated Subsidiaries taken as a
whole; (c) each of the Borrower and the Guarantors has the
corporate or other appropriate organizational power to execute,
deliver and perform its obligations under the Fundamental
Documents to which it is a party and the Borrower has the
corporate power to borrow hereunder and to execute and deliver
the Notes; and (d) each of the Guarantors has the corporate or
other appropriate organizational power and authority to guaranty
the Obligations as contemplated by Article VIII hereof.
SECTION 3.02. Authorization. The execution, delivery
and performance of this Agreement and the other Fundamental
Documents to which the Borrower or any of the Guarantors is or is
to be a party, by each such party; in the case of the Borrower,
the Borrowings hereunder and the execution and delivery of the
Notes; and in the case of each Guarantor, the guaranty of the
Obligations as contemplated in Article VIII (a) have been duly
authorized by all requisite corporate or other appropriate
organizational action on the part of the Borrower and each
Guarantor; and (b) will not (i) violate (A) any law, rule or
regulation of the United States or any state or political
subdivision thereof, the certificate of incorporation or By-laws
or other appropriate organizational documents of the Borrower or
any of the Consolidated Subsidiaries, (B) any applicable order of
any court or other agency of government or (C) any indenture, any
agreement for borrowed money, any bond, note or other similar
instrument or any other material agreement or contract to which
the Borrower or any of the Consolidated Subsidiaries is a party
or by which the Borrower or any of the Consolidated Subsidiaries
or any of their respective properties are bound, (ii) be in
conflict with, result in a breach of or constitute (with notice
or lapse of time or both) a default under any such indenture,
agreement, bond, note, instrument or other material agreement or
contract or (iii) result in the creation or imposition of any
lien, charge or encumbrance of any nature whatsoever upon any
property or assets of the Borrower or any of the Consolidated
Subsidiaries except that, in the case of all the above, for any
such violations, conflicts, breaches, defaults, liens, charges or
encumbrances which would not have a material adverse effect on
the Borrower and its Consolidated Subsidiaries taken as a whole
or adversely affect the rights or interests of the Banks.
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SECTION 3.03. Enforceability. This Agreement and each
other Fundamental Document to which the Borrower or any of the
Guarantors is a party, is a legal, valid and binding obligation
of each such party thereto, and is enforceable against each such
party thereto in accordance with its terms, except as the
enforceability thereof may be limited by the effect of any
applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and by general principles of equity.
SECTION 3.04. Governmental Approvals. No action,
consent or approval of, or registration or filing with, or any
other action by any Governmental Authority is required in
connection with the execution, delivery and performance by the
Borrower and any of the Guarantors of this Agreement or of any
other Fundamental Document to which it is a party, the Borrowings
hereunder, the guaranty by the Guarantors of the Obligations
under Article VIII or the execution and delivery of the Notes.
SECTION 3.05. Financial Statements and Condition.
(a) The Borrower has heretofore furnished to each of the Banks
audited Consolidated balance sheets of the Borrower and its
Consolidated Subsidiaries as of December 31, 2000 and the related
audited Consolidated statements of income, Consolidated
statements of stockholders' equity and Consolidated statements of
cash flows for the fiscal period then ended, together with
related notes and supplemental information. The audited
consolidated balance sheet, statement of income, statement of
stockholders' equity and statement of cash flows are referred to
herein as the "Audited Financial Statements." The Audited
Financial Statements and the notes thereto were prepared in
accordance with generally accepted accounting principles
consistently applied, and present fairly the Consolidated
financial position and results of operations and cash flows of
the Borrower and its Consolidated Subsidiaries as of the dates
and for the periods indicated, and such balance sheets and
related notes show all known direct liabilities and all known
contingent liabilities of a material nature of the Borrower and
its Consolidated Subsidiaries as of such dates which are required
to be included in such financial statements and the notes thereto
in accordance with generally accepted accounting principles.
(b) The Borrower has delivered to each of the Banks
pro forma consolidated projected financial results for the years
2001-2005. Such projected financial results are based on good
faith estimates and assumptions believed to be reasonable by
senior management of the Borrower as of the Execution Date.
(c) None of the Borrower or any Guarantor (each, a
"Credit Party") is entering into the arrangements contemplated
hereby and by the other Fundamental Documents or intends to make
any transfer or incur any obligations hereunder or thereunder,
with actual intent to hinder, delay or defraud either present or
future creditors. On and as of the date of the initial Borrowing
hereunder on a Pro Forma Basis after giving effect to all
Indebtedness (including the Loans hereunder and the Indebtedness
incurred by each Credit Party in connection therewith) (w) each
Credit Party expects the cash available to such Credit Party and
its Subsidiaries on a Consolidated basis, after taking into
account all other anticipated uses of the cash of such Credit
Party (including the payments on or in respect of debt referred
to in clause (y) of this Section 3.05(c)), will be sufficient to
satisfy all final judgments for money damages which have been
docketed against such Credit Party and such Subsidiaries or which
such Credit Party believes may be rendered against such Credit
Party and such Subsidiaries in any action in which such Credit
Party is a defendant on the Closing Date (taking into account the
reasonably anticipated maximum amount of any such judgment and
such Credit Party's belief as to the earliest time at which such
judgment might be entered); (x) the sum of the present fair
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saleable value of the assets of each Credit Party and its
Subsidiaries on a Consolidated basis will exceed the probable
liability of such Credit Party and such Subsidiaries on their
debts (including their obligations under the Guaranty); (y) no
Credit Party and its Subsidiaries on a Consolidated basis will
have incurred or intends to incur, or believes that it will
incur, debts beyond its ability to pay such debts as such debts
mature (taking into account the timing and amounts of cash to be
received by such Credit Party and such Subsidiaries from any
source, and amounts to be payable on or in respect of debts of
such Credit Party and such Subsidiaries and the amounts referred
to in clause (w)); and (z) each Credit Party and its Subsidiaries
on a Consolidated basis have sufficient capital with which to
conduct their present and proposed business and the property of
such Credit Party and such Subsidiaries does not constitute
unreasonably small capital with which to conduct their present or
proposed business. For purposes of this Section 3.05, "debt"
means any liability on a claim, and "claim" means (i) right to
payment whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed (other than those being disputed in good faith),
undisputed, legal, equitable, secured or unsecured, or (ii) right
to an equitable remedy for breach of performance if such breach
gives rise to a payment, whether or not such right is reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or
unsecured. For purposes of this Section 3.05, "present fair
saleable value" means the amount that may be realized if any
person's assets are sold as an entirety with reasonable
promptness in an arm's-length transaction under conditions for
the sale of comparable business enterprises obtaining at the time
of determination.
SECTION 3.06. [Reserved] .
SECTION 3.07. Title to Properties. All assets of the
Borrower and the Subsidiaries are free and clear of Liens, except
such as are permitted by Section 6.01.
SECTION 3.08. Litigation. There are no actions, suits
or proceedings (whether or not purportedly on behalf of the
Borrower or any of the Subsidiaries), pending or, to the
knowledge of the Borrower, threatened against or affecting the
Borrower or any of the Subsidiaries at law or in equity or before
or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which involve any of the transactions herein
contemplated, or which have a reasonable likelihood of being
determined adversely and if determined adversely to the Borrower
or any of the Subsidiaries, would result in a material adverse
change in the business, operations, prospects, properties, assets
or condition (financial or otherwise) of the Borrower and its
Consolidated Subsidiaries taken as a whole and neither the
Borrower nor any of the Subsidiaries is in default with respect
to any judgment, writ, injunction, decree, rule or regulation of
any court or federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality,
domestic or foreign, which default would have a materially
adverse effect on the Borrower and its Consolidated Subsidiaries
taken as a whole or have an adverse effect on the Borrower's or
the Guarantors' ability to comply with this Agreement or any
other Fundamental Document.
SECTION 3.09. Tax Returns. The Borrower and each of
the Subsidiaries have timely filed or caused to be filed all
federal, state and local tax returns which, to the knowledge of
the Borrower or such Subsidiary after due inquiry, are required
to be filed and have paid or caused to be paid all taxes required
to be paid with respect to such returns or any assessment
received by it or by any of them to the extent that such taxes
have become due, except taxes the validity of which are being
contested in good faith by appropriate actions or proceedings and
with respect to which the Borrower or such
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Subsidiary, as the case may be, shall have made such reserve, or
other adequate provision, if any, as shall be required by
generally accepted accounting principles, and except for the
filing of such returns as to which the failure to file will not,
either individually or in the aggregate, have a material adverse
effect on the Borrower and its Consolidated Subsidiaries taken as
a whole, or have an adverse effect on the Borrower's or the
Guarantors' ability to comply with this Agreement or any other
Fundamental Document.
SECTION 3.10. Agreements. (a) None of the Borrower
nor any of the Subsidiaries is subject to any charter or other
corporate restriction materially and adversely affecting its
business, properties, assets, operations or condition (financial
or otherwise) or a party to any agreement or instrument
materially and adversely affecting the business, properties,
assets, operations or condition (financial or otherwise) of the
Borrower and its Consolidated Subsidiaries taken as a whole.
None of the Borrower or any of the Subsidiaries is in default in
the performance, observance or fulfillment of any agreement or
instrument for borrowed money by which it is bound, or any other
agreement or instrument by which it is bound which individually
or in the aggregate materially and adversely affects the
business, properties, assets, operations or condition (financial
or otherwise) of the Borrower and its Consolidated Subsidiaries
taken as a whole.
(b) The Administrative Agent has been provided at or
prior to the Execution Date (i) copies of all credit agreements,
indentures and other agreements related to Indebtedness for
borrowed money of the Borrower or any of the Subsidiaries in an
amount greater than $10,000,000 and, to the extent requested by
the Administrative Agent, copies of any other credit agreements,
indentures and other agreements related to Indebtedness for
borrowed money of the Borrower or any of the Subsidiaries and
(ii) access to (and copies of, to the extent requested) any other
contracts or purchase agreements (including collective bargaining
agreements) which are material to the Borrower or the
Subsidiaries.
SECTION 3.11. Employee Benefit Plans. (a) The
Borrower and each of its ERISA Affiliates is in compliance in all
material respects with the applicable provisions of ERISA and the
Code and the regulations and published governmental
interpretations thereunder. No Reportable Event has occurred
with respect to any Plan (other than Plans which have been
terminated and as to which the Borrower and its ERISA Affiliates
do not have any significant remaining obligations or liabilities
in connection therewith) as to which the Borrower or any of its
ERISA Affiliates was required to file a report with the PBGC, and
the present value of all benefit liabilities under each Plan
maintained by the Borrower or any of its ERISA Affiliates (based
on those assumptions used to fund such Plan) did not, as of the
last annual valuation date applicable thereto, exceed by a
material amount the value of the assets of such Plan. There has
been no Prohibited Transaction with respect to any employee
benefit plan subject to ERISA, including any Plan or to
Borrower's knowledge any Multiemployer Plan or Multiple Employer
Plan, which could result in any material liability to the
Borrower or an ERISA Affiliate. No Plan has incurred an
"accumulated funding deficiency" within the meaning of
Section 412(a) or sought or obtained a waiver under
Section 412(d)(1) or an extension of time under Section 412(e) of
the Code. No suit, action or other litigation or investigation
or a claim (excluding claims for benefits incurred in the
ordinary course of Plan activities) has been threatened or
brought against or with respect to any Plan. To the best of the
knowledge of the Borrower and each of its ERISA Affiliates (i) no
payment required to be made under any Plan would be nondeductible
under Section 280G of the Code, and (ii) in the case of each Plan
intended to qualify under Section 401(a) of the Code, all
amendments to such Plan required for the continuing qualification
of such Plan have been approved and adopted.
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(b) None of the Borrower or any of its ERISA
Affiliates has incurred any Withdrawal Liability that materially
adversely affects the financial condition of the Borrower and its
Consolidated Subsidiaries taken as a whole. None of the Borrower
or any of its ERISA Affiliates has received any notification that
any Multiemployer Plan or Multiple Employer Plan is in
reorganization or has been terminated, within the meaning of
Title IV of ERISA, and no Multiemployer Plan or Multiple Employer
Plan is reasonably expected to be in reorganization or to be
terminated, where such reorganization has resulted or can
reasonably be expected to result in an increase in the
contributions required to be made to such Plan that would
materially and adversely affect the financial condition of the
Borrower and its Consolidated Subsidiaries taken as a whole.
SECTION 3.12. Investment Company Act; Public Utility
Holding Company Act; Federal Power Act. None of the Borrower or
the Subsidiaries is or will during the term of this Agreement be
(i) an "investment company" as the term is defined in the
Investment Company Act of 1940, as amended, (ii) subject to
regulation under the Investment Company Act of 1940, as amended,
(iii) a "holding company" as that term is defined in the Public
Utility Holding Company Act of 1935 or (iv) subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal
Power Act or any foreign, federal or local statute or regulation
limiting its ability to incur indebtedness for money borrowed or
guaranty such indebtedness as contemplated hereby.
SECTION 3.13. Federal Reserve Regulations. Subject to
Section 4.01(d), none of the Borrower or any of the Subsidiaries
is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing or
carrying any margin stock (within the meaning of Regulation U).
No part of the proceeds of the Loans hereunder will be used,
whether directly or indirectly, and whether immediately,
incidentally or ultimately, for any purpose that violates, or is
inconsistent with, the provisions of Regulations T, U or X. If
requested by any Bank, the Borrower will furnish to such Bank a
statement, in conformity with the regulations, on Federal Reserve
Form U-1 referred to in said Regulation U.
SECTION 3.14. Defaults; Compliance with Laws. None of
the Borrower or any of the Subsidiaries is in default under this
Agreement or otherwise in default under any other agreements with
respect to borrowed money in an aggregate outstanding principal
amount of $10,000,000 or more. The Borrower and each of the
Subsidiaries has conducted its business and affairs so as to
comply in all respects material to the Borrower and its
Consolidated Subsidiaries taken as a whole with all applicable
federal, state and local laws and regulations.
SECTION 3.15. Use of Proceeds. Proceeds of the Loans
will be used for the purposes referred to in Section 2.03.
SECTION 3.16. Affiliated Companies. Set forth on
Schedule 3.16 hereto is a complete and accurate list of all of
the Subsidiaries of the Borrower and other persons in which the
Borrower or a Subsidiary holds voting stock or a similar interest
(other than companies as to which the Borrower or a Subsidiary,
as applicable, owns, directly or indirectly, less than 5% of the
outstanding voting stock), showing as of the Closing Date as to
Subsidiaries (i) the jurisdiction of its incorporation, (ii) the
number of shares of each class of capital stock authorized,
(iii) the number of such shares outstanding, (iv) the percentage
of such shares held directly or indirectly by the Borrower or a
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Subsidiary, as applicable, and (v) the number of such shares
covered by outstanding options, warrants, or rights held directly
or indirectly by the Borrower or a Subsidiary, as applicable;
provided, however, with respect to Clauses (ii) and (iii)
directly above, Borrower may omit the information requested by
such Clauses for all Subsidiaries having tangible assets in an
amount less than $10,000,000 and, with respect to all other
Subsidiaries organized under the laws of a jurisdiction other
than the United States or a state thereof, Borrower shall have
until forty-five (45) days after the date hereof to provide such
information by way of a supplement to, or amendment and
restatement of, Schedule 3.16 supplementing or amending solely
the information required by such Clauses for such Subsidiaries.
Except as set forth on Schedule 3.16, all of the outstanding
capital stock of all of such Subsidiaries has been validly
issued, is fully paid and nonassessable and is owned as set forth
in Schedule 3.16 (directly or indirectly) by the Borrower or a
Subsidiary, except for shares required to be owned by other
persons under applicable foreign law (which shares do not exceed,
for any such Subsidiary, 5% of the total outstanding shares of
such Subsidiary), free and clear of all Liens and any options,
warrants and other similar rights.
SECTION 3.17. Environmental Liabilities. (a) Except
as set forth on Schedule 3.17 hereof, the Borrower and the
Consolidated Subsidiaries have not used, stored, treated,
transported, manufactured, refined, handled, produced or disposed
of any Hazardous Materials on, under, at, from, or in any way
affecting any of their properties or assets, or otherwise, in any
manner which at the time of the action in question violated any
Environmental Law governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or
disposal of Hazardous Materials and to the best of the Borrower's
knowledge, but without independent inquiry, no prior owner of
such property or asset or any tenant, subtenant, prior tenant or
prior subtenant thereof has used Hazardous Materials on, from or
affecting such property or asset, or otherwise, in any manner
which at the time of the action in question violated any
Environmental Law governing the use, storage, treatment,
transportation, manufacture, refinement, handling, production or
disposal of Hazardous Materials, except in each instance such
violations as in the aggregate would not have a material adverse
effect upon the Borrower and the Consolidated Subsidiaries taken
as a whole.
(b) Except as set forth on Schedule 3.17, the Borrower
and its Consolidated Subsidiaries do not have any obligations or
liabilities, matured or not matured, absolute or contingent,
assessed or unassessed, which such would reasonably be expected
to have a materially adverse effect on the business or financial
condition of the Borrower and its Consolidated Subsidiaries taken
as a whole and, except as set forth in Schedule 3.17, no claims
have been made against the Borrower or any of its Consolidated
Subsidiaries during the past five years and no presently
outstanding citations or notices have been issued against the
Borrower or its Consolidated Subsidiaries, where such would
reasonably be expected to have a materially adverse effect on the
business or financial condition of the Borrower and its
Consolidated Subsidiaries taken as a whole, which in either case
have been or are imposed by reason of or based upon any provision
of any Environmental Laws, including, without limitation, any
such obligations or liabilities relating to or arising out of or
attributable, in whole or in part, to the manufacture,
processing, distribution, use, treatment, storage, disposal,
transport or handling of any Hazardous Materials by the Borrower
or the Consolidated Subsidiaries, in their respective capacities
as such, or any of their respective employees, agents,
representatives or predecessors in interest in connection with or
in any way arising from or relating to the Borrower, the
Consolidated Subsidiaries or any of their respective properties,
or relating to or arising from or attributable, in whole or in
part, to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of any such
substance, by any other Person at or on or under any of the real
properties owned or used by the Borrower, the Consolidated
Subsidiaries or any other location where such would have a
materially adverse effect on the business or financial condition
of the Borrower and its Consolidated Subsidiaries taken as whole.
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SECTION 3.18. Disclosure. Neither this Agreement nor
any agreement, document, certificate or written statement
furnished to any Bank or to the Administrative Agent for the
benefit of the Banks by or on behalf of the Borrower or any of
the Subsidiaries in connection with the transactions contemplated
hereby, at the time it was furnished contained any untrue
statement of a material fact or omitted to state a material fact,
under the circumstances under which it was made, necessary in
order to make the statements contained herein or therein not
misleading provided that no representation or warranty other than
that set forth in Section 3.05(b) is made with respect to the
projected financial results of the Borrower for the years
2001-2005. At the date hereof, there is no fact known to the
Borrower which materially and adversely affects, or in the future
is reasonably expected to materially and adversely affect, the
business, assets or financial condition, of the Borrower and its
Consolidated Subsidiaries taken as a whole (other than facts or
conditions affecting the economy generally).
SECTION 3.19. Insurance. As of the date of this
Agreement, all insurance maintained by the Borrower and its
Subsidiaries on their insurable properties and all other
insurance maintained by them is in full force and effect and all
premiums required to have been paid have been duly paid.
ARTICLE IV
CONDITIONS OF LENDING
SECTION 4.01. All Borrowings. The obligations of each
of the Banks to make Loans hereunder on the date of each
Borrowing hereunder shall be subject to the following conditions
precedent:
(a) Notice. The Administrative Agent shall have
received a notice of such Borrowing as required by Section 2.04
or 2.05, as applicable.
(b) Representations and Warranties. The
representations and warranties set forth in Article III shall be
true and correct in all material respects on and as of the date
of such Borrowing with the same effect as if made on and as of
such date, except to the extent that such representations and
warranties expressly relate to an earlier date.
(c) No Default. The Borrower and each of the
Guarantors shall be and the Borrower shall have caused each of
the Subsidiaries to be in compliance with all of the terms and
provisions set forth herein or in any other Fundamental Document
on its part to be observed or performed, and immediately after
such Borrowing no Event of Default or event which upon notice or
lapse of time or both would constitute an Event of Default shall
have occurred and be continuing.
(d) Margin Requirements. If the proceeds of any Loans
are to be used, directly or indirectly, to purchase or carry any
margin stock or to extend credit or refund indebtedness incurred
for such purpose, the Borrower shall furnish to the
Administrative Agent an opinion of counsel reasonably
satisfactory to the Administrative Agent to the effect set forth
in paragraph 7 of Exhibit D-1 to this Agreement.
(e) Additional Documents. The Banks shall have
received from the Borrower on the date of each Borrowing such
documents and information as they may reasonably request relating
to the satisfaction of such conditions.
Each Borrowing hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of such
Borrowing as to the matters specified in paragraphs (b) and (c)
of this Section 4.01.
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SECTION 4.02. Closing Date. The obligations of the
Banks to make Loans hereunder are subject to the following
additional conditions precedent:
(a) Closing Date. (i) The Closing Date shall have
occurred on or before the 30th day following the Execution Date,
and (ii) on the Closing Date, there shall have been 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 since December 31,
2000, except as previously disclosed in writing to the Banks
prior to the Execution Date.
(b) Notes. On the Closing Date, each Bank shall have
received a duly executed Competitive Note and Revolving Credit
Note complying with the provisions of Section 2.08.
(c) Opinions of Counsel. On the Closing Date, each
Bank shall have received the favorable written opinion of Brian
M. Addison, Esq., Secretary and General Counsel of the Borrower,
dated the Closing Date, addressed to each Bank and satisfactory
to Buchanan Ingersoll, PC, counsel to the Administrative Agent,
substantially in the form of Exhibit D.
(d) Corporate Documents. On or before the Closing
Date, each Bank shall have received (i) a copy of the Certificate
of Incorporation, as amended, of each of the Borrower and each
Guarantor, certified as of a recent date by the Secretary of
State of the state of incorporation of such person; (ii) a
certificate of such Secretary of State, dated as of a recent
date, as to the good standing of, and payment of taxes by, the
Borrower and each Guarantor, as applicable, and as to the charter
documents of the Borrower and each Guarantor, as applicable, on
file in the office of each such Secretary of State; (iii) a
certificate of the Secretary of each of the Borrower and each
Guarantor, each dated the Closing Date and certifying (A) that
attached thereto is a true and complete copy of the By-laws of
the Borrower or such Guarantor, as applicable, as in effect on
the date of such certification, (B) that attached thereto is a
true and complete copy of resolutions adopted by the Board of
Directors of the Borrower or such Guarantor, authorizing the
execution, delivery and performance of the Fundamental Documents
to which it is a party, (C) that the Certificate of Incorporation
of the Borrower or such Guarantor, as applicable, has not been
amended since the date of the last amendment thereto indicated on
the applicable certificate of the Secretary of State furnished
pursuant to clause (ii) above and (D) as to the incumbency and
specimen signature of each officer of the Borrower or such
Guarantor, as applicable, executing the Fundamental Documents to
which it is a party, or any other document delivered in
connection herewith or therewith, as the case may be, (each such
certificate to contain a certification by another officer of the
Borrower or such Guarantor, as applicable, as to the incumbency
and signature of the officer signing the certificate referred to
in this clause (iii)); and (iv) such other documents as any Bank
or counsel for the Administrative Agent may reasonably request.
(e) Required Consents and Approvals. Except as noted
on Schedule 4.02, all required consents and approvals shall have
been obtained on or before the Closing Date with respect to the
transactions contemplated hereby from all Governmental
Authorities with jurisdiction over the business and activities of
the Borrower and the Subsidiaries.
(f) Federal Reserve Regulations. The Administrative
Agent shall be satisfied on or before the Closing Date that the
provisions of Regulations T, U and X of the Board will not be
violated by the transactions contemplated hereby.
(g) Contribution Agreement. The Administrative Agent
shall have received on or before the Closing Date the
Contribution Agreement, duly executed by the Borrower and each
Guarantor.
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(h) Fees and Expenses. On the Closing Date, all
accrued but unpaid Facility Fees and fees due to the Banks or
Administrative Agent, or both, all as contemplated by
Section 2.07, and all amounts referred to in Section 10.04 then
due, shall have been or shall be simultaneously paid in full.
(i) Existing Indebtedness. Concurrently with the
transactions contemplated hereby, on the Closing Date that
364-Day Competitive Advance, Revolving Credit and Guaranty
Agreement dated as of October 23, 1997, as amended, modified, and
supplemented through the date hereof, among the Borrower, the
guarantors and banks, party thereto, and The Chase Manhattan
Bank, as Agent, and ABN AMRO Bank N.V., as Documentation Agent,
shall have been terminated.
(j) Officer's Certificate. On the Closing Date, the
Banks shall have received a certificate of Borrower provided on
its behalf by a Financial Officer dated the Closing Date
certifying (i) compliance with Section 4.01(b) and (c) hereof,
and (ii) the veracity of Section 4.02(a)(ii).
(k) Other Documents. On the Closing Date, the
Administrative Agent shall have received such other documents as
the Administrative Agent may reasonably require.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees with each Bank that,
so long as this Agreement shall remain in effect or the principal
of or interest on any Note or any other expenses or amounts
payable hereunder shall be unpaid or the Commitments are in
effect, unless the Required Banks otherwise consent in writing,
it will, and it will cause each of its Subsidiaries and, with
respect to Section 5.07 only, its ERISA Affiliates to:
SECTION 5.01. Corporate Existence. Do or cause to be
done all things necessary to preserve, renew and keep in full
force and effect its corporate existence, material rights,
licenses, permits and franchises; provided that nothing in this
Section 5.01 shall prevent the abandonment or termination of the
corporate existence, rights or franchises of any Subsidiary or
the Borrower if such abandonment or termination would not have a
material adverse effect upon the business, assets, liabilities,
financial condition, results of operations or business prospects
of the Borrower and its Subsidiaries taken as a whole or the
ability of the Borrower to perform its obligations hereunder or
under any other Fundamental Document.
SECTION 5.02. Maintenance of Property. At all times
maintain and preserve all property used or useful in working
order and condition, and from time to time make, or cause to be
made, all needful and proper repairs, renewals and replacements
thereto, so that the business carried on in connection therewith
may be properly conducted at all times, except to the extent that
the failure to do so would not have a material adverse effect
upon the business, assets, liabilities, financial condition,
results of operations or prospects of the Borrower and its
Subsidiaries taken as a whole or on the ability of the Borrower
or any Guarantor to perform its obligations hereunder or under
any other Fundamental Document.
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SECTION 5.03. Insurance. (a) Keep its insurable
properties adequately insured at all times; (b) maintain such
other insurance, to such extent and against such risks, including
fire and other risks insured against by extended coverage, as is
customary with companies in the same or similar businesses;
(c) maintain in full force and effect public liability insurance
against claims for personal injury or death or property damage
occurring upon, in, about or in connection with the use of any
properties owned, occupied or controlled by the Borrower or any
Subsidiary, as the case may be, in such amount as the Borrower or
such Subsidiary, as the case may be, shall reasonably deem
necessary; and (d) maintain such other insurance as may be
required by law. The Borrower and the Subsidiaries may
self-insure to the extent customary with companies in the same or
similar businesses.
SECTION 5.04. Obligations and Taxes. Pay all its
indebtedness and obligations promptly and in accordance with
their terms except to the extent that the failure to do so would
not have a material adverse effect upon the business, assets,
liabilities, financial condition, results of operations or
prospects of the Borrower and its Subsidiaries taken as a whole
or on the ability of the Borrower or any Guarantor to perform its
obligations hereunder or under any other Fundamental Document and
pay and discharge promptly all taxes, assessments and
governmental charges or levies imposed upon it or upon its income
or profits or in respect of its property (and use its best
efforts to do so), prior to the time penalties would attach
thereto, as well as all lawful claims for labor, materials and
supplies or otherwise which, if unpaid, might become a Lien or
charge upon such properties or any part thereof; provided,
however, that none of the Borrower or any of the Subsidiaries
shall be required to pay and discharge or to cause to be paid and
discharged any such tax, assessment, charge, levy or claim so
long as the validity or amount thereof shall be contested in good
faith by appropriate actions or proceedings and the Borrower or
such Subsidiary, as the case may be, shall have made such
reserve, or other adequate provision, if any, as shall be
required by generally accepted accounting principles with respect
to any such tax, assessment, charge, levy or claim so contested.
SECTION 5.05. Financial Statements; Reports, etc.
Furnish to the Banks:
(a) As soon as available, but in any event within 90
days after the end of each fiscal year of the Borrower, the
Consolidated balance sheet as of the end of such fiscal year of
the Borrower and its Consolidated Subsidiaries, the related
Consolidated statements of income and the Consolidated statements
of cash flows for the year then ended of the Borrower and its
Consolidated Subsidiaries, the foregoing Consolidated financial
statements to be (x) examined by, and to carry the report
reasonably acceptable to the Banks of PriceWaterhouse Coopers LLC
or other independent public accountants of similar nationally
recognized standing reasonably acceptable to the Banks, and to be
in the form of the financial statements included in the
Borrower's annual report on Form 10K filed with the Securities
and Exchange Commission for the fiscal year ended December 31,
2000, and (y) accompanied by a certificate of said accountants
stating that in making the examination necessary for expressing
their opinion on such statements they have obtained no knowledge,
of a financial or accounting nature, of any violation of any of
the terms or provisions of this Agreement or any other
Fundamental Document, or of the occurrence of any condition or
event which, with notice or lapse of time or both, would
constitute an Event of Default, or, if such accountants shall
have obtained knowledge of any such violation, condition or
event, they shall specify in such certificate all such
violations, conditions and events, and the nature thereof, it
being understood that said accountants shall not be liable to
anyone for failure to obtain such knowledge. All such
Consolidated financial statements shall be compiled in reasonable
detail in accordance with generally accepted accounting
principles applied on a consistent basis throughout the periods
reflected therein, except as stated therein, and fairly present
the financial position and results of operations and cash flows
of the Borrower and its Consolidated Subsidiaries for the
respective periods indicated.
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(b) As soon as available, but in any event within 60
days after the end of each of the first three fiscal quarters of
each fiscal year, an unaudited Consolidated condensed balance
sheet, and the related unaudited Consolidated condensed
statements of income for such quarter and for the then elapsed
portion of the fiscal year, and the Consolidated condensed
statements of cash flows of the Borrower and its Consolidated
Subsidiaries for the then-elapsed portion of the fiscal year, the
foregoing Consolidated condensed financial statements to be in
reasonable detail (comparable to the Consolidated condensed
financial statements for the quarter ended June 30, 1997
heretofore delivered to the Banks) and stating (with respect to
the unaudited Consolidated condensed statements of income and
cash flows) in comparative form the figures as at the end of and
for the comparable periods of the preceding fiscal year and to be
certified by a Financial Officer of the Borrower in his capacity
as such as being to the best of his knowledge and belief correct
and complete and as presenting fairly the consolidated financial
position and results of operations of the Borrower and its
Consolidated Subsidiaries in accordance with generally accepted
accounting principles (other than the omission of the notes to
the financial statements required by generally accepted
accounting principles) applied on a basis consistent with
previous fiscal years, in each case subject to normal year-end
adjustments.
(c) Concurrently with (a) and (b) above, a certificate
of a Financial Officer of the Borrower, certifying in his
capacity as such (i) that to the best of his knowledge and belief
no Event of Default, or event which with notice or lapse of time
or both would constitute such an Event of Default or event has
occurred, and, if so, specifying the nature and extent thereof
and specifying any corrective action taken or proposed to be
taken with respect thereto, (ii) that to the best of his
knowledge and belief the Borrower is in compliance with the
covenants set forth in Sections 6.09, 6.10 and 6.11,
(iii) setting forth in reasonable detail calculations
demonstrating compliance with Sections 6.01(x), 6.02, 6.04, and
6.06(c), and (iv) setting forth the calculation in reasonable
detail of the Consolidated Interest Coverage Ratio as at the end
of such fiscal quarter and for the period of four fiscal quarters
then ended treated as a single accounting period, and any change
in pricing anticipated to become effective pursuant to such
notice. In furtherance of the foregoing Clauses (ii), (iii), and
(iv), Borrower shall furnish to the Banks a certificate,
substantially in the form of Exhibit H (a "Compliance
Certificate"), evidencing such compliance and setting forth such
calculations.
(d) Promptly upon their becoming available, copies of
all financial statements, reports, notices and proxy statements
sent or made available generally by the Borrower to its public
security holders, of all regular and periodic reports and all
registration statements and prospectuses, if any, filed by the
Borrower with any securities exchange or with the Securities and
Exchange Commission, or any comparable foreign bodies, and of all
press releases and other statements made available generally by
any of them to the public concerning material developments in the
business of the Borrower.
(e) Promptly, from time to time, such other
information regarding the financial condition and business
operations of the Borrower and its Consolidated Subsidiaries as
any Bank may reasonably request (with a copy of any such written
information provided to the Administrative Agent).
SECTION 5.06. Defaults and Other Notices. Give the
Administrative Agent prompt (but in any event not later than five
Business Days after an officer of the Borrower shall become aware
of the occurrence of such event) written notice of the following:
(a) any Event of Default and any event which with
notice or lapse of time or both would constitute an Event of
Default; and
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(b) any development (other than those specified above
as to which the Administrative Agent has received due notice)
which has resulted in, or which the Borrower reasonably believes
will result in, a material adverse change in the business,
assets, liabilities or financial condition of the Borrower and
its Consolidated Subsidiaries taken as a whole or the ability of
the Borrower to perform its obligations hereunder.
SECTION 5.07. ERISA. (a) Comply in all material
respects with the applicable provisions of ERISA and the Code,
(b) cause all Plans to be funded in accordance with the minimum
funding standards of the Code and ERISA and cause all due and
owing contributions to be made to Multiemployer Plans, and
(c) furnish to the Administrative Agent (i) as soon as possible,
and in any event within 30 days after any officer of the Borrower
or any of its ERISA Affiliates knows or has reason to know that
any Reportable Event with respect to any Plan has occurred that
alone or together with any other Reportable Event with respect to
the same or another Plan could reasonably be expected to result
in liability of the Company to the PBGC in an aggregate amount
exceeding $5,000,000, a statement of a Financial Officer setting
forth details as to such Reportable Event and the action that the
Borrower proposes to take with respect thereto, together with a
copy of the notice of such Reportable Event, if any, given to the
PBGC, (ii) promptly after receipt thereof, a copy of any notice
the Borrower or any of its ERISA Affiliates may receive from the
PBGC relating to the intention of the PBGC to terminate any Plan
or Plans or to appoint a trustee to administer any such Plan,
(iii) within 10 days after a filing with the PBGC pursuant to
Section 412(n) of the Code of a notice of failure to make a
required installment or other payment with respect to a Plan, a
statement of a Financial Officer setting forth details as to such
failure and the action that the Borrower proposes to take with
respect thereto, together with a copy of such notice given to the
PBGC and (iv) promptly and in any event within 30 days after
receipt thereof by the Borrower or any of its ERISA Affiliates
from the sponsor of a Multiemployer Plan or Multiple Employer
Plan, a copy of each notice received by the Borrower or any ERISA
Affiliate of the Borrower concerning (A) the imposition of
Withdrawal Liability by a Multiemployer Plan or Multiple Employer
Plan in an amount exceeding $5,000,000 or (B) a determination
that a Multiemployer Plan or Multiple Employer Plan is, or is
expected to be, terminated or in reorganization, both within the
meaning of Title IV of ERISA, and which, in each case, is
expected to result in an increase in annual contributions of the
Borrower or any of its ERISA Affiliates to such Multiemployer
Plan or Multiple Employer Plan in an amount exceeding $5,000,000.
SECTION 5.08. Access to Premises and Records.
Maintain the financial records of the Borrower and its
Consolidated Subsidiaries in accordance with generally accepted
accounting principles and permit representatives of the Banks to
have access, at all reasonable times upon reasonable notice, to
the Borrower and any of its Subsidiaries and their properties and
to make such excerpts from such financial books and records as
such representatives reasonably request and to discuss the
business, operations, properties and financial and other
condition of the Borrower and such Subsidiaries with officers and
employees of the Borrower and such Subsidiaries and the
independent certified public accountants of the Borrower;
provided that no Bank shall purchase, sell or otherwise acquire or
dispose of any interest in a security of the Borrower in the
public markets on the basis of any material nonpublic information
so obtained.
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SECTION 5.09. Compliance with Laws, etc. The Borrower
and its Subsidiaries shall comply in all material respects with
the requirements of all applicable laws, rules, regulations and
orders of any Governmental Authority, except to the extent that
the failure to do so would not have a material adverse effect
upon the business, assets, liabilities, financial condition,
results of operations or prospects of the Borrower and its
Subsidiaries taken as a whole or on the ability of the Borrower
or any Guarantor to perform its obligations hereunder or under
any other Fundamental Document. If any authorization or approval
or other action by, or notice to or filing with, any Governmental
Authority is required for the performance by the Borrower of this
Agreement or any other Fundamental Document, the Borrower will
promptly obtain such approval or make such notice or filing and
shall provide satisfactory evidence thereof to the Administrative
Agent.
SECTION 5.10. Security Interests. If any property of
the Borrower or any of its Subsidiaries, whether now owned or
hereafter acquired, is subjected to any Lien not permitted by
Section 6.01, the Borrower will make, or will cause to be made,
effective provision whereby the Obligations shall be secured
equally and ratably with all other obligations secured by such
Lien, and, if such provision is not made, an equitable lien, so
equally and ratably securing the Obligations, shall exist on such
property to the full extent permitted under applicable law; it
being understood that the Borrower's compliance with the
provisions of this Section 5.10 shall not, in any way, constitute
a cure by the Borrower or a waiver by the Banks of the Borrower's
failure to perform or observe any of the covenants or agreements
in Section 6.01.
SECTION 5.11. Subsidiary Guarantors. Promptly upon
any person incorporated in the United States becoming a
Subsidiary that is a Material Subsidiary, or upon any Subsidiary
incorporated in the United States becoming a Material Subsidiary,
the Borrower agrees that it or the other direct owner of such
Subsidiary shall cause such Subsidiary to sign such an instrument
substantially in the form of Exhibit G hereto, under which such
Subsidiary shall become a party hereto and to the Contribution
Agreement, the other Fundamental Documents (to the extent that
Guarantors are parties thereto), and the Intercreditor Agreement,
in each case as a Guarantor and assume all obligations of a
Guarantor under the Credit Agreement, all in a manner
satisfactory to the Administrative Agent and its counsel;
provided, however, the Borrower shall be permitted at any time to
cause any of its Subsidiaries not then subject to this
Section 5.11 to become a party to this Agreement and the other
agreements set forth above in accordance with the requirements
hereof, and provided further that, in the case of any additional
Guarantor that is organized under the laws of a jurisdiction
other than the United States or a state thereof, the
Administrative Agent on behalf of the Banks and itself shall have
received an opinion of counsel, admitted to practice in the
relevant foreign jurisdiction, in form and substance satisfactory
to the Administrative Agent.
SECTION 5.12. Environmental Laws. (a) Promptly
notify the Administrative Agent upon any Senior Officer of the
Borrower becoming aware of any violation or noncompliance with,
or liability under any Environmental Laws which, when taken
together with all other pending violations would reasonably be
expected to be materially adverse to the Borrower and the
Consolidated Subsidiaries taken as a whole, and promptly furnish
to the Administrative Agent all notices of any nature which the
Borrower or any Consolidated Subsidiaries may receive from any
Governmental Authority or other Person with respect to any
violation, or potential violation or noncompliance with, or
liability or potential liability under any Environmental Laws
which, in any case or when taken together with all such other
notices, would reasonably be expected to have a material adverse
effect on the Borrower and the Consolidated Subsidiaries taken as
a whole.
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(b) Comply with and use reasonable efforts to ensure
compliance by all tenants and subtenants with all Environmental
Laws, and obtain and comply in all material respects with and
maintain and use reasonable efforts to ensure that all tenants
and subtenants obtain and comply in all material respects with
and maintain any and all licenses, approvals, registrations or
permits required by Environmental Laws.
(c) Conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions
required under all Environmental Laws and promptly comply in all
material respects with all lawful orders and directives of all
Governmental Authorities.
(d) Defend, indemnify and hold harmless the
Administrative Agent and the Banks, and their respective
employees, agents, officers and directors, from and against any
claims, demands, penalties, fines, liabilities, settlements,
damages, costs and expenses of whatever kind or nature, known or
unknown, contingent or otherwise, arising out of, or in any way
related to the violation of or noncompliance with any
Environmental Laws, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without
limitation, reasonable attorney and consultant fees,
investigation and laboratory fees, court costs and litigation
expenses, but excluding therefrom all claims, demands, penalties,
fines, liabilities, settlements, damages, costs and expenses
arising out of or resulting from (i) the gross negligence or
willful misconduct of such indemnified party or (ii) any acts or
omissions of any indemnified party occurring after such
indemnified party is in possession of, or controls the operation
of, any property or asset.
SECTION 5.13. Senior Debt Status. Maintain the
Obligations on at least a pari passu basis in priority of payment
with all other Indebtedness of Borrower and the Guarantors,
except with respect to Indebtedness to the extent secured by
Liens permitted by Section 6.01.
ARTICLE VI
NEGATIVE COVENANTS
The Borrower covenants and agrees with the Banks that,
so long as this Agreement shall remain in effect or the principal
of or interest on any Note or any other expenses or amount
payable hereunder shall be unpaid or the Commitments are in
effect, unless the Required Banks otherwise consent in writing,
it will not, and it will not cause or permit any of its
Subsidiaries, directly or indirectly, to:
SECTION 6.01. Liens. Incur, create or permit to exist
any Lien on (or sale and leaseback transaction with respect to)
any property, assets or stock owned or hereafter acquired by the
Borrower or any of its Subsidiaries, other than Liens in favor of
the Administrative Agent for the benefit of the Banks and:
(i) Liens for taxes, assessments or governmental
charges or levies not yet delinquent or thereafter payable
without penalty for nonpayment or (if foreclosure,
distraint, sale or other similar proceedings shall not have
been commenced) being contested in good faith and by
appropriate actions or proceedings promptly initiated and
diligently conducted, if such reserve or other appropriate
provision, if any, as shall be required by generally
accepted accounting principles shall have been made therefor;
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(ii) Liens of carriers, warehousemen, mechanics and
materialmen incurred in the ordinary course of business for
sums not yet due or being contested in good faith and by
appropriate actions or proceedings promptly initiated and
diligently conducted, if such reserve or other appropriate
provision, if any, as shall be required by generally
accepted accounting principles shall have been made therefor;
(iii) Liens incurred or deposits made in the
ordinary course of business, in connection with workers'
compensation, unemployment insurance and other social
security, or to secure the performance of bids, tenders,
leases, contracts (other than the repayment of borrowed
money), statutory obligations, surety, customs and appeal
bonds;
(iv) zoning restrictions, easements, licenses,
reservations, provisions, covenants, conditions, waivers,
restrictions on the use of real property or minor
irregularities of title to real property (and with respect
to leasehold encumbrances or interests, mortgages,
obligations, liens and other encumbrances incurred, created,
assumed or permitted to exist and arising by, through or
under or asserted by a landlord or owner of the leased
property, with or without consent of the lessee), none of
which materially impairs the use of any parcel of real
property material to the operation of the business of the
owner thereof or the value of such property for the purpose
of such business;
(v) Liens securing purchase money Indebtedness of the
Borrower and its Subsidiaries; provided that (A) such Liens
shall not encumber any property other than the property
acquired, (B) the Indebtedness secured thereby does not
exceed the purchase price of such property, and (C) such
transaction does not otherwise violate this Agreement;
(vi) Liens upon assets of a corporation existing at
the time such corporation is merged into or consolidated
with the Borrower or a Subsidiary or at the time of its
acquisition by the Borrower or a Subsidiary or its becoming
a Subsidiary; provided that such Lien does not spread to any
other asset at any time owned by the Borrower or any
Subsidiary;
(vii) Liens in existence on the date hereof which
are listed in Schedule 6.01 (which Schedule includes all
such Liens (other than Liens of the types described in
paragraphs (i) through (v) above) securing obligations in
excess of $500,000);
(viii) Liens arising out of the renewal or
refunding of any Indebtedness of the Borrower and its
Subsidiaries secured by Liens permitted by the foregoing;
provided that the aggregate principal amount of such
Indebtedness is not increased and is not secured by
additional assets and the Indebtedness secured by the Lien
is permitted under this Agreement;
(ix) Liens in connection with attachments, judgments
or awards as to which an appeal or other appropriate
proceedings for contest or review are promptly commenced and
diligently pursued in good faith (and as to which
foreclosure and other enforcement proceedings shall not have
been commenced (unless fully bonded or otherwise effectively
stayed)); and
(x) other Liens on assets with an aggregate book value
for all such assets subject to Liens, which when added to
the aggregate book value of assets subject to Sale and
Leaseback Transactions permitted under Section 6.06(c), do
not at the time in effect exceed 10% of Consolidated Net
Worth.
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SECTION 6.02. Indebtedness. Permit any of the foreign
Subsidiaries or any domestic Subsidiaries which are not
Guarantors hereunder to incur, create, assume, become or be
liable in any manner with respect to, or permit any of such
Subsidiaries to permit or suffer to exist, any Indebtedness,
unless after giving effect to such Indebtedness the total
Indebtedness of all such Subsidiaries is no greater than 15%
of Consolidated Net Worth; provided, however, this
Section 6.02 shall not apply to any Subsidiary which becomes
a Guarantor hereunder in accordance with Section 5.11
hereof.
SECTION 6.03. Mergers, Consolidations, Sales of Assets
and Acquisitions. Neither the Borrower nor any Subsidiary (in
one transaction or series of transactions) will wind up,
liquidate or dissolve its affairs, or enter into any transaction
of merger or consolidation, or sell or otherwise dispose of all
or any part of its property or assets, except:
(a) mergers between the Borrower and a Subsidiary
(provided that Borrower shall be the surviving corporation)
or between Subsidiaries;
(b) sales of inventory, marketable securities,
receivables owed to a foreign subsidiary and receivables of
the Borrower or any Subsidiary from export sales, in each
case in the ordinary course of business;
(c) sales permitted pursuant to Section 6.06;
(d) subject to Section 6.03(e) below, any merger (other
than as described in (a) above), consolidation, dissolution
or liquidation; provided, however, that (i) immediately
prior to and on a Pro Forma Basis after giving effect to
such transaction no Default or Event of Default has occurred
or is continuing, (ii) if such transaction involves a Person
other than the Borrower and its Subsidiaries, the
Administrative Agent shall promptly receive a certificate of
a Financial Officer of the Borrower confirming that such
transaction complies with the requirements set forth in this
section and (iii) if such transaction involves the Borrower,
the Borrower is the surviving entity;
(e) a disposition of less than substantially all of the
assets of the Borrower and its Subsidiaries, taken as a
whole, (i) for consideration which represents fair market
value (as reasonably determined in good faith by the
Borrower's Board of Directors) or, at a price determined by
the Board of Directors of the Borrower to be in the best
interests of the Borrower under circumstances where the
Board of Directors of the Borrower deems a sale on terms
other than fair market value to be in the best interest of
the Borrower, (ii) immediately prior to and on a Pro Forma
Basis after giving effect thereto, no Event of Default or
Default shall have occurred and be continuing and (iii) if
the transaction involves consideration of $20,000,000 or
more, the Administrative Agent shall promptly receive a
certificate of a Financial Officer of the Borrower
confirming that such transaction complies with the
requirements set forth in this section; and
(f) acquisitions of an interest in any business from
any Person (whether pursuant to a merger, an acquisition of
stock, assets, a business unit or otherwise); provided that
(i) immediately prior to and on a Pro Forma Basis after
giving effect thereto, no Event of Default or Default shall
have occurred and be continuing and (ii) if the transaction
involves consideration equal to or in excess of $10,000,000,
the Administrative Agent shall promptly receive a
certificate of a Financial Officer of the Borrower
confirming that such transaction complies with the
requirements set forth in this section.
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SECTION 6.04. Change of Business. Engage in any
business activities other than those related or incidental
to its present business activities, namely, the manufacture
and wholesale distribution of (i) dental supplies and
equipment, (ii) medical/industrial supplies and equipment
and (iii) other healthcare products; provided that (x) the
business activities, described in clause (iii) shall not at
any time represent more than 20% of the Consolidated Net
Income of the Borrower and the Subsidiaries as of the end of
the then most recently completed fiscal year of the
Borrower, and (y) the assets of the business activities
described in clause (iii) shall not at any time represent
more than 20% of the Consolidated assets of the Borrower and
the Subsidiaries.
SECTION 6.05. Transactions with Affiliates. Enter
into any transactions with or provide any employee benefits to
any Affiliate of the Borrower or any Subsidiary except (a) in the
ordinary course of business and upon fair and reasonable terms no
less favorable than the Borrower or the Subsidiary concerned
could, in the good faith judgment of senior management of the
Borrower, obtain or could become entitled to in an arm's-length
transaction with a person or entity which was not an Affiliate of
the Borrower or such Subsidiary, (b) transactions involving the
Borrower and one or more Subsidiaries exclusively, (c)
transactions involving two or more Subsidiaries exclusively,
(d) transactions with the ESOP or other similar foreign employee
stock ownership plans of Subsidiaries of the Borrower which do
not materially and adversely affect the interests of the
Administrative Agent or the Banks under the Fundamental
Documents, and (e) transactions otherwise expressly permitted
hereunder.
SECTION 6.06. Sale and Leaseback. Enter into any
arrangement, directly or indirectly, with any person whereby it
shall sell or transfer any property, whether real or personal,
and used or useful in its business, whether now owned or
hereafter acquired, if the Borrower or any of its Subsidiaries at
the time of such sale or disposition intends to lease or
otherwise acquire the right to use or possess (except by
purchase) such property or like property for a substantially
similar purpose (a "Sale and Leaseback Transaction") except:
(a) the Des Plaines Lease;
(b) for any such Sale and Leaseback Transaction in
which the property is sold by the Borrower to a Subsidiary
or by a Subsidiary to the Borrower or another Subsidiary; or
(c) the Borrower or any Subsidiary may enter into any
Sale and Leaseback Transaction if (i) at the time of such
Sale and Leaseback Transaction no Default or Event of
Default shall have occurred and be continuing, (ii) the
proceeds from the sale of the subject property shall be
equal to not less than 80% of its fair market value (as
reasonably determined by the Borrower's Board of Directors)
and (iii) after giving effect to such Sale and Leaseback
Transaction, the aggregate book value of all assets of the
Borrower and the Subsidiaries subject to Sale and Leaseback
Transactions when added to the aggregate book value of
assets subject to Liens permitted under Section 6.01(x) and
excluding those described in paragraphs (a) and (b) above,
shall not at any time exceed 10% of Consolidated Net Worth.
SECTION 6.07. Dividends by Subsidiaries. Create,
incur, assume or permit to exist any agreement or instrument
which has the effect of restricting or prohibiting the power,
authority or legal right of such Subsidiary to declare or pay any
dividend or other distribution.
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SECTION 6.08. Amendments to Certain Documents. Amend,
modify or otherwise change (a) any covenant or event of default
in any material indenture or other material agreement or material
instrument relating to any Indebtedness or (b) any of its
constitutive documents, in either case in any manner materially
adverse to the interests of the Administrative Agent or the Banks
under the Fundamental Documents.
SECTION 6.09. Minimum Consolidated Net Worth. Permit
Consolidated Net Worth at any time to be less than (x)
$450,000,000 plus (y) 25% of aggregate Consolidated Net Income
for each full fiscal quarter for which such Consolidated Net
Income is positive that shall have been completed during the
period from the Closing Date to the date of determination.
SECTION 6.10. Interest Coverage. Permit the
Consolidated Interest Coverage Ratio at the end of any fiscal
quarter to be less than 3.5 to 1.0 for the period of the four
consecutive fiscal quarters then ended treated as a single
accounting period.
SECTION 6.11. Debt Ratio.
(a) In the event that the Proposed Acquisition occurs
no later than August 30, 2001, then upon and after the
Proposed Acquisition, permit the Debt Ratio at any such time
through December 31, 2002, to be greater than 0.60 to 1.0 or
permit the Debt Ratio at any time after December 31, 2002,
to be greater than 0.50 to 1.0.
(b) Prior to the date of the Proposed Acquisition or
in the event that the Proposed Acquisition does not occur by
August 30, 2001, permit the Debt Ratio at any such time
through May 24, 2002, to be greater than 0.55 to 1.0 or
permit the Debt Ratio at any time thereafter to be greater
than 0.50 to 1.0.
SECTION 6.12. Fiscal Year. Change its fiscal year or
modify or change accounting treatments or reporting practices
except as otherwise permitted or required by generally accepted
accounting principles.
ARTICLE VII
EVENTS OF DEFAULT
In the case of the happening of any of the following
events (hereinafter called "Events of Default"):
(a) any representation or warranty made by the Borrower
or any of the Guarantors in connection with this Agreement
or any other Fundamental Document or with the execution and
delivery of the Notes or the borrowings hereunder or any
statement or representation made in any report, certificate,
financial statement or other instrument furnished by the
Borrower or any of the Guarantors to the Banks or the
Administrative Agent pursuant to this Agreement or any other
Fundamental Document shall prove to have been false or
misleading in any material respect when made or delivered;
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(b) default shall be made in the payment of the
principal of or interest on any Note or of any fees or other
amounts payable by the Borrower hereunder, when and as the
same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise, and, in the case of
interest, such default shall continue unremedied for five
Business Days;
(c) default shall be made with respect to the payment
of any amount due under any agreement or other evidence of
Indebtedness for borrowed money (other than the Notes) of
the Borrower or any of the Subsidiaries in an aggregate
outstanding principal amount of $10,000,000 or more; or any
other default shall be made with respect to any such
Indebtedness and such Indebtedness shall have been
accelerated so that any payment in respect of such
Indebtedness shall be or become due prior to its maturity or
scheduled due date;
(d) default shall be made in the due observance or
performance of any covenant, condition or agreement on the
part of the Borrower on its own behalf or on behalf of any
of the Subsidiaries or any of the Guarantors contained in
Article VI or Article VIII hereof; provided that in the case
of a default under Section 6.01, resulting solely from
incurrence of a prohibited obligation by a Subsidiary
without the approval or knowledge of any officer of the
Borrower, such default shall continue unremedied for 30 days;
(e) the guaranty under Article VIII hereof shall (i)
not remain in full force and effect, be declared null and
void or shall not be enforceable against the Guarantors in
accordance with its terms and such guaranty shall not be
reinstated to full force and effect and enforceability
against the Guarantors in accordance with its terms within
30 days or (ii) be disaffirmed or repudiated by the Borrower
or any such Guarantor;
(f) default shall be made in the due observance or
performance of any other covenant, condition or agreement to
be observed or performed by the Borrower on its own behalf
or on behalf of any of the Subsidiaries or any of the
Guarantors pursuant to the terms hereof or of any other
Fundamental Document and such default shall continue
unremedied for a period equal to the sum of 30 days after
such failure shall have first occurred plus an additional
three Business Days;
(g) the Borrower or any Material Subsidiary shall
(i) voluntarily commence any proceeding or file any petition
seeking relief under Title 11 of the United States Code or
any other federal or state bankruptcy, insolvency or similar
law now or hereafter in effect, (ii) consent to the
institution of, or fail to controvert in a timely and
appropriate manner, any such proceeding or the filing of any
such petition, (iii) apply for or consent to the appointment
of a receiver, trustee, custodian, sequestrator or similar
official for the Borrower or any such Material Subsidiary or
for a substantial part of its property, (iv) file an answer
admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general
assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its
debts as they become due or (vii) take corporate action for
the purpose of effecting any of the foregoing;
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(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed in a court of competent
jurisdiction seeking (i) relief in respect of the Borrower
or any Material Subsidiary, or of a substantial part of its
property, under Title 11 of the United States Code or any
other federal or state bankruptcy, insolvency or similar law
now or hereafter in effect, (ii) the appointment of a
receiver, trustee, custodian, sequestrator or similar
official for the Borrower or such Material Subsidiary or for
a substantial part of its property or (iii) the winding-up
or liquidation of the Borrower or such Material Subsidiary;
and such proceeding or petition shall continue undismissed
for 60 days or an order or decree approving or ordering any
of the foregoing shall continue unstayed and in effect for
30 days;
(i) a final judgment for the payment of money (which
alone, or when aggregated with all other such unpaid
judgments to the extent not fully covered by insurance from
financially sound and reputable insurers against the
Borrower and its Subsidiaries at such time, is for
$10,000,000 or more) shall be rendered against the Borrower
or any of the Subsidiaries and the same shall remain
undischarged for a period of 60 days or any action is taken
by the judgment creditor to levy thereon;
(j) a Reportable Event or Reportable Events, or a
failure to make a required payment (within the meaning of
Section 412(n)(1)(A) of the Code) shall have occurred with
respect to any one or more Plans or Multiemployer Plans
that reasonably could be expected to result in liability of
the Borrower to the PBGC or to a Plan in an aggregate amount
exceeding $10,000,000 and, within 30 days after the
reporting of any such Reportable Event to the Administrative
Agent or after the receipt by the Administrative Agent of
the statement required pursuant to Section 5.07(b)(iii)
hereof, the Administrative Agent shall have notified the
Borrower in writing that (i) the Required Banks have made a
determination that, on the basis of such Reportable Event or
Reportable Events or the receipt of such statement, there
are reasonable grounds (A) for the termination of such Plan
or Plans by PBGC, (B) for the appointment by the appropriate
United States District Court of a trustee to administer such
Plan or Plans or (C) for the imposition of a Lien in favor
of a Plan and (ii) as a result thereof an Event of Default
exists hereunder; or a trustee shall be appointed by a
United States District Court to administer any such Plan or
Plans; or the PBGC shall institute proceedings to terminate
any Plan or Plans;
(k) (i) the Borrower or any of its ERISA Affiliates
shall have been notified by the sponsor of a Multiemployer
Plan or Multiple Employer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan or Multiple
Employer Plan, (ii) the Borrower or any such ERISA Affiliate
does not have reasonable grounds for contesting such
Withdrawal Liability and is not in fact contesting such
Withdrawal Liability in a timely and appropriate manner, and
(iii) the amount of such Withdrawal Liability specified in
such notice, when aggregated with all other amounts required
to be paid to Multiemployer Plans and Multiple Employer
Plans in connection with Withdrawal Liabilities (determined
as of the date or dates of such notification), exceeds
$10,000,000 or requires payments exceeding $10,000,000 in
any year;
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(l) the Borrower or any of its ERISA Affiliates shall
have been notified by the sponsor of a Multiemployer Plan or
Multiple Employer Plan that such Multiemployer Plan or
Multiple Employer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, if
solely as a result of such reorganization or termination the
aggregate annual contributions of the Borrower and its ERISA
Affiliates to all Multiemployer Plans and Multiple Employer
Plans that are then in reorganization or have been or are
being terminated have been or will be increased over the
amounts required to be contributed to such Multiemployer
Plans for their most recently completed plan years by an
amount exceeding $10,000,000 in any year; or
(m) (i) a person or two or more persons acting in
concert (excluding the ESOP and any other person who holds
5% or more of the outstanding shares of voting stock of the
Borrower as of the Closing Date) shall acquire beneficial
ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities
Exchange Act of 1934) of more than 40% of the outstanding
shares of voting stock of the Borrower, or (ii) the
individuals who, as of such Closing Date, are members of the
Board of Directors of the Borrower (the "Incumbent Board")
shall cease to constitute at least a majority of the Board
of Directors of the Borrower; provided, however, that if the
election, or nomination for election of any new director was
approved by a vote of at least a majority of the Incumbent
Board or any nominating committee thereof, such new director
shall, for purposes hereof, be considered as a member of the
Incumbent Board;
then, and in every such event and at any time thereafter during
the continuance of such event, the Administrative Agent may
(unless, in the case of each Event of Default other than that
specified in paragraph (b) above, the Required Banks shall have
waived such Event of Default in writing, and, in the case of an
Event of Default specified in paragraph (b) above, each of the
Banks shall have waived such Event of Default in writing), and,
upon direction of the Required Banks, will by written notice to
the Borrower, take any of the following actions, at the same or
different times: (i) terminate the Commitments and (ii) declare
the Notes to be forthwith due and payable, whereupon the Notes
and all other fees and amounts owing hereunder shall become
forthwith due and payable, both as to principal and interest,
without presentment, demand, protest or any other notice of any
kind, all of which are hereby expressly waived, anything
contained herein or in the Notes to the contrary
notwithstanding. Notwithstanding the foregoing, if an Event of
Default specified in paragraph (g) or (h) above occurs with
respect to the Borrower or a Guarantor, the Notes shall become
immediately due and payable, both as to principal and interest,
without any action by the Administrative Agent and without
presentment, demand, protest or any other notice of any kind, all
of which are hereby expressly waived, anything contained herein
or in the Notes to the contrary notwithstanding.
ARTICLE VIII
GUARANTY
SECTION 8.01. Guaranty. (a) Each Guarantor hereby,
jointly and severally, unconditionally and irrevocably guaranties
to the Banks and the Administrative Agent the due and punctual
payment by and performance of the Obligations (including interest
accruing on and after the filing of any petition in bankruptcy or
reorganization of the applicable obligor whether or not
post-filing interest is allowed in such proceeding) by the
Borrower.
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(b) Each Guarantor waives notice of acceptance of this
guaranty and also waives presentation to, demand of payment from
and protest to the Borrower of any of the Obligations, as well as
notice of protest for nonpayment and all other formalities. The
obligations of each Guarantor hereunder shall not be affected by
(i) the failure of the Administrative Agent or the Banks to
assert any claim or demand or to enforce any right or remedy
against the Borrower under this Agreement or otherwise; (ii) any
extension or renewal of any of the Obligations; (iii) any
rescission, waiver, amendment or modification of any of the terms
or provisions of this Agreement or any other agreement or
instrument; (iv) the taking or release of any security held by
the Banks or the Administrative Agent for the performance of any
of the Obligations; (v) the failure of the Administrative Agent
or the Banks to exercise any right or remedy against the Borrower
or any other guarantor of the Obligations; (vi) any stay in
bankruptcy or insolvency proceedings of the Borrower or any other
Person; or (vii) the release or substitution of any other
Guarantor.
(c) Each Guarantor agrees that this guaranty
constitutes a guaranty of payment when due and not of collection
and waives any right to require that any resort be had by the
Banks or the Administrative Agent to any security held for
payment of the Obligations or to any balance of any deposit
account or credit on the books of the Banks or the Administrative
Agent in favor of the Borrower or any other person.
SECTION 8.02. No Impairment of Guaranty. The
obligations of each Guarantor hereunder shall not be subject to
any reduction, limitation, impairment or termination for any
reason, including any claim of waiver, release, surrender,
alteration or compromise, and shall not be subject to any
defense, setoff, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or
unenforceability of the Obligations or otherwise. Without
limiting the generality of the foregoing, the obligations of each
Guarantor hereunder shall not be discharged or impaired or
otherwise affected by the failure of the Banks or the
Administrative Agent to assert any claim or demand or to enforce
any remedy under this Agreement or any other agreement or
instrument, by any waiver or modification of any thereof by the
Banks or the Administrative Agent, by any default, failure or
delay, willful or otherwise, in the performance of the
Obligations or by any other act or omission or delay to do any
other act which might in any manner or to any extent vary the
risk of any Guarantor or which would otherwise operate as a
discharge of a guarantor as a matter of law.
SECTION 8.03. Continuation and Reinstatement, etc.
Each Guarantor further agrees that this guaranty shall continue
to be effective or be reinstated, as the case may be, if at any
time any payment on any Obligation is rescinded or must otherwise
be restored by the Banks upon the bankruptcy or reorganization of
the Borrower or otherwise.
SECTION 8.04. Payment, etc. (a) In furtherance of
the foregoing and not in limitation of any other right which the
Banks or the Administrative Agent may have at law or in equity
against any Guarantor by virtue hereof, upon the failure of the
Borrower to pay or perform any Obligation when and as the same
shall become due, whether at maturity, by acceleration, after
notice of prepayment or otherwise, each Guarantor hereby promises
to and will, upon receipt of written demand by the Banks or the
Administrative Agent, forthwith pay, or cause to be paid, in
cash, to the Administrative Agent, an amount equal to the sum of
(i) the unpaid principal amount of such Obligations, (ii) accrued
and unpaid interest on such Obligations and (iii) all other
unpaid Obligations of the Borrower to the Administrative Agent
and the Banks.
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(b) Each Guarantor agrees that to the fullest extent
permitted by applicable law, all rights against the Borrower
arising as a result of any payment by any Guarantor under this
guaranty by way of right of subrogation or otherwise shall in all
respects be junior and subordinate in right of payment to the
prior indefeasible payment in full of all the Obligations to the
Administrative Agent for the benefit of the Banks. If after the
Borrower has failed to pay any Obligation when due, any amount
shall be paid to any Guarantor for the account of the Borrower,
such amount shall be held in trust for the benefit of the
Administrative Agent and shall forthwith be paid to the
Administrative Agent on behalf of the Banks to be credited and
applied to the Obligations when due and payable.
(c) Each Guarantor waives notice of and hereby
consents to any agreements or arrangements whatsoever by the
Banks or the Administrative Agent with the Borrower, or anyone
else, including agreements and arrangements for payment,
extension, subordination, composition, arrangement, discharge or
release of the whole or any part of the Obligations, or for the
discharge or surrender of any or all security, or for compromise,
whether by way of acceptance of part payment or otherwise, and
the same shall in no way impair such Guarantor's liability
hereunder. Nothing shall discharge or satisfy the liability of
any Guarantor hereunder except the full performance and payment
of the Obligations.
SECTION 8.05. Benefit to Guarantors. Each Guarantor
acknowledges that it has realized a direct economic benefit as a
result of the refinancing of the loans outstanding under that
364-Day Competitive Advance, Revolving Credit and Guaranty
Agreement dated as of October 23, 1997, as amended, modified, and
supplemented through the date hereof, among the Borrower, the
guarantors and banks, party thereto, and The Chase Manhattan
Bank, as Agent, and ABN AMRO Bank N.V., as Documentation Agent,
and the availability to it of the proceeds of Loans that have
been or may in the future be made hereunder.
SECTION 8.06. Modification to Conform to Law.
(a) Without limiting the generality of Section 10.08,
to the extent that applicable law (including applicable laws
pertaining to fraudulent or preferential transfer) otherwise
would render the full amount of the Guarantor's obligations
hereunder invalid, voidable, or unenforceable on account of the
amount of a Guarantor's aggregate liability under this guaranty,
then, notwithstanding any other provision of this guaranty to the
contrary, the aggregate amount of such liability shall, without
any further action by the Administrative Agent or any of the
Banks or such Guarantor or any other Person, be automatically
limited and reduced to the highest amount which is valid and
enforceable as determined in such action or proceeding, which
(without limiting the generality of the foregoing) may be an
amount which is equal to the greater of:
(i) the fair consideration actually received by
such Guarantor under the terms and as a result of the Fundamental
Documents (including the Contribution Agreement) and the value of
the benefits derived by such Guarantor from credit granted to its
Affiliates and the synergistic benefits of such affiliation and
including distributions, commitments, and advances made to or for
the benefit of such Guarantor with the proceeds of any credit
extended under the Fundamental Documents, or
(ii) the excess of (1) the amount of the fair
value of the assets of such Guarantor (as of the date of this
guaranty or other date relevant to the applicable law which would
render the full amount of the Guarantor's obligations hereunder
invalid, voidable, or unenforceable) determined in accordance
with applicable federal and state laws governing determinations
of the insolvency of debtors, over (2) the amount of all
liabilities of such Guarantor as of such date, also as determined
on the basis of applicable federal and state laws governing the
insolvency of debtors.
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(b) Notwithstanding anything to the contrary in this
Article VIII, the guaranty hereby given in this Agreement shall
be presumptively valid and enforceable to its fullest extent in
accordance with its terms, as if this Section 8.06 were not a
part of this guaranty, and in any related litigation the burden
of proof shall be on the party asserting the invalidity,
voidability, or unenforceability of any provision of this Article
VIII or asserting any limitation on any Guarantor's obligations
hereunder as to each element of such assertion.
SECTION 8.07. Additional Guarantors. At any time
after the initial execution and delivery of this Agreement to the
Administrative Agent and the Banks, additional Persons may become
parties to this guaranty and thereby acquire the duties and
rights of being Guarantors hereunder by executing and delivering
to the Administrative Agent and the Banks a Joinder and
Assumption Agreement, substantially in the form of Exhibit G
hereto. No notice of the addition of any Guarantor shall be
required to be given to any pre-existing Guarantor and each
Guarantor hereby consents thereto and affirms that its
obligations shall continue hereunder undiminished.
ARTICLE IX
ADMINISTRATIVE AGENT
SECTION 9.01. Appointment of Administrative Agent. In
order to expedite the various transactions contemplated by this
Agreement, ABN AMRO Bank N.V. is hereby appointed to act as
Administrative Agent on behalf of the Banks. Each Bank
irrevocably authorizes and directs the Administrative Agent to
take such action on behalf of such Bank under the terms and
provisions of this Agreement and to exercise such powers
hereunder as are specifically delegated to or required of the
Administrative Agent by the terms and provisions hereof, together
with such powers as are reasonably incidental thereto. Without
limiting the generality of the foregoing, each of the Banks
hereby agrees to the provisions of that draft Intercreditor
Agreement, substantially in the form of Exhibit F, and authorizes
the Administrative Agent to execute and deliver an Intercreditor
Agreement substantially in the form of Exhibit F for and on
behalf of each of the Banks.
SECTION 9.02. Exculpation. Neither the Administrative
Agent nor the Documentation Agent, nor any of their directors,
officers, employees or agents shall be liable as such for any
action taken or omitted by any of them hereunder except for its
or his own gross negligence or willful misconduct, or be
responsible for any statement, warranty or representation herein,
or be required to ascertain or to make any inquiry concerning the
performance or observance by the Borrower or the Guarantors of
any of the terms, conditions, covenants or agreements of this
Agreement. Neither the Administrative Agent nor the
Documentation Agent shall be responsible to the Banks for the due
execution, genuineness, validity, enforceability or effectiveness
of this Agreement or any other Fundamental Document, the Notes or
any other instrument to which reference is made herein. The
Administrative Agent may deem and treat the payee of any Note as
the owner thereof for all purposes hereof until written notice of
transfer shall have been filed with it. The Administrative Agent
shall promptly notify the Borrower of any such notice received by
such Administrative Agent. The Administrative Agent shall in all
cases be fully protected in acting, or refraining from acting, in
accordance with written instructions signed by the Banks, and,
except as otherwise specifically provided herein, such
instructions and any action taken or failure to act pursuant
thereto shall be binding on all of the Banks. The Administrative
Agent shall, in the absence of knowledge to the contrary, be
entitled to rely on any paper or document believed by it to be
genuine and correct and to have been signed or sent by the proper
person or persons. Neither the Administrative Agent nor any of
its directors, officers, employees or agents shall have any
responsibility to the Borrower on account of the failure or delay
in performance or breach by any Bank of any of its obligations
hereunder or to any Bank on account of the failure or delay in
performance or breach by any other Bank, or the Borrower, of any
of their respective obligations hereunder or in connection
herewith.
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SECTION 9.03. Consultation with Counsel. The
Administrative Agent may execute any and all duties hereunder by
or through agents or employees and shall be entitled to advice of
legal counsel selected by it with respect to all matters arising
hereunder and shall not be liable for any action taken or
suffered in good faith by it in accordance with the advice of
such counsel.
SECTION 9.04. The Administrative Agent, Individually.
With respect to the Loans made by it and the Notes issued to it,
the Administrative Agent in its individual capacity and not as
Administrative Agent shall have the same rights and powers
hereunder and under any other agreement as any other Bank and may
exercise the same as though it were not the Administrative Agent,
and the Administrative Agent and its affiliates may accept
deposits from, lend money to and generally engage in any kind of
business with the Borrower or any of the Subsidiaries or other
Affiliate of the Borrower or any such Subsidiary as if it were
not the Administrative Agent.
SECTION 9.05. Reimbursement and Indemnification. Each
Bank agrees (i) to reimburse the Administrative Agent in the
amount of such Bank's proportionate share of any expenses
incurred for the benefit of the Banks, including counsel fees and
compensation of agents and employees paid for services rendered
on behalf of the Banks, not reimbursed by the Borrower, and (ii)
to indemnify and hold harmless the Administrative Agent and any
of its directors, officers, employees or agents, on demand, in
the amount of its proportionate share, from and against any and
all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever which may be imposed on, incurred
by or asserted against it or any of them in any way relating to
or arising out of this Agreement, or under the other Fundamental
Documents or any action taken or omitted by it or any of them
under this Agreement or under the other Fundamental Documents, to
the extent not reimbursed by the Borrower; provided, however,
that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of the Administrative Agent or
any of its directors, officers, employees or agents.
SECTION 9.06. Resignation. Subject to the appointment
and acceptance of a successor Administrative Agent as provided
below, the Administrative Agent may resign at any time by
notifying the Banks and the Borrower. Upon any such resignation,
and with the consent of the Borrower (which shall be deemed to be
granted if an Event of Default shall have occurred and be
continuing), the Required Banks shall have the right to appoint a
successor Administrative Agent which is a Bank hereunder. If no
successor Administrative Agent shall have been so appointed by
such Banks and shall have accepted such appointment within 30
days after the retiring Administrative Agent gives notice of its
resignation, then the retiring Administrative Agent may, on
behalf of the Banks, appoint a successor Administrative Agent
having a combined capital and surplus of at least $300,000,000
and which is a Bank hereunder. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor
bank, such successor shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the
retiring Administrative Agent and the retiring Administrative
Agent shall be discharged from its duties and obligations
hereunder and under any other documents executed in connection
herewith. After the Administrative Agent's resignation
hereunder, the provisions of this Article IX shall continue in
effect for its benefit in respect of any actions taken or omitted
to be taken by it while it was acting as Administrative Agent.
At all times, any Administrative Agent hereunder shall be a Bank
hereunder.
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ARTICLE X
MISCELLANEOUS
SECTION 10.01. Notices. Notices and other
communications provided for herein shall be in writing and shall
be delivered or mailed (or in the case of telegraphic
communication, if by telegram, delivered to the telegraph company
and, if by telex, telecopy, graphic scanning or other telegraphic
or electronic communications equipment, delivered by such
equipment) addressed at its address or number set forth on
Schedule 2.01. All notices and other communications given to any
party hereto in accordance with the provisions of this Agreement
shall be effective when received.
SECTION 10.02. No Waivers; Amendments. No failure or
delay of the Administrative Agent or any Bank in exercising any
power or right hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right or power,
or any abandonment or discontinuance of steps to enforce such a
right or power, preclude any other or further exercise thereof or
the exercise of any other right or power. The rights and
remedies of the Administrative Agent and the Banks hereunder are
cumulative and not exclusive of any rights or remedies which the
Administrative Agent or any such Bank would otherwise have. No
notice or demand on the Borrower shall entitle the Borrower to
any other or further notice or demand in similar or other
circumstances; provided that the foregoing shall not limit the
right of the Borrower to any notice expressly provided for
herein. No modification, amendment or waiver of any provision of
this Agreement or any of the Notes nor consent to any departure
of the Borrower therefrom shall in any event be effective unless
the same shall be in writing and signed by the Required Banks and
then such waiver or consent shall be effective only in the
specific instance and for the purpose for which given. Any such
modification, amendment, waiver or consent, so given, shall be
effective to bind all the Banks; provided that, no such
modification, amendment, waiver or consent may be made which will
(i) reduce or increase the amount or alter the term of any
Commitment of any Bank hereunder without the written consent of
such Bank; (ii) extend the time for payment of principal of or
interest on any Note, or reduce the principal amount or decrease
the rate of interest on any Loan or change the method of
calculation provided for herein for determining the rate of
interest on any Note, or vary the time for payment or reduce the
amount of fees payable to any Bank hereunder, or release any
Guarantor or any collateral hereunder, or change the definition
of Required Banks set forth in Article I, or amend this
Section 10.02 or Section 2.18, without the written consent of all
the Banks; or (iii) give any Note preference over any other Note
in payment of principal or interest.
SECTION 10.03. Applicable Law; Submission to
Jurisdiction; Service of Process; Waiver of Jury Trial.
(a) This Agreement and the Notes shall be construed in accordance
with and governed by the laws of the State of New York applicable
to agreements made and to be performed wholly in the State of New
York.
(b) Each of the Borrower and each Guarantor hereby
irrevocably submits itself to the jurisdiction of the Supreme
Court of the State of New York, New York County, and to the
jurisdiction of the United States District Court for the Southern
District of New York, for the purpose of any suit, action or
other proceeding arising out of or relating to this Agreement,
any other Fundamental Document or any related document or any of
the transactions contemplated hereby or thereby, and hereby
waives, and agrees not to
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assert, by way of motion, as a defense, or otherwise, in any
suit, action or proceeding, any claim that it is not personally
subject to the jurisdiction of the above-named courts for any
reason whatsoever, that such suit, action or proceeding is
brought in an inconvenient forum or that the venue of such suit,
action or proceeding is improper or that this Agreement or any
other Fundamental Documents or, to the full extent permitted by
applicable law, any subject matter of any thereof may not be
enforced in or by such courts. Neither this paragraph (b) nor
paragraph (c) below shall restrict the Administrative Agent or
any Bank from bringing suit or instituting other judicial
proceedings against the Borrower or any Guarantor or any of their
assets in any court or jurisdiction not referred to herein or
therein.
(c) Each party to this Agreement irrevocably consents
to service of process in the manner provided for notice in
Section 10.01. Nothing in this Agreement will affect the right of
any party to this Agreement to serve process in any other manner
permitted by law.
(d) EXCEPT AS PROHIBITED BY LAW, EACH PARTY HERETO
HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR
IN CONNECTION WITH THIS AGREEMENT, ANY OTHER FUNDAMENTAL DOCUMENT
AND ANY OF THE OTHER DOCUMENTS OR TRANSACTIONS CONTEMPLATED
HEREIN OR THEREIN.
(e) Except as prohibited by law, each party hereto
hereby waives any right it may have to claim or recover in any
litigation referred to in paragraph (d) of this Section 10.03 any
special, exemplary, punitive, indirect (including loss of
profits) or consequential damages or any damages other than, or
in addition to, actual damages; provided that if a party hereto
shall obtain a final, nonappealable judgment that another party
shall have intentionally and knowingly breached its obligations
under this Agreement with an intention of injuring the claimant
party, the claimant party may then seek consequential damages
from such breaching party for its losses suffered as a result of
such intentional breach.
(f) Each party hereto (i) certifies that neither any
representative, agent nor attorney of any Bank has represented,
expressly or otherwise, that such Bank would not, in the event of
litigation, seek to enforce the foregoing waivers and (ii)
acknowledges that it has been induced to enter into this
Agreement by, among other things, the mutual waivers and
certifications herein.
SECTION 10.04. Expenses; Documentary Taxes. The
Borrower agrees to pay all reasonable out-of-pocket expenses (i)
incurred by the Administrative Agent in connection with the
preparation, execution and delivery, waiver or modification and
administration of this Agreement, any other Fundamental Document
or any related documents or in connection with the performance of
due diligence by the Administrative Agent or the syndication of
the Loans (whether or not the transactions hereby contemplated
shall be consummated), and (ii) incurred by the Administrative
Agent in connection with the making of the Loans hereunder, or
incurred by the Administrative Agent or the Banks in connection
with the enforcement of this Agreement or the Loans made or the
Notes issued hereunder or any other Fundamental Documents and
with respect to any action which may be instituted by any person
against the Banks or the Administrative Agent in respect of the
foregoing (but not with respect to any act of gross negligence or
willful misconduct of the Administrative Agent or any Bank), or
as a result of any transaction, action or nonaction arising from
the foregoing, including, but not
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limited to, the fees and disbursements of Buchanan Ingersoll, PC,
counsel to the Administrative Agent. The Borrower agrees that it
shall indemnify the Banks and the Administrative Agent from and
hold them harmless against any documentary taxes, assessments or
charges made by any Governmental Authority by reason of the
execution and delivery of this Agreement, the Fundamental
Documents or any of the Notes. The obligations of the Borrower
under this Section 10.04 shall survive the termination of this
Agreement and the Commitments and/or the payment of the Notes.
SECTION 10.05. Indemnity. Further, by the execution
hereof, the Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Banks, and each of their respective
affiliates and their respective directors, officers, employees
and agents (each an "Indemnified Party") from and against any and
all expenses, including reasonable fees and disbursements of
counsel, losses, claims, damages and liabilities arising out of
any claim, litigation, investigation or proceeding (whether or
not the Administrative Agent or any Bank is a party thereto)
relating to the financing contemplated hereby and transactions
related thereto, except that Borrower shall not be required by
this Section 10.05 to indemnify or hold harmless an Indemnified
Party to the extent that the matters for which such Indemnified
Party claims indemnification under this Section 10.05 are the
result of its gross negligence or willful misconduct. The
obligations of the Borrower under this Section 10.05 shall
survive the termination of this Agreement and the Commitments
and/or payments of the Loans.
SECTION 10.06. Successors and Assigns. This Agreement
shall be binding upon and inure to the benefit of the Borrower,
the Guarantors, the Administrative Agent, the Documentation Agent
and the Banks and their respective successors and assigns.
Neither the Borrower nor the Guarantors may assign or transfer
any of their rights or obligations hereunder without the written
consent of the Required Banks.
SECTION 10.07. Survival of Agreements, Representations
and Warranties, etc. All warranties, representations and
covenants made by the Borrower or the Guarantors herein or in any
certificate or other instrument delivered by it or on its behalf
in connection with this Agreement shall be considered to have
been relied upon by the Banks and shall survive the making of the
Loans herein contemplated and the issuance and delivery to the
Banks of the Notes regardless of any investigation made by the
Banks or on their behalf and shall continue in full force and
effect so long as any amount due or to become due hereunder is
outstanding and unpaid and so long as the Commitments have not
been terminated. All statements in any such certificate or other
instrument shall constitute representations and warranties by the
Borrower hereunder.
SECTION 10.08. Severability. In case any one or more
of the provisions contained in this Agreement or the Notes should
be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or
impaired thereby. The parties shall endeavor in good faith
negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
SECTION 10.09. Cover Page and Section Headings. The
cover page and section headings used herein are for convenience
of reference only, are not part of this Agreement and are not to
affect the construction of or be taken into consideration in
interpreting this Agreement.
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SECTION 10.10. Counterparts, Integration, Telecopy
Signatures. This Agreement may be signed in any number of
counterparts with the effect as if the signatures thereto were
upon the same instrument. This Agreement shall become effective
when copies hereof which, when taken together, bear the
signatures of each of the parties hereto shall have been received
by the Administrative Agent. This Agreement, the other
Fundamental Documents, and all other documents, instruments, and
agreements referred to herein or therein constitute the entire
agreement of the parties hereto relating to the subject matter
hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter
hereof. Delivery of an executed counterpart of a signature page
of this Agreement or of any other Fundamental Document by
telecopy transmission shall constitute effective and binding
execution and delivery of this Agreement or such other
Fundamental Document, as the case may be.
SECTION 10.11. Confidentiality. Each Bank agrees
(which agreement shall survive the termination of this Agreement)
that financial information, information from the Borrower's books
and records, information concerning the Borrower's trade secrets
and patents and any other information received from the Borrower
hereunder and designated in writing as confidential shall be
treated as confidential by such Bank, and each Bank agrees to use
its best efforts to ensure that such information is not
published, disclosed or otherwise divulged to anyone other than
employees or officers of such Bank and its counsel and agents
with a need to know such information and who have been informed
of the confidentiality hereunder (as reasonably determined by
such Bank); provided that it is understood that the foregoing
shall not apply to:
(i) disclosure made with the prior written
authorization of the Borrower;
(ii) disclosure of information (other than that
received from the Borrower prior to or under this Agreement)
already known by, or in the possession of such Bank without
restrictions on the disclosure thereof at the time such
information is supplied to such Bank by the Borrower
hereunder;
(iii) disclosure of information which is required by
applicable law or to a governmental agency having
supervisory authority over any party hereto;
(iv) disclosure of information in connection with any
suit, action or proceeding in connection with the
enforcement of rights hereunder or in connection with the
transactions contemplated hereby;
(v) disclosure to any bank (or other financial
institution) which may acquire a participation or other
interest in the Loans or rights of any Bank hereunder;
provided that such bank (or other financial institution)
agrees to maintain any such information to be received in
accordance with the provisions of this Section 10.11;
(vi) disclosure by any party hereto to any other party
hereto or their counsel or agents with a need to know such
information (as reasonably determined by such party);
(vii) disclosure by any party hereto to any entity, or
to any subsidiary of such an entity, which owns, directly or
indirectly, more than 50% of the voting stock of such party,
or to any subsidiary of such an entity; or
(viii) disclosure of information that prior to such
disclosure has been public knowledge through no violation of
this Agreement.
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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 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 10.14. Co-Documentation and Co-Syndication
Agents. The Co-Syndication Agents and the Co-Documentation
Agents do not assume any responsibility or obligation under this
Agreement or any of the other Fundamental Documents or any duties
as agents for the Banks. The titles "Co-Syndication Agent" and
"Co-Documentation Agent" imply no fiduciary or similar
responsibility on the part of either of the Co-Syndication Agents
or either of the Co-Documentation Agents to any Person and the
use of such titles does not impose upon the Co-Syndication Agents
or the Co-Documentation Agents any duties or obligations under
this Agreement or any of the other Fundamental Documents.
[THIS AGREEMENT CONTINUES ON THE NEXT PAGE]
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[SIGNATURE PAGE 1 OF __
TO FACILITY A 364-DAY COMPETITIVE ADVANCE, REVOLVING CREDIT AND
GUARANTY AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
D5
EXHIBIT 4.4
DENTSPLY International Inc.
JPY 6,237,500,000
1.39% Guaranteed Senior Notes due December 28, 2005
-------------------
Note Purchase Agreement
-------------------
Dated as of December 28, 2001
==============================================================
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- 41 -
Table of Contents
Section Heading Page
Section 1. Authorization of Notes; Guarantees................1
Section 2. Sale and Purchase of Notes........................1
Section 3. Closing...........................................2
Section 4. Conditions to Closing.............................2
Section 4.1. Representations and Warranties..................2
Section 4.2. Performance; No Default.........................2
Section 4.3. Compliance Certificates.........................2
Section 4.4. Opinions of Counsel.............................3
Section 4.5. Purchase Permitted by Applicable
Law, Etc........................................3
Section 4.6. Sale of Other Notes.............................3
Section 4.7. Payment of Special Counsel Fees.................3
Section 4.8. Private Placement Number........................3
Section 4.9. Changes in Corporate Structure..................3
Section 4.10. Subsidiary Guaranties...........................4
Section 4.11. Proceedings and Documents.......................4
Section 5. Representations and Warranties of
the Company.......................................4
Section 5.1. Organization; Power and Authority...............4
Section 5.2. Authorization, Etc..............................4
Section 5.3. Disclosure......................................4
Section 5.4. Organization and Ownership of
Shares of Subsidiaries..........................5
Section 5.5. Financial Statements............................5
Section 5.6. Compliance with Laws, Other
Instruments, Etc................................6
Section 5.7. Governmental Authorizations, Etc................6
Section 5.8. Litigation; Observance of
Statutes and Orders.............................6
Section 5.9. Taxes...........................................6
Section 5.10. Title to Property; Leases.......................7
Section 5.11. Licenses, Permits, Etc..........................7
Section 5.12. Compliance with ERISA...........................7
Section 5.13. Private Offering by the Company.................8
Section 5.14. Use of Proceeds; Margin
Regulations.....................................8
Section 5.15. Existing Debt; Future Liens.....................9
Section 5.16. Foreign Assets Control
Regulations, Etc................................9
Section 5.17. Status under Certain Statutes...................9
Section 5.18. Pari Passu......................................9
Section 5.19. Anti-Terrorism Order............................9
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Section 5.20. Environmental Matters..........................10
Section 6. Representations of the Purchaser.................10
Section 6.1. Purchase for Investment........................10
Section 6.2. Source of Funds................................10
Section 7. Information as to Company........................12
Section 7.1. Financial and Business Information.............12
Section 7.2. Officer's Certificate..........................15
Section 7.3. Inspection.....................................15
Section 8. Prepayment of the Notes..........................16
Section 8.1. Required Prepayments...........................16
Section 8.2. Optional Prepayments with
Make-Whole Amount..............................16
Section 8.3. Allocation of Partial Prepayments..............16
Section 8.4. Maturity; Surrender, Etc.......................16
Section 8.5. Purchase of Notes..............................17
Section 8.6. Make-Whole Amount..............................17
Section 9. Affirmative Covenants............................18
Section 9.1. Compliance with Law............................18
Section 9.2. Insurance......................................19
Section 9.3. Maintenance of Properties......................19
Section 9.4. Payment of Taxes...............................19
Section 9.5. Corporate Existence, Etc.......................19
Section 9.6. Subsequent Guarantors..........................20
Section 9.7. Covenant to Secure Notes Equally...............20
Section 9.8. Pari Passu Ranking.............................20
Section 9.9. Rule 144A Information..........................20
Section 10. Negative Covenants...............................20
Section 10.1. Transactions with Affiliates...................20
Section 10.2. Merger, Consolidation, Etc.....................20
Section 10.3. Consolidated Net Worth.........................21
Section 10.4. Interest Coverage Ratio........................21
Section 10.5. Debt and Priority Debt
Limitations....................................21
Section 10.6. Permitted Liens................................21
Section 10.7. Sale of Assets.................................23
Section 10.8. Sale of Stock and Debt of
Subsidiaries...................................23
Section 10.9. Sale or Discount of Receivables................23
Section 10.10.Subsidiary Dividend Restrictions...............24
Section 10.11. Sale and Leasebacks...........................24
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Section 10.12.Line of Business...............................24
Section 11. Events of Default................................24
Section 12. Remedies on Default, Etc.........................27
Section 12.1. Acceleration...................................27
Section 12.2. Other Remedies.................................27
Section 12.3. Rescission.....................................28
Section 12.4. No Waivers or Election of
Remedies, Expenses, Etc........................28
Section 13. Registration; Exchange; Substitution
of Notes.........................................28
Section 13.1. Registration of Notes..........................28
Section 13.2. Transfer and Exchange of Notes.................28
Section 13.3. Replacement of Notes...........................29
Section 14. Payments on Notes................................29
Section 14.1. Place of Payment...............................29
Section 14.2. Home Office Payment............................29
Section 14.3. Judgment Currency..............................30
Section 15. Expenses, Etc....................................30
Section 15.1. Transaction Expenses...........................30
Section 15.2. Survival.......................................31
Section 16. Survival of Representations and
Warranties; Entire Agreement.....................31
Section 17. Amendment and Waiver.............................31
Section 17.1. Requirements...................................31
Section 17.2. Solicitation of Holders of Notes...............31
Section 17.3. Binding Effect, Etc............................32
Section 17.4. Notes Held by Company, Etc.....................32
Section 18. Notices..........................................32
Section 19. Reproduction of Documents........................33
Section 20. Confidential Information.........................33
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Section 21. Substitution of Purchaser........................34
Section 22. Miscellaneous....................................34
Section 22.1. Successors and Assigns.........................34
Section 22.2. Payments Due on Non-Business Days.............34
Section 22.3. Severability...................................34
Section 22.4. Construction...................................35
Section 22.5. Counterparts...................................35
Section 22.6. Governing Law..................................35
Schedule A -- Information Relating to Purchasers
Schedule B -- Defined Terms
Schedule 4.9-- Changes in Corporate Structure
Schedule 4.10 -- List of Subsidiary Guarantors at Closing
Schedule 5.3-- Disclosure Materials
Schedule 5.4-- Subsidiaries of the Company and Ownership
of Subsidiary Stock
Schedule 5.5-- Financial Statements
Schedule 5.8-- Certain Litigation
Schedule 5.11 -- Patents, Etc.
Schedule 5.15 -- Existing Debt
Exhibit 1(a)-- Form of 1.39% Guaranteed Senior
Notes due 2005
Exhibit 1(b)-- Form of Guarantee Agreement
Exhibit 4.4(a) -- Form of Opinion of Counsel for the
Company
Exhibit 4.4(b) -- Form of Opinion of Special Counsel
for the Purchasers
D6
DENTSPLY International Inc.
570 West College Avenue
York, Pennsylvania 17405-0872
1.39% Guaranteed Senior Notes due December 28, 2005
December 28, 2001
To Each of the Purchasers Listed In
The Attached Schedule A:
Ladies and Gentlemen:
DENTSPLY International Inc., a Delaware corporation
(the "Company"), agrees with you as follows:
Section 1. Authorization of Notes; Guarantees.
(a) The Company will authorize the issue and sale of
JPY 6,237,500,000 aggregate principal amount of its 1.39%
Guaranteed Senior Notes due December 28, 2005 (the "Notes,"
such term to include any such notes issued in substitution
therefor pursuant to Section 13 of this Agreement or the
Other Agreements (as hereinafter defined)). The Notes shall
be substantially in the form set out in Exhibit 1(a), with
such changes therefrom, if any, as may be approved by you
and the Company. Certain capitalized terms used in this
Agreement are defined in Schedule B; references to a
"Schedule" or an "Exhibit" are, unless otherwise specified,
to a Schedule or an Exhibit attached to this Agreement.
(b) The payment of the Notes and the performance by the
Company of its obligations under this Agreement and the
Other Agreements (as defined below) will be guaranteed by
certain Subsidiaries of the Company (each a "Subsidiary
Guarantor" and, collectively, the "Subsidiary Guarantors"),
pursuant to separate Guarantee Agreements of each Subsidiary
Guarantor (each a "Guarantee Agreement" and, collectively,
the "Guarantee Agreements"), each substantially in the form
of Exhibit 1(b) hereto.
Section 2. Sale and Purchase of Notes.
D6
Subject to the terms and conditions of this Agreement,
the Company will issue and sell to you and you will purchase
from the Company, at the Closing provided for in Section 3,
Notes in the principal amount specified opposite your name
in Schedule A at the purchase price of 100% of the principal
amount thereof. Contemporaneously with entering into this
Agreement, the Company is entering into separate Note
Purchase Agreements (the "Other Agreements") identical with
this Agreement with each of the other purchasers named in
Schedule A (the "Other Purchasers"), providing for the sale
at such Closing to each of the Other Purchasers of Notes in
the principal amount specified opposite its name in Schedule
A. Your obligation hereunder and the obligations of the
Other Purchasers under the Other Agreements are several and
not joint obligations and you shall have no obligation under
any Other Agreement and no liability to any Person for the
performance or non-performance by any Other Purchaser
thereunder.
Section 3. Closing.
The sale and purchase of the Notes to be purchased by
you and the Other Purchasers shall occur at the offices of
Chapman and Cutler, 111 West Monroe Street, Chicago,
Illinois 60603, at a closing (the "Closing") on December
28, 2001. At the Closing, the Company will deliver to you
the Notes to be purchased by you in the form of a single
Note (or such greater number of Notes in denominations of at
least JPY 125,000,000 as you may request) dated the date of
the Closing and registered in your name (or in the name of
your nominee), against delivery by you to the Company or its
order of immediately available funds in the amount of the
purchase price therefor by wire transfer of immediately
available funds to ABN AMRO Bank, Tokyo, Swift Code
ABNAJPJT, Account No. 17.23.499, for further credit to ABN
AMRO Chicago Treasury, Swift Code ABNAUS4CFXO, Ref:
Dentsply, JPY, Ref.: DENTSPLY International. If at the
Closing the Company shall fail to tender such Notes to you
as provided above in this Section 3, or any of the
conditions specified in Section 4 shall not have been
fulfilled to your satisfaction, you shall, at your election,
be relieved of all further obligations under this Agreement,
without thereby waiving any rights you may have by reason of
such failure or such non-fulfillment.
Section 4. Conditions to Closing.
Your obligation to purchase and pay for the Notes to be
sold to you at the Closing is subject to the fulfillment to
your satisfaction, prior to or at the Closing, of the
following conditions:
Section 4.1. Representations and Warranties. The
representations and warranties of the Company in this
Agreement shall be correct when made and at the time of the
Closing.
D6
Section 4.2. Performance; No Default. The Company shall
have performed and complied with all agreements and
conditions contained in this Agreement required to be
performed or complied with by it prior to or at the Closing
and after giving effect to the issue and sale of the Notes
(and the application of the proceeds thereof as contemplated
by Section 5.14) no Default or Event of Default shall have
occurred and be continuing. Neither the Company nor any
Subsidiary shall have entered into any transaction since the
date of the Memorandum that would have been prohibited by
Sections 10.1 or 10.2 had such Sections applied since such
date.
Section 4.3. Compliance Certificates.
(a) Officer's Certificate. The Company shall have
delivered to you an Officer's Certificate, dated the date of
the Closing, certifying that the conditions specified in
Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b) Secretary's Certificate. The Company shall have
delivered to you a certificate certifying as to the
resolutions attached thereto and other corporate proceedings
relating to the authorization, execution and delivery of the
Notes and the Agreements. The Secretary or an Assistant
Secretary of each Subsidiary Guarantor shall have delivered
to you a certificate certifying as to the resolutions
attached thereto and other corporate proceedings relating to
the authorization, execution and delivery of the Guarantee
Agreement to which it is a party.
Section 4.4. Opinions of Counsel. You shall have received
opinions in form and substance satisfactory to you, dated
the date of the Closing (a) from Brian Addison, Esq.,
General Counsel of the Company and each Subsidiary
Guarantor, covering the matters set forth in Exhibit 4.4(a)
and covering such other matters incident to the transactions
contemplated hereby as you or your counsel may reasonably
request (and the Company hereby instructs its counsel to
deliver such opinion to you) and (b) from Chapman and
Cutler, your special counsel in connection with such
transactions, substantially in the form set forth in Exhibit
4.4(b) and covering such other matters incident to such
transactions as you may reasonably request.
Section 4.5. Purchase Permitted by Applicable Law, Etc. On
the date of the Closing, your purchase of Notes shall (a) be
permitted by the laws and regulations of each jurisdiction
to which you are subject, without recourse to provisions
(such as Section 1405(a)(8) of the New York Insurance Law)
permitting limited investments by insurance companies
without restriction as to the character of the particular
investment, (b) not violate any applicable law or regulation
(including, without limitation, Regulation T, U or X of the
Board of Governors of the Federal Reserve System) and
(c) not subject you to any tax, penalty or liability under or
pursuant to any applicable law or regulation, which law or
regulation was not in effect on the date hereof. If
requested by you, you shall have received an Officer's
Certificate certifying as to such matters of fact as you may
reasonably specify to enable you to determine whether such
purchase is so permitted.
D6
Section 4.6. Sale of Other Notes. Contemporaneously with
the Closing, the Company shall sell to the Other Purchasers
and the Other Purchasers shall purchase the Notes to be
purchased by them at the Closing as specified in Schedule A.
Section 4.7. Payment of Special Counsel Fees.
Without limiting the provisions of Section 15.1, the Company
shall have paid on or before the Closing the reasonable
fees, charges and disbursements of your special counsel
referred to in Section 4.4(b) to the extent reflected in a
statement of such counsel rendered to the Company at least
one Business Day prior to the Closing.
Section 4.8. Private Placement Number. A Private Placement
Number issued by Standard & Poor's CUSIP Service Bureau (in
cooperation with the Securities Valuation Office of the
National Association of Insurance Commissioners) shall have
been obtained for the Notes.
Section 4.9. Changes in Corporate Structure. Except as
specified in Schedule 4.9, the Company shall not have
changed its jurisdiction of incorporation or been a party to
any merger or consolidation and shall not have succeeded to
all or any substantial part of the liabilities of any other
entity, at any time following the date of the most recent
financial statements referred to in Schedule 5.5.
Section 4.10. Subsidiary Guaranties. You shall have received
certain Guarantee Agreements, duly executed and delivered by
each Subsidiary listed in Schedule 4.10 and each such
Guarantee Agreement shall be in full force and effect.
Section 4.11. Proceedings and Documents. All corporate and
other proceedings in connection with the transactions
contemplated by this Agreement and all documents and
instruments incident to such transactions shall be
satisfactory to you and your special counsel, and you and
your special counsel shall have received all such
counterpart originals or certified or other copies of such
documents as you or they may reasonably request.
Section 5. Representations and Warranties of the Company.
The Company represents and warrants to you that:
D6
Section 5.1. Organization; Power and Authority. The
Company is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation, and is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in
which such qualification is required by law, other than
those jurisdictions as to which the failure to be so
qualified or in good standing would not, individually or in
the aggregate, reasonably be expected to have a Material
Adverse Effect. The Company has the corporate power and
authority to own or hold under lease the properties it
purports to own or hold under lease, to transact the
business it transacts and proposes to transact, to execute
and deliver this Agreement and the Other Agreements and the
Notes and to perform the provisions hereof and thereof.
Section 5.2. Authorization, Etc. This Agreement and the
Other Agreements and the Notes have been duly authorized by
all necessary corporate action on the part of the Company,
and this Agreement constitutes, and upon execution and
delivery thereof each Note will constitute, a legal, valid
and binding obligation of the Company enforceable against
the Company in accordance with its terms, except as such
enforceability may be limited by (a) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and
(b) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law).
Section 5.3. Disclosure. The Company, through its agent,
ABN AMRO Incorporated, has delivered to you and each Other
Purchaser a copy of a Private Placement Memorandum, dated
November 2001 (the "Memorandum"), relating to the
transactions contemplated hereby. The Memorandum fairly
describes, in all material respects, the general nature and,
if applicable, properties of the business of the Company and
its Subsidiaries. Except as disclosed in Schedule 5.3, this
Agreement, the Memorandum, the documents, certificates or
other writings identified in Schedule 5.3 and the financial
statements listed in Schedule 5.5, taken as a whole, do not
contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements
therein not misleading in light of the circumstances under
which they were made. Except as disclosed in the Memorandum
or as expressly described in Schedule 5.3, or in one of the
documents, certificates or other writings identified
therein, or in the financial statements listed in Schedule
5.5, since December 31, 2000, there has been no change in
the financial condition, operations, business or properties
of the Company or any of its Subsidiaries except changes
that individually or in the aggregate would not reasonably
be expected to have a Material Adverse Effect. There is no
fact known to the Company that would reasonably be expected
to have a Material Adverse Effect that has not been set
forth herein or in the Memorandum or in the other documents,
certificates and other writings delivered to you by or on
behalf of the Company for use in connection with the
transactions contemplated hereby.
D6
Section 5.4. Organization and Ownership of Shares of
Subsidiaries. (a) Schedule 5.4 contains (except as noted
therein) complete and correct lists of (i) the Company's
Subsidiaries (other than those Subsidiaries which have no or
an immaterial amount of assets), showing, as to each
Subsidiary, the correct name thereof, the jurisdiction of
its organization, and the percentage of shares of each class
of its capital stock or similar equity interests outstanding
owned by the Company and each other Subsidiary, (ii) the
Company's Affiliates which it directly or indirectly
controls, other than Subsidiaries, and (iii) the Company
directors and senior officers.
(b) All of the outstanding shares of capital stock or
similar equity interests of each Subsidiary shown in
Schedule 5.4 as being owned by the Company and its
Subsidiaries have been validly issued, are fully paid and
nonassessable and are owned by the Company or another
Subsidiary free and clear of any Lien (except as otherwise
disclosed in Schedule 5.4).
(c) Each Subsidiary identified in Schedule 5.4 is a
corporation or other legal entity duly organized, validly
existing and in good standing under the laws of its
jurisdiction of organization, and is duly qualified as a
foreign corporation or other legal entity and is in good
standing in each jurisdiction in which such qualification is
required by law, other than those jurisdictions as to which
the failure to be so qualified or in good standing would
not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect. Each such
Subsidiary has the corporate or other power and authority to
own or hold under lease the properties it purports to own or
hold under lease and to transact the business it transacts
and proposes to transact.
(d) No Subsidiary is a party to, or otherwise subject
to any legal restriction or any agreement (other than this
Agreement, the agreements listed on Schedule 5.15 and
customary limitations imposed by statute) restricting the
ability of such Subsidiary to pay dividends out of profits
or make any other similar distributions of profits to the
Company or any of its Subsidiaries that owns outstanding
shares of capital stock or similar equity interests of such
Subsidiary.
Section 5.5. Financial Statements. The Company has
delivered to each Purchaser copies of the financial
statements of the Company and its Subsidiaries listed on
Schedule 5.5. All of said financial statements (including
in each case the related schedules and notes) fairly present
in all material respects the consolidated financial position
of the Company and its Subsidiaries as of the respective
dates specified in such financial statements and the
consolidated results of their operations and cash flows for
the respective periods so specified and have been prepared
in accordance with GAAP consistently applied throughout the
periods involved except as set forth in the notes thereto
(subject, in the case of any interim financial statements,
to normal year-end adjustments).
D6
Section 5.6. Compliance with Laws, Other Instruments, Etc.
The execution, delivery and performance by the Company of
this Agreement and the Notes will not (a) contravene, result
in any breach of, or constitute a default under, or result
in the creation of any Lien in respect of any property of
the Company or any Subsidiary under, any indenture,
mortgage, deed of trust, loan, purchase or credit agreement,
lease, corporate charter or by-laws, or any other Material
agreement or instrument to which the Company or any
Subsidiary is bound or by which the Company or any
Subsidiary or any of their respective properties may be
bound or affected, (b conflict with or result in a breach of
any of the terms, conditions or provisions of any order,
judgment, decree, or ruling of any court, arbitrator or
Governmental Authority applicable to the Company or any
Subsidiary or (c) violate any provision of any statute or
other rule or regulation of any Governmental Authority
applicable to the Company or any Subsidiary.
Section 5.7. Governmental Authorizations, Etc. No consent,
approval or authorization of, or registration, filing or
declaration with, any Governmental Authority is required in
connection with the execution, delivery or performance by
the Company of this Agreement or the Notes.
Section 5.8. Litigation; Observance of Statutes and Orders.
(a) Except as disclosed in Schedule 5.8, there are no
actions, suits or proceedings pending or, to the knowledge
of the Company, threatened against or affecting the Company
or any Subsidiary or any property of the Company or any
Subsidiary in any court or before any arbitrator of any kind
or before or by any Governmental Authority that,
individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary is in
default under any term of any Material agreement or
instrument to which it is a party or by which it is bound,
or any order, judgment, decree or ruling of any court,
arbitrator or Governmental Authority or is in violation of
any applicable law, ordinance, rule or regulation
(including, without limitation, Environmental Laws) of any
Governmental Authority, which default or violation,
individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect.
Section 5.9. Taxes. The Company and its Subsidiaries have
filed all income tax returns that are required to have been
filed in any jurisdiction, and have paid all taxes shown to
be due and payable on such returns and all other taxes and
assessments payable by or levied upon them or their
properties, assets, income or franchises, to the extent such
taxes and assessments have become due and payable and before
they have become delinquent, except for any taxes and
assessments (a) the amount of which is not individually or
in the aggregate Material or (b) the amount, applicability
or validity of which
D6
is currently being contested in good faith by appropriate
proceedings and with respect to which the Company or a
Subsidiary, as the case may be, has established adequate
reserves in accordance with GAAP. The Company knows of no
basis for any other tax or assessment that would reasonably
be expected to have a Material Adverse Effect. The charges,
accruals and reserves on the books of the Company and its
Subsidiaries in respect of federal, state or other taxes for
all fiscal periods are adequate. The Federal income tax
liabilities of the Company and its Subsidiaries have been
determined by the Internal Revenue Service and paid for all
fiscal years up to and including the fiscal year ended
December 31, 1993.
Section 5.10. Title to Property; Leases. The Company and
its Subsidiaries have good and sufficient title to their
respective owned properties that individually or in the
aggregate are Material, including all such properties
reflected in the most recent audited balance sheet referred
to in Section 5.5 or purported to have been acquired by the
Company or any Subsidiary after said date (except as sold or
otherwise disposed of in the ordinary course of business),
in each case free and clear of Liens prohibited by this
Agreement, except for those defects in title and Liens that,
individually or in the aggregate, would not have a Material
Adverse Effect. All leases that individually or in the
aggregate are Material are valid and subsisting and are in
full force and effect in all material respects.
Section 5.11. Licenses, Permits, Etc. Except as disclosed
in Schedule 5.11,
(a) the Company and its Subsidiaries own or
possess all licenses, permits, franchises,
authorizations, patents, copyrights, service marks,
trademarks and trade names, or rights thereto, that are
Material, without known conflict with the rights of
others, except for those conflicts that, individually
or in the aggregate, would not have a Material Adverse
Effect.
(b) to the best of the knowledge of the Company,
no product of the Company infringes in any respect any
license, permit, franchise, authorization, patent,
copyright, service mark, trademark, trade name or other
right owned by any other Person, except for any
infringement(s) that, individually or in the aggregate
would not have a Material Adverse Effect; and
(c) to the best of the knowledge of the Company,
there is no Material violation by any Person of any
right of the Company or any Subsidiary with respect to
any patent, copyright, service mark, trademark, trade
name or other right owned or used by the Company or any
of its Subsidiaries that, individually or in the
aggregate, would have a Material Adverse Effect.
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Section 5.12. Compliance with ERISA. (a) The Company and
each ERISA Affiliate have operated and administered each
Plan in compliance with all applicable laws except for such
instances of noncompliance as have not resulted in and would
not reasonably be expected to result in a Material Adverse
Effect. Neither the Company nor any ERISA Affiliate has
incurred any liability pursuant to Title I or IV of ERISA or
the penalty or excise tax provisions of the Code relating to
employee benefit plans (as defined in Section 3 of ERISA),
and no event, transaction or condition has occurred or
exists that would reasonably be expected to result in the
incurrence of any such liability by the Company or any ERISA
Affiliate, or in the imposition of any Lien on any of the
rights, properties or assets of the Company or any ERISA
Affiliate, in either case pursuant to Title I or IV of ERISA
or to such penalty or excise tax provisions or to Section
401(a)(29) or 412 of the Code, other than such liabilities
or Liens as would not be individually or in the aggregate
Material.
(b) The present value of the aggregate benefit
liabilities under each of the Plans (other than
Multiemployer Plans), determined as of the end of such
Plan's most recently ended plan year on the basis of the
actuarial assumptions specified for funding purposes in such
Plan's most recent actuarial valuation report, did not
exceed the aggregate current value of the assets of such
Plan allocable to such benefit liabilities by more than
$10,000,000 in the aggregate for all Plans. The term
"benefit liabilities" has the meaning specified in section
4001 of ERISA and the terms "current value" and "present
value" have the meaning specified in section 3 of ERISA.
(c) The Company and its ERISA Affiliates have not
incurred withdrawal liabilities (and are not subject to
contingent withdrawal liabilities) under section 4201 or
4204 of ERISA in respect of Multiemployer Plans that
individually or in the aggregate are Material.
(d) The expected post-retirement benefit obligation
(determined as of the last day of the Company's most
recently ended fiscal year in accordance with Financial
Accounting Standards Board Statement No. 106, without regard
to liabilities attributable to continuation coverage
mandated by Section 4980B of the Code) of the Company and
its Subsidiaries is not Material.
(e) The execution and delivery of this Agreement and
the issuance and sale of the Notes hereunder will not
involve any transaction that is subject to the prohibitions
of section 406 of ERISA or in connection with which a tax
could be imposed pursuant to Section 4975(c)(1)(A)-(D) of
the Code. The representation by the Company in the first
sentence of this Section 5.12(e) is made in reliance upon
and subject to the accuracy of your representation in
Section 6.2 as to the sources of the funds to be used to pay
the purchase price of the Notes to be purchased by you.
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Section 5.13. Private Offering by the Company. Neither the
Company nor anyone acting on its behalf has offered the
Notes or any similar securities for sale to, or solicited
any offer to buy any of the same from, or otherwise
approached or negotiated in respect thereof with, any Person
other than you, the Other Purchasers and not more than 25
other Institutional Investors, each of which has been
offered the Notes at a private sale for investment. Neither
the Company nor anyone acting on its behalf has taken, or
will take, any action that would subject the issuance or
sale of the Notes to the registration requirements of
Section 5 of the Securities Act.
Section 5.14. Use of Proceeds; Margin Regulations. The
Company will apply the proceeds of the sale of the Notes to
repay indebtedness to banks and for other general corporate
purposes. No part of the proceeds from the sale of the
Notes hereunder will be used, directly or indirectly, for
the purpose of buying or carrying any margin stock within
the meaning of Regulation U of the Board of Governors of the
Federal Reserve System (12 CFR 221), or for the purpose of
buying or carrying or trading in any securities under such
circumstances as to involve the Company in a violation of
Regulation X of said Board (12 CFR 224) or to involve any
broker or dealer in a violation of Regulation T of said
Board (12 CFR 220). Margin stock does not constitute more
than 5% of the value of the consolidated assets of the
Company and its Subsidiaries and the Company does not have
any present intention that margin stock will constitute more
than 5% of the value of such assets. As used in this
Section, the terms "margin stock" and "purpose of buying or
carrying" shall have the meanings assigned to them in said
Regulation U.
Section 5.15. Existing Debt; Future Liens. (a) Except as
described therein, Schedule 5.15 sets forth a complete and
correct list of all outstanding Debt of the Company and its
Subsidiaries as of December 14, 2001, since which date there
has been no Material change in the amounts, interest rates,
sinking funds, installment payments or maturities of the
Debt of the Company or its Subsidiaries. Neither the
Company nor any Subsidiary is in default and no waiver of
default is currently in effect, in the payment of any
principal or interest on any Debt of the Company or such
Subsidiary and no event or condition exists with respect to
any Debt of the Company or any Subsidiary the outstanding
principal amount of which exceeds $10,000,000 that would
permit (or that with notice or the lapse of time, or both,
would permit) one or more Persons to cause such Debt to
become due and payable before its stated maturity or before
its regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither the
Company nor any Subsidiary has agreed or consented to cause
or permit in the future (upon the happening of a contingency
or otherwise) any of its property, whether now owned or
hereafter acquired, to be subject to a Lien not otherwise
permitted by Section 10.6.
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Section 5.16. Foreign Assets Control Regulations, Etc.
Neither the sale of the Notes by the Company hereunder nor
its use of the proceeds thereof will violate the Trading
with the Enemy Act, as amended, or any of the foreign assets
control regulations of the United States Treasury Department
(31 CFR, Subtitle B, Chapter V, as amended) or any enabling
legislation or executive order relating thereto.
Section 5.17. Status under Certain Statutes. Neither the
Company nor any Subsidiary is subject to regulation under
the Investment Company Act of 1940, as amended, the Public
Utility Holding Company Act of 1935, as amended, the ICC
Termination Act of 1995, as amended, or the Federal Power
Act, as amended.
Section 5.18. Pari Passu. All obligations and liabilities
of the Company under this Agreement and the Other Agreements
rank at least pari passu with all other unsecured present
Debt of the Company, except to the extent of any mandatory
preferences which may arise only as a result of any
applicable bankruptcy, insolvency, liquidation or other
similar laws of general application.
All obligations and liabilities of each Subsidiary
Guarantor under the Guarantee Agreement to which it is a
party will, upon issuance of the Notes rank at least pari
passu without preference or priority with all other
outstanding unsecured and unsubordinated present Debt of
such Subsidiary Guarantor, except to the extent of any
mandatory preferences which may arise only as a result of
any applicable bankruptcy, insolvency, liquidation or other
similar laws of general application.
Section 5.19. Anti-Terrorism Order. Neither the Company nor
any of its Subsidiaries is, nor will become, a Person or
entity described in Section 1 of the Anti-Terrorism Order or
described in the Department of the Treasury Rule, and
neither the Company nor any of its Subsidiaries engages in
and will not engage in any dealings or transactions, or be
otherwise associated, with any such Persons or entities.
Section 5.20. Environmental Matters. Neither the Company
nor any Subsidiary has knowledge of any claim or has
received any notice of any claim, and no proceeding has been
instituted raising any claim against the Company or any of
its Subsidiaries or any of their respective real properties
now or formerly owned, leased or operated by any of them or
other assets, alleging any damage to the environment or
violation of any Environmental Laws, except, in each case,
such as would not reasonably be expected to result in a
Material Adverse Effect. Except as otherwise disclosed to
you in writing,
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(a) neither the Company nor any Subsidiary has
knowledge of any facts which would give rise to any
claim, public or private, of violation of Environmental
Laws or damage to the environment emanating from,
occurring on or in any way related to real properties
now or formerly owned, leased or operated by any of
them or to other assets or their use, except, in each
case, such as would not reasonably be expected to
result in a Material Adverse Effect;
(b) neither the Company nor any Subsidiary has
stored any Hazardous Materials on real properties now
or formerly owned, leased or operated by any of them
and has not disposed of any Hazardous Materials in each
case in a manner contrary to any Environmental Laws and
in each case in a manner that would reasonably be
expected to have a Material Adverse Effect; and
(c) all buildings on all real property now owned
or leased and operated by the Company or any of its
Subsidiaries are in compliance with applicable
Environmental Laws, except where failure to comply
would not reasonably be expected to result in a
Material Adverse Effect.
Section 6. Representations of the Purchaser.
Section 6.1. Purchase for Investment. You represent that
you are purchasing the Notes for your own account or for one
or more separate accounts maintained by you or for the
account of one or more pension or trust funds and not with a
view to the distribution thereof, provided that the
disposition of your or their property shall at all times be
within your or their control. Without limiting the
foregoing, you agree that you will not, directly or
indirectly, resell the Notes purchased by you to a Person
which you are aware is a Competitor. You understand that
the Notes have not been registered under the Securities Act
and may be resold only if registered pursuant to the
provisions of the Securities Act or if an exemption from
registration is available, except under circumstances where
neither such registration nor such an exemption is required
by law, and that the Company is not required to register the
Notes.
Section 6.2. Source of Funds. You represent that at least
one of the following statements is an accurate
representation as to each source of funds (a "Source") to be
used by you to pay the purchase price of the Notes to be
purchased by you hereunder:
(a) the Source is an insurance company pooled
separate account that is maintained solely in
connection with your fixed contractual obligations
under which the amounts payable, or credited, to an
employee benefit plan and to any participant or
beneficiary of an employee benefit plan (including any
annuitant) are not affected in any manner by the
investment performance of the separate account; or
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(b) the Source is either (i) an insurance company
pooled separate account, within the meaning of
Prohibited Transaction Exemption ("PTE") 90-1 (issued
January 29, 1990), or (ii) a bank collective investment
fund, within the meaning of the PTE 91-38 (issued July
12, 1991), and, except as you have disclosed to the
Company in writing pursuant to this paragraph (b), no
employee benefit plan or group of employee benefit
plans maintained by the same employer or employee
organization beneficially owns more than 10% of all
assets allocated to such pooled separate account or
collective investment fund; or
(c) the Source constitutes assets of an
"investment fund" (within the meaning of Part V of the
QPAM Exemption) managed by a "qualified professional
asset manager" or "QPAM" (within the meaning of Part V
of the QPAM Exemption), no employee benefit plan's
assets that are included in such investment fund, when
combined with the assets of all other employee benefit
plans established or maintained by the same employer or
by an affiliate (within the meaning of Section V(c)(1)
of the QPAM Exemption) of such employer or by the same
employee organization and managed by such QPAM, exceed
20% of the total client assets managed by such QPAM on
a discretionary basis, the conditions of Part I(c) and
(g) of the QPAM Exemption are satisfied, neither the
QPAM nor a Person controlling or controlled by the QPAM
(applying the definition of "control" in Section V(e)
of the QPAM Exemption) owns a 5% or more interest in
the Company and (i) the identity of such QPAM and (ii)
the names of all employee benefit plans whose assets
are included in such investment fund have been
disclosed to the Company in writing pursuant to this
paragraph (c); or
(d) the Source is one or more employee benefit
plans, or a separate account or trust fund comprised of
one or more employee benefit plans, each of which has
been identified to the Company in writing pursuant to
this paragraph (d); or
(e) the Source is an "insurance company general
account," as such term is defined in PTE 95-60 (issued
July 12, 1995) and as of the date of this Agreement
there is no employee benefit plan with respect to which
the aggregate amount of such general account's reserves
and liabilities for the contracts held by or on behalf
of such employee benefit plan and all other employee
benefit plans maintained by the same employer (and
affiliates thereof as defined in Section V(a)(1) of PTE
95-60) or by the same employee organization (in each
case determined in accordance with the provisions of
PTE 95-60) exceeds 10% of the total reserves and
liabilities of such general account (as determined
under PTE 9560) (exclusive of separate account
liabilities) plus surplus as set forth in the National
Association of Insurance Commissioners Annual Statement
filed with your state of domicile; or
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(f) the Source is the assets of one or more
employee benefit plans which are managed by an
"in-house asset manager," as that term is defined in
PTE 96-23 (issued April 10, 1996), the conditions of
Section I(a), (b), (c), (g) and (h) of such exemption
have been met with respect to the purchase of the Notes
and the names of all employee benefit plans whose
assets are included in the transaction have been
disclosed to the Company in writing pursuant to this
clause (f); or
(g) the Source does not include assets of an
employee benefit plan, other than a plan exempt from
the coverage of ERISA and Section 4975 of the Code.
If you or any subsequent transferee of the Notes
notifies the Company in writing that you or such transferee
are relying on any representation contained in paragraphs
(b), (c), (d) or (f) above, the Company shall deliver on the
date of Closing and on the date of any applicable transfer,
a certificate, which shall either state that (i) it is
neither a "party in interest" (as defined in Title I,
section 3(14) of ERISA) nor a "disqualified person" (as
defined in Section 4975(e)(2) of the Code), with respect to
any plan identified pursuant to paragraphs (b), (d) or (f)
above, or (ii) with respect to any plan identified pursuant
to paragraph (c) above, neither it nor any "affiliate" (as
defined in Section V(c) of the QPAM Exemption) has at such
time, and during the immediately preceding one year,
exercised the authority to appoint or terminate said QPAM as
manager of any plan identified in writing pursuant to
paragraph (c) above or to negotiate the terms of said QPAM's
management agreement on behalf of any such identified plan.
As used in this Section 6.2, the terms "employee benefit
plan" and "separate account" shall have the respective
meanings assigned to such terms in section 3 of ERISA,
except that the term "employee benefit plan" shall also
include any "plan" as defined in Section 4975(e)(1) of the
Code.
Section 7. Information as to Company.
Section 7.1. Financial and Business Information. The
Company shall deliver to each holder of Notes that is an
Institutional Investor:
(a) Quarterly Statements - within 60 days after
the end of each quarterly fiscal period in each fiscal
year of the Company (other than the last quarterly
fiscal period of each such fiscal year), duplicate
copies of,
(i) a consolidated balance sheet of the
Company and its Subsidiaries as at the end of such
quarter, and
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(ii) consolidated statements of income,
changes in shareholders' equity and cash flows of
the Company and its Subsidiaries, for such quarter
and (in the case of the second and third quarters)
for the portion of the fiscal year ending with
such quarter,
setting forth in each case in comparative form the
figures for the corresponding periods in the previous
fiscal year, all in reasonable detail, prepared in
accordance with GAAP applicable to quarterly financial
statements generally, and certified by a Senior
Financial Officer as fairly presenting, in all material
respects, the financial position of the companies being
reported on and their results of operations and cash
flows, subject to changes resulting from year-end
adjustments, provided that delivery within the time
period specified above of copies of the Company's
Quarterly Report on Form 10-Q prepared in compliance
with the requirements therefor and filed with the
Securities and Exchange Commission shall be deemed to
satisfy the requirements of this Section 7.1(a);
(b) Annual Statements - within 90 days after the
end of each fiscal year of the Company, duplicate
copies of,
(i) a consolidated balance sheet of the
Company and its Subsidiaries, as at the end of
such year, and
(ii) consolidated statements of income,
changes in shareholders' equity and cash flows of
the Company and its Subsidiaries, for such year,
setting forth in each case in comparative form the
figures for the previous fiscal year, all in reasonable
detail, prepared in accordance with GAAP, and
accompanied by (A) an opinion thereon of independent
certified public accountants of recognized national
standing, which opinion shall state that such financial
statements present fairly, in all material respects,
the financial position of the companies being reported
upon and their results of operations and cash flows and
have been prepared in conformity with GAAP, and that
the examination of such accountants in connection with
such financial statements has been made in accordance
with generally accepted auditing standards, and that
such audit provides a reasonable basis for such opinion
in the circumstances, and (B) a certificate of such
accountants stating that, in making the audit necessary
for their report on such financial statements, they
have obtained no knowledge of any Event of Default or
Default, or if they have obtained knowledge of any
Default or Event of Default, specifying the nature
thereof (such accountants, however, shall not be liable
to anyone by reason of their failure to obtain
knowledge of any Default or Event of Default which
would not be disclosed in the course of an audit
conducted in accordance with generally accepted
auditing standards), provided that the delivery within
the time period specified
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above of the Company's Annual Report on Form 10-K for
such fiscal year (together with the Company's annual
report to shareholders, if any, prepared pursuant to
Rule 14a-3 under the Exchange Act) prepared in
accordance with the requirements therefor and filed
with the Securities and Exchange Commission, together
with the accountant's certificate described in clause
(B) above, shall be deemed to satisfy the requirements
of this Section (b);
(c) SEC and Other Reports - promptly upon their
becoming available, one copy of (i) each financial
statement, report, notice or proxy statement sent by
the Company or any Subsidiary to public securities
holders generally, and (ii) each regular or periodic
report, each registration statement that shall have
become effective (without exhibits except as expressly
requested by such holder), and each final prospectus
and all material amendments thereto filed by the
Company or any Subsidiary with the Securities and
Exchange Commission and of all press releases and other
statements made available generally by the Company or
any Subsidiary to the public concerning developments
that are Material;
(d) Notice of Default or Event of Default -
promptly, and in any event within five days after a
Responsible Officer becoming aware of the existence of
any Default or Event of Default or that any Person has
given any notice or taken any action with respect to a
claimed default hereunder or that any Person has given
any notice or taken any action with respect to a
claimed default of the type referred to in Section
11(f), a written notice specifying the nature and
period of existence thereof and what action the Company
is taking or proposes to take with respect thereto;
(e) ERISA Matters - promptly, and in any event
within five days after a Responsible Officer becoming
aware of any of the following, a written notice setting
forth the nature thereof and the action, if any, that
the Company or an ERISA Affiliate proposes to take with
respect thereto:
(i) with respect to any Plan, any reportable
event, as defined in section 4043(b) of ERISA and
the regulations thereunder, for which notice
thereof has not been waived pursuant to such
regulations as in effect on the date hereof; or
(ii) the taking by the PBGC of steps to
institute, or the threatening by the PBGC of the
institution of, proceedings under section 4042 of
ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, or the
receipt by the Company or any ERISA Affiliate of a
notice from a Multiemployer Plan that such action
has been taken by the PBGC with respect to such
Multiemployer Plan; or
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(iii) any event, transaction or condition that
could result in the incurrence of any liability by
the Company or any ERISA Affiliate pursuant to
Title I or IV of ERISA or the penalty or excise
tax provisions of the Code relating to employee
benefit plans, or in the imposition of any Lien on
any of the rights, properties or assets of the
Company or any ERISA Affiliate pursuant to Title I
or IV of ERISA or such penalty or excise tax
provisions, if such liability or Lien, taken
together with any other such liabilities or Liens
then existing, would reasonably be expected to
have a Material Adverse Effect;
(f) Notices from Governmental Authorities -
promptly, and in any event within 30 days of receipt
thereof, copies of any notice to the Company or any
Subsidiary from any Federal or state Governmental
Authority relating to any written or formal order,
ruling, statute or other law or regulation the result
of which would reasonably be expected to have a
Material Adverse Effect; and
(g) Requested Information - with reasonable
promptness, such other data and information relating to
the business, operations, affairs, financial condition,
assets or properties of the Company or any Subsidiary
or relating to the ability of the Company to perform
its obligations hereunder and under the Notes as from
time to time may be reasonably requested by any such
holder of Notes or relating to the ability of any
Guarantor to perform it obligations under its Guarantee
Agreement.
Section 7.2. Officer's Certificate. Each set of financial
statements delivered to a holder of Notes pursuant to
Section 7.1(a) or Section 7.1(b) hereof shall be accompanied
by a certificate of a Senior Financial Officer setting forth:
(a) Covenant Compliance - the information
(including detailed calculations) required in order to
establish whether the Company was in compliance with
the requirements of Section 10.3 through Section 10.5
hereof, inclusive, Section 10.6(j), Section 10.7 and
Section 10.11 during the quarterly or annual period
covered by the statements then being furnished
(including with respect to each such Section, where
applicable, the calculations of the maximum or minimum
amount, ratio or percentage, as the case may be,
permissible under the terms of such Sections, and the
calculation of the amount, ratio or percentage then in
existence); and
(b) Event of Default - a statement that such
officer has reviewed the relevant terms hereof and has
made, or caused to be made, under his or her
supervision, a review of the transactions and
conditions of the Company and its Subsidiaries from the
beginning of the quarterly or annual period covered by
the statements then being
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furnished to the date of the certificate and that such
review shall not have disclosed the existence during
such period of any condition or event that constitutes
a Default or an Event of Default or, if any such
condition or event existed or exists (including,
without limitation, any such event or condition
resulting from the failure of the Company or any
Subsidiary to comply with any Environmental Law),
specifying the nature and period of existence thereof
and what action the Company shall have taken or
proposes to take with respect thereto.
Section 7.3. Inspection. The Company shall permit the
representatives of each holder of Notes that is an
Institutional Investor:
(a) No Default - if no Default or Event of
Default then exists, at the expense of such holder and
upon reasonable prior notice to the Company, to visit
the principal executive office of the Company, to
discuss the affairs, finances and accounts of the
Company and its Subsidiaries with the Company's
officers, and (with the consent of the Company, which
consent will not be unreasonably withheld) its
independent public accountants, and (with the consent
of the Company, which consent will not be unreasonably
withheld) to visit the other offices and properties of
the Company and each Subsidiary, all at such reasonable
times and as often as may be reasonably requested in
writing; and
(b) Default - if a Default or Event of Default
then exists, at the expense of the Company, to visit
and inspect any of the offices or properties of the
Company or any Subsidiary, to examine all their
respective books of account, records, reports and other
papers, to make copies and extracts therefrom, and to
discuss their respective affairs, finances and accounts
with their respective officers and independent public
accountants (and by this provision the Company
authorizes said accountants to discuss the affairs,
finances and accounts of the Company and its
Subsidiaries), all at such times and as often as may be
requested.
Section 8. Prepayment of the Notes,
Section 8.1. Required Prepayments. On each of December 28,
2003 and December 28, 2004, the Company will prepay JPY
2,079,166,666 principal amount (or such lesser principal
amount as shall then be outstanding) of the Notes at par and
without payment of the Make-Whole Amount or any premium,
provided that upon any partial prepayment of the Notes
pursuant to Section 8.2 or purchase of the Notes permitted
by Section 8.5 the principal amount of each required
prepayment of the Notes becoming due under this Section 8.1
on and after the date of such prepayment or purchase shall
be reduced in the same proportion as the aggregate unpaid
principal amount of the Notes is reduced as a result of such
prepayment or purchase.
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Section 8.2. Optional Prepayments with Make-Whole Amount.
The Company may, at its option, upon notice as provided
below, prepay at any time all, or from time to time any part
of, the Notes, in an amount not less than 5% of the
aggregate principal amount of the Notes then outstanding in
the case of a partial prepayment, at 100% of the principal
amount so prepaid together with interest accrued thereon to
the date of such prepayment, plus the Make-Whole Amount, if
any, determined for the prepayment date with respect to such
principal amount. The Company will give each holder of
Notes written notice of each optional prepayment under this
Section 8.2 not less than 30 days and not more than 60 days
prior to the date fixed for such prepayment. Each such
notice shall specify such date, the aggregate principal
amount of the Notes to be prepaid on such date, the
principal amount of each Note held by such holder to be
prepaid (determined in accordance with Section 8.3), and the
interest to be paid on the prepayment date with respect to
such principal amount being prepaid, and shall be
accompanied by a certificate of a Senior Financial Officer
as to the estimated Make-Whole Amount, if any, due in
connection with such prepayment (calculated as if the date
of such notice were the date of the prepayment), setting
forth the details of such computation. Two Business Days
prior to such prepayment, the Company shall deliver to each
holder of Notes a certificate of a Senior Financial Officer
specifying the calculation of such Make-Whole Amount, if
any, as of the specified prepayment date.
Section 8.3. Allocation of Partial Prepayments. In
the case of each partial prepayment of the Notes, the
principal amount of the Notes to be prepaid shall be
allocated among all of the Notes at the time outstanding in
proportion, as nearly as practicable, to the respective
unpaid principal amounts thereof not theretofore called for
prepayment.
Section 8.4. Maturity; Surrender, Etc. In the case of each
prepayment of Notes pursuant to this Section 8, the
principal amount of each Note to be prepaid shall mature and
become due and payable on the date fixed for such
prepayment, together with interest on such principal amount
accrued to such date and the applicable Make-Whole Amount,
if any. From and after such date, unless the Company shall
fail to pay such principal amount when so due and payable,
together with the interest and Make-Whole Amount, if any, as
aforesaid, interest on such principal amount shall cease to
accrue. Any Note paid or prepaid in full shall be
surrendered to the Company and cancelled and shall not be
reissued, and no Note shall be issued in lieu of any prepaid
principal amount of any Note.
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Section 8.5. Purchase of Notes. The Company will not and
will not permit any Affiliate, which is directly or
indirectly controlled by the Company, to purchase, redeem,
prepay or otherwise acquire, directly or indirectly, any of
the outstanding Notes except upon the payment or prepayment
of the Notes in accordance with the terms of this Agreement
and the Notes. The Company will promptly cancel all Notes
acquired by it or any Affiliate pursuant to any payment,
prepayment or purchase of Notes pursuant to any provision of
this Agreement and no Notes may be issued in substitution or
exchange for any such Notes.
Section 8.6. Make-Whole Amount. The term "Make-Whole
Amount" means, with respect to any Note, an amount equal to
the excess, if any, of the Discounted Value of the Remaining
Scheduled Payments with respect to the Called Principal of
such Note over the amount of such Called Principal, provided
that the Make-Whole Amount may in no event be less than
zero. For the purposes of determining the Make-Whole
Amount, the following terms have the following meanings:
"Called Principal" means, with respect to any
Note, the principal of such Note that is to be prepaid
pursuant to Section 8.2 or has become or is declared to
be immediately due and payable pursuant to Section
12.1, as the context requires.
"Discounted Value" means, with respect to the
Called Principal of any Note, the amount obtained by
discounting all Remaining Scheduled Payments with
respect to such Called Principal from their respective
scheduled due dates to the Settlement Date with respect
to such Called Principal, in accordance with accepted
financial practice and at a discount factor (applied on
the same periodic basis as that on which interest on
the Notes is payable) equal to the Reinvestment Yield
with respect to such Called Principal.
"Reinvestment Yield" means, with respect to the
Called Principal of any Note, the yield to maturity
implied by the lesser of the yields reported, as of
10:00 a.m. (New York time) on the second Business Day
preceding the Settlement Date with respect to such
Called Principal, on the display designated as (a)
Bloomberg Financial Markets News screen BTMM JN (or
such other Bloomberg Financial Markets News display as
may replace such BTMM JN screen) for actively traded
Japanese Government Bonds having a maturity which is
the same as the Remaining Average Life of such Called
Principal as of such Settlement Date, or (b) Bloomberg
Financial Markets News screen IRSB 16 (or such other
Bloomberg Financial Markets News screen which may
replace such IRSB 16 screen) for actively traded Yen
interest rate swaps which is the same as the Remaining
Average Life of such Called Principal as of such
Settlement Date, provided that if either of such yields
are not reported as of such time or either of the
yields reported as of such time are not ascertainable,
such yield to maturity in respect of Japanese
Government
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Bonds or Yen interest rate swaps, as the case may be,
shall be implied by the average of the rates as
determined by two Recognized Yen Bond Market Makers or
two Recognized Yen Swap Market Makers, as the case may
be. Such implied yields will be determined, if
necessary, by (i) converting quotations to
bond-equivalent yields in accordance with accepted
financial practice and (ii) interpolating linearly
between (x) the actively traded Japanese Government
Bonds or Yen interest rate swaps, as the case may be,
with a maturity closest to and greater than the
Remaining Average Life of such Called Principal as of
such Settlement Date.
"Recognized Yen Bond Market Maker" means any
financial institution that makes regular markets in
Japanese Government Bonds and Japanese Government
Bond-based securities and financial products, as shall
be agreed between the Required Holders and the Company
or, following the occurrence and continuance of an
Event of Default, as reasonably required by the
Required Holders.
"Recognized Yen Swap Market Maker" means any
financial institution that makes regular markets in Yen
interest rate swaps as shall be agreed between the
Required Holders and the Company or, following the
occurrence and continuance of an Event of Default, as
reasonably required by the Required Holders.
"Remaining Average Life" means, with respect to
any Called Principal, the number of years (calculated
to the nearest one-twelfth year) obtained by dividing
(i) such Called Principal into (ii) the sum of the
products obtained by multiplying (a) the principal
component of each Remaining Scheduled Payment with
respect to such Called Principal by (b) the number of
years (calculated to the nearest one-twelfth year) that
will elapse between the Settlement Date with respect to
such Called Principal and the scheduled due date of
such Remaining Scheduled Payment.
"Remaining Scheduled Payments" means, with respect
to the Called Principal of any Note, all payments of
such Called Principal and interest thereon that would
be due after the Settlement Date with respect to such
Called Principal if no payment of such Called Principal
were made prior to its scheduled due date, provided
that if such Settlement Date is not a date on which
interest payments are due to be made under the terms of
the Notes, then the amount of the next succeeding
scheduled interest payment will be reduced by the
amount of interest accrued to such Settlement Date and
required to be paid on such Settlement Date pursuant to
Section 8.2 or 12.1.
"Settlement Date" means, with respect to the
Called Principal of any Note, the date on which such
Called Principal is to be prepaid pursuant to Section
8.2 or has become or is declared to be immediately due
and payable pursuant to Section 12.1, as the context
requires.
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Section 9. Affirmative Covenants.
The Company covenants that so long as any of the Notes
are outstanding:
Section 9.1. Compliance with Law. The Company will, and
will cause each of its Subsidiaries to, comply with all
laws, ordinances or governmental rules or regulations to
which each of them is subject, including, without
limitation, Environmental Laws, and will obtain and maintain
in effect all licenses, certificates, permits, franchises
and other governmental authorizations necessary to the
ownership of their respective properties or to the conduct
of their respective businesses, in each case to the extent
necessary to ensure that non-compliance with such laws,
ordinances or governmental rules or regulations or failures
to obtain or maintain in effect such licenses, certificates,
permits, franchises and other governmental authorizations
would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect.
Section 9.2. Insurance. The Company will, and will cause
each of its Subsidiaries to, maintain, with financially
sound and reputable insurers, insurance with respect to
their respective properties and businesses against such
casualties and contingencies, of such types, on such terms
and in such amounts (including deductibles, co-insurance and
self-insurance, if adequate reserves are maintained with
respect thereto) as is customary in the case of entities of
established reputations engaged in the same or a similar
business and similarly situated.
Section 9.3. Maintenance of Properties. The Company will,
and will cause each of its Subsidiaries to, maintain and
keep, or cause to be maintained and kept, their respective
properties in good repair, working order and condition
(other than ordinary wear and tear), so that the business
carried on in connection therewith may be properly conducted
at all times, provided that this Section shall not prevent
the Company or any Subsidiary from discontinuing the
operation and the maintenance of any of its properties if
such discontinuance is desirable in the conduct of its
business and the Company has concluded that such
discontinuance would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 9.4. Payment of Taxes. The Company will, and will
cause each of its Subsidiaries to, file all income tax or
similar tax returns required to be filed in any jurisdiction
and to pay and discharge all taxes shown to be due and
payable on such returns and all other taxes, assessments,
governmental charges, or levies imposed on them or any of
their properties, assets, income or franchises, to the
extent such taxes and assessments have become due and
payable and before they have become delinquent and all
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claims for which sums have become due and payable have or
might become a Lien on properties or assets of the Company
or any Subsidiary, provided that neither the Company nor any
Subsidiary need pay any such tax or assessment or claims if
(a) the amount, applicability or validity thereof is
contested by the Company or such Subsidiary on a timely
basis in good faith and in appropriate proceedings, and the
Company or a Subsidiary has established adequate reserves
therefor in accordance with GAAP on the books of the Company
or such Subsidiary or (b) the nonpayment of all such taxes
and assessments in the aggregate would not reasonably be
expected to have a Material Adverse Effect.
Section 9.5. Corporate Existence, Etc. The Company will at
all times preserve and keep in full force and effect its
corporate existence. Subject to Sections 9.3, 10.2 and
10.7, the Company will at all times preserve and keep in
full force and effect the corporate existence of each of its
Subsidiaries (unless merged into the Company or a
Subsidiary) and all rights and franchises of the Company and
its Subsidiaries unless, in the good faith judgment of the
Company, the termination of or failure to preserve and keep
in full force and effect such corporate existence, right or
franchise would not, individually or in the aggregate, have
a Material Adverse Effect.
Section 9.6. Subsequent Guarantors. The Company agrees
that if at any time any Subsidiary which is not a Subsidiary
Guarantor on the date hereof, shall guarantee any of the
Bank Agreements, the Prudential Obligations or any other
Debt of the Company, the Company will cause such Subsidiary
to, simultaneously with the entry into the guarantee of such
Bank Agreements, the Prudential Obligations or any other
Debt, execute and deliver for the benefit of the holders of
the Notes a Guarantee Agreement.
Section 9.7. Covenant to Secure Notes Equally. In the
event that the Company or any Subsidiary shall create or
assume any Lien upon any of its property or assets, whether
now owned or hereafter acquired, other than Liens permitted
by the provisions of Section 10.6 (unless prior written
consent to the creation or assumption thereof shall have
been obtained pursuant to Section 17), it will make or cause
to be made effective provision whereby the Notes will be
secured by such Lien equally and ratably with any and all
other Debt thereby secured so long as any such other Debt
shall be so secured.
Section 9.8. Pari Passu Ranking. The Company's obligations
under the Notes and this Agreement will at all times rank at
least pari passu with all other unsecured present and future
Debt of the Company, except to the extent of any mandatory
preferences which may arise only as a result of any
applicable bankruptcy, insolvency, liquidation or other
similar laws of general application.
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Section 9.9. Rule 144A Information. The Company covenants
that it will, upon the request of the holder of any Note,
provide such holder, and any qualified institutional buyer
designated by such holder, such financial and other
information as such holder may reasonably determine to be
necessary in order to permit compliance with the information
requirements of Rule 144A under the Securities Act in
connection with the resale of Notes, except at such times as
the Company is subject to and in compliance with the
reporting requirements of section 13 or 15(d) of the
Exchange Act. For the purpose of this Section 9.9, the term
"qualified institutional buyer" shall have the meaning
specified in Rule 144A under the Securities Act.
Section 10. Negative Covenants.
The Company covenants that so long as any of the Notes
are outstanding:
Section 10.1. Transactions with Affiliates. The Company
will not, and will not permit any Subsidiary to, enter into
directly or indirectly any Material transaction or Material
group of related transactions (including without limitation
the purchase, lease, sale or exchange of properties of any
kind or the rendering of any service) with any Affiliate
(other than the Company or another Subsidiary), except
pursuant to the reasonable requirements of the Company's or
such Subsidiary's business and upon fair and reasonable
terms no less favorable to the Company or such Subsidiary
than would be obtainable in a comparable arm's-length
transaction with a Person not an Affiliate.
Section 10.2. Merger, Consolidation, Etc. The Company will
not, and will not permit any Subsidiary to, merge or
consolidate with or into any other Person, except that, so
long as no Event of Default exists or would result therefrom:
(a) any Subsidiary may merge or consolidate with
or into the Company, so long as the Company is the
continuing or surviving corporation,
(b) any Subsidiary may merge or consolidate with
or into another Subsidiary, so long as the surviving
Person is or contemporaneously becomes a Wholly-Owned
Subsidiary, and provided that if such merger or
consolidation involves a Subsidiary Guarantor and such
Subsidiary Guarantor is not the survivor, the surviving
Person shall assume in writing upon terms and
conditions reasonably satisfactory to the Required
Holders and will provide such related documents
(including, without limitation, corporate or other
showings, officer's certificates and opinions) as the
Required Holders may reasonably request, and
(c) the Company may merge with any other solvent
corporation, so long as the Company is the continuing
or surviving corporation.
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Section 10.3. Consolidated Net Worth. The Company will not
permit Consolidated Net Worth at any time to be less than
the sum of (a) $456,000,000 plus (b) to the extent positive,
25% of Consolidated Net Income for each fiscal quarter ended
subsequent to September 30, 2001 and prior to any date of
determination.
Section 10.4. Interest Coverage Ratio. The Company will not
permit as of the end of any fiscal quarter the ratio of
Consolidated EBITDA to Consolidated Interest Expense to be
less than 3.50 to 1.00 for the four consecutive fiscal
quarter period ended as of the end of such fiscal quarter,
commencing with the four consecutive fiscal quarter period
ended September 30, 2001.
Section 10.5. Debt and Priority Debt Limitations. The
Company will not permit (a) the ratio, expressed as a
percentage, of Consolidated Debt to Consolidated
Capitalization to (i)-exceed 65% at any time during the
period commencing on the date of Closing and ending on
December 31, 2002, (ii) exceed 55% during the period
commencing on January 1, 2003 and ending on December 31,
2003 or (iii) 50% at any time thereafter or (b) the
aggregate amount of Priority Debt to at any time exceed 15%
of Consolidated Net Worth.
Section 10.6. Permitted Liens. The Company will not, and
will not permit any Subsidiary to, create, assume or suffer
to exist any Lien upon any of its properties or assets,
whether now owned or hereafter acquired (whether or not
provision is made for the equal and ratable securing of the
Notes in accordance with the provisions of Section 9.7),
except:
(a) Liens for taxes, assessments or other
governmental levies or charges not yet due or which are
being contested in good faith for which adequate
reserves have been established in accordance with
generally accepted accounting principles,
(b) statutory Liens of landlords, Liens of
carriers, warehousemen, mechanics and materialmen, and
Liens of a similar nature, in each case that do not
secure Debt, are incurred in the ordinary course of
business and are for sums not yet due or are being
contested in good faith,
(c) Liens on property or assets of a Subsidiary
of the Company to secure obligations of such Subsidiary
to the Company or to a Wholly-Owned Subsidiary,
(d) Liens (other than any Lien imposed by ERISA)
incurred, or deposits made, in the ordinary course of
business, such as workers' compensation Liens or
statutory or legal obligation Liens; provided, however,
that such Liens were not incurred or made in connection
with the borrowing of money or the obtaining of
advances or credit,
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(e) survey exceptions and easements and
reservations arising in the ordinary course of business
that do not secure Debt, which do not in aggregate
materially detract from the use or value of the
property subject thereto,
(f) Liens existing on the date of this Agreement
and securing Debt of the Company and its Subsidiaries,
in each case as identified on Schedule 5.15 (including
those Liens on any assets acquired in connection with
the acquisition of the dental business of Degussa AG in
October, 2001),
(g) any Lien created to secure all or any part of
the purchase price, or to secure Debt incurred or
assumed to pay all or any part of the purchase price or
cost of construction, of property (or any improvement
thereon) acquired or constructed by the Company or a
Subsidiary after the date of this Agreement, provided
that
(i) any such Lien shall extend solely to the
item or items of such property (or improvement
thereon) so acquired or constructed,
(ii) the principal amount of the Debt secured
by any such Lien shall at no time exceed the cost
to the Company or such Subsidiary of the property
(or improvement thereon) so acquired or
constructed,
(iii) any such Lien shall be created
contemporaneously with, or within 90 days after,
the acquisition or construction of such property,
and
(iv) no such Lien shall attach to any
property the purchase of which was made with the
net sale proceeds of any assets described in the
proviso to Section 10.7,
(h) any Lien existing on property of a Person
immediately prior to its being consolidated with or
merged into the Company or a Subsidiary or its becoming
a Subsidiary, or any Lien existing on any property
acquired by the Company or any Subsidiary at the time
such property is so acquired (whether or not the Debt
secured thereby shall have been assumed), provided that
(i) no such Lien shall have been created or assumed in
contemplation of such consolidation or merger or such
Person's becoming a Subsidiary or such acquisition of
property, and (ii) each such Lien shall extend solely
to the item or items of property so acquired, and
(i) any Lien renewing, extending or refunding any
Lien permitted by clauses (f), (g) or (h) of this
Section 10.6, provided that (i) the principal amount of
Debt secured by such Lien immediately prior to such
extension, renewal or refunding is not increased or the
maturity or remaining average life thereof reduced and
(ii) such Lien is not extended to any other property,
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(j) other Liens securing Debt of the Company or a
Subsidiary, provided that the aggregate principal
amount of Priority Debt shall at no time exceed 15% of
Consolidated Net Worth;
Section 10.7. Sale of Assets. The Company will not, and
will not permit any Subsidiary to, sell, exchange, convey,
lease, transfer or otherwise dispose of ("Transfer") any of
its assets (exclusive of sales of inventory in the ordinary
course of business), except that:
(a) any Subsidiary may Transfer assets to the
Company or to a Wholly-Owned Subsidiary (so long as any
such Transfer to a Wholly-Owned Subsidiary does not
result in the movement of assets from a Designated
Country to a country which is not a Designated
Country); or
(b) the Company or any Subsidiary may otherwise
Transfer assets, so long as after giving effect thereto
neither (i) the Annual Percentage of Earnings Capacity
Transferred pursuant to this subsection (b) and Section
10.8 exceeds 15%, nor (ii) the Annual Percentage of
Assets Transferred pursuant to this subsection (b) and
Section 10.8 exceeds 15%; provided that if the net sale
proceeds of any assets Transferred are, within 180 days
after the date of Transfer, (1) applied to the
prepayment of senior Debt of the Company (including the
Notes pursuant to the terms of Section 8.2) on a pro
rata basis or (2) used for the purchase of similar
assets (located in a Designated Country if and to the
extent the assets Transferred were located in a
Designated Country), then such Transfer shall not be
included in the calculations provided in this
subsection (b).
Section 10.8. Sale of Stock and Debt of Subsidiaries. The
Company will not sell or otherwise dispose of, or part with
control of, any shares of stock (or similar equity
interests) or Debt of any Subsidiary, except to the Company
or a Wholly-Owned Subsidiary, and except that all shares of
stock (or similar equity interests) and Debt of any
Subsidiary at the time owned by or owed to the Company and
all Subsidiaries may be sold as an entirety for a cash
consideration which represents the fair value (as determined
in good faith by the Board of Directors of the Company) at
the time of sale of the shares of stock (or similar equity
interests) and Debt so sold; provided that (a) such sale or
other disposition is treated as a Transfer of assets of such
Subsidiary and is permitted by Section 10.7 and (b) at the
time of such sale, such Subsidiary shall not own, directly
or indirectly, any shares of stock or Debt of any other
Subsidiary, unless all of the shares of stock and Debt of
such other Subsidiary owned, directly or indirectly, by the
Company and all Subsidiaries are simultaneously being sold
as permitted by this Section 10.8.
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Section 10.9. Sale or Discount of Receivables. The Company
will not, and will not permit any Subsidiary to, sell with
recourse, or discount or otherwise sell for less than the
face value thereof, any of its notes or accounts receivable,
other than (a) notes or accounts receivable the collection
of which is doubtful in accordance with generally accepted
accounting principles and (b) pursuant to the Brazilian
Receivables Program.
Section 10.10. Subsidiary Dividend Restrictions. The Company
will not incur or permit to exist any restriction (other
than restrictions imposed pursuant to any applicable law) on
any Subsidiary's ability to make dividends or other
distributions to the Company or any other Subsidiary, to
repay intra-company Debt or to otherwise transfer earnings
or assets to the Company or its Subsidiaries.
Section 10.11. Sale and Leasebacks. The Company will not
enter into any transaction, directly or indirectly, whereby
it shall sell or transfer any property, if at the time of
such sale or disposition the Company or any Subsidiary
intends to lease or otherwise acquire the right to use or
possess (except by purchase) such property or like property
for a substantially similar purpose (a "Sale and Leaseback
Transaction") except:
(a) any Sale and Leaseback Transaction in which
the property is sold by the Company to a Subsidiary or
by a Subsidiary to the Company or another Subsidiary, or
(b) the Company or any Subsidiary may enter into
any Sale and Leaseback Transaction if (i) at the time
thereof and immediately after giving effect thereto no
Default or Event of Default shall exist (including any
Event of Default under Section- 10.5(b)) and the
proceeds from the sale of the subject property shall be
equal to not less than 80% of its fair market value (as
reasonably determined by the Company's Board of
Directors); or
(c) any Sale and Leaseback Transaction in which
the property sold consists of the precious metals
inventory acquired by the Company in connection with
its acquisition of the dental business of Degussa AG in
October, 2001 in an aggregate equivalent amount not to
exceed U.S.$110,000,000, with respect to the precious
metals owned by the Degussa Dental Group prior to such
acquisition; provided any such Sale and Leaseback
Transaction shall be entered into and effective no
later than June 30, 2002.
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Section 10.12. Line of Business. The Company will not, and
will not permit any Subsidiary to, engage in any business
activities other than those related or incidental to its
present business activities, namely, the manufacture and
distribution of (a) dental supplies and equipment, (b)
medical/industrial supplies and equipment and (c) other
healthcare products, provided, that (i) the net business
activities described in clause (c) shall not represent more
than 20% of the Consolidated Net Income for any fiscal year,
commencing with the fiscal year ended December 31, 2001 and
(ii) the assets of the business activities described in
clause (c) shall not at any time represent more than 20% of
the consolidated assets of the Company and its Subsidiaries.
Section 11. Events of Default.
An "Event of Default" shall exist if any of the
following conditions or events shall occur and be continuing:
(a) the Company defaults in the payment of any
principal or Make-Whole Amount, if any, on any Note
when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by
declaration or otherwise; or
(b) the Company defaults in the payment of any
interest on any Note for more than five days after the
same becomes due and payable; or
(c) the Company defaults in the performance of or
compliance with any term contained in Sections 10.2
through 10.11, inclusive; or
(d) the Company defaults in the performance of or
compliance with any term contained herein (other than
those referred to in paragraphs (a), (b) and (c) of
this Section-11) and such default is not remedied
within 30 days after the earlier of (i) a Responsible
Officer obtaining actual knowledge of such default and
(ii) the Company receiving written notice of such
default from any holder of a Note (any such written
notice to be identified as a "notice of default" and to
refer specifically to this paragraph (d) of
Section 11); or
(e) any representation or warranty made in
writing by or on behalf of the Company or by any
officer of the Company in this Agreement or in any
writing furnished in connection with the transactions
contemplated hereby proves to have been false or
incorrect in any material respect on the date as of
which made; or
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(f) (i) the Company or any Subsidiary is in
default (as principal or as guarantor or other surety)
in the payment of any principal of or premium or
make-whole amount or interest on any Debt that is
outstanding in an aggregate principal amount of at
least $10,000,000 beyond any period of grace provided
with respect thereto, or (ii) the Company or any
Subsidiary is in default in the performance of or
compliance with any term of any evidence of any Debt in
an aggregate outstanding principal amount of at least
$10,000,000 or of any mortgage, indenture or other
agreement relating thereto or any other condition
exists, and as a consequence of such default or
condition such Debt has become, or has been declared
(or one or more persons are entitled to declare such
Debt to be), due and payable before its stated maturity
or before its regularly scheduled dates of payment or
(iii) as a consequence of the occurrence or
continuation of any event or condition (other than the
passage of time or the right of the holder of Debt to
convert such Debt into equity interests), (x) the
Company or any Subsidiary has become obligated to
purchase or repay Debt before its regular maturity or
before its regularly scheduled dates of payment in an
aggregate outstanding principal amount of at least
$10,000,000, or (y) one or more persons has the right
to require the Company or any Subsidiary so to purchase
or repay such Debt; or
(g) the Company or any Material Subsidiary (i) is
generally not paying, or admits in writing its
inability to pay, its debts as they become due, (ii)
files, or consents by answer or otherwise to the filing
against it of, a petition for relief or reorganization
or arrangement or any other petition in bankruptcy, for
liquidation or to take advantage of any bankruptcy,
insolvency, reorganization, moratorium or other similar
law of any jurisdiction, (iii) makes an assignment for
the benefit of its creditors, (iv) consents to the
appointment of a custodian, receiver, trustee or other
officer with similar powers with respect to it or with
respect to any substantial part of its property, (v) is
adjudicated as insolvent or to be liquidated, or (vi)
takes corporate action for the purpose of any of the
foregoing; or
(h) a court or governmental authority of
competent jurisdiction enters an order appointing,
without consent by the Company or any of its Material
Subsidiaries, a custodian, receiver, trustee or other
officer with similar powers with respect to it or with
respect to any substantial part of its property, or
constituting an order for relief or approving a
petition for relief or reorganization or any other
petition in bankruptcy or for liquidation or to take
advantage of any bankruptcy or insolvency law of any
jurisdiction, or ordering the dissolution, winding-up
or liquidation of the Company or any of its Material
Subsidiaries, or any such petition shall be filed
against the Company or any of its Material Subsidiaries
and such petition shall not be dismissed within 60
days; or
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(i) a final judgment or judgments for the payment
of money aggregating in excess of $10,000,000 are
rendered against one or more of the Company and its
Material Subsidiaries and which judgments are not,
within 60 days after entry thereof, bonded, discharged
or stayed pending appeal, or are not discharged within
60 days after the expiration of such stay; or
(j) any default shall occur under any Guarantee
Agreement or any Guarantee Agreement shall cease to be
in full force and effect for any reason whatsoever,
including, without limitation, a determination by any
governmental body or court that such Guarantee
Agreement is invalid, void or unenforceable or any
guarantor party thereto shall contest or deny in
writing the validity or enforceability of any of its
obligations under any such Guarantee Agreement; or
(k) if (i) any Plan shall fail to satisfy the
minimum funding standards of ERISA or the Code for any
plan year or part thereof or a waiver of such standards
or extension of any amortization period is sought or
granted under section 412 of the Code, (ii) a notice of
intent to terminate any Plan shall have been or is
reasonably expected to be filed with the PBGC or the
PBGC shall have instituted proceedings under ERISA
section 4042 to terminate or appoint a trustee to
administer any Plan or the PBGC shall have notified the
Company or any ERISA Affiliate that a Plan may become a
subject of any such proceedings, (iii) the aggregate
"amount of unfunded benefit liabilities" (within the
meaning of section 4001(a)(18) of ERISA) under all
Plans, determined in accordance with Title IV of ERISA,
shall exceed $10,000,000, (iv) the Company or any ERISA
Affiliate shall have incurred or is reasonably expected
to incur any liability pursuant to Title I or IV of
ERISA or the penalty or excise tax provisions of the
Code relating to employee benefit plans, (v) the
Company or any ERISA Affiliate withdraws from any
Multiemployer Plan, or (vi) the Company or any
Subsidiary establishes or amends any employee welfare
benefit plan that provides post-employment welfare
benefits in a manner that would increase the liability
of the Company or any Subsidiary thereunder; and any
such event or events described in clauses (i) through
(vi) above, either individually or together with any
other such event or events, would reasonably be
expected to have a Material Adverse Effect.
As used in Section 11(k), the terms "employee benefit
plan" and "employee welfare benefit plan" shall have the
respective meanings assigned to such terms in Section 3 of
ERISA.
Section 12. Remedies on Default, Etc.
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Section 12.1. Acceleration. (a) If an Event of Default
with respect to the Company described in paragraph (g) or
(h) of Section 11 (other than an Event of Default described
in clause (i) of paragraph (g) or described in clause (vi)
of paragraph (g) by virtue of the fact that such clause
encompasses clause (i) of paragraph (g)) has occurred, all
the Notes then outstanding shall automatically become
immediately due and payable.
(b) If any other Event of Default has occurred and is
continuing, any holder or holders of at least 51% in
principal amount of the Notes at the time outstanding may at
any time at its or their option, by notice or notices to the
Company, declare all the Notes then outstanding to be
immediately due and payable.
(c) If any Event of Default described in paragraph (a)
or (b) of Section 11 has occurred and is continuing, any
holder or holders of Notes at the time outstanding affected
by such Event of Default may at any time, at its or their
option, by notice or notices to the Company, declare all the
Notes held by it or them to be immediately due and payable.
Upon any Notes becoming due and payable under this
Section 12.1, whether automatically or by declaration, such
Notes will forthwith mature and the entire unpaid principal
amount, if any, of such Notes, plus (x) all accrued and
unpaid interest thereon and (y) the Make-Whole Amount, if
any, determined in respect of such principal amount (to the
full extent permitted by applicable law), shall all be
immediately due and payable, in each and every case without
presentment, demand, protest or further notice, all of which
are hereby waived. The Company acknowledges, and the
parties hereto agree, that each holder of a Note has the
right to maintain its investment in the Notes free from
repayment by the Company (except as herein specifically
provided for) and that the provision for payment of a
Make-Whole Amount, if any, by the Company in the event that
the Notes are prepaid or are accelerated as a result of an
Event of Default, is intended to provide compensation for
the deprivation of such right under such circumstances.
Section 12.2. Other Remedies. If any Default or Event of
Default has occurred and is continuing, and irrespective of
whether any Notes have become or have been declared
immediately due and payable under Section 12.1, the holder
of any Note at the time outstanding may proceed to protect
and enforce the rights of such holder by an action at law,
suit in equity or other appropriate proceeding, whether for
the specific performance of any agreement contained herein
or in any Note, or for an injunction against a violation of
any of the terms hereof or thereof, or in aid of the
exercise of any power granted hereby or thereby or by law or
otherwise.
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Section 12.3. Rescission. At any time after any Notes have
been declared due and payable pursuant to clause (b) or (c)
of Section 12.1, the holders of not less than 51% in
principal amount of the Notes then outstanding, by written
notice to the Company, may rescind and annul any such
declaration and its consequences if (a) the Company has paid
all overdue interest on the Notes, all principal of and
Make-Whole Amount, if any, on any Notes that are due and
payable and are unpaid other than by reason of such
declaration, and all interest on such overdue principal and
Make-Whole Amount, if any, and (to the extent permitted by
applicable law) any overdue interest in respect of the
Notes, at the Default Rate, (b) all Events of Default and
Defaults, other than non-payment of amounts that have become
due solely by reason of such declaration, have been cured or
have been waived pursuant to Section 17, and (c) no judgment
or decree has been entered for the payment of any monies due
pursuant hereto or to the Notes. No rescission and
annulment under this Section 12.3 will extend to or affect
any subsequent Event of Default or Default or impair any
right consequent thereon
Section 12.4. No Waivers or Election of Remedies, Expenses,
Etc. No course of dealing and no delay on the part of any
holder of any Note in exercising any right, power or remedy
shall operate as a waiver thereof or otherwise prejudice
such holder's rights, powers or remedies. No right, power
or remedy conferred by this Agreement or by any Note upon
any holder thereof shall be exclusive of any other right,
power or remedy referred to herein or therein or now or
hereafter available at law, in equity, by statute or
otherwise. Without limiting the obligations of the Company
under Section 15, the Company will pay to the holder of each
Note on demand such further amount as shall be sufficient to
cover all costs and expenses of such holder incurred in any
enforcement or collection under this Section 12, including,
without limitation, reasonable attorneys' fees, expenses and
disbursements.
Section 13. Registration; Exchange; Substitution of Notes.
Section 13.1. Registration of Notes. The Company shall keep
at its principal executive office a register for the
registration and registration of transfers of Notes. The
name and address of each holder of one or more Notes, each
transfer thereof and the name and address of each transferee
of one or more Notes shall be registered in such register.
Prior to due presentment for registration of transfer, the
Person in whose name any Note shall be registered shall be
deemed and treated as the owner and holder thereof for all
purposes hereof, and the Company shall not be affected by
any notice or knowledge to the contrary. The Company shall
give to any holder of a Note that is an Institutional
Investor promptly upon request therefor, a complete and
correct copy of the names and addresses of all registered
holders of Notes.
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Section 13.2. Transfer and Exchange of Notes. Upon
surrender of any Note at the principal executive office of
the Company for registration of transfer or exchange (and in
the case of a surrender for registration of transfer, duly
endorsed or accompanied by a written instrument of transfer
duly executed by the registered holder of such Note or his
attorney duly authorized in writing and accompanied by the
address for notices of each transferee of such Note or part
thereof), the Company shall execute and deliver, at the
Company's expense (except as provided below), one or more
new Notes (as requested by the holder thereof) in exchange
therefor, in an aggregate principal amount equal to the
unpaid principal amount of the surrendered Note. Each such
new Note shall be payable to such Person as such holder may
request and shall be substantially in the form of Exhibit
1. Each such new Note shall be dated and bear interest from
the date to which interest shall have been paid on the
surrendered Note or dated the date of the surrendered Note
if no interest shall have been paid thereon. The Company
may require payment of a sum sufficient to cover any stamp
tax or governmental charge imposed in respect of any such
transfer of Notes. Notes shall not be transferred in
denominations of less than JPY 125,000,000, provided that if
necessary to enable the registration of transfer by a holder
of its entire holding of Notes, one Note may be in a
denomination of less than JPY 125,000,000. Any transferee,
by its acceptance of a Note registered in its name (or the
name of its nominee), shall be deemed to have made the
representation set forth in Section 6.2.
Section 13.3. Replacement of Notes. Upon receipt by the
Company of evidence reasonably satisfactory to it of the
ownership of and the loss, theft, destruction or mutilation
of any Note (which evidence shall be, in the case of an
Institutional Investor, notice from such Institutional
Investor of such ownership and such loss, theft, destruction
or mutilation), and
(a) in the case of loss, theft or destruction, of
indemnity reasonably satisfactory to it (provided that if
the holder of such Note is, or is a nominee for, an original
Purchaser or another holder of a Note with a minimum net
worth of at least $100,000,000, such Person's own unsecured
agreement of indemnity shall be deemed to be satisfactory),
or
(b) in the case of mutilation, upon surrender and
cancellation thereof, the Company at its own expense shall
execute and deliver, in lieu thereof, a new Note, dated and
bearing interest from the date to which interest shall have
been paid on such lost, stolen, destroyed or mutilated Note
or dated the date of such lost, stolen, destroyed or
mutilated Note if no interest shall have been paid thereon.
Section 14. Payments on Notes.
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Section 14.1. Place of Payment. Subject to Section 14.2,
payments of principal, Make-Whole Amount, if any, and
interest becoming due and payable hereunder or on the Notes
shall be made during the business day in Japan in New York
City, New York at the principal office of The Chase
Manhattan Bank in such jurisdiction. The Company may at any
time, by notice to each holder of a Note, change the place
of payment of the Notes so long as such place of payment
shall be either the principal office of the Company in such
jurisdiction or the principal office of a bank or trust
company in such jurisdiction.
Section 14.2. Home Office Payment. So long as you or your
nominee shall be the holder of any Note, and notwithstanding
anything contained in Section 14.1 or in such Note to the
contrary, the Company will pay all sums becoming due on such
Note for principal, Make-Whole Amount, if any, and interest
by the method and at the address specified for such purpose
below your name in Schedule A, or by such other method or at
such other address as you shall have from time to time
specified to the Company in writing for such purpose,
without the presentation or surrender of such Note or the
making of any notation thereon, except that upon written
request of the Company made concurrently with or reasonably
promptly after payment or prepayment in full of any Note,
you shall surrender such Note for cancellation, reasonably
promptly after any such request, to the Company at its
principal executive office or at the place of payment most
recently designated by the Company pursuant to Section
14.1. Prior to any sale or other disposition of any Note
held by you or your nominee you will, at your election,
either endorse thereon the amount of principal paid thereon
and the last date to which interest has been paid thereon or
surrender such Note to the Company in exchange for a new
Note or Notes pursuant to Section 13.2. The Company will
afford the benefits of this Section 14.2 to any
Institutional Investor that is the direct or indirect
transferee of any Note purchased by you under this Agreement
and that has made the same agreement relating to such Note
as you have made in this Section 14.2.
Section 14.3. Judgment Currency. Any payment on account of
an amount that is payable hereunder or under the Notes in a
specified currency (the "Specified Currency") which,
notwithstanding the requirement of the Notes, is made to or
for the account of any holder of a Note in lawful currency
of any other jurisdiction (the "Other Currency"), whether as
a result of any judgment or order or the enforcement thereof
or the realization of any security or the liquidation of the
Company, shall constitute a discharge of the Company's
obligation under this Agreement and such Notes only to the
extent of the amount of the Specified Currency which such
holder could purchase in New York foreign exchange markets
with the amount of the Other Currency in accordance with
normal banking procedures at the rate of exchange prevailing
at 10:00 a.m. on the first New York Business Day following
receipt of the payment first referred to above. If the
amount of the Specified Currency that could be so purchased
is less than the amount of Specified Currency originally due
to such holder, the Company shall indemnify and save
harmless such holder from
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and against all loss or damage arising out of or as a result
of such deficiency. This indemnity shall constitute an
obligation separate and independent from the other
obligations contained in this Agreement, shall give rise to
a separate and independent cause of action, shall apply
irrespective of any indulgence granted by any holder of a
Note from time to time and shall continue in full force and
effect notwithstanding any judgment or order for a
liquidated sum in respect of an amount due hereunder or
under any judgment or order.
Section 15. Expenses, Etc.
Section 15.1. Transaction Expenses. Whether or not the
transactions contemplated hereby are consummated, the
Company will pay all costs and expenses (including
reasonable attorneys' fees of the special counsel referenced
in Section 4.4(b) and, if reasonably required, local
counsel) incurred by you and each Other Purchaser or holder
of a Note in connection with such transactions and in
connection with any amendments, waivers or consents under or
in respect of this Agreement or the Notes (whether or not
such amendment, waiver or consent becomes effective),
including, without limitation: (a) the costs and expenses
incurred in enforcing or defending (or determining whether
or how to enforce or defend) any rights under this Agreement
or the Notes or in responding to any subpoena or other legal
process or informal investigative demand issued in
connection with this Agreement or the Notes, or by reason of
being a holder of any Note, and (b) the costs and expenses,
including, at any given time, one financial advisor's fees
(acting for all holders of Notes), incurred in connection
with the insolvency or bankruptcy of the Company or any
Subsidiary or in connection with any work-out or
restructuring of the transactions contemplated hereby and by
the Notes. The Company will pay, and will save you and each
other holder of a Note harmless from, all claims in respect
of any fees, costs or expenses if any, of brokers and
finders (other than those retained by you).
Section 15.2. Survival. The obligations of the Company
under this Section 15 will survive the payment or transfer
of any Note, the enforcement, amendment or waiver of any
provision of this Agreement or the Notes, and the
termination of this Agreement.
Section 16. Survival of Representations and Warranties;
Entire Agreement.
All representations and warranties contained herein
shall survive the execution and delivery of this Agreement
and the Notes, the purchase or transfer by you of any Note
or portion thereof or interest therein and the payment of
any Note, and may be relied upon by any subsequent holder of
a Note, regardless of any investigation made at any time by
or on behalf of you or any other holder of a Note. All
statements contained in any certificate or other instrument
delivered by or on behalf of the Company pursuant to this
Agreement shall be deemed
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representations and warranties of the Company under this
Agreement. Subject to the preceding sentence, this
Agreement and the Notes embody the entire agreement and
understanding between you and the Company and supersede all
prior agreements and understandings relating to the subject
matter hereof.
Section 17. Amendment and Waiver.
Section 17.1. Requirements. This Agreement and the Notes
may be amended, and the observance of any term hereof or of
the Notes may be waived (either retroactively or
prospectively), with (and only with) the written consent of
the Company and the Required Holders, except that (a) no
amendment or waiver of any of the provisions of Section 1,
2, 3, 4, 5, 6 or 21 hereof, or any defined term (as it is
used therein), will be effective as to you unless consented
to by you in writing, and (b) no such amendment or waiver
may, without the written consent of the holder of each Note
at the time outstanding affected thereby, (i) subject to the
provisions of Section 12 relating to acceleration or
rescission, change the amount or time of any prepayment or
payment of principal of, or reduce the rate or change the
time of payment or method of computation of interest or of
the Make-Whole Amount on, the Notes, (ii) change the
percentage of the principal amount of the Notes the holders
of which are required to consent to any such amendment or
waiver, or (iii) amend any of Sections 8, 11(a), 11(b), 12,
17 or 20.
Section 17.2. Solicitation of Holders of Notes.
(a) Solicitation. The Company will provide each holder
of the Notes (irrespective of the amount of Notes then owned
by it) with sufficient information, sufficiently far in
advance of the date a decision is required, to enable such
holder to make an informed and considered decision with
respect to any proposed amendment, waiver or consent in
respect of any of the provisions hereof or of the Notes.
The Company will deliver executed or true and correct copies
of each amendment, waiver or consent effected pursuant to
the provisions of this Section 17 to each holder of
outstanding Notes promptly following the date on which it is
executed and delivered by, or receives the consent or
approval of, the requisite holders of Notes.
(b) Payment. The Company will not directly or
indirectly pay or cause to be paid any remuneration, whether
by way of supplemental or additional interest, fee or
otherwise, or grant any security, to any holder of Notes as
consideration for or as an inducement to the entering into
by any holder of Notes of any waiver or amendment of any of
the terms and provisions hereof unless such remuneration is
concurrently paid, or security is concurrently granted, on
the same terms, ratably to each holder of Notes then
outstanding even if such holder did not consent to such
waiver or amendment.
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Section 17.3. Binding Effect, Etc. Any amendment or waiver
consented to as provided in this Section 17 applies equally
to all holders of Notes and is binding upon them and upon
each future holder of any Note and upon the Company without
regard to whether such Note has been marked to indicate such
amendment or waiver. No such amendment or waiver will
extend to or affect any obligation, covenant, agreement,
Default or Event of Default not expressly amended or waived
or impair any right consequent thereon. No course of
dealing between the Company and the holder of any Note nor
any delay in exercising any rights hereunder or under any
Note shall operate as a waiver of any rights of any holder
of such Note. As used herein, the term "this Agreement" and
references thereto shall mean this Agreement as it may from
time to time be amended or supplemented.
Section 17.4. Notes Held by Company, Etc. Solely for the
purpose of determining whether the holders of the requisite
percentage of the aggregate principal amount of Notes then
outstanding approved or consented to any amendment, waiver
or consent to be given under this Agreement or the Notes, or
have directed the taking of any action provided herein or in
the Notes to be taken upon the direction of the holders of a
specified percentage of the aggregate principal amount of
Notes then outstanding, Notes directly or indirectly owned
by the Company or any of its Affiliates shall be deemed not
to be outstanding.
Section 18. Notices.
All notices and communications provided for hereunder
shall be in writing and sent (a)-by telecopy if the sender
on the same day sends a confirming copy of such notice by a
recognized overnight delivery service (charges prepaid), or
(b) by registered or certified mail with return receipt
requested (postage prepaid), or (c) by a recognized
overnight delivery service (with charges prepaid). Any such
notice must be sent:
(i) if to you or your nominee, to you or it at
the address specified for such communications in
Schedule A, or at such other address as you or it shall
have specified to the Company in writing,
(ii) if to any other holder of any Note, to such
holder at such address as such other holder shall have
specified to the Company in writing, or
(iii) if to the Company, to the Company at its
address set forth at the beginning hereof to the
attention of the Treasurer, with a copy to the same
address to the attention of the Secretary, or at such
other address as the Company shall have specified to
the holder of each Note in writing.
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Notices under this Section 18 will be deemed given only when
actually received.
Section 19. Reproduction of Documents.
This Agreement and all documents relating thereto,
including, without limitation, (a)-consents, waivers and
modifications that may hereafter be executed, (b) documents
received by you at the Closing (except the Notes
themselves), and (c) financial statements, certificates and
other information previously or hereafter furnished to you,
may be reproduced by you by any photographic, photostatic,
microfilm, microcard, miniature photographic or other
similar process and you may destroy any original document so
reproduced. The Company agrees and stipulates that, to the
extent permitted by applicable law, any such reproduction
shall be admissible in evidence as the original itself in
any judicial or administrative proceeding (whether or not
the original is in existence and whether or not such
reproduction was made by you in the regular course of
business) and any enlargement, facsimile or further
reproduction of such reproduction shall likewise be
admissible in evidence. This Section 19 shall not prohibit
the Company or any other holder of Notes from contesting any
such reproduction to the same extent that it could contest
the original, or from introducing evidence to demonstrate
the inaccuracy of any such reproduction.
Section 20. Confidential Information.
For the purposes of this Section 20, "Confidential
Information" means information delivered to you by or on
behalf of the Company or any Subsidiary in connection with
the transactions contemplated by or otherwise pursuant to
this Agreement that is proprietary in nature and that was
clearly marked or labeled or otherwise adequately identified
when received by you as being confidential information of
the Company or such Subsidiary, provided that such term does
not include information that (a) was publicly known or
otherwise known to you prior to the time of such disclosure,
(b) subsequently becomes publicly known through no act or
omission by you or any Person acting on your behalf, (c)
otherwise becomes known to you other than through disclosure
by the Company or any Subsidiary without breach of any
obligation of confidentiality owed by a third party to the
Company or any Subsidiary of which you have knowledge or (d)
constitutes financial statements delivered to you under
Section 7.1 that are otherwise publicly available. You will
maintain the confidentiality of such Confidential
Information in accordance with procedures adopted by you in
good faith to protect confidential information of third
parties delivered to you but, in any event, in accordance
with not less than reasonable care, provided that you may
deliver or disclose Confidential Information to (i) your
directors, officers, employees, trustees, agents, attorneys
and affiliates, (to the extent such disclosure reasonably
relates to the administration of the investment represented
by your Notes),
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(ii) your financial advisors and other professional advisors
who agree to hold confidential the Confidential Information
substantially in accordance with the terms of this Section
20, (iii) any other holder of any Note, (iv) any
Institutional Investor to which you sell or offer to sell
such Note or any part thereof or any participation therein
(if such Person has agreed in writing prior to its receipt
of such Confidential Information to be bound by the
provisions of this Section 20), (v)-any Person from which
you offer to purchase any security of the Company (if such
Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of
this Section 20), (vi) any federal or state regulatory
authority having jurisdiction over you, (vii) the National
Association of Insurance Commissioners or any similar
organization, or any nationally recognized rating agency
that requires access to information about your investment
portfolio, or (viii) any other Person to which such delivery
or disclosure may be necessary or appropriate (w) to effect
compliance with any law, rule, regulation or order
applicable to you, (x) in response to any subpoena or other
legal process, (y) in connection with any litigation to
which you are a party provided that you provide prompt
notice (if reasonably possible, prior to such disclosure) to
the Company so that the Company may seek an appropriate
protective order or other remedy or (z) if an Event of
Default has occurred and is continuing, to the extent you
may reasonably determine such delivery and disclosure to be
necessary or appropriate in the enforcement or for the
protection of the rights and remedies under your Notes and
this Agreement. Each holder of a Note, by its acceptance of
a Note, will be deemed to have agreed to be bound by and to
be entitled to the benefits of this Section 20 as though it
were a party to this Agreement. On reasonable request by
the Company in connection with the delivery to any holder of
a Note of information required to be delivered to such
holder under this Agreement or requested by such holder
(other than a holder that is a party to this Agreement or
its nominee), such holder will enter into an agreement with
the Company embodying the provisions of this Section 20.
Section 21. Substitution of Purchaser.
You shall have the right to substitute any one of your
Affiliates as the purchaser of the Notes that you have
agreed to purchase hereunder, by written notice to the
Company, which notice shall be signed by both you and such
Affiliate, shall contain such Affiliate's agreement to be
bound by this Agreement and shall contain a confirmation by
such Affiliate of the accuracy with respect to it of the
representations set forth in Section 6. Upon receipt of
such notice, wherever the word "you" is used in this
Agreement (other than in this Section 21), such word shall
be deemed to refer to such Affiliate in lieu of you. In the
event that such Affiliate is so substituted as a purchaser
hereunder and such Affiliate thereafter transfers to you all
of the Notes then held by such Affiliate, upon receipt by
the Company of notice of such transfer, wherever the word
"you" is used in this Agreement (other than in this Section
21), such word shall no longer be deemed to refer to such
Affiliate, but shall refer to you, and you shall have all
the rights of an original holder of the Notes under this
Agreement.
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Section 22. Miscellaneous.
Section 22.1. Successors and Assigns. All covenants and
other agreements contained in this Agreement by or on behalf
of any of the parties hereto bind and inure to the benefit
of their respective successors and assigns (including,
without limitation, any subsequent holder of a Note) whether
so expressed or not.
Section 22.2. Payments Due on Non-Business Days. Anything
in this Agreement or the Notes to the contrary
notwithstanding, any payment of principal of or Make-Whole
Amount or interest on any Note that is due on a date other
than a Business Day shall be made on the next succeeding
Business Day without including the additional days elapsed
in the computation of the interest payable on such next
succeeding Business Day.
Section 22.3. Severability. Any provision of this Agreement
that is prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall (to the full
extent permitted by law) not invalidate or render
unenforceable such provision in any other jurisdiction
Section 22.4. Construction. Each covenant contained herein
shall be construed (absent express provision to the
contrary) as being independent of each other covenant
contained herein, so that compliance with any one covenant
shall not (absent such an express contrary provision) be
deemed to excuse compliance with any other covenant. Where
any provision herein refers to action to be taken by any
Person, or which such Person is prohibited from taking, such
provision shall be applicable whether such action is taken
directly or indirectly by such Person.
Section 22.5. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be an
original but all of which together shall constitute one
instrument. Each counterpart may consist of a number of
copies hereof, each signed by less than all, but together
signed by all, of the parties hereto.
Section 22.6. Governing Law. This Agreement shall be
construed and enforced in accordance with, and the rights of
the parties shall be governed by, the law of the State of
New York excluding choice-of-law principles of the law of
such State that would require the application of the laws of
a jurisdiction other than such State.
* * * * *
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If you are in agreement with the foregoing, please sign
the form of agreement on the accompanying counterpart of
this Agreement and return it to the Company, whereupon the
foregoing shall become a binding agreement between you and
the Company.
Very truly yours,
DENTSPLY International Inc.
By_____________________________
[Title]
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The foregoing is hereby agreed to as of the date
thereof.
[Add Purchaser Signature Blocks]
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A-5
Schedule A
(to Note Purchase Agreement)
Information Relating to Purchasers
Principal Amount of
Name and Address of Purchaser Notes to Be
Purchased
JPY 1,559,375,000
Massachusetts Mutual Life
Insurance Company
c/o David L. Babson & Company Inc.
1295 State Street
Springfield, MA 01111
Attn: Securities Investment Division
Payments
All payments on account of the Note shall be made by
crediting in the form of bank wire transfer of immediately
available funds in Japanese Yen, (identifying each payment
as DENTSPLY International Inc., interest and principal), to:
Chase Manhattan Bank, N.A.
4 Chase Metro Tech Center
New York, NY 10081
ABA No. 021000021
For MassMutual Pension Management
Account No. 910-2594018
Re: Description of security, principal and interest
split
With telephone advice of payment to the Securities Custody
and Collection Department of David L. Babson & Company Inc.
at (413) 744-5104 or (413) 744-5718
Notices
1. Send Communications and Notices to:
Massachusetts Mutual Life Insurance Company
c/o David L. Babson & Company Inc.
1295 State Street
Springfield, MA 01111
Attn: Securities Investment Division
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2. Send Notices on Payments to:
Massachusetts Mutual Life Insurance Company
c/o David L. Babson & Company Inc.
1295 State Street
Springfield, MA 01111
Attn: Securities Custody and Collection Department - F381
Tax Identification No. 04-1590850
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Principal Amount of
Name and Address of Purchaser Notes to Be
Purchased
Massachusetts Mutual Life JPY 237,025,000
Insurance Company
c/o David L. Babson & Company Inc.
1295 State Street
Springfield, MA 01111
Attn: Securities Investment Division
Payments
All payments on account of the Note shall be made by
crediting in the form of bank wire transfer of immediately
available funds in Japanese Yen (identifying each payment as
DENTSPLY International Inc., interest and principal), to:
Citibank, N.A.
111 Wall Street
New York, NY 10043
ABA No. 021000089
For MassMutual Spot Priced Contract
Account No. 3890-4953
Re: Description of security, principal and interest
split
With telephone advice of payment to the Securities Custody
and Collection Department of David L. Babson & Company Inc.
at (413) 744-5104 or (413) 744-5718
Notices
1. Send Communications and Notices to:
Massachusetts Mutual Life Insurance Company
c/o David L. Babson & Company Inc.
1295 State Street
Springfield, MA 01111
Attn: Securities Investment DivisionAttention:
Securities Custody and Collection Department - F381
2. Send Notices on Payments to:
Massachusetts Mutual Life Insurance Company
c/o David L. Babson & Company Inc.
1295 State Street
Springfield, MA 01111
Attn: Securities Custody and Collection Department - F381
Tax Identification No. 04-1590850
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Principal Amount of
Name and Address of Purchaser Notes to Be
Purchased
Massachusetts Mutual Life JPY 1,322,350,000
Insurance Company
c/o David L. Babson & Company Inc.
1295 State Street
Springfield, MA 01111
Attn: Securities Investment Division
Payments
All payments on account of the Note shall be made by
crediting in the form of bank wire transfer of immediately
available funds in Japanese Yen, (identifying each payment
as DENTSPLY International Inc., interest and principal), to:
Citibank, N.A.
111 Wall Street
New York, NY 10043
ABA No. 021000089
For MassMutual Long-Term Pool
Account No. 4067-3488
Re: Description of security, principal and interest
split
With telephone advice of payment to the Securities Custody
and Collection Department of David L. Babson & Company Inc.
at (413) 744-5104 or (413) 744-5718
Notices
1. Send Communications and Notices to:
Massachusetts Mutual Life Insurance Company
c/o David L. Babson & Company Inc.
1295 State Street
Springfield, MA 01111
Attn: Securities Investment Division
2. Send Notices on Payments to:
Massachusetts Mutual Life Insurance Company
c/o David L. Babson & Company Inc.
1295 State Street
Springfield, MA 01111
Attn: Securities Custody and Collection Department - F381
Tax Identification No. 04-1590850
D6
Principal Amount of
Name and Address of Purchaser Notes to Be
Purchased
Nationwide Life Insurance JPY 3,118,750,000
Company
One Nationwide Plaza, 33rd Floor
Columbus, OH 43215-2220
Attn:
Payments
All payments on account of the Note shall be made by
crediting in the form of bank wire transfer of immediately
available funds in Japanese Yen (identifying each payment as
DENTSPLY International Inc., interest and principal), to:
ABN AMRO Bank, Tokyo
Swift Code ABNAJPJT
Account No. 12.23.499 JPY
Ref: Derivatives Operations
Ref Inf# 120142
PPN#___________________________
Security Description _________________
Notices
1. Send Communications and Notices to:
Nationwide Life Insurance Company
One Nationwide Plaza (1-33-07)
Columbus OH 43215-2220
Attention: Corporate Fixed-Income Securities
Facsimile: (614) 249-4553
2. Send Notices on Payments to:
Nationwide Life Insurance Company
c/o The Bank of New York
P.O. Box 19266
Attn: P&I Department
Newark, NJ 07195
with a copy to:
Nationwide Life Insurance Company
Attn: Investment Accounting
One Nationwide Plaza (1-32-05)
Columbus, OH 43215-2220
Tax Identification No. 31-4156830
D6
Schedule B
(to Note Purchase Agreement)
Defined Terms
As used herein, the following terms have the respective
meanings set forth below or set forth in the Section hereof
following such term:
"Affiliate" means, at any time, and with respect to any
Person, (a) any other Person that at such time directly or
indirectly through one or more intermediaries Controls, or
is Controlled by, or is under common Control with, such
first Person, and (b) any Person beneficially owning or
holding, directly or indirectly, 10% or more of any class of
voting or equity interests of the Company or any Subsidiary
or any corporation of which the Company and its Subsidiaries
beneficially own or hold, in the aggregate, directly or
indirectly, 10% or more of any class of voting or equity
interests. As used in this definition, "Control" means the
possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a
Person, whether through the ownership of voting securities,
by contract or otherwise. Unless the context otherwise
clearly requires, any reference to an "Affiliate" is a
reference to an Affiliate of the Company.
"Annual Percentage of Assets Transferred" means, with
respect to any fiscal year of the Company, the sum of the
Percentages of Assets Transferred for each asset of the
Company and its Subsidiaries that is Transferred during such
fiscal year.
"Annual Percentage of Earnings Capacity Transferred"
means, with respect to any fiscal year of the Company, the
sum of the Percentages of Earnings Capacity Transferred for
each asset of the Company and its Subsidiaries that is
Transferred during such fiscal year.
"Anti-Terrorism Order" means Executive Order No.13,224
of September 24, 2001, Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or
Support Terrorism, 66 Fed. Reg. 49,049 (2001).
"Bank Agreements" means (a) the $250,000,000 Facility A
364-Day Competitive Advance, Revolving Credit and Guaranty
Agreement dated as of May 25, 2001, among the Company and
the other Persons named as parties thereto, as amended or
otherwise modified from time to time and (b) the
$250,000,000 Five-Year Competitive Advance, Revolving Credit
and Guaranty Agreement dated as of May 25, 2001 among the
Company and the other Persons named as parties thereto, as
amended or otherwise modified from time to time.
"Brazilian Receivables Program" means the sale by
Subsidiaries to Brazilian banks of Dollar denominated
receivables from the Company and Subsidiaries arising in the
ordinary course of business, the aggregate outstanding face
amount of which shall at no time exceed $1,000,000.
D6
"Business Day" means (a) for the purposes of Section
8.6 only, any day other than a Saturday, a Sunday or a day
on which commercial banks in New York City or Tokyo are
required or authorized to be closed, and (b) for the
purposes of any other provision of this Agreement, any day
other than a Saturday, a Sunday or a day on which commercial
banks in New York are required or authorized to be closed.
"Capital Lease" means, at any time, a lease with
respect to which the lessee is required concurrently to
recognize the acquisition of an asset and the incurrence of
a liability in accordance with GAAP.
"Capitalized Lease Obligation" means any rental
obligation which, under generally accepted accounting
principles, is or will be required to be capitalized on the
books of the lessee thereunder, taken at the amount thereof
accounted for as indebtedness (net of interest expenses) in
accordance with such principles.
"Closing" is defined in Section 3.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations
promulgated thereunder from time to time.
"Company" means DENTSPLY International Inc., a Delaware
corporation.
"Competitor" means any Person who is substantially
engaged in a business in which the Company or any Material
Subsidiary is substantially engaged provided that:
(a) the provision of investment advisory services
by a Person to a Plan which is owned or controlled by a
Person which would otherwise be a Competitor shall not
of itself cause the Person providing such services to
be deemed to be a Competitor if such Person has
established procedures which will prevent confidential
information supplied to such Person by the Company from
being transmitted or otherwise made available to such
Plan or Person owning or controlling such Plan; and
(b) in no event shall an Institutional Investor
be deemed a Competitor.
"Confidential Information" is defined in Section 20.
"Consolidated Capitalization" means, at any time of
determination thereof, the sum of Consolidated Net Worth and
Consolidated Debt.
D6
"Consolidated Debt" means, at any time of determination
thereof, all Debt of the Company and Subsidiaries on a
consolidated basis.
"Consolidated EBITDA" means, for any period, income (or
loss) from operations of the Company and Subsidiaries on a
consolidated basis plus, to the extent deducted in the
calculation thereof, depreciation and amortization; provided
that there shall be excluded:
(a) the income (or loss) from operations of any
Person for any period prior to the date it becomes a
Subsidiary or is merged into or consolidated with the
Company or a Subsidiary, and
(b) the income from operations of any Person
(other than a Subsidiary) in which the Company or any
Subsidiary has an ownership interest, except to the
extent that any such income has actually been received
by the Company or any Subsidiary in the form of cash
dividends or similar distributions.
"Consolidated Interest Expense" means, for any period,
for the Company and its Subsidiaries on a consolidated
basis, (a) interest expense, plus (b) all amortization of
debt discount and expense, less (c) interest income.
"Consolidated Net Income" means, for any period, the
net income (or net loss) of the Company and its Subsidiaries
on a consolidated basis, calculated without giving effect to:
(a) the net income (or net loss) of any Person
for any period prior to the date it becomes a
Subsidiary or is merged into or consolidated with the
Company or a Subsidiary; or
(b) the net income of any Person (other than a
Subsidiary) in which the Company or any Subsidiary has
an ownership interest, except to the extent that any
such income has actually been received by the Company
or any Subsidiary in the form of cash dividends or
similar distributions.
"Consolidated Net Worth" means, at any time of
determination thereof, the sum of (a) capital stock (less
treasury stock), (b) additional paid-in capital and (c)
retained earnings (or accumulated deficit) of the Company
and Subsidiaries on a consolidated basis.
"Debt" shall mean with respect to any Person (without
duplication):
(a) all obligations of such Person for borrowed
money and mandatorily redeemable preferred stock;
D6
(b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments;
(c) all obligations of such Person upon which
interest charges are customarily paid;
(d) all obligations of such Person under
conditional sale or other title retention agreements
relating to property or assets purchased by such Person;
(e) all obligations of such Person issued or
assumed as the deferred and unpaid purchase price of
property or services (excluding trade accounts payable
and accrued obligations incurred in the ordinary course
of business that are not more than 90 days past due);
(f) all obligations secured by any Lien or other
charge upon property or assets owned by such Person,
whether or not such Person has assumed or become liable
for the payment of such obligations,
(g) Capitalized Lease Obligations of such Person;
(h) all obligations of such Person in respect of
interest rate protection agreements, foreign currency
exchange agreements or other interest or exchange rate
hedging arrangements;
(i) all obligations of such Person as an account
party in respect of letters of credit, bankers'
acceptances or instruments serving a similar function
issued or accepted for its account by banks and other
financial institutions (whether or not representing
obligations for borrowed money); and
(j) all Guarantees of such Person with respect to
Debt of another Person.
"Default" means an event or condition the occurrence or
existence of which would, with the lapse of time or the
giving of notice or both, become an Event of Default.
"Default Rate" means that rate of interest per annum
that is the greater of (a) 1.0% per annum above the rate of
interest stated in clause (a) of the first paragraph of the
Notes or (b) 1.0% over the rate of interest publicly
announced by The Bank of Japan, in Tokyo, Japan as its
"base" or "prime" (or the equivalent thereof in Japan) rate.
D6
"Designated Country" means the United States of America
and member states of the European Union on the date hereof
(other than Turkey or Greece), Canada or Japan.
"Dollars" and "$" means the lawful currency of the
United States of America.
"Environmental Laws" means any and all Federal, state,
local, and foreign statutes, laws, regulations, ordinances,
rules, judgments, orders, decrees, permits, concessions,
grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the
environment or the release of any materials into the
environment, including but not limited to those related to
hazardous substances or wastes, air emissions and discharges
to waste or public systems.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the rules and
regulations promulgated thereunder from time to time in
effect.
"ERISA Affiliate" means any trade or business (whether
or not incorporated) that is treated as a single employer
together with the Company under Section 414 of the Code.
"Event of Default" is defined in Section 11.
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"GAAP" means generally accepted accounting principles
as in effect from time to time in the United States of
America.
"Governmental Authority" means
(a) the government of
(i) the United States of America or any
State or other political subdivision thereof, or
(ii) any jurisdiction in which the Company or
any Subsidiary conducts all or any part of its
business, or which asserts jurisdiction over any
properties of the Company or any Subsidiary, or
(b) any entity exercising executive, legislative,
judicial, regulatory or administrative functions of, or
pertaining to, any such government.
D6
"Group" means the Company and its Subsidiaries.
"Guarantee Agreement" and "Guarantee Agreements" is
defined in Section 1(b).
"Guaranty" means, with respect to any Person, any
obligation (except the endorsement in the ordinary course of
business of negotiable instruments for deposit or
collection) of such Person guaranteeing or in effect
guaranteeing any indebtedness, dividend or other obligation
of any other Person in any manner, whether directly or
indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by
such Person:
(a) to purchase such indebtedness or obligation
or any property constituting security therefor;
(b) to advance or supply funds (i) for the
purchase or payment of such indebtedness or obligation,
or (ii) to maintain any working capital or other
balance sheet condition or any income statement
condition of any other Person or otherwise to advance
or make available funds for the purchase or payment of
such indebtedness or obligation;
(c) to lease properties or to purchase properties
or services primarily for the purpose of assuring the
owner of such indebtedness or obligation of the ability
of any other Person to make payment of the indebtedness
or obligation; or
(d) otherwise to assure the owner of such
indebtedness or obligation against loss in respect
thereof.
In any computation of the indebtedness or other liabilities
of the obligor under any Guaranty, the indebtedness or other
obligations that are the subject of such Guaranty shall be
assumed to be direct obligations of such obligor.
"holder" means, with respect to any Note, the Person in
whose name such Note is registered in the register
maintained by the Company pursuant to Section 13.1.
"Institutional Investor" means (a) any original
purchaser of a Note, (b) any holder of a Note holding more
than 5% of the aggregate principal amount of the Notes then
outstanding, and (c) any bank, trust company, savings and
loan association or other financial institution, any pension
plan, any investment company, any insurance company, any
broker or dealer, or any other similar financial institution
or entity, regardless of legal form.
"JPY" or "Japanese Yen" means the lawful currency of
Japan.
D6
"Lien" means, with respect to any Person, any mortgage,
lien, pledge, charge, security interest or other
encumbrance, or any interest or title of any vendor, lessor,
lender or other secured party to or of such Person under any
conditional sale or other title retention agreement or
Capital Lease, upon or with respect to any property or asset
of such Person (including in the case of stock, stockholder
agreements, voting trust agreements and all similar
arrangements).
"Make-Whole Amount" is defined in Section 8.6.
"Material" means material in relation to the business,
operations, affairs, financial condition, assets, or
properties of the Company and its Subsidiaries taken as a
whole.
"Material Adverse Effect" means a material adverse
effect on (a) the business, operations, affairs, financial
condition, assets or properties of the Company and its
Subsidiaries taken as a whole, or (b) the ability of the
Company to perform its obligations under this Agreement and
the Notes, or (c) the validity or enforceability of this
Agreement or the Notes.
"Material Subsidiary" means any Subsidiary (a) which
provided 5% or more of Consolidated Net Income during the
fiscal year of the Company most recently ended at any time
of determination, (b) whose tangible assets represented 5%
or more of the tangible assets of the Company and
Subsidiaries on a consolidated basis as of the last day of
the fiscal year of the Company most recently ended at any
time of determination, or (c) whose net worth represented 5%
or more of Consolidated Net Worth as of the last day of the
fiscal year of the Company most recently ended at any time
of determination; provided that, if at any time the
aggregate amount of net income, tangible assets or net worth
of all Subsidiaries incorporated or otherwise organized in
the United States that are not Material Subsidiaries exceeds
15% of Consolidated Net Income for any such fiscal year, 15%
of the consolidated tangible assets of the Company and
Subsidiaries as of the end of any such fiscal year or 15% of
Consolidated Net Worth as of the end of any such fiscal year
(as applicable), the Company shall designate as "Material
Subsidiaries" Subsidiaries incorporated or otherwise
organized in the United States sufficient to eliminate such
excess, and such designated Subsidiaries incorporated in the
United States shall for all purposes of this Agreement
constitute Material Subsidiaries.
"Memorandum" is defined in Section 5.3.
"Multiemployer Plan" means any Plan that is a
"multiemployer plan" (as such term is defined in section
4001(a)(3) of ERISA).
"Notes" is defined in Section 1.
D6
"Officer's Certificate" means a certificate of a Senior
Financial Officer or of any other officer of the Company
whose responsibilities extend to the subject matter of such
certificate.
"Other Agreements" is defined in Section 2.
"Other Currency" is defined in Section 14.3.
"Other Purchasers" is defined in Section 2.
"PBGC" means the Pension Benefit Guaranty Corporation
referred to and defined in ERISA or any successor thereto.
"Percentage of Assets Transferred" means, with respect
to each asset Transferred pursuant to clause (ii) of Section
10.7(b) and Section 10.8, the ratio (expressed as a
percentage) of (a) the greater of such asset's fair market
value or book value on the date of such Transfer to (b) the
consolidated total assets of the Company and Subsidiaries on
the last day of the fiscal year most recently ended as of
the date of such Transfer.
"Percentage of Earnings Capacity Transferred" means,
with respect to each asset Transferred pursuant to clause
(i) of Section 10.7(b) or Section 10.8, the percentage of
Consolidated EBITDA produced by, or attributable to, such
asset during the fiscal year most recently ended prior to
the date of such Transfer.
"Person" means an individual, partnership, corporation,
limited liability company, association, trust,
unincorporated organization, or a government or agency or
political subdivision thereof.
"Plan" means an "employee benefit plan" (as defined in
section 3(3) of ERISA) that is or, within the preceding five
years, has been established or maintained, or to which
contributions are or, within the preceding five years, have
been made or required to be made, by the Company or any
ERISA Affiliate or with respect to which the Company or any
ERISA Affiliate may have any liability.
"Preferred Stock" means any class of capital stock of a
corporation that is preferred over any other class of
capital stock of such corporation as to the payment of
dividends or the payment of any amount upon liquidation or
dissolution of such corporation.
D6
"Priority Debt" means, at any time of determination
thereof, without duplication, (a) Debt of the Company
secured by Liens not otherwise permitted by clauses (a)
through (i) of Section 10.6, plus (b) Debt of Subsidiaries
(other than (i) Debt of any Subsidiary owed to the Company
or any Wholly-owned Subsidiary and (ii) Debt of any
Subsidiary so long as such Subsidiary is a Subsidiary
Guarantor and the creditor with respect to such Debt has
entered into an Intercreditor Agreement with the holders of
the Notes on the same terms and conditions as the
intercreditor agreement as in effect on the date hereof
between the holders of the Prudential Obligations and the
Debt outstanding under the Bank Agreements, provided,
however, that the foregoing requirement of an Intercreditor
Agreement shall not apply to the Subsidiary Guarantors which
are, as of the date hereof, guarantors of the Prudential
Obligations or the Debt under the Bank Agreements and
(iii) the Guarantee Agreements) plus (c) the book value (at
the time of sale) of all assets sold by the Company and
Subsidiaries subsequent to March 1, 2001 which were the
subject of a Sale and Leaseback Transaction (other than a
Sale-Leaseback Transaction permitted by Section 10.7(a)).
"property" or "properties" means, unless otherwise
specifically limited, real or personal property of any kind,
tangible or intangible, choate or inchoate.
"Prudential Obligations" means the obligations at any
time of the Company under and pursuant to that certain
Agreement dated as of March 1, 2001 between the Company and
The Prudential Insurance Company of America and each
Prudential Affiliate (as defined therein) which becomes
bound by such Agreement and any senior promissory notes
issued and sold under and pursuant to such Agreement and
then outstanding.
"QPAM Exemption" means Prohibited Transaction Class
Exemption 84-14 issued by the United States Department of
Labor.
"Required Holders" means, at any time, the holders of
at least 51% in principal amount of the Notes at the time
outstanding (exclusive of Notes then owned by the Company or
any of its Affiliates).
"Responsible Officer" means any Senior Financial
Officer and any other officer of the Company with
responsibility for the administration of the relevant
portion of this Agreement.
"Securities Act" means the Securities Act of 1933, as
amended from time to time.
"Senior Financial Officer" means the chief financial
officer, principal accounting officer, treasurer or
comptroller of the Company.
"Specified Currency" is defined in Section 14.3.
D6
"Subsidiary" means, as to any Person, any corporation,
association or other business entity in which such Person or
one or more of its Subsidiaries or such Person and one or
more of its Subsidiaries owns sufficient equity or voting
interests to enable it or them (as a group) ordinarily, in
the absence of contingencies, to elect a majority of the
directors (or Persons performing similar functions) of such
entity, and any partnership or joint venture if more than a
50% interest in the profits or capital thereof is owned by
such Person or one or more of its Subsidiaries or such
Person and one or more of its Subsidiaries (unless such
partnership can and does ordinarily take major business
actions without the prior approval of such Person or one or
more of its Subsidiaries). Unless the context otherwise
clearly requires, any reference to a "Subsidiary" is a
reference to a Subsidiary of the Company.
"Subsidiary Guarantor" means the companies listed on
Exhibit 1(b) and any other Subsidiary that may from time to
time execute and deliver a Guarantee Agreement and which
Guarantee Agreement has not been terminated in accordance
with the terms thereof.
"Swaps" means, with respect to any Person, payment
obligations with respect to interest rate swaps, currency
swaps and similar obligations obligating such Person to make
payments, whether periodically or upon the happening of a
contingency. For the purposes of this Agreement, the amount
of the obligation under any Swap shall be the amount
determined in respect thereof as of the end of the then most
recently ended fiscal quarter of such Person, based on the
assumption that such Swap had terminated at the end of such
fiscal quarter, and in making such determination, if any
agreement relating to such Swap provides for the netting of
amounts payable by and to such Person thereunder or if any
such agreement provides for the simultaneous payment of
amounts by and to such Person, then in each such case, the
amount of such obligation shall be the net amount so
determined.
"Wholly-Owned Subsidiary" means, at any time, any
Subsidiary one hundred percent (100%) of all of the equity
interests (except directors' qualifying shares) and voting
interests of which are owned by any one or more of the
Company and the Company's other Wholly-Owned Subsidiaries at
such time.
D6
Exhibit 1(a)
(to Note Purchase Agreement)
[Form of Note]
DENTSPLY International Inc.
1.39% Guaranteed Senior Note Due December 28, 2005
No. [_____] [Date]
JPY [_______] PPN 249030 B* 7
For Value Received, the undersigned, DENTSPLY
International Inc. (herein called the "Company"), a
corporation organized and existing under the laws of the
State of Delaware, hereby promises to pay to
[___________________________], or registered assigns, the
principal sum of JPY [___________________________] on
[_____________, ____], with interest (computed on the basis
of a 360-day year of twelve 30-day months) (a) on the unpaid
balance thereof at the rate of 1.39% per annum from the date
hereof, payable semiannually, on the twenty-eighth (28th)
day of June and December in each year, commencing with the
June 28th or December 28th next succeeding the date hereof,
until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law on any
overdue payment (including any overdue prepayment) of
principal, any overdue payment of interest and any overdue
payment of any Make-Whole Amount (as defined in the Note
Purchase Agreements referred to below), payable semiannually
as aforesaid (or, at the option of the registered holder
hereof, on demand), at a rate per annum from time to time
equal to the greater of (i) 2.39% or (ii) 1.0% over the rate
of interest publicly announced by [The Bank of Japan] from
time to time in Tokyo, Japan as its "base" or "prime" (or
the equivalent thereof in Japan) rate.
Payments of principal of, interest on and any
Make-Whole Amount with respect to this Note are to be made
in lawful money of Japan at The Chase Manhattan Bank, New
York, New York or at such other place as the Company shall
have designated by written notice to the holder of this Note
as provided in the Note Purchase Agreements referred to
below.
This Note is one of a series of Guaranteed Senior Notes
(herein called the "Notes") issued pursuant to separate Note
Purchase Agreements, dated as of December 28, 2001 (as from
time to time amended, the "Note Purchase Agreements"),
between the Company and the respective Purchasers named
therein and is entitled to the benefits thereof. The
obligations of the Company under this Note and the Note
Purchase Agreements are guaranteed pursuant to the Guarantee
Agreements. Each holder of this Note will be deemed, by its
acceptance hereof, (i) to have agreed to the confidentiality
provisions set forth in Section 20 of the Note Purchase
Agreements and (ii) to have made the representations set
forth in Section 6.2 of the Note Purchase Agreements.
D6
This Note is a registered Note and, as provided in the
Note Purchase Agreements, upon surrender of this Note for
registration of transfer, duly endorsed, or accompanied by a
written instrument of transfer duly executed, by the
registered holder hereof or such holder's attorney duly
authorized in writing, a new Note for a like principal
amount will be issued to, and registered in the name of, the
transferee. Prior to due presentment for registration of
transfer, the Company may treat the person in whose name
this Note is registered as the owner hereof for the purpose
of receiving payment and for all other purposes, and the
Company will not be affected by any notice to the contrary.
The Company will make required prepayments of principal
on the dates and in the amounts specified in the Note
Purchase Agreements. This Note is also subject to optional
prepayment, in whole or from time to time in part, at the
times and on the terms specified in the Note Purchase
Agreements, but not otherwise.
If an Event of Default, as defined in the Note Purchase
Agreements, occurs and is continuing, the principal of this
Note may be declared or otherwise become due and payable in
the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note
Purchase Agreements.
D6
This Note shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by,
the laws of the State of New York excluding choice-of-law
principles of the law of such State that would require the
application of the laws of a jurisdiction other than such
State.
DENTSPLY International Inc.
By_________________________
[Title:]
D6
Exhibit 4(a)
(to Note Purchase Agreement)
Form of Opinion of Counsel
to the Company
D6
Exhibit 4.4(b)
(to Note Purchase Agreement)
Form of Opinion of Special Counsel
to the Purchasers
D6
Schedule 4.9
(to Note Purchase Agreement)
Degussa Acquisition
On October 2, 2001, DENTSPLY announced that it had
acquired several German and International Degussa Group
companies which together constitute the entire dental
business of the Degussa Group (together referred to as
"Degussa Dental"). The price paid for the Degussa Dental
Acquisition was (euro)576 million (approximately equal to U.S.
$530 million based on the exchange rate at the time of
closing).
Degussa Dental designs, develops and manufactures a
broad range of dental products and complete system solutions
used in preventative, restorative and orthodontic treatment
by dental laboratories, dentists, orthodontists and oral
surgeons.
D6
Schedule 4.10
(to Note Purchase Agreement)
Guarantors
Ceramco Inc.
Ceramco Manufacturing Co.
DENTSPLY Finance Co.
DENTSPLY International Preventive Care
Division L.P.
DENTSPLY Research & Development Corp.
G.A.C. International, Inc.
Midwest Dental Products Corporation
Ransom & Randolph Company
Tulsa Dental Products Inc.
D6
Schedule 5.8
(to Note Purchase Agreement)
Litigation
None.
D6
Schedule 5.11
(to Note Purchase Agreement)
Licenses, Permits, Etc.
None.
D6
Schedule 5.15
(to Note Purchase Agreement)
Existing Debt
D6
EXHIBIT 4.5(a)
CONFORMED COPY
DATED 13th DECEMBER, 2001
DENTSPLY INTERNATIONAL INC.
Euro 350,000,000 5.75 per cent. Notes due 2006
------------------------------
AGENCY AGREEMENT
------------------------------
ALLEN & OVERY
London
D7
CONTENTS
Clause Page
1. Definitions and Interpretation...............................1
2. Appointment of Agents........................................4
3. Authentification and Delivery of Notes.......................4
4. Payments.....................................................5
5. Notice of any withholding or deduction.......................7
6. Redemption for Taxation Reasons..............................7
7. Publication of Notices.......................................7
8. Cancellation of Notes and Coupons............................7
9. Issue of replacement Notes and Coupons.......................8
10. Copies of documents available for inspection................9
11. Meetings of Noteholders.....................................9
12. Commissions and Expenses....................................9
13. Indemnity..................................................10
14. Responsibility of the Paying Agents........................10
15. Conditions of Appointment..................................10
16. Communications between the Parties.........................12
17. Changes in Paying Agents...................................12
18. Merger and Consolidation...................................13
19. Notification of changes to Paying Agents...................13
20. Change of Specified Office.................................13
21. Communications.............................................14
22. Taxes and Stamp Duties.....................................14
23. Amendments.................................................14
24. Contracts (Rights of Third Parties) Act 1999...............15
25. Governing Law and Submission to Jurisdiction...............15
26. Counterparts...............................................16
Schedules
Schedule 1.Part I- Form of the Temporary Global Note...........17
Part II - Form of the Permanent Global Note...........28
Schedule 2.Part I - Form of Definitive Note and Coupon.........36
Part II - Terms and Conditions of the Notes...........40
Schedule 3.......................................................
Provisions for Meetings of Noteholders.........................52
Signatories............................. ............... 58
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DENTSPLY INTERNATIONAL INC.
Euro 350,000,000 5.75 per cent. Notes due 2006
AGENCY AGREEMENT
THIS AGREEMENT is dated 13th December, 2001 and made
BETWEEN:
(1) DENTSPLY INTERNATIONAL INC. (the "Issuer"); and
(2) CITIBANK, N.A. (the "Fiscal Agent", which expression shall include any
successor agent appointed under clause 17, and, together with any Paying
Agent or Paying Agents that may be appointed from time to time under
clause 17, the "Paying Agents" and each a "Paying Agent").
WHEREAS:
(A) The Issuer has agreed to issue Euro 350,000,000 5.75 per cent. Notes
due 2006 (the "Notes", which expression shall include, unless the
context otherwise requires, any further Notes issued pursuant to
Condition 13 and forming a single series with the Notes).
(B) The Notes will be issued in bearer form in the denominations of
Euro 1,000, (euro)10,000 and Euro 100,000 each with interest
coupons ("Coupons") attached on issue.
(C) The Notes will initially be represented by a temporary Global Note (the
"Temporary Global Note") in or substantially in the form set out in Part
I of Schedule 1 which will be exchanged in accordance with its terms for
a permanent Global Note (the "Permanent Global Note" and, together with
the Temporary Global Note, the "Global Notes") in or substantially in
the form set out in Part II of Schedule 1. The Permanent Global Note
will be exchanged for the Notes in definitive form only in the limited
circumstances set out therein.
(D) The definitive Notes and Coupons will be in or substantially in the
respective forms set out in Part I of Schedule 2. The Conditions of the
Notes will be in or substantially in the form set out in Part II of
Schedule 2.
IT IS AGREED:
1. Definitions and Interpretation
(1) In this Agreement and in the Conditions:
"Clearstream, Luxembourg" means Clearstream Banking, societe anonyme;
"Conditions" means the terms and conditions endorsed on the Notes and
being in or substantially in the form set out in Part II of Schedule 2;
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"Coupon" means an interest coupon appertaining to a Definitive Note, the
coupon being in the form or substantially in the form set out in Part I
of Schedule 2;
"Couponholders" means the several persons who are for the time being
holders of the Coupons;
"Definitive Note" means a Note in definitive form issued or, as the case
may require, to be issued by the Issuer in accordance with the
provisions of this Agreement and/or the Conditions in exchange for all
or part of a Global Note, the Definitive Note being in or substantially
in the form set out in Part I of Schedule 2 and having the Conditions
endorsed on it and having Coupons attached to it on issue;
"Euroclear Bank" means Euroclear Bank S.A./N.V. as operator of the
Euroclear System;
"Noteholders" means the several persons who are for the time being the
bearers of Notes save that, in respect of the Notes or any part of them
that are represented by a Global Note held on behalf of Euroclear Bank
and Clearstream, Luxembourg each person (other than Euroclear Bank or
Clearstream, Luxembourg) who is for the time being shown in the records
of Euroclear Bank or of Clearstream, Luxembourg as the holder of a
particular nominal amount of the Notes (in which regard any certificate
or other document issued by Euroclear Bank or Clearstream, Luxembourg as
to the nominal amount of the Notes standing to the account of any person
shall be conclusive and binding for all purposes save in the case of
manifest error) shall be deemed to be the holder of that nominal amount
of Notes (and the bearer of the relevant Global Note shall be deemed not
to be the holder) for all purposes other than with respect to the
payment of principal or interest on the Notes, for which purpose the
bearer of the relevant Global Note shall be treated by the Issuer and
any Paying Agent as the holder of the Notes in accordance with and
subject to the terms of the relevant Global Note and the expressions
"Noteholder", "holder of Notes" and related expressions shall be
construed accordingly;
"outstanding" means, in relation to the Notes, all the Notes issued
other than:
(a) those Notes which have been redeemed and cancelled pursuant to the
Conditions;
(b) those Notes in respect of which the date for redemption in accordance
with the Conditions has occurred and the redemption moneys
(including all interest payable thereon) have been duly paid to the
Fiscal Agent in the manner provided in this Agreement (and where
appropriate notice to that effect has been given to the Noteholders
in accordance with the Condition 11) and remain available for
payment against presentation of the Notes and/or Coupons;
(c) those Notes which have been purchased and cancelled in accordance with
Condition 6;
(d) those Notes in respect of which claims have become void or prescribed
under Condition 8;
(e)
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those mutilated or defaced Notes which have been surrendered and
cancelled and in respect of which replacements have been issued
pursuant to Condition 10;
(f) (for the purpose only of ascertaining the nominal amount of the Notes
outstanding and without prejudice to the status for any other
purpose of the relevant Notes) those Notes which are alleged to
have been lost, stolen or destroyed and in respect of which
replacements have been issued under Condition 10; and
(g) the Temporary Global Note to the extent that it has been exchanged for
the Permanent Global Note and the Permanent Global Note to the
extent that it has been exchanged for Definitive Notes in each case
under their respective provisions,
provided that for the purposes of:
(i) attending and voting at any meeting of the Noteholders or any of them;
and
(ii) determining how many and which Notes are for the time being outstanding
for the purposes of Condition 12 and paragraphs 2, 5 and 6 of
Schedule 4,
those Notes (if any) which are for the time being held by or for the
benefit of the Issuer or any Subsidiary of the Issuer shall (unless and
until ceasing to be so held) be deemed not to remain outstanding;
"Permanent Global Note" means a global note in the form or substantially
in the form set out in Part II of Schedule 1 comprising some or all of
the Notes; and
"Temporary Global Note" means a global note in the form or substantially
in the form set out in part 1 of Schedule 1 comprising some or all of
the Notes.
(2) (a) In this Agreement, unless the contrary intention appears, a
reference to:
(i) an "amendment" includes a supplement, restatement or novation and
"amended" is to be construed accordingly;
(ii) a "person" includes any individual, company, unincorporated association,
government, state agency, international organisation or other
entity;
(iii) a provision of a law is a reference to that provision as extended,
amended or re-enacted;
(iv) a clause or schedule is a reference to a clause of, or a schedule to,
this Agreement;
(v) a person includes its successors and assigns;
(vi) a document is a reference to that document as amended from time to time;
and
(vii) a time of day is a reference to London time;
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(b) The headings in this Agreement do not affect its interpretation;
(c) Terms defined in the Conditions and not otherwise defined in this
Agreement shall have the same meanings in this Agreement, except
where the context otherwise requires;
(d) All references in this Agreement to commissions, fees, costs, charges or
expenses shall include any value added tax or similar tax charged
or chargeable in respect thereof;
(e) All references in this Agreement to Notes shall, unless the context
otherwise requires, include any Global Note representing the Notes;
(f) All references in this Agreement to principal and/or interest or both in
respect of the Notes or to any moneys payable by the Issuer under
this Agreement shall be construed in accordance with Condition 5;
and
(g) All references in this Agreement to Euroclear Bank and/or Clearstream,
Luxembourg shall, whenever the context so permits, be deemed to
include a reference to any additional or alternative clearing
system approved by the Issuer and the Fiscal Agent.
2. Appointment of Agents
(1) The Fiscal Agent is appointed, and the Fiscal Agent agrees to act, as
agent of the Issuer, upon the terms and subject to the conditions set
out in this Agreement, for the following purposes:
(a) exchanging the Temporary Global Note for the Permanent Global Note or
Definitive Notes, as the case may be, in accordance with the terms
of the Temporary Global Note and making all notations on the
Temporary Global Note required by its terms;
(b) exchanging the Permanent Global Note for Definitive Notes in accordance
with the terms of the Permanent Global Note and making all
notations on the Permanent Global Note required by its terms;
(c) paying sums due on the Global Notes, Definitive Notes and Coupons;
(d) arranging on behalf of and at the expense of the Issuer for notices to
be communicated to the Noteholders in accordance with the
Conditions; and
(e) performing all other obligations and duties imposed upon it by the
Conditions and this Agreement.
(2) Each Paying Agent is appointed, and each Paying Agent agrees to act, as
paying agent of the Issuer, upon the terms and subject to the conditions
set out below, for the purposes of paying sums due on any Notes and
Coupons and performing all other obligations and duties imposed upon it
by the Conditions and this Agreement.
(3) The obligations of the Paying Agents under this Agreement are
several and not joint.
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3. Authentification and Delivery of Notes
(1) The Issuer undertakes that the Permanent Global Note (duly executed
on behalf of the Issuer) will be available to be exchanged for interests
in the Temporary Global Note in accordance with the terms of the
Temporary Global Note.
(2) In the event that the Permanent Global Note is required to be
exchanged in accordance with its terms, the Issuer undertakes that it
will deliver to, or to the order of, the Fiscal Agent, Definitive Notes
(with Coupons attached) in an aggregate principal amount of
Euro 350,000,000 or such lesser amount as is the principal amount of
Notes then represented by the Permanent Global Note. Each Definitive
Note and Coupon so delivered shall be duly executed on behalf of the
Issuer.
(3) The Issuer authorises and instructs the Fiscal Agent to
authenticate the Global Notes and any Definitive Notes.
(4) The Issuer authorises and instructs the Fiscal Agent to cause
interests in the Temporary Global Note to be exchanged for interests in
the the Permanent Global Note or for Definitive Notes, as the case may
be, and interests in the Permanent Global Note to be exchanged for
Definitive Notes in accordance with their respective terms. Following
the exchange of the last interest in a Global Note, the Fiscal Agent
shall cause that Global Note to be cancelled and delivered to the Issuer
or as it may direct.
(5) The Fiscal Agent shall cause all Notes delivered to and held by it
under this Agreement to be maintained in safe custody and shall ensure
that interests in the Temporary Global Note are only exchanged for
interests in the Permanent Global Note in accordance with the terms of
the Temporary Global Note and this Agreement and that the Definitive
Notes are issued only in accordance with the terms of the Permanent
Global Note and this Agreement.
(6) So long as any of the Notes is outstanding the Fiscal Agent shall,
within seven days of any request by the Issuer, certify to the Issuer
the number of Definitive Notes held by it under this Agreement. In no
event may (i) a Permanent Global Note issued in exchange for an interest
in a Temporary Global Note or (ii) Definitive Notes issued in exchange
for interests in a Temporary Global Note or a Permanent Global Note be
mailed to an address within or otherwise delivered with the United
States or its possessions (including, for this purpose, Puerto Rice,
Guam, American Samoa, Wake island, the U.S. Virgin Islands and the
Northern Mariana Islands).
4. Payments
(1) The Issuer will, before 10.00 a.m. (London time), on each date on which
any payment in respect of any Note becomes due under the Conditions,
transfer to an account specified by the Fiscal Agent such amount of euro
as shall be sufficient for the purposes of the payment.
(2) Any funds paid by or by arrangement with the Issuer to the Fiscal Agent
under subclause (1) shall be held in the relevant account referred to in
subclause (1) for payment to the Noteholders or Couponholders, as the
case may be, until any Notes or Coupons become void under Condition 8.
In that event the Fiscal Agent shall repay to the Issuer sums equivalent
to the amounts which would otherwise have been payable on the relevant
Notes or Coupons.
(3)
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The Issuer will ensure that no later than 10.00 a.m. (London time) on the
second Business Day (as defined below) immediately preceding the date on
which any payment is to be made to the Fiscal Agent under subclause (1),
the Fiscal Agent shall receive a payment confirmation from the paying
bank of the Issuer. For the purposes of this subclause, "Business Day"
means a day on which commercial banks and foreign exchange markets
settle payments and are open for general business in the United States
and London.
(4) The Fiscal Agent shall notify each of the other Paying Agents
immediately:
(a) if it has not by the relevant date set out in clause 4(1) received
unconditionally the full amount in euro required for the payment;
and
(b) if it receives unconditionally the full amount of any sum payable in
respect of the Notes or Coupons after such date.
The Fiscal Agent shall, at the expense of the Issuer, immediately on
receiving any amount as described in subparagraph (b), cause notice of
that receipt to be published under Condition 11.
(5) The Fiscal Agent shall ensure that payments of both principal and
interest in respect of the Temporary Global Note will only be made if
certification of non-U.S. beneficial ownership as required by U.S.
Treasury regulations (in the form set out in the Temporary Global Note)
has been received from Euroclear Bank and/or Clearstream, Luxembourg in
accordance with the terms of the Temporary Global Note.
(6) Unless it has received notice under subclause (4)(a), each Paying Agent
shall pay or cause to be paid all amounts due in respect of the Notes on
behalf of the Issuer in the manner provided in the Conditions. If any
payment provided for in subclause (1) is made late but otherwise in
accordance with the provisions of this Agreement, the relevant Paying
Agent shall nevertheless make payments in respect of the Notes as stated
above following receipt by it of such payment.
(7) If for any reason the Fiscal Agent considers in its sole discretion that
the amounts to be received by it under subclause (1) will be, or the
amounts (in same day cleared funds) actually received by it are,
insufficient to satisfy all claims in respect of all payments then
falling due in respect of the Notes, no Paying Agent shall be obliged to
pay any such claims until the Fiscal Agent has received the full amount
of all such payments.
(8) Without prejudice to subclauses (6) and (7), if the Fiscal Agent pays
any amounts to the holders of Notes or Coupons or to any other Paying
Agent at a time when it has not received payment in full in respect of
the Notes in accordance with subclause (1) (the excess of the amounts so
paid over the amounts so received being the "Shortfall"), the Issuer
will, in addition to paying amounts due under subclause (1), pay to the
Fiscal Agent on demand interest (at a rate which represents the Fiscal
Agent's cost of funding the Shortfall) on the Shortfall (or the
unreimbursed portion thereof) until the receipt in full by the Fiscal
Agent of the Shortfall.
(9)
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The Fiscal Agent shall on demand promptly reimburse each of the other Paying
Agents for payments in respect of Notes properly made by such Paying
Agent in accordance with this Agreement and the Conditions unless the
Fiscal Agent has notified the relevant Paying Agent, prior to its
opening of business on the due date of a payment in respect of the
Notes, that the Fiscal Agent does not expect to receive sufficient funds
to make payment of all amounts falling due in respect of the Notes.
(10) Whilst any Notes are represented by Global Notes, all payments due in
respect of the Notes shall be made to, or to the order of, the holder of
the Global Notes, subject to and in accordance with the provisions of
the Global Notes. On the occasion of each payment, the Paying Agent to
which any Global Note was presented for the purpose of making the
payment shall cause the appropriate Schedule to the Global Note to be
annotated so as to evidence the amounts and dates of the payments of
principal and/or interest as applicable.
(11) If the amount of principal and/or interest then due for payment is not
paid in full (otherwise than by reason of a deduction required by law to
be made or a certification required by the terms of a Note not being
received), the Paying Agent to which a Note or Coupon (as the case may
be) is presented for the purpose of making the payment shall make a
record of the shortfall on the relevant Note or Coupon and the record
shall, in the absence of manifest error, be prima facie evidence that
the payment in question has not to that extent been made.
5. Notice of any withholding or deduction
(1) If the Issuer is, in respect of any payment in respect of the Notes,
compelled to withhold or deduct any amount for or on account of Taxes as
contemplated under Condition 7, it shall give notice of that fact to the
Fiscal Agent as soon as it becomes aware of the requirement to make the
withholding or deduction and shall give to the Fiscal Agent such
information as it shall require to enable it to comply with the
requirement.
(2) If any Paying Agent is, in respect of any payment of principal or
interest in respect of the Notes, compelled to withhold or deduct any
amount for or on account of any taxes, duties, assessments or
governmental charges as contemplated under the Conditions, other than
arising under subclause (1) or by virtue of the relevant holder failing
to satisfy any certification or other requirement in respect of its
Notes, it shall give notice of that fact to the Issuer and the Fiscal
Agent as soon as it becomes aware of the compulsion to withhold or
deduct.
6. Redemption for Taxation Reasons
If the Issuer decides to redeem the Notes for the time being outstanding
under Condition 6(2), it shall give notice of the decision to the Fiscal
Agent at least 75 days before the proposed redemption date.
7. Publication of Notices
On behalf of and at the request and expense of the Issuer, the Fiscal
Agent shall cause to be published all notices required to be given by
the Issuer to the Noteholders in accordance with the Conditions.
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8. Cancellation of Notes and Coupons
(1) All Notes which are redeemed, Global Notes which are exchanged in full
and all Coupons which are paid shall be cancelled by the Paying Agent by
which they are redeemed, exchanged or paid. Where Notes are purchased by
or on behalf of the Issuer or any of its Subsidiaries the Issuer shall
procure that those Notes (together, in the case of Definitive Notes,
with all unmatured Coupons attached to them) are promptly cancelled and
delivered to the Fiscal Agent or its authorised agent. Each of the
Paying Agents shall give to the Fiscal Agent details of all payments
made by it and shall deliver all cancelled Notes and Coupons to the
Fiscal Agent or as the Fiscal Agent may specify.
(2) The Fiscal Agent shall deliver to the Issuer as soon as reasonably
practicable and in any event within three months after the date of each
repayment, payment, cancellation or replacement, as the case may be, a
certificate stating:
(a) the aggregate nominal amount of Notes which have been redeemed and the
aggregate amount paid in respect of them;
(b) the number of Notes cancelled together (in the case of Definitive Notes)
with details of all unmatured Coupons attached to them or delivered
with them;
(c) the aggregate amount paid in respect of interest on the Notes;
(d) the total number of each denomination by maturity date of Coupons
cancelled; and
(e) (in the case of Definitive Notes) the serial numbers of the Notes.
(3) The Fiscal Agent shall (unless otherwise instructed by the Issuer in
writing) destroy all cancelled Notes and Coupons and, immediately
following their destruction, send to the Issuer a certificate stating
the serial numbers of the Notes (in the case of Definitive Notes) and
the number by maturity date of Coupons destroyed.
(4) Without prejudice to the obligations of the Fiscal Agent under subclause
(2), the Fiscal Agent shall keep a full and complete record of all Notes
and Coupons (other than serial numbers of Coupons) and of their
redemption, purchase on behalf of the Issuer or any of its Subsidiaries
and cancellation, payment or replacement (as the case may be) and of all
replacement Notes or Coupons issued in substitution for mutilated,
defaced, destroyed, lost or stolen Notes or Coupons in accordance with
clause 9. The Fiscal Agent shall in respect of the Coupons of each
maturity retain until the expiry of five years from the Relevant Date in
respect of such Coupons either all paid or exchanged Coupons of that
maturity or a list of the serial numbers of Coupons of that maturity
still remaining unpaid or unexchanged. The Fiscal Agent shall at all
reasonable times make the record available to the Issuer and any persons
authorised by it for inspection and for the taking of copies of it or
extracts from it.
9. Issue of replacement Notes and Coupons
(1) The Issuer will cause a sufficient quantity of additional forms of Notes
and Coupons to be available, upon request, to the Fiscal Agent at its
specified office for the purpose of issuing replacement Notes and
Coupons as provided below.
(2)
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The Fiscal Agent will, subject to and in accordance with the Condition 10 and
this clause, cause to be delivered any replacement Notes and Coupons
which the Issuer may determine to issue in place of Notes and Coupons
which have been lost, stolen, mutilated, defaced or destroyed.
(3) In the case of a mutilated or defaced Note, the Fiscal Agent shall
ensure that (unless otherwise covered by such indemnity and surety bond
as the Issuer may require) any replacement Note will only have attached
to it Coupons corresponding to those attached to the mutilated or
defaced Note which is presented for replacement.
(4) The Fiscal Agent shall obtain verification in the case of an allegedly
lost, stolen or destroyed Note or Coupon in respect of which the serial
number is known, that the Note or Coupon has not previously been
redeemed, paid or exchanged, as the case may be. The Fiscal Agent shall
not issue any replacement Note or Coupon unless and until the claimant
shall have:
(a) paid such costs and expenses as may be incurred in connection with the
replacement;
(b) provided it with such evidence and indemnity including a surety bond as
the Issuer may require; and
(c) in the case of any mutilated or defaced Note or Coupon, surrendered it
to the Fiscal Agent.
(5) The Fiscal Agent shall cancel any mutilated or defaced Notes and Coupons
in respect of which replacement Notes and Coupons have been issued under
this clause and shall furnish the Issuer with a certificate stating the
serial numbers of the Notes and Coupons received by it and cancelled
pursuant to this clause and, unless otherwise instructed by the Issuer
in writing, shall destroy those Notes and Coupons and furnish the Issuer
with a destruction certificate containing the information specified in
clause 8(2).
(6) The Fiscal Agent shall, on issuing any replacement Note or Coupon,
immediately inform the Issuer and the other Paying Agents of the serial
number of the replacement Note or Coupon issued and (if known) of the
serial number of the Note or Coupon in place of which the replacement
Note or Coupon has been issued. Whenever replacement Coupons are issued
under this clause, the Fiscal Agent shall also notify the other Paying
Agents of the maturity dates of the lost, stolen, mutilated, defaced or
destroyed Coupons and of the replacement Coupons issued.
(7) Whenever any Note or Coupon for which a replacement Note or Coupon has
been issued and in respect of which the serial number is known is
presented to a Paying Agent for payment, the relevant Paying Agent shall
immediately send notice of that fact to the Issuer the Fiscal Agent.
10. Copies of documents available for inspection
Each Paying Agent shall hold copies of this Agreement available for
inspection by Noteholders and Couponholders. For these purposes, the
Issuer shall provide the Paying Agents with sufficient copies of this
Agreement.
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11. Meetings of Noteholders
(1) The provisions of Schedule 4 shall apply to meetings of the Noteholders
and shall have effect in the same manner as if set out in this Agreement.
(2) Without prejudice to subclause (1), each of the Paying Agents on the
request of any holder of Notes shall issue voting certificates and block
voting instructions in accordance with Schedule 4 and shall immediately
give notice to the Issuer in writing of any revocation or amendment of a
block voting instruction. Each of the Paying Agents will keep a full
and complete record of all voting certificates and block voting
instructions issued by it and will, not less than 24 hours before the
time appointed for holding a meeting or adjourned meeting, deposit at
such place as the Fiscal Agent shall approve, full particulars of all
voting certificates and block voting instructions issued by it in
respect of the meeting or adjourned meeting.
12. Commissions and Expenses
(1) The Issuer agrees to pay to the Fiscal Agent such fees and commissions
as the Issuer and the Fiscal Agent shall separately agree in writing in
respect of the services of the Paying Agents under this Agreement
together with any out of pocket expenses (including, but not limited to,
legal, printing, postage, fax, cable and advertising expenses) properly
incurred by the Paying Agents in connection with their services under
this Agreement.
(2) The Fiscal Agent will make payment of the fees and commissions due under
this Agreement to the other Paying Agents and will reimburse their
expenses promptly after the receipt of the relevant moneys from the
Issuer. The Issuer shall not be responsible for any payment or
reimbursement by the Fiscal Agent to the other Paying Agents.
13. Indemnity
(1) The Issuer shall indemnify each of the Paying Agents against any losses,
liabilities, costs, claims, actions, demands or expenses (together,
"Losses") (including, but not limited to, all costs, legal fees, charges
and expenses (together, "Expenses") paid or incurred in disputing or
defending any Losses) which it may incur or which may be made against it
as a result of or in connection with its appointment or the exercise of
its powers and duties under this Agreement except for any Losses and
Expenses resulting from its own default, negligence or bad faith or that
of its officers, directors or employees or the breach by it of the terms
of this Agreement.
(2) Each Paying Agent shall severally indemnify the Issuer against any
Losses (including, but not limited to, all Expenses paid or incurred in
disputing or defending any Losses) which the Issuer may incur or which
may be made against the Issuer as a result of the breach by the Paying
Agent of the terms of this Agreement or its default, negligence or bad
faith or that of its officers, directors or employees. Under no
circumstances will any Paying Agent be liable to the Issuer for loss of
business, goodwill, opportunity or profit even if the relevant Paying
Agent is advised of the possibility of such loss.
(3) The indemnities set out above shall survive any termination of this
Agreement.
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14. Responsibility of the Paying Agents
(1) No Paying Agent shall be responsible to anyone with respect to the
validity of this Agreement or the Notes or Coupons or for any act or
omission by it in connection with this Agreement or any Note or Coupon
except for its own default, negligence or bad faith, including that of
its officers, directors and employees.
(2) No Paying Agent shall have any duty or responsibility in the case of any
default by the Issuer in the performance of its obligations under the
Conditions or, in the case of receipt of a written demand from a
Noteholder or Couponholder, with respect to such default, provided
however that immediately on receiving notice given by a Noteholder in
accordance with Condition 9, the Fiscal Agent notifies the Issuer of the
fact and furnishes it with a copy of the notice.
(3) Whenever in the performance of its duties under this Agreement a Paying
Agent shall deem it desirable that any matter be established by the
Issuer prior to taking or suffering any action under this Agreement,
such matter may be deemed to be conclusively established by a
certificate signed by a duly authorised person on behalf of the Issuer
and delivered to the Paying Agent and the certificate shall be a full
authorisation to the Paying Agent for any action taken or suffered in
good faith by it under the provisions of this Agreement in reliance upon
the certificate.
15. Conditions of Appointment
(1) Each Paying Agent shall be entitled to deal with money paid to it by the
Issuer for the purpose of this Agreement in the same manner as other
money paid to a banker by its customers except:
(a) that it shall not exercise against the Issuer or any holders of Notes or
Coupons any right of set-off, lien or similar claim in respect of
the money; and
(b) that it shall not be liable to account to the Issuer for any interest on
the money.
(2) No money held by any Paying Agent need be segregated except as required
by law.
(3) In acting under this Agreement and in connection with the Notes and the
Coupons, each Paying Agent shall act solely as an agent of the Issuer
and will not assume any obligations towards or relationship of agency or
trust for or with any of the owners or holders of the Notes or Coupons.
(4) Each Paying Agent undertakes to the Issuer to perform its duties, and
shall be obliged to perform the duties and only the duties, specifically
stated in this Agreement and the Conditions and no implied duties or
obligations shall be read into any of those documents against any Paying
Agent, other than the duty to act honestly and in good faith and to
exercise the diligence of a reasonably prudent agent in comparable
circumstances.
(5)
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The Fiscal Agent may consult with legal and other professional advisers and
the opinion of the advisers shall be full and complete protection in
respect of any action taken, omitted or suffered under this Agreement in
good faith and in accordance with the opinion of the advisers.
(6) Each Paying Agent shall be protected and shall incur no liability in
respect of any action taken, omitted or suffered in reliance on any
instruction from the Issuer or any document which it reasonably believes
to be genuine and to have been delivered by the proper party or on
written instructions from the Issuer.
(7) Any Paying Agent and its officers, directors and employees may become
the owner of, and/or acquire any interest in, any Notes or Coupons with
the same rights that it or he would have had if the Paying Agent
concerned were not appointed under this Agreement, and may engage or be
interested in any financial or other transaction with the Issuer and may
act on, or as depositary, trustee or agent for, any committee or body of
holders of Notes or Coupons or in connection with any other obligations
of the Issuer as freely as if the Paying Agent were not appointed under
this Agreement.
(8) The Issuer shall provide the Fiscal Agent with a certified copy of the
list of persons authorised to execute documents and take action on its
behalf in connection with this Agreement and shall notify the Fiscal
Agent immediately in writing if any of those persons ceases to be
authorised or if any additional person becomes authorised together, in
the case of an additional authorised person, with evidence satisfactory
to the Fiscal Agent that the person has been authorised.
(9) Except as ordered by a court of competent jurisdiction or as required by
law or applicable regulations, the Issuer and each of the Paying Agents
shall be entitled to treat the bearer of any Note or Coupon as the
absolute owner of it (whether or not it is overdue and notwithstanding
any notice of ownership or writing on it or notice of any previous loss
or theft of it).
(10) The Fiscal Agent shall not be under any obligation to take any action
under this Agreement which it expects will result in any expense or
liability accruing to it, the payment of which within a reasonable time
is not, in its reasonable opinion, assured to it.
16. Communications between the Parties
A copy of all communications relating to the subject matter of this
Agreement between the Issuer and any Paying Agent (other than the Fiscal
Agent) shall be sent to the Fiscal Agent.
17. Changes in Paying Agents
(1) The Issuer may terminate the appointment of any Paying Agent at any time
and/or appoint additional or other Paying Agents by giving to the Paying
Agent whose appointment is concerned and, where appropriate, the Fiscal
Agent at least 90 days' prior written notice to that effect, provided
that, so long as any of the Notes is outstanding:
(a) in the case of a Paying Agent, the notice shall not expire less than
45 days before any due date for the payment of interest; and
(b)
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notice shall be given under Condition 11 at least 30 days before the
removal or appointment of a Paying Agent.
(2) Notwithstanding the provisions of subclause (1), if at any time a Paying
Agent becomes incapable of acting, or is adjudged bankrupt or insolvent,
or files a voluntary petition in bankruptcy or makes an assignment for
the benefit of its creditors or consents to the appointment of an
administrator, liquidator or administrative or other receiver of all or
any substantial part of its property, or if an administrator, liquidator
or administrative or other receiver of it or of all or a substantial
part of its property is appointed, or it admits in writing its inability
to pay or meet its debts as they may mature or suspends payment of its
debts, or if an order of any court is entered approving any petition
filed by or against it under the provisions of any applicable bankruptcy
or insolvency law or if a public officer takes charge or control of the
Paying Agent or of its property or affairs for the purpose of
rehabilitation, administration or liquidation, the Issuer may forthwith
without notice terminate the appointment of the Paying Agent, in which
event notice shall be given to the Noteholders under Condition 11 as
soon as is practicable.
(3) All or any of the Paying Agents may resign their respective appointments
under this Agreement at any time by giving to the Issuer and, where
appropriate, the Fiscal Agent at least 90 days' prior written notice to
that effect provided that, so long as any of the Notes is outstanding,
the notice shall not, in the case of a Paying Agent, expire less than
45 days before any due date for the payment of interest. If the Fiscal
Agent shall resign or be removed pursuant to subclauses (1) or (2) above
or in accordance with this subclause (3), the Issuer shall promptly and
in any event within 30 days appoint a successor (being a leading bank
acting through its office in London). If the Issuer fails to appoint a
successor within such period, the Fiscal Agent may select a leading bank
acting through its office in London to act as Fiscal Agent hereunder and
the Issuer shall appoint that bank as the successor Fiscal Agent.
(4) Notwithstanding the provisions of subclauses (1), (2) and (3), so long
as any of the Notes is outstanding, the termination of the appointment
of a Paying Agent (whether by the Issuer or by the resignation of the
Paying Agent) shall not be effective unless upon the expiry of the
relevant notice there is:
(a) a Fiscal Agent; and
(b) a Paying Agent in the place or places required by Condition 5(6).
(5) Any successor Paying Agent shall execute and deliver to its predecessor,
the Issuer and the Fiscal Agent an instrument accepting the appointment
under this Agreement, and the successor Paying Agent, without any
further act, deed or conveyance, shall become vested with all the
authority, rights, powers, trusts, immunities, duties and obligations of
the predecessor with like effect as if originally named as a Paying
Agent.
(6) If the appointment of a Paying Agent under this Agreement is terminated
(whether by the Issuer or by the resignation of the Paying Agent), the
Paying Agent shall:
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(a) on the date on which the termination takes effect deliver to its
successor Paying Agent (or, if none, the Fiscal Agent) all Notes
and Coupons surrendered to it but not yet destroyed and all records
concerning the Notes and Coupons maintained by it (except such
documents and records as it is obliged by law or regulation to
retain or not to release);
(b) pay to its successor Paying Agent (or, if none, to the Fiscal Agent) the
amounts (if any) held by it under this Agreement, but shall have no
other duties or responsibilities under this Agreement; and
(c) be entitled to the payment by the Issuer of the commissions, fees and
expenses payable in respect of its services under this Agreement
before the termination in accordance with the terms of clause 12.
18. Merger and Consolidation
Any corporation into which any Paying Agent may be merged or converted,
or any corporation with which a Paying Agent may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which a Paying Agent shall be a party, or any corporation to which a
Paying Agent shall sell or otherwise transfer all or substantially all
of its assets shall, on the date when the merger, conversion,
consolidation or transfer becomes effective and to the extent permitted
by any applicable laws, become the successor Paying Agent under this
Agreement without the execution or filing of any paper or any further
act on the part of the parties to this Agreement, unless otherwise
required by the Issuer, and after the said effective date all references
in this Agreement to the relevant Paying Agent shall be deemed to be
references to such successor corporation. Written notice of any such
merger, conversion, consolidation or transfer shall immediately be given
to the Issuer by the relevant Paying Agent.
19. Notification of changes to Paying Agents
Following receipt of notice of resignation from a Paying Agent and after
appointing a successor or new Paying Agent or on giving notice to
terminate the appointment of any Paying Agent, the Fiscal Agent (on
behalf of and at the expense of the Issuer) shall give or cause to be
given not more than 45 days' nor less than 30 days' notice of the fact
to the Noteholders in accordance with the Conditions.
20. Change of Specified Office
If any Paying Agent determines to change its specified office it shall
give to the Issuer and the Fiscal Agent written notice of that fact
giving the address of the new specified office which shall be in the
same city and stating the date on which the change is to take effect,
which shall not be less than 45 days after the notice. The Fiscal Agent
(on behalf and at the expense of the Issuer) shall within 15 days of
receipt of the notice (unless the appointment of the relevant Paying
Agent is to terminate pursuant to clause 21 on or prior to the date of
the change) give or cause to be given not more than 45 days' nor less
than 30 days' notice of the change to the Noteholders in accordance with
the Conditions.
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21. Communications
Any notice required to be given under this Agreement to any of the
parties shall be delivered in person, sent by pre-paid post (first class
if inland, first class airmail if overseas) or by facsimile addressed to:
The Issuer: DENTSPLY International Inc.
570 W. College Avenue
York
Pennsylvania 17405-0872
United States
Facsimile No: 001 717 849 4753
(Attention: Brian Addison, Secretary)
The Fiscal Agent: Citibank, N.A.
Agency & Trust
5 Carmelite Street
London EC4Y 0PA
Facsimile No: 0044 20 7508 3878
(Attention: Citibank Agency and
Trust)
or such other address of which notice in writing has been given to the
other parties to this Agreement under the provisions of this clause.
Any such notice shall take effect, if delivered in person, at the time
of delivery, if sent by post, three days in the case of inland post or
seven days in the case of overseas post after despatch, and, in the case
of facsimile, 24 hours after the time of despatch, provided that in the
case of a notice given by facsimile transmission such notice shall
forthwith be confirmed by post. The failure of the addressee to receive
such confirmation shall not invalidate the relevant notice given by
facsimile.
22. Taxes and Stamp Duties
The Issuer agrees to pay any and all stamp and other documentary taxes
or duties which may be payable in connection with the execution,
delivery, performance and enforcement of this Agreement.
23. Amendments
This Agreement may be amended by the Issuer and the Fiscal Agent,
without the consent of any other Paying Agent or the Noteholders or
Couponholders, either:
(a) for the purpose of curing any ambiguity or of curing, correcting or
supplementing any defective provision contained in this Agreement;
or
(b) in any manner which is not materially prejudicial to the interests of
the Noteholders.
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Any modification made under subparagraph (a) or (b) shall be binding on
the Paying Agents, the Noteholders and the Couponholders and shall be
notified to the Noteholders in accordance with Condition 11 as soon as
practicable after it has been agreed.
24. Contracts (Rights of Third Parties) Act 1999
A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of
this Agreement, but this does not affect any right or remedy of a third
party which exists or is available apart from that Act.
25. Governing Law and Submission to Jurisdiction
(1) This Agreement is governed by, and shall be construed in accordance
with, the laws of England.
(2) The Issuer the Fiscal Agent and the Paying Agents irrevocably agree that
the courts of England are to have jurisdiction to settle any disputes
which may arise out of or in connection with this Agreement and that
accordingly any suit, action or proceedings (together referred to as
"Proceedings") arising out of or in connection with this Agreement may
be brought in such courts.
(3) The Issuer, the Fiscal Agent and the Paying Agents irrevocably waive any
objection which any may have to the laying of the venue of any
Proceedings in any such courts and any claim that any such Proceedings
have been brought in an inconvenient forum and further irrevocably agree
that a judgment in any Proceedings brought in the English courts shall
be conclusive and binding upon them and may be enforced in the courts of
any other jurisdiction.
(4) Nothing contained in this clause shall limit any right of any parts to
this Agreement to take Proceedings in any other court of competent
jurisdiction, nor shall the taking of Proceedings in one or more
jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
(5) The Issuer appoints Denton Wilde Sapte at its office at 1 Fleet Place,
London EC4M 7WS as its agent for service of process, and undertakes
that, in the event of Denton Wilde Sapte ceasing so to act or ceasing to
be registered in England, it will appoint another person, as the Fiscal
Agent may approve, as its agent for service of process in England in
respect of any Proceedings.
(6) The Issuer:
(a) agrees to procure that, so long as any of the Notes remains outstanding,
there shall be in force an appointment of such a person with an
office in London with authority to accept service as aforesaid;
(b) agrees that failure by any such person to give notice of such service of
process to the Issuer shall not impair the validity of such service
or of any judgment based thereon;
(c)
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consents to the service of process in respect of any Proceedings by the
airmailing of copies, postage prepaid, to the Issuer in accordance
with clause 21; and
(d) agrees that nothing in this Agreement shall affect the right to serve
process in any other manner permitted by law.
26. Counterparts
This Agreement may be executed in any number of counterparts, and this
has the same effect as if the signatures on the counterparts were on a
single copy of this Agreement.
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SCHEDULE 1
PART I
FORM OF THE TEMPORARY GLOBAL NOTE
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE
CODE.
DENTSPLY INTERNATIONAL INC.
TEMPORARY GLOBAL NOTE
(euro)350,000,000 5.75 per cent. Notes due 2006
This temporary Global Note is issued in respect of the (euro)350,000,000 5.75
per cent. Notes due 2006 (the "Notes") of DENTSPLY International Inc. (the
"Issuer"). The Notes are issued subject to and have the benefit of an Agency
Agreement (the "Agency Agreement") dated 13th December, 2001 between the Issuer
and Citibank, N.A. as Fiscal Agent (the "Fiscal Agent"). The Notes are issued
subject to and with the benefit of the Conditions of the Notes (the
"Conditions") set out in Part II of Schedule 2 to the Agency Agreement.
1. Promise to Pay
Subject as provided in this temporary Global Note, the Issuer, for value
received, promises to pay the bearer upon presentation and surrender of
this temporary Global Note such sum as is equal to the principal amount
of the Notes represented by this temporary Global Note as shown in the
title of this temporary Global Note or such lesser amount as is shown by
the latest entry in Part I or Part II of the Schedule to this temporary
Global Note on 13th December, 2006 or on such earlier date as the
principal of this temporary Global Note may become due under the
Conditions and to pay interest on the principal sum for the time being
outstanding at the rate of 5.75 per cent. per annum from 13th December,
2001 payable annually in arrear on 13th December until payment of the
principal sum has been made or duly provided for in full together with
any other amounts as may be payable, all subject to and under the
Conditions.
2. Exchange for Permanent Global Note and Purchases
Upon (a) any exchange of the whole or a part of this temporary Global
Note for an interest in the permanent Global Note or for a definitive
Note, (b) receipt of instructions from Euroclear Bank or Clearstream,
Luxembourg (both as defined below) that, following the purchase by or on
behalf of the Issuer or any of its subsidiaries of the whole or a part of
this temporary Global Note, part is to be cancelled or (c) any redemption
of the whole or a part of this temporary
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Global Note, the portion of the principal amount of this temporary Global
Note so exchanged, purchased and cancelled or redeemed shall be entered
by or on behalf of the Fiscal Agent on Part I of the Schedule to this
temporary Global Note, whereupon the principal amount of this temporary
Global Note shall be reduced for all purposes by the amount so exchanged,
purchased and cancelled or redeemed and entered.
Any person who would, but for the provisions of this temporary Global
Note and of the Agency Agreement, otherwise be entitled to receive either
(i) an interest in the permanent Global Note or (ii) definitive Notes
shall not be entitled to require the exchange of an appropriate part of
this temporary Global Note for an interest in the permanent Global Note
or definitive Notes unless and until he shall have delivered or caused to
be delivered to Euroclear Bank S.A./N.V., as operator of the Euroclear
System ("Euroclear Bank") or Clearstream Banking, societe anonyme
("Clearstream, Luxembourg") a certificate in substantially the form of
the certificate attached as Exhibit B (copies of which form of
certificate will be available at the offices of Euroclear Bank in
Brussels and Clearstream, Luxembourg in Luxembourg and the specified
offices of each Paying Agent named in the Agency Agreement).
The permanent Global Note to be issued in exchange for interests in this
temporary Global Note will be substantially in the form set out in
Part II of Schedule 1 to the Agency Agreement.
The permanent Global Note will only have an entry made to represent
definitive Notes after the date which is 40 days after the closing date
for the Notes (the "Exchange Date").
On or after the Exchange Date, interests in this temporary Global Note
may be exchanged for interests in a duly executed and authenticated
permanent Global Note without charge and the Fiscal Agent or such other
person as the Fiscal Agent may direct (the "Exchange Agent") shall make
the appropriate entry on Part I of the Schedule to the permanent Global
Note, in full or partial exchange for this temporary Global Note, in
order that the permanent Global Note represents an aggregate principal
amount of Notes equal to the principal amount of this temporary Global
Note submitted for exchange. Notwithstanding the foregoing, no such
entry shall be made on the permanent Global Note unless there shall have
been presented to the Exchange Agent a certificate from Euroclear Bank or
Clearstream, Luxembourg substantially in the form of the certificate
attached as Exhibit A.
Notwithstanding the foregoing, where this temporary Global Note has been
exchanged in part for the permanent Global Note pursuant to the foregoing
and definitive Notes have been issued in exchange for the total amount of
Notes represented by the permanent Global Note pursuant to its terms
because Euroclear Bank and/or Clearstream, Luxembourg do not regard the
permanent Global Note to be fungible with such definitive Notes, then
interests in this temporary Global Note will no longer be exchangeable for
interests in the permanent Global Note but will be exchangeable, in full or
partial exchange, for duly executed and authenticated definitive Notes,
without charge, in the denominations of (euro)1,000, (euro)10,000 and
(euro)100,000 each with interest coupons attached, such definitive Notes to
be substantially in the form set out in Part I of Schedule 2 to the Agency
Agreement. Notwithstanding the foregoing, definitive Notes shall not be so
issued and delivered unless there shall have been presented to the Exchange
Agent a certificate from Euroclear Bank or Clearstream, Luxembourg
substantially in the form of the certificate attached as Exhibit A.
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In no event may the permanent Global Note or definitive Notes issued in
exchange for interests in this temporary Global Note be mailed to an
address within or otherwise delivered within the United States or its
possessions (including, for this purpose, Puerto Rico, Guam, American
Samoa, Wake Island, the U.S. Virgin Islands and the Northern Mariana
Islands).
3. Benefits
Until the entire principal amount of this temporary Global Note has been
extinguished in exchange for the permanent Global Note and/or definitive
Notes, this temporary Global Note shall (save as provided herein) in all
respects be entitled to the same benefits as the definitive Notes
referred to above, except that the holder of this temporary Global Note
shall only be entitled to receive any payment on this temporary Global
Note on presentation of certificates as provided below.
4. Payments
On and after the Exchange Date, no payment will be made on this temporary
Global Note unless exchange for an interest in the permanent Global Note
is improperly withheld or refused. Payments due in respect of Notes for
the time being represented by this temporary Global Note shall be made to
the bearer only upon presentation by Euroclear Bank or, as the case may
be, Clearstream, Luxembourg to the Fiscal Agent at its specified office
of a certificate, substantially in the form of the certificate attached
as Exhibit A, to the effect that Euroclear Bank, or as the case may be,
Clearstream, Luxembourg has received certificate substantially in the
form of the certificate attached as Exhibit B from qualified account
holders with respect to the payments due in respect of such Notes.
Payments of principal and interest in respect of Notes represented by
this temporary Global Note will, subject as provided herein, be made
against presentation for endorsement and, if no further payment falls to
be made in respect of the Notes represented hereby, surrender of this
temporary Global Note to the order of the Fiscal Agent or such other
Paying Agent as shall have been notified to the Noteholders for such
purposes.
Upon any payment in respect of the Notes represented by this temporary
Global Note, the amount so paid shall be entered by or on behalf of the
Fiscal Agent on Part II of the Schedule to this temporary Global Note.
In the case of any payment of principal the principal amount of this
temporary Global Note shall be reduced for all purposes by the amount so
paid and the remaining principal amount of this temporary Global Note
shall be entered by or on behalf of the Fiscal Agent on Part II of the
Schedule to this temporary Global Note.
5. Notices
For so long as all of the Notes are represented by this temporary Global
Note and/or the permanent Global Note and this temporary Global Note
and/or the permanent Global Note is/are held on behalf of Euroclear Bank
and/or Clearstream, Luxembourg, notices to Noteholders may be given by
delivery of the relevant notice to Euroclear Bank and/or
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Clearstream, Luxembourg (as the case may be) for communication to the
relevant persons who are for the time being shown in the records of
Euroclear Bank and/or Clearstream, Luxembourg as the holders of a
particular principal amount of the Notes rather than by publication as
required by Condition 11 provided that, so long as the Notes are admitted
to official listing on the London Stock Exchange, the London Stock
Exchange and any other relevant authority so agrees. Any such notice
shall be deemed to have been given to the Noteholders on the seventh day
after the day on which such notice is delivered to Euroclear Bank and/or
Clearstream, Luxembourg (as the case may be) as aforesaid.
6. Accountholders
For so long as any of the Notes is represented by one or/both of this
temporary Global Note and/or the permanent Global Note and such Global
Note(s) is/are held on behalf of Euroclear Bank and/or Clearstream,
Luxembourg, each person who is for the time being shown in the records of
Euroclear Bank and/or Clearstream, Luxembourg as the holder of a
particular nominal amount of such Notes (each an "Accountholder") (in
which regard any certificate or other document issued by Euroclear Bank
or Clearstream, Luxembourg as to the nominal amount of such Notes
standing to the account of any person shall be conclusive and binding for
all purposes save in the case of manifest error) shall be deemed to be
the holder of that nominal amount of Notes (and the bearer of the
relevant Global Note shall be deemed not to be the holder) for all
purposes (including for the purposes of any quorum requirements of, or
the right to demand a poll at, meetings of the Noteholders) other than
with respect to the payment of principal and interest on such Notes, the
right to which shall be vested, as against the Issuer and the Paying
Agents, solely in the bearer of the relevant Global Note in accordance
with and subject to its terms. Each Accountholder must look solely to
Euroclear Bank or Clearstream, Luxembourg, as the case may be, for its
share of each payment made to the bearer of the relevant Global Note.
Notes represented by this temporary Global Note are transferable in
accordance with the rules and procedures for the time being of Euroclear
Bank or Clearstream, Luxembourg as appropriate.
The Issuer covenants in favour of each Accountholder that it will make
all payments in respect of the principal amount of Notes for the time
being shown in the records of Euroclear Bank and/or Clearstream,
Luxembourg as being held by the Accountholder and represented by this
temporary Global Note to the bearer of this temporary Global Note in
accordance with clause 1 above and acknowledges that each Accountholder
may take proceedings to enforce this covenant and any of the other rights
which it has under this temporary Global Note directly against the Issuer.
7. Prescription
Claims against the Issuer in respect of principal and interest on the
Notes represented by this temporary Global Note will be prescribed after
10 years (in the case of principal) and five years (in the case of
interest) from the Relevant Date (as defined in Condition 7).
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8. Cancellation
Cancellation of any Note represented by this temporary Global Note and
required by the Conditions to be cancelled following its redemption or
purchase will be effected by endorsement by or on behalf of the Fiscal
Agent of the reduction in the principal amount of the temporary Global
Note on Part I of the Schedule to this temporary Global Note.
9. Authentication
This temporary Global Note shall not become valid or enforceable for any
purpose unless and until it has been authenticated by or on behalf of the
Fiscal Agent.
10. Governing Law
This temporary Global Note is governed by, and shall be construed in
accordance with, English law. No rights are conferred on any person
under the Contracts (Rights of Third Parties) Act 1999 to enforce any
term of this temporary Global Note, but this does not affect any right or
remedy of any person which exists or is available apart from that Act.
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IN WITNESS whereof this temporary Global Note has been executed as a deed
poll on behalf of the Issuer.
Executed as a deed )
by DENTSPLY INTERNATIONAL INC. )
and signed and delivered as a deed )
on its behalf by )
)
in the presence of: )
Witness:
Signature:................
Name: ..................
Address:..................
CERTIFICATE OF AUTHENTICATION
This is the temporary Global Note
described in the Agency Agreement.
By or on behalf of Citibank, N.A.
(without recourse, warranty or liability)
......................................
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THE SCHEDULE
Part I
EXCHANGES FOR THE PERMANENT GLOBAL NOTE/DEFINITIVE NOTES
AND OTHER CANCELLATIONS
The following exchanges of a part of this temporary Global Note for interests
in the permanent Global Note/definitive Notes and other cancellations
(whether following a purchase by the Issuer or any of its subsidiaries or
redemption) of a part of the aggregate principal amount of this temporary
Global Note have been made:
Part of the
aggregate
principal
amount of
this
temporary
Global Note Remaining
exchanged Part of the principal
for aggregate amount of Notation
interests in principal this made
the amount of temporary by or
permanent this Global Note on
Date of Global Note temporary following behalf
exchange or Global Note exchange or of the
or other definitive otherwise other Fiscal
cancellation Notes cancelled cancellation Agent
(euro) (euro) (euro)
- -------------------------------------------------------------------------------
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Part II
PAYMENTS
The following payments in respect of the Notes represented by this temporary
Global Note have been made:
Remaining Notation
principal made
amount of by or
this on
Date of Amount of temporary behalf
payment interest Amount of Global Note of the
paid principal following Fiscal
paid payment Agent
(euro) (euro) (euro)
- -------------------------------------------------------------------------------
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EXHIBIT A
DENTSPLY INTERNATIONAL INC.
(euro)350,000,000 5.75 per cent. Notes due 2006
(the "Securities")
This is to certify that, based solely on certifications we have received in
writing, by tested telex or by electronic transmission from member organisations
appearing in our records as persons being entitled to a portion of the principal
amount set forth below (our "Member Organisations") substantially to the effect
set forth in the Agency Agreement, as of the date hereof, (euro)[ ] principal
amount of the above-captioned Securities (i) is owned by persons that are not
citizens or residents of the United States, domestic partnerships, domestic
corporations or any estate or trust the income of which is subject to United
States federal income taxation regardless of its source ("United States
persons"), (ii) is owned by United States persons that (a) are foreign branches
of United States financial institutions (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v)) ("financial institutions") purchasing for their own
account or for resale, or (b) acquired the Securities through foreign branches
of United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution has agreed, on its own
behalf or through its agent, that we may advise the Issuer or the Issuer's agent
that it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) is owned by United States or foreign financial institutions for
purposes of resale during the restricted period (as defined in U.S. Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and to the further effect that
United States or foreign financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
If the Securities are of the category contemplated in Section 230.903(b) (2)
or (3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify with respect to such principal amount of
Securities set forth above that, except as set forth below, we have received
in writing, by tested telex or by electronic transmission, from our Member
Organisations entitled to a portion of such principal amount, certifications
with respect to such portion, substantially to the effect. As used in this
paragraph the term "U.S. person" has the meaning given to it by Regulation S
under the Act.
We further certify (i) that we are not making available herewith for exchange
(or, if relevant, exercise of any rights or collection of any interest) any
portion of the temporary global Security excepted in such certifications and
(ii) that as of the date hereof we have not received any notification from
any of our Member Organisations to the effect that the statements made by
such Member Organisations with respect to any portion of the part submitted
herewith for exchange (or, if relevant, exercise of any rights or collection
of any interest) are no longer true and cannot be relied upon as of the date
hereof.
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We understand that this certification is required in connection with certain
tax laws and, if applicable, certain securities laws of the United States.
In connection therewith, if administrative or legal proceedings are commenced
or threatened in connection with which this certification is or would be
relevant, we irrevocably authorise you to produce this certification to any
interested party in such proceedings.
Dated1
[Euroclear Bank S.A./N.V. as operator of the
Euroclear System] [Clearstream Banking, societe anonyme]
By ...................................
Authorised Signatory
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EXHIBIT B
DENTSPLY INTERNATIONAL INC.
(euro)350,000,000 5.75 per cent. Notes due 2006
(the "Securities")
This is to certify that as of the date hereof, and except as set forth below,
the above-captioned Securities held by you for our account (i) are owned by
person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate or trust the income of
which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that (a) are foreign branches of United States financial institutions (as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)) ("financial
institutions") purchasing for their own account or for resale, or (b)
acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
United States financial institution hereby agrees, on its own behalf or
through its agent, that you may advise the Issuer or the Issuer's agent that
it will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and in
addition if the owner of the Securities is a United States or foreign
financial institution described in clause (iii) above (whether or not also
described in clause (i) or (ii)) this is further to certify that such
financial institution has not acquired the Securities for the purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
If the Securities are of the category contemplated in Section 230.903(b) (2)
or (3) of Regulation S under the Securities Act of 1933, as amended (the
"Act"), then this is also to certify that, except as set forth below, the
Securities are beneficially owned by (a) non-U.S. person(s) or (b) U.S.
person(s) who purchased the Securities in transactions which did not require
registration under the Act; As used in this paragraph the term "U.S. person"
has the meaning given to it by Regulation S under the Act.
As used herein, "United States" means the United States of America (including
the States and the District of Columbia); and its "possessions" include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and
the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date
on which you intend to submit your certification relating to the Securities
held by you for our account in accordance with your documented procedures if
any applicable statement herein is not correct on such date, and in the
absence of any such notification it may be assumed that this certification
applies as of such date.
This certification excepts and does not relate to (euro)[ ] of such interest in
the above Securities in respect of which we are not able to certify and as to
which we understand exchange and delivery of definitive Securities (or, if
relevant, exercise of any rights or collection of any interest) or an interest
in a permanent global security cannot be made until we do so certify.
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We understand that this certification is required in connection with certain
tax laws and, if applicable, certain securities laws of the United States.
In connection therewith, if administrative or legal proceedings are commenced
or threatened in connection with which this certification is or would be
relevant, we irrevocably authorise you to produce this certification to any
interested party in such proceedings.
Dated1
By ......................
Qualified Account Holder
D7
PART II
FORM OF THE PERMANENT GLOBAL NOTE
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE
CODE.
DENTSPLY INTERNATIONAL INC.
PERMANENT GLOBAL NOTE
(euro)350,000,000 5.75 per cent. Notes due 2006
This permanent Global Note is issued in respect of the (euro)350,000,000 5.75
per cent. Notes due 2006 (the "Notes") of DENTSPLY International Inc. (the
"Issuer"). The Notes are initially represented by a temporary Global Note
interests in which will be exchanged in accordance with the terms of the
temporary Global Note for interests in this permanent Global Note and, if
applicable, definitive Notes. The Notes are issued subject to and with the
benefit of an Agency Agreement (the "Agency Agreement") dated 13th December,
2001 between the Issuer and Citibank, N.A. as Fiscal Agent (the "Fiscal Agent").
The Notes are issued subject to and with the benefit of the Conditions of the
Notes (the "Conditions") set out in Part II of Schedule 2 to the Agency
Agreement.
1. Promise to Pay
Subject as provided in this permanent Global Note, the Issuer, for value
received, promises to pay the bearer upon presentation and surrender of
this permanent Global Note such sum as is equal to the principal amount
of the Notes represented by this permanent Global Note as shown by the
latest entry in Part I, Part II or Part III of the Schedule to this
permanent Global Note on 13th December, 2006 or on such earlier date as
the principal of this permanent Global Note may become due under the
Conditions and to pay interest on the principal sum for the time being
outstanding at the rate of 5.75 per cent. per annum from 13th December,
2001 payable annually in arrear on 13th December until payment of the
principal sum has been made or duly provided for in full together with
any other amounts as may be payable, all subject to and under the
Conditions.
2. Exchange of Interests in the Temporary Global Note for Interests in this
Permanent Global Note
Upon any exchange of an interest in the temporary Global Note
representing the Notes for an interest in this permanent Global Note, the
Fiscal Agent shall make the appropriate entry in Part I of the Schedule
to this permanent Global Note in order to indicate the principal amount
of Notes represented by this permanent Global Note following such
exchange.
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3. Exchange for Definitive Notes and Purchases
This permanent Global Note will be exchangeable in whole but not in part
(free of charge to the holder) for definitive Notes only (i) if an event
of default (as set out in Condition 9) has occurred and is continuing,
(ii) if both Euroclear Bank S.A./N.V. as operator of the Euroclear System
("Euroclear Bank") and Clearstream Banking, societe anonyme
("Clearstream, Luxembourg") are closed for business for a continuous
period of 14 days (other than by reason of holiday, statutory or
otherwise) or announce an intention permanently to cease business or do
in fact do so and no successor clearing system is available, (iii) if the
Issuer has or will become subject to adverse tax consequences which would
not be suffered were the Notes in definitive form or (iv) if the Issuer
receives a notice from or on behalf of one or more Accountholders (as
defined below) requiring such exchange. Thereupon (in the case of (i),
(ii) and (iv) above) the holder of this permanent Global Note (acting on
the instructions of one or more Accountholders) may give notice to the
Fiscal Agent and the Issuer, and (in the case of (iii) above) the Issuer
may give notice to the Fiscal Agent and the Noteholders, of its intention
to exchange this permanent Global Note for definitive Notes on or after
the Exchange Date (as defined below).
On or after the Exchange Date the holder of this permanent Global Note may
or, in the case of (iii) above, shall surrender this permanent Global Note
to or to the order of the Fiscal Agent. In exchange for this permanent
Global Note the Issuer will deliver, or procure the delivery of, an equal
aggregate principal amount of definitive Notes in the denominations of
(euro)1,000, (euro)10,000 and (euro)100,000 (having attached to them all
Coupons in respect of interest which has not already been paid on this
permanent Global Note), security printed in accordance with any applicable
legal and stock exchange requirements and in or substantially in the form
set out in Part I of Schedule 2 of the Agency Agreement. On exchange of
this permanent Global Note, the Issuer will procure that it is cancelled
and, if the holder so requests, returned to the holder together with any
relevant definitive Notes.
In no event may definitive Notes issued in exchange for interests in this
permanent Global Note be mailed to an address within or otherwise
delivered within the United States or its possessions (including, for
this purpose, Puerto Rico, Guam, American Samoa, Wake Island, the U.S.
Virgin Islands and the Northern Mariana Islands).
"Exchange Date" means a day specified in the notice requiring exchange
falling not less than 30 days after that on which such notice is given,
being a day on which banks are open for business in the place in which
the specified office of the Fiscal Agent is located and, except in the
case of exchange pursuant to (ii) above, in the place in which the
relevant clearing systems are located.
Upon (a) receipt of instructions from Euroclear Bank or Clearstream,
Luxembourg that, following the purchase by or on behalf of the Issuer or
any of its subsidiaries of the whole or a part of this permanent Global
Note, part is to be cancelled or (b) any redemption of the whole or a
part of this permanent Global Note, the portion of the principal amount
of this permanent Global Note so purchased and cancelled or redeemed
shall be entered by or on behalf of the Fiscal Agent on Part II or Part
III of the Schedule to this permanent Global Note, as they case may be,
whereupon the principal amount of this permanent Global Note shall be
reduced for all purposes by the amount so purchased and cancelled or
redeemed and entered.
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4. Benefits
Until the entire principal amount of this permanent Global Note has been
extinguished in exchange for definitive Notes or in any other manner
envisaged by the Conditions, this permanent Global Note shall (save as
provided herein) in all respects be entitled to the same benefits as the
definitive Notes referred to above.
5. Payments
Payments due in respect of Notes for the time being represented by this
permanent Global Note shall be made to the bearer of this permanent
Global Note.
Payments of principal and interest in respect of Notes represented by
this permanent Global Note will, subject as provided herein, be made
against presentation for endorsement and, if no further payment falls to
be made in respect of the Notes represented hereby, surrender of this
permanent Global Note to the order of the Fiscal Agent or such other
Paying Agent as shall have been notified to the Noteholders for such
purposes.
Upon any payment in respect of the Notes represented by this permanent
Global Note, the amount so paid shall be entered by or on behalf of the
Fiscal Agent on Part III of the Schedule to this permanent Global Note.
In the case of any payment of principal the principal amount of this
permanent Global Note shall be reduced for all purposes by the amount so
paid and the remaining principal amount of this permanent Global Note
shall be entered by or on behalf of the Fiscal Agent on Part III of the
Schedule to this permanent Global Note.
6. Notices
For so long as all of the Notes are represented by one or both of this
permanent Global Note and/or the temporary Global Note and such Global
Note(s) is/are held on behalf of Euroclear Bank and/Clearstream,
Luxembourg, notices to Noteholders may be given by delivery of the
relevant notice to Euroclear Bank and/or Clearstream, Luxembourg (as the
case may be) for communication to the relative Accountholders rather than
by publication as required by Condition 11, provided that, so long as the
Notes are admitted to official listing on the London Stock Exchange, the
London Stock Exchange and any other relevant authority so agrees. Any
such notice shall be deemed to have been given to the Noteholders on the
seventh day after the day on which such notice is delivered to Euroclear
Bank and/or Clearstream, Luxembourg (as the case may be) as aforesaid.
7. Accountholders
For so long as any of the Notes is represented by one or/both of this
permanent Global Note and/or the temporary Global Note and such Global
Note(s) is/are held on behalf of Euroclear Bank and/or Clearstream,
Luxembourg, each person who is for the time being shown in the records of
Euroclear Bank and/or Clearstream, Luxembourg as the holder of a
particular nominal amount of such Notes (each an "Accountholder") (in
which regard any certificate or
D7
other document issued by Euroclear Bank or Clearstream, Luxembourg as to
the nominal amount of such Notes standing to the account of any person
shall be conclusive and binding for all purposes save in the case of
manifest error) shall be deemed to be the holder of that nominal amount
of Notes (and the bearer of the relevant Global Note shall be deemed not
to be the holder) for all purposes (including for the purposes of any
quorum requirements of, or the right to demand a poll at, meetings of the
Noteholders) other than with respect to the payment of principal and
interest on such Notes, the right to which shall be vested, as against
the Issuer and the Paying Agents, solely in the bearer of the relevant
Global Note in accordance with and subject to its terms. Each
Accountholder must look solely to Euroclear Bank or Clearstream,
Luxembourg, as the case may be, for its share of each payment made to the
bearer of the relevant Global Note.
Notes represented by this permanent Global Note are transferable in
accordance with the rules and procedures for the time being of Euroclear
Bank or Clearstream, Luxembourg as appropriate.
The Issuer covenants in favour of each Accountholder that it will make
all payments in respect of the principal amount of Notes for the time
being shown in the records of Euroclear Bank and/or Clearstream,
Luxembourg as being held by the Accountholder and represented by this
permanent Global Note to the bearer of this permanent Global Note in
accordance with clause 1 above and acknowledges that each Accountholder
may take proceedings to enforce this covenant and any of the other rights
which it has under this permanent Global Note directly against the Issuer.
8. Prescription
Claims against the Issuer and the Guarantor in respect of principal and
interest on the Notes represented by this permanent Global Note will be
prescribed after 10 years (in the case of principal) and five years (in
the case of interest) from the Relevant Date (as defined in Condition 7).
9. Cancellation
Cancellation of any Note represented by this permanent Global Note and
required by the Conditions to be cancelled following its redemption or
purchase will be effected by endorsement by or on behalf of the Fiscal
Agent of the reduction in the principal amount of this permanent Global
Note on Part II or Part III, as the case may be, of the Schedule to this
permanent Global Note.
10. Authentication
This permanent Global Note shall not become valid or enforceable for any
purpose unless and until it has been authenticated by or on behalf of the
Fiscal Agent.
11. Governing Law
This permanent Global Note is governed by, and shall be construed in
accordance with, English law. No rights are conferred on any person
under the Contracts (Rights of Third Parties) Act 1999 to enforce any
term of this permanent Global Note, but this does not affect any right or
remedy of any person which exists or is available apart from that Act.
D7
IN WITNESS whereof this permanent Global Note has been executed as a deed
poll on behalf of the Issuer.
Executed as a deed )
by DENTSPLY INTERNATIONAL INC. )
and signed and delivered as a deed on )
its behalf by )
in the presence of: )
Witness:
Signature:................
Name: ..................
Address:..................
CERTIFICATE OF AUTHENTICATION
This is the permanent Global Note
described in the Agency Agreement.
By or on behalf of Citibank, N.A.
(without recourse, warranty or liability)
......................................
D7
THE SCHEDULE
Part I
EXCHANGES OF THE TEMPORARY GLOBAL NOTE
The following exchanges of part of the temporary Global Note for interests in
this permanent Global Note have been made.
Date of Part of
Exchange aggregate
principal Aggregate
amount of principal
the amount of
temporary Notes
Global Note represented by
exchanged this permanent
for this Global Note Notation made by
permanent following or on behalf of
Global Note exchange the Fiscal Agent
(euro) (euro)
D7
Part II
- -------------------------------------------------------------------------------
PURCHASES AND CANCELLATIONS
The following purchases and cancellations of a part of the aggregate
principal amount of this permanent Global Note have been made:
Part of the
aggregate
principal
amount of Remaining
this principal amount
permanent of this
Global Note permanent Global Notation made by
Date of purchased Note following or on behalf of
cancellation and cancelled cancellation the Fiscal Agent
(euro) (euro)
- -------------------------------------------------------------------------------
D7
Part III
PAYMENTS
The following payments in respect of the Notes represented by this permanent
Global Note have been made:
Notation
Remaining made
principal by or
amount of on
this behalf
permanent of
Amount of Amount of Global Note the
Date of interest principal following Fiscal
payment paid paid payment Agent
(euro) (euro) (euro)
- -------------------------------------------------------------------------------
D7
SCHEDULE 2
PART I
FORM OF DEFINITIVE NOTE AND COUPON
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE
CODE
(Face of Note)
- ---------------------- [ISIN] 00 00000
000000
- -------------------------------------------------------------------------------
DENTSPY International Inc.
(incorporated in the State of Delaware, U.S.A.)
(euro)350,000,000 5.75 per cent. Notes due 2006
The issue of the Notes was authorised by a resolution of the Board of
Directors of (the "Issuer") passed on 23rd May, 2001.
This Note forms one of a series of Notes issued as bearer Notes in the
denominations of (euro)1,000, (euro)10,000 and (euro)100,000 each in an
aggregate principal amount of (euro)350,000,000.
The Issuer for value received and subject to and in accordance with the
Conditions endorsed hereon hereby promises to pay to the bearer on 13th
December, 2006 (or on such earlier date as the principal sum (as determined
under the Conditions) may become repayable under the said Conditions) the
principal sum of:
(euro)1,000/10,000/100,000 [one/ten/one hundred] thousand euro)
together with interest on the said principal sum at the rate of 5.75 per
cent. per annum payable annually in arrear on 13th December and together with
such other amounts as may be payable, all subject to and under the
Conditions.
The Notes are issued pursuant to an Agency Agreement (the "Agency Agreement")
dated 13th December, 2001 between the Issuer and Citibank, N.A. as Fiscal
Agent. The Notes have the benefit of, and are subject to, the provisions
contained in the Agency Agreement and the Conditions.
Neither this Note nor any of the Coupons relating to this Note shall become
valid or enforceable for any purpose unless and until this Note has been
authenticated by or on behalf of the Fiscal Agent.
D7
IN WITNESS WHEREOF this Note has been executed on behalf of the Issuer.
Dated as of 13th December, 2001
Issued in London, England.
DENTSPLY International Inc.
By:
- ---------------------------------
- --------------------------------
CERTIFICATE OF AUTHENTICATION
This is one of the Notes
described
in the Agency Agreement.
By or on behalf of Citibank,
N.A.
as Fiscal Agent
(without recourse, warranty or
liability)
- ---------------------------------
D7
(Reverse of Note)
CONDITIONS OF THE NOTES
(as set out in Part II of this Schedule 2)
FISCAL AND PRINCIPAL PAYING AGENT
Citibank, N.A.
5 Carmelite Street
London EC4Y 0PA
and/or such other or further Fiscal Agent or Paying Agents and/or specified
offices as may from time to time be appointed by the Issuer and notice of
which has been given to the Noteholders.
D7
- FORM OF COUPON -
(Face of Coupon)
DENTSPLY International Inc.
Euro 350,000,000 5.75 per cent. Notes due 2006
Coupon for the amount due under
the Conditions of the Notes on
13th December, Coupon due
[2002/2003/2004/2005/2006] on
This Coupon is payable to bearer, 13th December,
separately negotiable and subject [2002/2003/2004/2005/
to the Conditions. 2006]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE
CODE.
(Reverse of Coupon)
FISCAL AND PRINCIPAL PAYING AGENT:
Citibank, N.A.
5 Carmelite Street
London EC4Y 0PA
D7
PART II
TERMS AND CONDITIONS OF THE NOTES
(to be incorporated from the final Offering Circular)
D7
CONDITIONS OF THE NOTES
The following is the text of the Conditions of the Notes
which (subject to modification) will be endorsed on each Note in
definitive form (if issued):
The e350,000,000 * per cent. Notes due 2006 (the "Notes",
which expression shall in these Conditions, unless the context
otherwise requires, include any further notes issued pursuant to
Condition 13 and forming a single series with the Notes) of
DENTSPLY International Inc. (the "Issuer") are issued subject
to and with the benefit of an Agency Agreement dated * December,
2001 (such agreement as amended and/or supplemented and/or
restated from time to time, the "Agency Agreement") made
between the Issuer, Citibank, N.A. as initial fiscal agent and
principal paying agent (the "Fiscal Agent") and the other
initial paying agents named in the Agency Agreement (together
with the Fiscal Agent, the "Paying Agents").
The statements in these Conditions include summaries of, and
are subject to, the detailed provisions of and definitions in the
Agency Agreement. Copies of the Agency Agreement are available
for inspection during normal business hours by the holders of the
Notes (the "Noteholders") and the holders of the interest
coupons appertaining to the Notes (the "Couponholders" and the
"Coupons", respectively) at the specified office of each of the
Paying Agents. The Noteholders and the Couponholders are entitled
to the benefit of, are bound by, and are deemed to have notice
of, all the provisions of the Agency Agreement applicable to
them. References in these Conditions to the Fiscal Agent and the
Paying Agents shall include any successor appointed under the
Agency Agreement.
1. FORM, DENOMINATION AND TITLE
(1) Form and Denomination
The Notes are in bearer form, serially numbered, in the
denominations of e1,000, e10,000 and
e100,000 each with Coupons attached on issue.
(2) Title
Title to the Notes and to the Coupons will pass by delivery.
(3) Holder Absolute Owner
The Issuer and any Paying Agent may (to the fullest extent
permitted by applicable laws) deem and treat the holder of any
Note or Coupon as the absolute owner for all purposes (whether or
not the Note or Coupon shall be overdue and notwithstanding any
notice of ownership or writing on the Note or Coupon or any
notice of previous loss or theft of the Note or Coupon).
2. STATUS
The Notes and the Coupons are direct, unconditional and (subject
to the provisions of Condition 3) unsecured obligations of the
Issuer and (subject as provided above) rank and will rank pari
passu, without any preference among themselves, with all other
outstanding unsecured and unsubordinated obligations of the
Issuer, present and future, but, in the event of insolvency, only
to the extent permitted by applicable laws relating to creditors'
rights.
3. NEGATIVE PLEDGE
(1) Negative Pledge
So long as any of the Notes remains outstanding, the Issuer will
not, and will procure that none of its Subsidiaries will, create
or have outstanding any mortgage, charge, lien, pledge or other
security interest (each a "Security Interest") other than a
Permitted Security Interest upon, or with respect to, any of its
present or future business, undertaking, assets or revenues
(including any uncalled capital) to secure any Relevant
Indebtedness (as defined below), unless the Issuer shall, in the
case of the creation by it of a Security Interest, before or at
the same time and, in any other case, promptly, take any and all
action necessary to ensure that:
(a) all amounts payable by it under the Notes and the Coupons are
secured by the Security
Interest equally and rateably with the Relevant Indebtedness; or
(b) such other Security Interest or other arrangement (whether or
not it includes the giving of a Security Interest) is provided as
shall be approved by an Extraordinary Resolution (which is
defined in the Agency Agreement as a resolution duly passed by a
majority of not less than three-fourths of the votes cast) of the
Noteholders.
(2) Interpretation
For the purposes of these Conditions:
(a) "Permitted Security Interest" means a Security Interest
granted by any company prior to its becoming a Subsidiary of the
Issuer provided that (i) the Security Interest shall not have
been granted in contemplation of such company becoming a
Subsidiary, (ii) the principal amount of Relevant Indebtedness
secured by such Security Interest is not increased or extended in
maturity after such company becomes a Subsidiary (other than
under arrangements entered into prior to such company becoming a
Subsidiary but not entered into in contemplation of its becoming
a Subsidiary) or in contemplation of such company becoming a
Subsidiary and (iii) the Security Interest is not extended in
scope after such company becomes a Subsidiary (other than under
arrangements entered into prior to such company becoming a
Subsidiary but not entered into in contemplation of its becoming
a Subsidiary) or in contemplation of such company becoming a
Subsidiary;
(b) "Relevant Indebtedness" means (i) any present or future
indebtedness (whether being
principal, premium, interest or other amounts) for or in respect
of any notes, bonds,
debentures, debenture stock, loan stock or other similar
securities and (ii) any guarantee or
indemnity of any such indebtedness; and
(c) "Subsidiary" means, in relation to the Issuer, a company
(i) in which the Issuer holds a
majority of the voting rights, (ii) of which the Issuer is a
member and has the right to appoint
or remove a majority of its board of directors or (iii) of which
the Issuer is a member and in
which the Issuer controls (whether or not pursuant to an
agreement with other shareholders
or members) a majority of the voting rights and includes any
company which is itself a
subsidiary (on the basis of one of the above tests) of a
subsidiary of the Issuer.
4. INTEREST
(1) Interest Rate and Interest Payment Dates
The Notes bear interest from and including December, 2001 at the
rate of per cent. per annum,
payable annually in arrear on * December (each an "Interest
Payment Date"). The first payment
(representing a full year's interest) shall be made on *
December, 2002.
(2) Interest Accrual
Each Note will cease to bear interest from and including its due
date for redemption unless, upon
due presentation, payment of the principal in respect of the Note
is improperly withheld or refused
or unless default is otherwise made in respect of payment. In
such event, interest will continue to
accrue until whichever is the earlier of:
(a) the date on which all amounts due in respect of such Note
have been paid; and
(b) five days after the date on which the full amount of the
moneys payable in respect of such
Notes has been received by the Fiscal Agent and notice to that
effect has been given to the
Noteholders in accordance with Condition 11.
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(3) Calculation of Broken Interest
When interest is required to be calculated in respect of a period
of less than a full year, it shall be calculated on the basis of
(a) the actual number of days in the period from and including
the date from which interest begins to accrue (the "Accrual
Date") to but excluding the date on which it falls due divided
by (b) the actual number of days from and including the Accrual
Date to but excluding the next following Interest Payment Date.
5. PAYMENTS
(1) Payments in respect of Notes
Payments of principal and interest in respect of each Note will
be made against presentation and surrender (or, in the case of
part payment only, endorsement) of the Note, except that payments
of interest due on an Interest Payment Date will be made against
presentation and surrender (or, in the case of part payment only,
endorsement) of the relevant Coupon, in each case at the
specified office outside the United States and its possessions of
any of the Paying Agents.
(2) Method of Payment
Payments will be made by credit or transfer to a euro account (or
any other account to which euro may be credited or transferred)
specified by the payee or, at the option of the payee, by euro
cheque. In no event will an interest payment with respect to a
Note be made by transfer to an account maintained by the payee
with a bank in the United States or its possessions or by cheque
mailed to any address in the United States or its possessions.
(3) Missing Unmatured Coupons
Each Note should be presented for payment together with all
relative unmatured Coupons, failing which the full amount of any
relative missing unmatured Coupon (or, in the case of payment not
being made in full, that proportion of the full amount of the
missing unmatured Coupon which the amount so paid bears to the
total amount due) will be deducted from the amount due for
payment. Each amount so deducted will be paid in the manner
mentioned above against presentation and surrender (or, in the
case of part payment only, endorsement) of the relative missing
Coupon at any time before the expiry of 10 years after the
Relevant Date (as defined in Condition 7) in respect of the
relevant Note (whether or not the Coupon would otherwise have
become void pursuant to Condition 8).
(4) Payments subject to Applicable Laws
Payments in respect of principal and interest on Notes are
subject in all cases to any fiscal or other laws and regulations
applicable in the place of payment, but without prejudice to the
provisions of Condition 7.
(5) Payment only on a Presentation Date
A holder shall be entitled to present a Note or Coupon for
payment only on a Presentation Date and shall not, except as
provided in Condition 4, be entitled to any further interest or
other payment if a Presentation Date is after the due date.
"Presentation Date" means a day which (subject to Condition 8):
(a) is or falls after the relevant due date;
(b) is a Business Day in the place of the specified office of the
Paying Agent at which the Note or Coupon is presented for
payment; and
(c) is a TARGET Settlement Day.
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In this Condition, "Business Day" means, in relation to any
place, a day on which commercial banks and foreign exchange
markets settle payments and are open for general business
(including dealing in foreign exchange and foreign currency
deposits) in that place and "TARGET Settlement Day" means a day
on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer (TARGET) System is open.
(6) Initial Paying Agents
The names of the initial Paying Agents and their initial
specified offices are set out at the end of these Conditions. The
Issuer reserves the right at any time to vary or terminate the
appointment of any Paying Agent and to appoint additional or
other Paying Agents provided that it will at all times maintain a
Paying Agent having its specified office in a European city
which, so long as the Notes are admitted to official listing on
the Official List of the UK Listing Authority and to trading on
theLondon Stock Exchange, shall be London or such other place as
the London Stock Exchange or any other relevant authority may
approve. In addition, if any European Union Directive on the
taxation of savings implementing the conclusions of the ECOFIN
Council meeting of 26th-27th November, 2000 or any law
implementing or complying with, or introduced in order to conform
to, such Directive is introduced, the Issuer will ensure that
there is a Paying Agent in a Member State (if any) of the
European Union that will not be obliged to withhold or deduct tax
pursuant to any such Directive or law. Notice of any termination
or appointment and of any changes in specified offices shall be
given to the Noteholders promptly by the Issuer in accordance
with Condition 11.
6. REDEMPTION AND PURCHASE
(1) Redemption at Maturity
Unless previously redeemed or purchased and cancelled as provided
below, the Issuer will redeem
the Notes at their principal amount on * December, 2006.
(2) Redemption for Taxation Reasons
If:
(a) (i) as a result of any change in, or amendment to, the laws
or regulations of the United States or any State therein, or any
change in the official interpretation of such laws or
regulations, which change or amendment becomes effective after *
December, 2001, on the next Interest Payment Date the Issuer
would be required to pay additional amounts as provided or
referred to in Condition 7 and (ii) the requirement cannot be
avoided by the Issuer taking reasonable measures available to it,
the Issuer may at its option, having given not less than 30 nor
more than 60 days' notice to the Noteholders in accordance with
Condition 11 (which notice shall be irrevocable), redeem all the
Notes, but not some only, at any time at their principal amount
together with interest accrued to but excluding the date of
redemption, provided that no notice of redemption shall be given
earlier than 90 days before the earliest date on which the Issuer
would be required to pay the additional amounts were a payment in
respect of the Notes then due. Prior to the publication of any
notice of redemption pursuant to this paragraph, the Issuer shall
deliver to the Fiscal Agent a certificate signed by two officers
of the Issuer whose names appear on a list of officers authorised
for the purpose and previously supplied to the Fiscal Agent by
the Issuer stating that the requirement referred to in (i) above
will apply on the next Interest Payment Date and cannot be
avoided by the Issuer taking reasonable measures available to it
and an opinion of independent legal advisers of recognised
standing to the effect that the Issuer has or will become obliged
to pay such additional amounts as a result of the change or
amendment; or
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(b) the Issuer determines that any payment made outside the
United States by it or any Paying Agent of principal or interest
due in respect of the Notes or Coupons would, under any present
or future laws or regulations of the United States, be subject to
any certification, documentation, information or other reporting
requirement of any kind, the effect of which requirement would be
the disclosure to the Issuer, any Paying Agent or any
governmental authority of the nationality, residence or identity
of a beneficial owner of such Note or Coupon who is a United
States Alien (as defined in Condition 7(3)) (other than such a
requirement (I) which would not be applicable to a payment made
by the Issuer or any of its Paying Agents (A) directly to the
beneficial owner or (B) to a custodian, nominee or other agent of
the beneficial owner or (ii) which can be satisfied by such
custodian, nominee or other agent certifying to the effect that
such beneficial owner is a United States Alien, provided that, in
each case referred to in (i)(B) and (ii), payment by such
custodian, nominee or agent to such beneficial owner is not
otherwise subject to any such requirement), the Issuer will, at
its election, either (x) redeem all (but not some only) of the
Notes at their principal amount together with interest accrued to
but excluding the date of redemption or (y) if and so long as the
provisions of Condition 7(2) are satisfied, pay the additional
amounts specified in such paragraph. The Issuer will publish
prompt notice of its election (the "Determination Notice"),
stating the effective date of such certification, documentation,
information or other reporting requirement, whether the Issuer
has elected to redeem the Notes or to pay such additional amounts
and (if applicable) the last date by which the redemption of the
Notes must take place. If the Issuer elects to redeem such Notes,
such redemption will take place on such date, not later than one
year after the publication of the Determination Notice, as the
Issuer may specify by notice to the Noteholders in accordance
with Condition 11 at least 30 days before the date fixed for
redemption. Notwithstanding the foregoing, the Issuer will not so
redeem the Notes if the Issuer subsequently determines, not less
than 30 days prior to the redemption date, that subsequent
payments in respect of the Notes or Coupons would not be subject
to any such certification, documentation, information or other
reporting requirement, in which case the Issuer will publish
prompt notice of such determination and any earlier redemption
notice will be revoked and of no further effect.
(3) Purchases
The Issuer or any of its Subsidiaries (as defined above) may at
any time purchase Notes (provided that all unmatured Coupons
appertaining to the Notes are purchased with the Notes) in any
manner and at any price. If purchases are made by tender, tenders
must be available to all Noteholders alike.
(4) Cancellations
All Notes which are (a) redeemed or (b) purchased by or on behalf
of the Issuer or any of its
Subsidiaries will forthwith be cancelled, together with all
relative unmatured Coupons attached to
the Notes or surrendered with the Notes, and accordingly may not
be reissued or resold.
(5) Notices Final
Upon the expiry of any notice as is referred to in paragraph (2)
above the Issuer shall be bound to
redeem the Notes to which the notice refers in accordance with
the terms of such paragraph.
7. TAXATION
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(1) Payment without Withholding
All payments in respect of the Notes and Coupons by or on behalf
of the Issuer shall be made without withholding or deduction for,
or on account of, any present or future taxes, duties,
assessments or governmental charges imposed or levied by or on
behalf of the United States or any political subdivision or any
authority thereof or therein, unless the withholding or deduction
is required by law. In that event, the Issuer will pay such
additional amounts as may be necessary in order that the net
amounts received by the Noteholders and Couponholders after the
withholding or deduction shall equal the respective amounts which
otherwise would have been receivable in respect of the Notes or,
as the case may be, Coupons in the absence of the withholding or
deduction; except that no additional amounts shall be payable in
respect of a withholding or deduction on account of any one or
more of the following:
(a) any tax, assessment or other governmental charge which would
not have been imposed but
for (i) the existence of any present or former connection between
such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of, or
possessor of a power over, such
holder, if such holder is an estate, a trust, a partnership, a
corporation or another entity, as
the case may be) and the United States or any political
subdivision or territory or possession
thereof, including, without limitation, such holder (or such
fiduciary, settlor, beneficiary,
member, shareholder or possessor of a power over) being or having
been a citizen or resident
or treated as a resident thereof or being or having been present
or engaged in trade or
business therein or having or having had a permanent
establishment therein or otherwise
having or having had some connection with the United States or
such political subdivision,
territory or possession other than the mere holding or ownership
of a Note or Coupon or (ii)
such holder's present or former status as (A) a personal holding
company, foreign personal
holding company or a controlled foreign corporation with respect
to the United States, (B) a
corporation which accumulates earnings to avoid United States
federal income tax, (C) a
private foundation or other exempt organisation or (D) a bank
receiving interest described in
section 881(C)(3)(A) of the United States Internal Revenue Code
of 1986, as amended;
(b) any tax, assessment or other governmental charge which would
not have been so imposed but
for presentation by the holder of a Note or Coupon for payment on
a date more than 15 days
after the Relevant Date;
(c) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax,
assessment or other governmental charge;
(d) any tax, assessment or other governmental charge which would
not have been imposed but
for the failure to comply with certification, documentation,
information or other reporting
requirements concerning the nationality, residence, identity or
connection with the United
States or any political subdivision thereof of the holder or
beneficial owner of such Note or
Coupon, if, without regard to any tax treaty, such compliance is
required by a statute or by
regulation or administrative practice of the United States as a
precondition to relief or
exemption from such tax, assessment or other governmental charge;
(e) any tax, assessment or other governmental charge which is (i)
payable otherwise than by
deduction or withholding from payments on such Note or Coupon or
(ii) required to be
withheld by a Paying Agent from any such payment, if such payment
can be made without
such withholding by any other Paying Agent outside the United
States;
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(f) any tax, assessment or other governmental charge imposed on a
person holding, actually or
constructively, 10 per cent. or more of a total combined voting
power of all classes of stock of
the Issuer or that is a controlled foreign corporation related to
the Issuer through stock
ownership;
(g) a withholding or deduction imposed on a payment to an
individual and required to be made
pursuant to any European Union Directive on the taxation of
savings implementing the
conclusions of the ECOFIN Council meeting of 26th-27th November,
2000 or any law
implementing or complying with, or introduced in order to conform
to, such Directive; or
(h) a withholding or deduction which would not have been made had
the relevant Note or
Coupon been presented to a Paying Agent in another Member State
of the European Union;
nor will Additional Amounts be paid with respect to a payment on
a Note or Coupon to any person which is a fiduciary or partnership
or other than the sole beneficial owner of such Note or Coupon to
the extent a beneficiary or settlor with respect to such fiduciary
or a member of such partnership or a beneficial owner would not
have been entitled to the additional amounts had such beneficiary,
settlor, member or beneficial owner been the holder of such Note
or Coupon.
(2) Backup Withholding
If and so long as the certification, documentation, information or
other reporting requirements referred to in Condition 6(2)(b)
would be fully satisfied by payment of a backup withholding tax or
similar charge, the Issuer may elect, by so stating in the
Determination Notice, to have the provisions of this Condition
7(2) apply in lieu of the provisions of Condition 6(2)(b). In
such event, the Issuer will pay as additional interest such
amounts as may be necessary so that any net payment made
following the effective date of such requirements outside the
United States by the Issuer or any of its Paying Agents of
principal or interest due in respect of the Notes or Coupons of
which the beneficial owner is a United States Alien (but without
any requirement that the nationality, residence or identity,
other than status as a United States Alien, of such beneficial
owner be disclosed to the Issuer, any Paying Agent or any
governmental authority), after deduction or withholding for or on
account of such backup withholding tax or similar charge (other
than a backup withholding tax or similar charge which (a) is the
result of certification, documentation, information or other
reporting requirements described in the second parenthetical
clause of the first sentence of Condition 6(2)(b), (b) is imposed
as a result of the fact that the Issuer or any of the Paying
Agents has actual knowledge that the beneficial owner of such Note
or Coupon is within the category of persons described in
subparagraph (a) of Condition 7(1), or (c) is imposed as a result
of presentation of such Note or Coupon for payment more than 15
days after the Relevant Date), will not be less than the amount
provided for in the Notes or Coupons to be then due and payable.
If the Issuer elects to pay additional amounts pursuant to this
Condition 7(2), the Issuer shall have the right to redeem all
(but not some only) of the Notes subject to the provisions of
Condition 6(2)(b).
(3) Interpretation
In these Conditions:
(a) "Relevant Date" means the date on which the payment first
becomes due but, if the full
amount of the money payable has not been received by the Fiscal
Agent on or before the due
date, it means the date on which, the full amount of the money
having been so received,
notice to that effect shall have been duly given to the
Noteholders by the Issuer in accordance
with Condition 11;
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(b) "United States Alien" means any person who, for United
States federal income tax purposes,
is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a
foreign estate or trust, or a foreign partnership or other entity
one or more of the members of
which is, for United States federal income tax purposes, a
foreign corporation, a non-resident
alien individual or a non-resident alien fiduciary of a foreign
estate or trust; and
(c) "United States" means the United States of America or any
political subdivision or any
authority thereof or therein having power to tax or any other
jurisdiction or any political
subdivision or any authority thereof or therein having power to
tax to which the Issuer
becomes subject in respect of payments made by it of principal
and interest on the Notes and
Coupons.
(4) Additional Amounts
Any reference in these Conditions to any amounts in respect of
the Notes shall be deemed also to refer to any additional amounts
which may be payable under this Condition.
8. PRESCRIPTION
Notes and Coupons will become void unless presented for payment
within periods of 10 years (in the case of principal) and five
years (in the case of interest) from the Relevant Date in respect
of the Notes or, as the case may be, the Coupons, subject to the
provisions of Condition 5.
9. EVENTS OF DEFAULT
(1) Events of Default
The holder of any Note may give notice to the Issuer that the
Note is, and it shall accordingly
forthwith become, immediately due and repayable at its principal
amount, together with interest
accrued to the date of repayment, if any of the following events
("Events of Default") shall have
occurred and be continuing:
(a) if default is made in the payment of any principal or
interest due in respect of the Notes or
any of them and the default continues for a period of five days in
the case of payment of
interest; or
(b) if the Issuer fails to perform or observe any of its other
obligations under these Conditions
and (except in any case where the failure is incapable of remedy
when no continuation or
notice as is hereinafter mentioned will be required) the failure
continues for the period of 30
days next following the service by any Noteholder on the Issuer
of notice requiring the same
to be remedied; or
(c) if: (i) any Indebtedness for Borrowed Money (as defined below)
of the Issuer or any of its
Subsidiaries becomes due and repayable prematurely by reason of
an event of default
(however described); (ii) the Issuer or any of its Subsidiaries
fails to make any payment in
respect of any Indebtedness for Borrowed Money on the due date
for payment as extended
by any originally applicable grace period; (iii) any security
given by the Issuer or any of its
Subsidiaries for any Indebtedness for Borrowed Money becomes
enforceable; (iv) default is made by the Issuer or any of its
Subsidiaries in making any payment due under any guarantee and/or
indemnity given by it in relation to any Indebtedness for
Borrowed Money of any other person; or
(d) if the Issuer or any Material Subsidiary makes an assignment
for the benefit of creditors or is
generally not paying its debts as such debts become due; or
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(e) if any decree or order for relief in respect of the Issuer or
any Material Subsidiary is entered
under any bankruptcy, reorganisation, compromise, arrangement,
insolvency, readjustment
of debt, dissolution or liquidation or similar law, whether now
or hereafter in effect (herein
called the "Bankruptcy Law") of any jurisdiction; or
(f) if the Issuer or any Material Subsidiary petitions or applies
to any tribunal for, or consents
to, the appointment of, or taking possession by, a trustee,
receiver, custodian, liquidator or
similar official of the Issuer or any Material Subsidiary, or of
any substantial part of the
assets of the Issuer or any Material Subsidiary, or commences a
voluntary case under the
Bankruptcy Law of the United States or any proceedings (other
than proceedings for the
voluntary liquidation and dissolution of a Material Subsidiary
where all the surplus assets of
such Material Subsidiary attributable to the Issuer are
transferred to the Issuer or another
Subsidiary) relating to the Issuer or any Material Subsidiary
under the Bankruptcy Law of
any other jurisdiction; or
(g) if any petition or application of the type referred to in
paragraph (f) above is filed, or any
such proceedings are commenced, against the Issuer or any
Material Subsidiary and the
Issuer or such Material Subsidiary by any act indicates its
approval thereof, consent thereto
or acquiescence therein, or an order, judgment or decree is
entered appointing such trustee,
receiver, custodian, liquidator or similar official, or approving
the petition in any such
proceedings, and such order, judgment or decree remains unstayed
and in effect for more
than 30 days; or
(h) if any order, judgment or decree is entered in any
proceedings against the Issuer or any
Material Subsidiary decreeing the dissolution of the Issuer or
any Material Subsidiary and
such order, judgment or decree remains unstayed and in effect for
more than 60 days; or
(i) if any order, judgment or decree is entered in any
proceedings against the Issuer or any
Material Subsidiary decreeing a split-up of the Issuer or such
Material Subsidiary which
requires the divestiture of assets representing a substantial
part of the consolidated assets of
the Issuer and its Subsidiaries or which requires the divestiture
of assets which shall have
contributed a substantial part of Consolidated Net Income for any
of the three fiscal years
then most recently ended, and such order, judgment or decree
remains unstayed and in effect
for more than 60 days; or
(j) if one or more final judgments in an aggregate amount in
excess of U.S.$10,000,000 is
rendered against the Issuer or any Subsidiary and, within 60 days
after entry thereof, or
within 60 days after the expiration of any stay, such judgment is
not discharged; or
(k) if any event occurs which under the laws of any relevant
jurisdiction has an analogous effect
to any of the events referred to in paragraphs (d) to (j) above;
or
(l) if the Issuer or any of its Material Subsidiaries ceases or
threatens to cease to carry on the
whole or a substantial part of its business, save (i) in the case
of a Material Subsidiary, where
the business or a substantial part of it is transferred to the
Issuer or another Subsidiary, (ii) in
the case of a solvent winding up of a Material Subsidiary where
any surplus assets
attributable to the Issuer are distributed to the Issuer or one
or more other Subsidiaries or
(iii) for the purposes of any other reorganisation on terms
approved by an Extraordinary
Resolution of Noteholders; or
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(m) if the validity of the Notes is contested by the Issuer or
the Issuer denies any of its obligations
under the Notes or the Agency Agreement or it is or will become
unlawful under English or
United States law for the Issuer to perform or comply with any of
its obligations under or in
respect of the Notes or the Agency Agreement or any of such
obligations shall be or become
unenforceable or invalid.
(2) Interpretation
For the purposes of this Condition:
"Consolidated" shall mean, as applied to any financial or
accounting term, such term determined on a consolidated basis in
accordance with accounting principles generally accepted in the
United States (except as otherwise required herein) for the
Issuer and each Subsidiary which is a Consolidated Subsidiary of
the Issuer;
"Consolidated Net Income" shall mean the net income (or net
loss) of the Issuer and its Consolidated Subsidiaries for the
period in question (taken as a whole), as determined in
accordance with generally accepted accounting principles;
provided that there shall be excluded:
(a) the net income (or net loss) of any person accrued prior to
the date it becomes a Subsidiary or
is merged into or consolidated with the person whose net income
is being determined or a
subsidiary of such person; and
(b) the net income (or net loss) of any person (other than a
Subsidiary) in which the person
whose net income is being determined or any subsidiary of such
person has an ownership
interest, except to the extent that any such income has actually
been received by such person
in the form of cash dividends or similar distributions;
"Consolidated Net Worth" shall mean, as at any date of
determination, the sum of the capital stock (less treasury
stock), additional paid-in capital plus retained earnings (or
minus accumulated deficit), other comprehensive income or loss and
unearned ESOP compensation of the Issuer and its Consolidated
Subsidiaries on a consolidated basis;
"Consolidated Subsidiary" means, in the case of the Issuer at
any date, any Subsidiary or other entity the accounts of which
are Consolidated with those of the Issuer in the Consolidated
financial statements of the Issuer as of such date;
"Indebtedness for Borrowed Money" means any indebtedness
(whether being principal, premium, interest or other amounts) for
or in respect of any notes, bonds, debentures, debenture stock,
loan stock or other securities or any borrowed money or any
liability under or in respect of any acceptance or acceptance
credit where the principal amount of such indebtedness is
U.S.$10,000,000 or more (or its equivalent in any other currency
or currencies); and
"Material Subsidiary" shall mean any Subsidiary (i) which
provided 5 per cent. or more of Consolidated Net Income during
the fiscal year of the Issuer most recently ended at any time of
determination, (ii) whose tangible assets represented 5 per cent.
or more of the tangible assets of the Issuer and its Subsidiaries
on a consolidated basis as of the last day of the fiscal year of
the Issuer most recently ended at any time of determination, or
(iii) whose net worth represented 5 per cent. or more of
Consolidated Net Worth as of the last day of the fiscal year of
the Issuer most recently ended at any time of determination;
provided that, if at any time the aggregate amount of net income,
tangible assets or net worth of all Subsidiaries incorporated or
otherwise organised in the United States that are not Material
Subsidiaries exceeds 15 per cent. of
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Consolidated Net Income for any such fiscal year, 15 per cent. of
Consolidated tangible assets of the Issuer and its Subsidiaries
as of the end of such fiscal year or 15 per cent. of Consolidated
Net Worth as of the end of any such fiscal year (as applicable),
the Issuer shall designate as "Material Subsidiaries"
Subsidiaries incorporated or otherwise organised in the United
States sufficient to eliminate such excess, and such designated
Subsidiaries incorporated in the United States shall for all
purposes of these Conditions constitute Material Subsidiaries.
10. REPLACEMENT OF NOTES AND COUPONS
Should any Note or Coupon be lost, stolen, mutilated, defaced or
destroyed it may be replaced at the specified office of the Fiscal
Agent, upon payment by the claimant of the expenses incurred in
connection with the replacement and on such terms as to evidence
and indemnity as the Issuer may reasonably require. Mutilated or
defaced Notes or Coupons must be surrendered before replacements
will be issued.
11. NOTICES
All notices to the Noteholders will be valid if published in a
leading English language daily newspaper published in London or
such other English language daily newspaper with general
circulation in Europe as the Issuer may decide. It is expected
that publication will normally be made in the Financial Times.
The Issuer shall also ensure that notices are duly published in a
manner which complies with the rules and regulations of any stock
exchange or other relevant authority on which the Notes are for
the time being quoted or listed. Any such notice will be deemed
to have been given on the date of the first publication or, where
required to be published in more than one newspaper, on the date
of the first publication in all required newspapers.
12. MEETINGS OF NOTEHOLDERS AND MODIFICATION
(1) Provisions for Meetings
The Agency Agreement contains provisions for convening meetings
of the Noteholders to consider any matter affecting their
interests, including the modification by Extraordinary Resolution
of these Conditions or the provisions of the Agency Agreement.
The quorum at any meeting for passing an Extraordinary Resolution
will be one or more persons present holding or representing more
than 50 per cent. in principal amount of the Notes for the time
being outstanding, or at any adjourned meeting one or more
persons present whatever the principal amount of the Notes held
or represented by him or them, except that at any meeting the
business of which includes the modification of certain of these
Conditions the necessary quorum for passing an Extraordinary
Resolution will be one or more persons present holding or
representing not less than two-thirds, or at any adjourned
meeting not less than one-third, of the principal amount of the
Notes for the time being outstanding. An Extraordinary Resolution
passed at any meeting of the Noteholders will be binding on all
Noteholders, whether or not they are present at the meeting, and
on all Couponholders.
(2) Modification
The Fiscal Agent may agree, without the consent of the
Noteholders or Couponholders, to any modification of any of these
Conditions or any of the provisions of the Agency Agreement
either (i) for the purpose of curing any ambiguity or of curing,
correcting or supplementing any defective provision contained
herein or therein or (ii) in any manner which is not materially
prejudicial to the interests of the Noteholders. Any modification
shall be binding on the Noteholders and the Couponholders and,
unless the Fiscal Agent agrees otherwise, any modification shall
be notified by the Issuer to the Noteholders as soon as
practicable thereafter in accordance with Condition 11.
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13. FURTHER ISSUES
The Issuer may from time to time without the consent of the
Noteholders or Couponholders create and issue further notes,
having conditions the same as those of the Notes, or the same
except for the amount of the first payment of interest, which may
be consolidated and form a single series with the outstanding
Notes.
14. GOVERNING LAW AND SUBMISSION TO JURISDICTION
(1) Governing Law
The Agency Agreement, the Notes and the Coupons are governed by,
and will be construed in
accordance with, English law.
(2) Jurisdiction of English Courts
The Issuer irrevocably agrees for the benefit of the Noteholders
and the Couponholders that the courts of England are to have
jurisdiction to settle any disputes which may arise out of or in
connection with the Notes or the Coupons and that accordingly any
suit, action or proceedings arising out of or in connection
therewith (together referred to as "Proceedings") may be
brought in the courts of England. The Issuer irrevocably and
unconditionally waives and agrees not to raise any objection
which it may have now or subsequently to the laying of the venue
of any Proceedings in the courts of England and any claim that
any Proceedings have been brought in an inconvenient forum and
further irrevocably and unconditionally agrees that a judgment in
any Proceedings brought in the courts of England shall be
conclusive and binding upon it and may be enforced in the courts
of any other jurisdiction. Nothing in this Condition shall limit
any right to take Proceedings against the Issuer in any other
court of competent jurisdiction, nor shall the taking of
Proceedings in one or more jurisdictions preclude the taking of
Proceedings in any other jurisdiction, whether concurrently or
not.
(3) Appointment of Process Agent
The Issuer hereby irrevocably and unconditionally appoints Denton
Wilde Sapte of 1 Fleet Place, London EC4M 7WS as its agent for
service of process in England in respect of any Proceedings and
undertakes that in the event of such agent ceasing so to act it
will appoint another person as its agent for that purpose.
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FISCAL AGENT
Citibank, N.A.
5 Carmelite Street
London EC4Y 0PA
and/or any other or further Fiscal Agent or Paying Agents and/or specified
offices as may from time to time be duly appointed by the Issuer and notice
of which has been given to the Noteholders.
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SCHEDULE 3
PROVISIONS FOR MEETINGS OF NOTEHOLDERS
1. As used in this schedule the following expressions shall have the
following meanings unless the context otherwise requires:
(a) "Voting Certificate" shall mean an English language certificate issued
by a Paying Agent and dated in which it is stated:
(i) that on the date of the Voting Certificate Notes (not being Notes in
respect of which a Block Voting Instruction has been issued
and is outstanding in respect of the meeting specified in the
Voting Certificate and any adjourned meeting) were deposited
with the Paying Agent or (to the satisfaction of the Paying
Agent) were held to its order or under its control and that
the Notes will not cease to be so deposited or held until the
first to occur of:
(A) the conclusion of the meeting specified in the Voting Certificate or, if
applicable, any adjourned meeting; and
(B) the surrender of the Voting Certificate to the Paying Agent who issued
the same; and
(ii) that the bearer of the Voting Certificate is entitled to attend and vote
at the meeting and any adjourned meeting in respect of the
Notes represented by the Voting Certificate;
(b) "Block Voting Instruction" shall mean an English language document
issued by a Paying Agent and dated in which:
(i) it is certified that Notes (not being Notes in respect of which a Voting
Certificate has been issued and is outstanding in respect of
the meeting specified in the Block Voting Instruction and any
adjourned meeting) have been deposited with the Paying Agent
or (to the satisfaction of the Paying Agent) were held to its
order or under its control and that the Notes will not cease
to be so deposited or held until the first to occur of:
(A) the conclusion of the meeting specified in the document or, if
applicable, any adjourned meeting; and
(B) the surrender to the Paying Agent not less than 48 hours before the time
for which the meeting or any adjourned meeting is
convened of the receipt issued by the Paying Agent in
respect of each deposited Note which is to be released or
(as the case may require) the Note ceasing with the
agreement of the Paying Agent to be held to its order or
under its control and the giving of notice by the Paying
Agent to the Issuer under paragraph 17 of the necessary
amendment to the Block Voting Instruction;
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(ii) it is certified that each holder of the Notes has instructed the Paying
Agent that the vote(s) attributable to the Notes so deposited
or held should be cast in a particular way in relation to the
resolution to be put to the meeting or any adjourned meeting
and that all the instructions are, during the period
commencing 48 hours before the time for which the meeting or
any adjourned meeting is convened and ending at the conclusion
or adjournment, neither revocable nor capable of amendment;
(iii) the total number, total principal amount and the serial numbers (if
available) of the Notes so deposited or held are listed
distinguishing, with regard to each resolution, between those
in respect of which instructions have been correctly given
that the attributable votes should be cast in favour of the
resolution and those in respect of which instructions have
been so given that the attributable votes should be cast
against the resolution; and
(iv) one or more persons named in the Block Voting Instruction (a "proxy") is
or are authorised and instructed by the Paying Agent to cast
the votes attributable to the Notes so listed in accordance
with the instructions referred to in subparagraph (iii) as set
out in the Block Voting Instruction.
The holder of any Voting Certificate or the proxies named in any Block
Voting Instruction shall for all purposes in connection with the
relevant meeting or adjourned meeting of Noteholders be deemed to be the
holder of the Notes to which the Voting Certificate or Block Voting
Instruction relates and the Paying Agent with which the Notes have been
deposited or the person holding the same to the order or under the
control of the Paying Agent shall be deemed for such purpose not to be
the holder of those Notes.
2. The Issuer may at any time and the Issuer shall upon a requisition in
writing signed by the holders of not less than one-tenth in principal
amount of the Notes for the time being outstanding convene a meeting of
the Noteholders and if the Issuer makes default for a period of seven
days in convening a meeting the same may be convened by the
requisitionists. Every meeting shall be held at such place as the Fiscal
Agent may approve.
3. At least 21 days' notice (exclusive of the day on which the notice is
given and the day on which the meeting is held) specifying the place,
day and hour of meeting shall be given to the Noteholders before any
meeting of the Noteholders in the manner provided by Condition 11. The
notice shall state generally the nature of the business to be transacted
at the meeting but (except for an Extraordinary Resolution) it shall not
be necessary to specify in the notice the terms of any resolution to be
proposed. Such notice shall include a statement to the effect that Notes
may be deposited with Paying Agents for the purpose of obtaining Voting
Certificates or appointing proxies. A copy of the notice shall be sent
by post to the Issuer.
4. Some person (who may but need not be a Noteholder) nominated in writing
by the Issuer shall be entitled to take the chair at every meeting but
if no nomination is made or if at any meeting the person nominated shall
not be present within fifteen minutes after the time appointed for
holding the meeting the Noteholders present shall choose one of their
number to be Chairman.
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5. At any meeting one or more persons present holding Notes or Voting
Certificates or being proxies and holding or representing in the
aggregate not less than one-fifth of the principal amount of the Notes
for the time being outstanding shall (except for the purpose of passing
an Extraordinary Resolution) form a quorum for the transaction of
business and no business (other than the choosing of a Chairman) shall
be transacted at any meeting unless the requisite quorum be present at
the commencement of business. The quorum at any meeting for passing an
Extraordinary Resolution shall (subject as provided below) be one or
more persons present holding Notes or Voting Certificates or being
proxies and holding or representing in the aggregate a clear majority in
principal amount of the Notes for the time being outstanding, provided
that at any meeting the business of which includes any of the following
matters (each of which shall only be capable of being effected after
having been approved by Extraordinary Resolution) namely:
(a) modification of the date fixed for final maturity of the Notes or
reduction or cancellation of the amount of principal payable;
(b) reduction or cancellation of the amount payable or modification of
the date of payment in respect of any interest;
(c) alteration of the currency in which payments under the Notes and
Coupons are to be made;
(d) alteration of the majority required to pass an Extraordinary
Resolution;
(e) the sanctioning of any scheme or proposal as is described in
paragraph 18(f);
(f) alteration of this proviso or the proviso to paragraph 6;
the quorum shall be one or more persons present holding Notes or Voting
Certificates or being proxies and holding or representing in the
aggregate not less than two-thirds of the principal amount of the Notes
for the time being outstanding.
6. If within fifteen minutes after the time appointed for any meeting a
quorum is not present the meeting shall if convened upon the requisition
of Noteholders be dissolved. In any other case it shall stand adjourned
to the same day in the next week (or if the day is a public holiday the
next succeeding business day) at the same time and place (except in the
case of a meeting at which an Extraordinary Resolution is to be proposed
in which case it shall stand adjourned for the period being not less
than 14 days nor more than 42 days, and at such place as may be
appointed by the Chairman and approved by the Fiscal Agent) and at the
adjourned meeting one or more persons present holding Notes or Voting
Certificates or being proxies (whatever the principal amount of the
Notes so held or represented by them) shall (subject as provided below)
form a quorum and shall (subject as provided below) have power to pass
any Extraordinary or other resolution and to decide upon all matters
which could properly have been dealt with at the meeting from which the
adjournment took place had the requisite
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quorum been present, provided that at any adjourned meeting the business
of which includes any of the matters specified in the proviso to
paragraph 5, the quorum shall be one or more persons present holding
Notes or Voting Certificates or being proxies and holding or
representing in the aggregate not less than one-third of the principal
amount of the Notes for the time being outstanding.
7. Notice of any adjourned meeting at which an Extraordinary Resolution is
to be submitted shall be given in the same manner as notice of an
original meeting but as if 10 were substituted for 21 in paragraph 3 and
the notice shall (except in cases where the proviso to paragraph 6 shall
apply when it shall state the relevant quorum) state that the persons
present holding Notes or Voting Certificates or being proxies at the
adjourned meeting whatever the principal amount of the Notes held or
represented by them will form a quorum. Subject as provided above it
shall not be necessary to give any notice of an adjourned meeting.
8. Every question submitted to a meeting shall be decided in the first
instance by a show of hands and in case of equality of votes the
Chairman shall both on a show of hands and on a poll have a casting vote
in addition to any votes to which he may be entitled as a Noteholder or
as a holder of a Voting Certificate or as a proxy.
9. At any meeting unless a poll is (before or on the declaration of the
result of the show of hands) demanded by the Chairman or the Issuer or
by one or more persons present holding Notes or Voting Certificates or
being proxies and holding or representing in the aggregate not less than
one-fiftieth part of the principal amount of the Notes then outstanding
a declaration by the Chairman that a resolution has been carried or
carried by a particular majority or lost or not carried by a particular
majority shall be conclusive evidence of the fact without proof of the
number or proportion of the votes recorded in favour of or against the
resolution.
10. Subject to paragraph 12, if at any meeting a poll is demanded it shall
be taken in such manner and, subject as provided below, either at once
or after an adjournment, as the Chairman may direct and the result of
the poll shall be deemed to be the resolution of the meeting at which
the poll was demanded as at the date of the taking of the poll. The
demand for a poll shall not prevent the continuance of the meeting for
the transaction of any business other than the motion on which the poll
has been demanded.
11. The Chairman may with the consent of (and shall if directed by) any
meeting adjourn the same from time to time and from place to place but
no business shall be transacted at any adjourned meeting except business
which might lawfully (but for lack of required quorum) have been
transacted at the meeting from which the adjournment took place.
12. Any poll demanded at any meeting on the election of a Chairman or on any
question of adjournment shall be taken at the meeting without
adjournment.
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13. Any director or officer of the Issuer and the lawyers and financial
advisers of either of them may attend and speak at any meeting. Save as
provided above but without prejudice to the proviso to the definition of
"outstanding" in clause 1 of the Agency Agreement no person shall be
entitled to attend and speak nor shall any person be entitled to vote at
any meeting of the Noteholders or join with others in requesting the
convening of a meeting unless he either produces the Note of which he is
the holder or a Voting Certificate or is a proxy. Neither the Issuer nor
any of its subsidiaries shall be entitled to vote at any meeting in
respect of Notes held by it for the benefit of any such company. Nothing
contained in this paragraph shall prevent any of the proxies named in
any Block Voting Instruction from being a director or officer of or
otherwise connected with the Issuer.
14. Subject as provided in paragraph 13 at any meeting:
(a) on a show of hands every person who is present in person and produces a
Note or Voting Certificate or is a proxy shall have one vote; and
(b) on a poll every person who is so present shall have one vote in respect
of each (euro)1.00 in principal amount of the Notes so produced
or represented by the Voting Certificate so produced or in respect
of which he is a proxy or in respect of which he is the Noteholder.
Without prejudice to the obligations of the proxies named in any Block
Voting Instruction any person entitled to more than one vote need not
use all his votes or cast all the votes to which he is entitled in the
same way.
15. The proxies named in any Block Voting Instruction need not be
Noteholders.
16. Each Block Voting Instruction together (if so requested by the Issuer)
with reasonable proof satisfactory to the Issuer of its due execution on
behalf of the relevant Paying Agent shall be deposited at such place as
the Fiscal Agent shall approve not less than 24 hours before the time
appointed for holding the meeting or adjourned meeting at which the
proxies named in the Block Voting Instruction propose to vote and in
default the Block Voting Instruction shall not be treated as valid
unless the Chairman of the meeting decides otherwise before the meeting
or adjourned meeting proceeds to business. A notarially certified copy
of each Block Voting Instruction shall (if so requested by the Issuer)
be deposited with the Fiscal Agent before the commencement of the
meeting or adjourned meeting but the Fiscal Agent shall not be obliged
to investigate or be concerned with the validity of or the authority of
the proxies named in any Block Voting Instruction.
17. Any vote given in accordance with the terms of a Block Voting
Instruction shall be valid notwithstanding the previous revocation or
amendment of the Block Voting Instruction or of any of the Noteholders'
instructions pursuant to which it was executed, provided that no
intimation in writing of the revocation or amendment shall have been
received from the relevant Paying Agent by the Issuer at its registered
office (or such other place as may have been approved by the Fiscal
Agent for the purpose) by the time being 24 hours before the time
appointed for holding the meeting or adjourned meeting at which the
Block Voting Instruction is to be used.
18.
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A meeting of the Noteholders shall in addition to the powers provided above
have the following powers exercisable by Extraordinary Resolution
(subject to the provisions relating to quorum contained in paragraphs 5
and 6) only namely:
(a) power to sanction any compromise or arrangement proposed to be made
between the Issuer and the Noteholders and Couponholders or any of
them;
(b) power to sanction any abrogation, modification, compromise or
arrangement in respect of the rights of the Noteholders and
Couponholders against the Issuer or against any of its property
whether the rights shall arise hereunder or otherwise;
(c) power to assent to any modification of the provisions contained in the
Conditions, the Notes or the Coupons which shall be proposed by the
Issuer or any Noteholder;
(d) power to give any authority or sanction which under the Notes or
hereunder is required to be given by Extraordinary Resolution;
(e) power to appoint any persons (whether Noteholders or not) as a committee
to represent the interests of the Noteholders and to confer upon
the committee any powers or discretions which the Noteholders could
themselves exercise by Extraordinary Resolution;
(f) power to sanction any scheme or proposal for the exchange or sale of the
Notes for or the conversion of the Notes into or the cancellation
of the Notes in consideration of shares, stock, notes, bonds,
debentures, debenture stock and/or other obligations and/or
securities of the Issuer or any other company formed or to be
formed, or for or into or in consideration of cash, or partly for
or into or in consideration of the shares, stock, notes, bonds,
debentures, debenture stock and/or other obligations and/or
securities as provided above and partly for or into or in
consideration of cash; and
(g) power to approve the substitution of any entity in place of the Issuer
(or any previous substitute) as the principal debtor in respect of
the Notes and the Coupons.
19. Any resolution passed at a meeting of the Noteholders duly convened and
held hereunder shall be binding upon all the Noteholders whether present
or not present at the meeting and whether or not voting and upon all
Couponholders and each of them shall be bound to give effect to the
resolution accordingly and the passing of any resolution shall be
conclusive evidence that the circumstances justify the passing of the
resolution. Notice of any resolution duly passed by the Noteholders
shall be published under Condition 11 by the Issuer within 14 days of
the passing of the resolution, provided that the non-publication of the
notice shall not invalidate the resolution.
20. The expression "Extraordinary Resolution" when used in this Schedule and
in the Conditions means a resolution passed at a meeting of the
Noteholders duly convened and held in accordance with the provisions
contained in this Agreement by a majority consisting of not less than
three-fourths of the persons voting thereat upon a show of hands or if a
poll shall be duly demanded then by a majority consisting of not less
than three-fourths of the votes given on the poll.
21.
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Minutes of all resolutions and proceedings at every meeting shall be made and
duly entered in books to be from time to time provided for that purpose
by the Issuer and any Minutes purporting to be signed by the Chairman of
the meeting at which the resolutions were passed or proceedings had
shall be conclusive evidence of the matters contained in the Minutes and
until the contrary is proved every meeting in respect of the proceedings
of which Minutes have been made shall be deemed to have been duly held
and convened and all resolutions passed or proceedings had to have been
duly passed or had.
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SIGNATORIES
This Agreement has been entered into on the date stated at the beginning of
this Agreement.
The Issuer
DENTSPLY INTERNATIONAL INC.
By: JOHN C. MILES II
The Fiscal Agent
CITIBANK, N.A.
By: MARNE LIDSTER
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1 To be dated no earlier than the fifteenth day before the date to which
certification relates, namely (a) the payment date or (b) the date set for
the exchange of the temporary Global Note for an interest in the permanent
Global Note or definitive Notes, as the case may be.
EXHIBIT 4.5(b)
CONFORMED COPY
Dated 11th December, 2001
DENTSPLY INTERNATIONAL INC.
Euro350,000,000 5.75 per cent. Notes due 2006
----------------------------------
SUBSCRIPTION AGREEMENT
----------------------------------
ALLEN & OVERY
London
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London, England
11th December, 2001
To: Credit Suisse First Boston (Europe) Limited
UBS AG, acting through its business group UBS Warburg
ABN AMRO Bank N.V.
First Union Securities, Inc.; and
Tokyo-Mitsubishi International plc
(the "Managers")
c/o Credit Suisse First Boston (Europe) Limited ("CSFB")
One Cabot Square
London E14 4QJ
Dear Sirs,
DENTSPLY International Inc., incorporated under the laws of the
State of Delaware (the "Issuer"), proposes to issue
Euro350,000,000 5.75 per cent. Notes due 2006 (the "Notes",
which expression shall, where the context so admits, include the
Global Notes referred to in paragraph 6 below). The Notes will be
in bearer form in the denominations of Euro1,000, Euro10,000
and Euro100,000, each with coupons attached. The terms of the
Notes are set out in the Preliminary Offering Circular and the
Offering Circular referred to below.
The Notes will be issued pursuant to and have the benefit of a
fiscal agency agreement expected to be dated 13th December, 2001
(the "Agency Agreement") between the Issuer and Citibank, N.A. as
fiscal and principal paying agent (the "Fiscal Agent").
The Issuer wishes to record the arrangements agreed between it
and the Managers for the issue and subscription of the Notes as
follows:
1. Subscription of the Notes
1.1 The Issuer agrees to issue the Notes and the Managers
jointly and severally agree with the Issuer to subscribe and
pay for the Notes on the Closing Date (as defined in
paragraph 6 below) at their issue price of 99.746 per cent.
of the principal amount of the Notes less a selling
concession of 0.20 per cent. of the principal amount of the
Notes (the "Selling Price").
1.2 The Issuer confirms that:
(a) it has prepared a preliminary offering circular dated
20th November, 2001 (the "Preliminary Offering
Circular") and an offering circular dated 11th
December, 2001 (the "Offering Circular") and authorises
the Managers to distribute copies of the Preliminary
Offering Circular and the Offering Circular in
connection with the offering and sale of the Notes; and
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(b) it approves the arrangements agreed by it with CSFB and
made on its behalf by CSFB, on behalf of the Managers,
for announcements in respect of the Notes to be
published on such dates and in such newspapers or other
publications as it may agree with CSFB and that, once
the issue price of the Notes has been made public, it
will not publish any press announcement or other public
announcement referring to the issue of the Notes
without adequately disclosing that stabilisation may
take place.
1.3 In connection with the issue and sale of the Notes each of
the Managers represents that it has observed and undertakes
that it will observe the restrictions on the offering of
Notes and distribution of documents relating to the Notes
set forth in paragraph 9 below.
1.4 CSFB (on behalf of the Managers) may, to the extent
permitted by applicable laws, over-allot and effect
transactions in any over-the-counter market or otherwise, in
connection with the distribution of the Notes, with a view
to supporting the market price of the Notes at a level
higher than that which might otherwise prevail but, in doing
so, CSFB shall act as principal and not as agent of the
Issuer and any loss resulting from over-allotment or
stabilisation shall be borne, and any profit arising
therefrom shall be beneficially retained, by CSFB. Nothing
contained in this paragraph 1.4 shall be construed so as to
require the Issuer to issue in excess of Euro350,000,000
principal amount of the Notes.
2. Representations and Warranties
2.1 The Issuer represents, warrants and agrees to and with the
Managers that:
(a) each of the Issuer and its Material Subsidiaries (as
defined in the Conditions of the Notes but on the basis
that each of Degussa Dental GmbH Co. KG and DH
Zweite Vermogensverwaltungs GmbH are Material
Subsidiaries for the purposes of this Agreement and,
for the avoidance of doubt, became members of the Group
(as defined below) on 2nd October, 2001) is a company
duly incorporated and validly existing under the laws
of its jurisdiction of incorporation, is not in
liquidation or receivership and has full power and
authority to conduct its business as described in the
Preliminary Offering Circular and the Offering Circular
and is lawfully qualified to do business in those
jurisdictions in which business is conducted by it so
as to require such qualification except where failure
to be so qualified would not have a material adverse
effect on the Issuer and its subsidiaries taken as a
whole (the "Group") and the Issuer is able lawfully to
execute and perform its obligations under the Notes,
this Agreement and the Agency Agreement;
(b) this Agreement has been duly authorised, executed and
delivered by the Issuer and constitutes, the Agency
Agreement has been duly authorised by the Issuer and on
the Closing Date will constitute, valid and legally
binding obligations of the Issuer;
(c) the issue of the Notes has been duly authorised by the
Issuer and the Notes, when duly executed,
authenticated, issued and delivered in accordance with
the Agency Agreement and this Agreement, will
constitute valid and legally binding obligations of the
Issuer;
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(d) save as referred to in this Agreement, no consent,
approval, authorisation, order, registration or
qualification of or with any court or governmental
agency or body is required for the execution and
delivery of this Agreement and the Agency Agreement by
the Issuer, and the issue and distribution of the Notes
or the consummation of the other transactions
contemplated by this Agreement, the Agency Agreement
or the Notes;
(e) the execution and delivery of this Agreement and the
Agency Agreement, the issue or distribution of the
Notes, the consummation of the transactions herein and
therein contemplated and compliance with the terms
hereof and thereof (i) do not conflict with or result
in a breach of any of the terms or provisions of, or
constitute a default under, the certificate of
incorporation or bylaws (each as amended to the date of
this Agreement) of the Issuer, or any indenture, trust
deed, mortgage or other agreement or instrument to
which the Issuer is a party or by which it or any of
its properties are bound except where such conflict,
breach or default would not reasonably be expected to
have a material adverse effect on the Group; and (ii)
do not infringe any existing applicable law, rule,
regulation, judgment, order or decree of any
government, governmental body or court, domestic or
foreign, having jurisdiction over the Issuer or
infringe the rules of any stock exchange on which
securities of the Issuer are listed;
(f) the Offering Circular contains all information required
by section 80 of the Financial Services and Markets Act
2000 (the "FSMA") and otherwise complies with the
listing rules made under section 84 of the FSMA and all
other relevant statutes and governmental regulations of
the United Kingdom;
(g) all statements of fact contained in the Preliminary
Offering Circular were at the date thereof and all
statements of fact contained in the Offering Circular
are true and accurate in all material respects and not
misleading in any material respect and all statements
of opinion, intention or expectation contained therein
were or are truly and honestly held and were or have
been made after due and careful consideration of all
relevant circumstances and were or are based on
assumptions which the Issuer believes to be reasonable,
and there is no fact or matter omitted from the
Preliminary Offering Circular or the Offering Circular
(i) the omission of which, in the context of the issue
of the Notes, made or makes any statement therein
misleading in any material respect or (ii) was or is,
in the context of the issue of the Notes, material for
disclosure therein;
(h) the consolidated financial statements of the Issuer
appearing on pages F-3 to F-49 (inclusive) in the
Preliminary Offering Circular and on pages F-3 to F-49
(inclusive) in the Offering Circular were prepared in
accordance with United States generally accepted
accounting principles consistently applied (except as
may be indicated in the notes to such financial
statements and subject as otherwise disclosed in the
Preliminary Offering Circular and the Offering
Circular) and present fairly the consolidated financial
condition of the Issuer as at the dates, and the
consolidated results of operations and cash flows of
the Issuer for the periods, in respect of which they
have been prepared (subject, in the case of interim
financial statements, to normal year end adjustments)
and, since 31st December, 2000, there has been no
change nor, so far as the Issuer is aware, any event
reasonably likely to involve a prospective change which
is or would reasonably be expected to be materially
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adverse to the financial condition, results of
operations or properties of the Issuer or the Group,
respectively, which (i) has not been disclosed in the
Preliminary Offering Circular and the Offering Circular
or (ii) is not reflected in the financial statements
and financial information appearing in the Preliminary
Offering Circular and the Offering Circular;
(i) the combined financial statements of Degussa Dental (as
defined in note 1 to such combined financial
statements) as at and for the year ended 31st December,
2000 and as at and for the six months ended 30th June,
2001 appearing on pages F-51 to F-70 inclusive) in the
Preliminary Offering Circular and on pages F-51 to F-70
inclusive) in the Offering Circular were prepared in
accordance with United States generally accepted
accounting principles consistently applied and present
fairly the financial condition of Degussa Dental as at
the dates and the results of the operations and cash
flows of Degussa Dental for the periods in respect of
which they were prepared and, since 30th June, 2001,
there has been no change nor, so far as the Issuer is
aware, any event reasonably likely to involve a
prospective change which is or would reasonably be
expected to be materially adverse to the financial
condition, results of operations or properties of
Degussa Dental, except as disclosed in the Preliminary
Offering Circular and the Offering Circular;
(j) it reasonably believes that the DENTSPLY pro forma
financial information appearing on pages F-72 to F-80
(inclusive) in the Preliminary Offering Circular and on
pages F-72 to F-80 (inclusive) in the Offering Circular
has been prepared on the basis stated therein and
accurately presents in all material respects the
information it purports to show and that such pro forma
financial information is not misleading in any material
respect;
(k) except as disclosed in the Preliminary Offering
Circular and the Offering Circular and except where the
facts giving rise to any inaccuracy in this warranty
would not reasonably be expected to have a material
adverse effect on the Group, the Issuer and its
subsidiaries (i) have good and marketable title to all
real properties and good and marketable title to all
other properties and assets owned by them, in each case
free from liens, encumbrances and defects that would
materially affect the value thereof or materially
interfere with the use made or to be made thereof by
them and (ii) hold any leased real or personal property
under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to
be made thereof by them;
(l) the Issuer and its Material Subsidiaries possess such
authorities and permits issued by appropriate
governmental agencies or bodies as may be necessary to
conduct the business now operated by them and have not
received any notice of proceedings relating to the
revocation or modification of any such authority or
permit that, if determined adversely to the Issuer or
any of its Material Subsidiaries, would have a material
adverse effect on the Group;
(m) no labour dispute with the employees of the Issuer or
any subsidiary exists or, to the knowledge of the
Issuer, is imminent that would reasonably be expected
to have a material adverse effect on the Group;
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(n) no member of the Group has (i) infringed any
trademarks, trade names and other rights to inventions,
know-how, patents, copyrights, confidential information
and other intellectual property (collectively,
"intellectual property rights") of any third party or
(ii) received any notice of infringement of or conflict
with asserted rights of others with respect to any
intellectual property rights which, in either case if
proceedings relating thereto were determined adversely,
would have a material adverse effect on the Group;
(o) except as disclosed in the Preliminary Offering
Circular and the Offering Circular, neither the Issuer
nor any of its subsidiaries is in violation of any
statute, rule, regulation, decision or order of any
governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the
protection or restoration of the environment or human
exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates
any real property contaminated with any substance that
is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating
to any environmental laws, which violation,
contamination, liability or claim would have a material
adverse effect on the Group;
(p) save as disclosed in the Preliminary Offering Circular
and in the Offering Circular, there are no pending
legal or arbitration proceedings against or affecting
the Issuer or any of its subsidiaries or any of their
properties, which would have a material adverse effect
on the condition (financial or other), prospects,
results of operations or general affairs of the Group,
or would materially and adversely affect the ability of
the Issuer to perform its obligations under the Notes,
this Agreement or the Agency Agreement, or which are
otherwise material in the context of the issue of the
Notes and, to the best of the Issuer's knowledge, no
such proceedings are threatened or contemplated;
(q) no event has occurred which, had the Notes already been
issued, would (whether or not with the giving of notice
and/or the passage of time and/or the fulfilment of any
other requirement) constitute an event described as an
"Event of Default" in the Conditions of the Notes in
the Preliminary Offering Circular and the Offering
Circular;
(r) it has been informed of the existence of the
informational guidance on stabilisation published by
the U.K. Financial Services Authority;
(s) neither the Issuer, nor any of its affiliates, nor any
person acting on its or their behalf have engaged or
will engage in any directed selling efforts (as defined
in Regulation S under the United States Securities Act
of 1933, as amended (the "Securities Act") with respect
to the Notes and it and they have complied and will
comply with the offering restrictions requirement of
such Regulation;
(t) upon issue the Notes will constitute direct,
unconditional and (subject to the Conditions of the
Notes) unsecured obligations of the Issuer and will
rank pari passu, without any preference among
themselves, with all other outstanding unsecured and
unsubordinated obligations of the Issuer, present and
future, but, in the event of insolvency only to the
extent permitted by applicable laws relating to the
creditors' rights; and
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(u) except with respect to the transactions contemplated by
this Agreement or as described in the Preliminary
Offering Circular or the Offering Circular, no action
has been taken or is contemplated by the Issuer or any
other member of the Group (and the Issuer is not aware
of any action having been taken or being contemplated
by any other person with respect to the Issuer or any
of is subsidiaries) which may result in the Issuer
being obliged, under listing requirements or other
obligations to its shareholders generally, to make any
information which may be material to a subscriber for
the Notes available to the public prior to the Closing
Date.
2.2 Indemnity
The commitment of the Managers under this Agreement being
made on the basis of the foregoing representations and
warranties and with the intention that they shall remain
true and accurate in all respects up to and including the
Closing Date, the Issuer undertakes to each Manager that if
that Manager or any of its directors, officers and/or each
person who controls any Manager for the purposes of Section
15 of the Securities Act (each a "Relevant Party" in
relation to that Manager) incurs any loss, liability, cost,
claim, action, demand or expense (including, but not limited
to, all reasonable costs, charges and expenses paid or
incurred in disputing or defending any of the foregoing) (a
"Loss") arising out of or in relation to or in connection
with any breach or alleged breach of any such representation
or warranty, or any other undertaking or obligation of the
Issuer contained in this Agreement or any untrue or
misleading (or allegedly untrue or misleading) statement in
or any omission (or alleged omission) from, the Preliminary
Offering Circular, the Offering Circular or any supplement
thereto the Issuer shall, subject as provided below, pay to
that Manager on determination and demand an amount equal to
that Loss.
Except as required by law, no Manager shall have any duty or
obligation, whether fiduciary or trustee to any Relevant
Party or otherwise, to recover any such payment or to
account to any other person for any amount paid to it under
this paragraph 2.2.
If any proceeding (including a governmental investigation)
shall be instituted involving some or all of the Managers or
any Relevant Party related to them (together, the
"Indemnified Person") in respect of which indemnity may be
sought pursuant to this paragraph 2.2, the relevant Manager
or Managers shall promptly notify the Issuer in writing and
the Issuer shall, unless the relevant Indemnified Person
elects to assume the defence itself, assume the defence
thereof and appoint lawyers reasonably satisfactory to the
relevant Indemnified Person and shall be liable to pay the
reasonable fees and expenses of such lawyers related to such
proceeding. In any proceeding, any Indemnified Person shall
have the right to retain its own lawyers, but the fees and
expenses of such lawyers shall be at the expense of such
Indemnified Person unless (i) the Issuer and the Indemnified
Person shall have mutually agreed to the retention of such
lawyers or (ii) the named parties to any such proceeding
(including any joined parties) include the Issuer and the
Indemnified Person and representation of both parties by the
same lawyers would be inappropriate due to actual or
potential differing interests between them or (iii) pursuant
to the previous sentence the Indemnified Person has elected
to assume the defence itself or the Issuer has failed to
appoint lawyers reasonably satisfactory to the Indemnified
Person. It is understood that the Issuer shall reimburse
such reasonable fees and expenses as they are incurred in
respect of (i), (ii)
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and (iii) above. The Issuer shall not be liable for any
settlement of any such proceeding effected without its
written consent (provided that such consent shall not be
unreasonably withheld or delayed), but if settled with such
consent (or without such consent in circumstances where such
consent shall have been unreasonably withheld or delayed as
aforesaid) or if there be a final judgment for the
plaintiff, the Issuer agrees to indemnify the relevant
Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. The Issuer will not
settle any proceeding without the written consent of CSFB
(such consent not to be unreasonably withheld).
3. Covenants of the Issuer
The Issuer undertakes with the Managers that:
(a) the Issuer will, on or before the Closing Date, execute
the Agency Agreement;
(b) the Issuer will pay any stamp, issue, registration,
documentary or other taxes and duties, including
interest and penalties, payable in connection with the
creation, issue, offering or sale of the Notes or the
execution or delivery of this Agreement and the Agency
Agreement (and any value added, turnover or similar tax
payable in respect of that amount (and references in
this Agreement to such amount shall be deemed to
include any such taxes so payable in addition to it))
which are or may be required to be paid under the laws
of the United States, the United Kingdom or any
political subdivision or taxing authority thereof or
therein;
(c) the Issuer will deliver to CSFB, on behalf of the
Managers, without charge, on the date hereof and
hereafter from time to time as requested, such number
of copies of the Preliminary Offering Circular and
Offering Circular as CSFB, on behalf of the Managers,
may reasonably request, and the Issuer will furnish to
CSFB, on behalf of the Managers, on the date hereof
three copies of the Offering Circular signed by a duly
authorised officer of the Issuer;
(d) if at any time prior to the later of completion (in the
view of CSFB) of the distribution of the Notes (which
shall be notified by CSFB to the Issuer) and the
Closing Date any event shall have occurred as a result
of which the Offering Circular, as then amended or
supplemented, would include an untrue statement of a
material fact or omit to state any material fact
necessary to make the statements therein, in the light
of the circumstances under which they are made when
such Offering Circular is delivered, not misleading,
the Issuer will notify CSFB, on behalf of the Managers,
and, upon request from CSFB, will prepare and furnish
without charge to the Managers as many copies as CSFB
may from time to time reasonably request of an amended
Offering Circular or a supplement to the Offering
Circular which will correct such statement or omission;
the Issuer will not make any amendment or supplement to
the Offering Circular without the prior written consent
(not to be unreasonably withheld) of CSFB, on behalf of
the Managers provided always that if the Issuer is
required to publish supplementary listing particulars,
nothing in this paragraph 3(d) should prevent it from
doing so;
(e) the Issuer will promptly notify CSFB, on behalf of the
Managers, of any material change affecting any of its
representations and/or warranties contained herein
which occurs prior to payment being made to the Issuer
on the Closing Date and will take such steps as may be
reasonably practicable and reasonably required by CSFB,
on behalf of the Managers, to remedy and/or publicise
such material change;
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(f) in connection with the application to list the Notes
referred to in paragraph 7, the Issuer will furnish
from time to time any and all documents, instruments,
information and undertakings and publish all
advertisements or other material that may be necessary
in order to effect and maintain such listing until none
of the Notes is outstanding or until such time as
payment in respect of principal and interest in respect
of all the Notes has been duly provided for, whichever
is earlier; and
(g) so long as any of the Notes remains outstanding, the
Issuer will furnish to CSFB, and to each other Manager
who may so request in writing, copies of each document
filed by the Issuer with the UKLA or the London Stock
Exchange (each as defined in paragraph 7), and copies
of financial statements and other periodic reports that
the Issuer may furnish generally to holders of its debt
securities.
4. Commissions
In consideration of the agreement by the Managers to act as
the Managers in relation to the issue of the Notes and to
subscribe and pay for the Notes, the Issuer shall pay to the
Managers a commission of 0.20 per cent. of the principal
amount of the Notes for management and underwriting. Such
commissions shall be deducted from the subscription monies
for the Notes as provided in paragraph 6.
5. Costs and Expenses
5.1 The arrangements for the payment of expenses of the issue of
the Notes have been separately agreed between the Issuer and
CSFB, on behalf of the Managers, in a side letter.
5.2 All payments by the Issuer under this Agreement shall be
paid without set-off or counterclaim, and free and clear of
and without deduction or withholding for or on account of,
any present or future taxes, levies, imposts, duties, fees,
assessments or other charges of whatever nature, imposed by
the United States, or by any department, agency or other
political subdivision or taxing authority thereof, and all
interest, penalties or similar liabilities with respect
thereto ("U.S. Taxes"). If any U.S. Taxes are required by
law to be deducted or withheld in connection with such
payments, the Issuer will increase the amount paid so that
the full amount of such payment is received by the payee as
if no such deduction or withholding had been made.
5.3 All payments in respect of the costs, fees and expenses
referred to in this paragraph shall be satisfied by the
Issuer making them to CSFB or as it may direct and the
Issuer shall not be concerned with the apportionment of such
payments between the Managers.
6. Closing
Payment of the net subscription monies for the Notes (namely
the Selling Price, less the commission in respect of the
Notes referred to in paragraph 4 and less any such amount as
may be agreed in respect of the Notes under paragraph 5.1)
shall be made by CSFB, on behalf of the Managers, by a
common depositary for Clearstream Banking, societe anonyme
("Clearstream, Luxembourg") and Euroclear Bank S.A./N.V., as
operator of the Euroclear System ("Euroclear Bank")
acknowledging that it holds the net subscription monies to
the
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account of the Issuer at 10.00 a.m. hours (London time) on
13th December, 2001 or such other time and/or date as the
Issuer and CSFB, on behalf of the Managers, shall determine
(the "Closing Date"), against delivery outside the United
States and its possessions to the common depositary of a
duly executed temporary global Note (the "Temporary Global
Note"), initially representing the Notes, and a duly
executed permanent global Note (the "Permanent Global Note",
and together with the Temporary Global Note, the "Global
Notes"), each in or substantially in the form set out in the
Agency Agreement.
7. Listing
7.1 The Issuer shall, if it has not already done so, make an
application for the Notes to be listed on the official list
(the "Official List") maintained by the UK Listing Authority
(the "UKLA") and admitted to the London Stock Exchange plc's
("London Stock Exchange") market for listed securities
(which together constitute official listing on the London
Stock Exchange). In connection with such application, the
Issuer shall endeavour to obtain the listing as promptly as
practicable and the Issuer shall furnish any and all
documents, instruments, information and undertakings that
may be necessary or advisable in order to obtain or maintain
the listing.
7.2 The Issuer undertakes that it will arrange for the
registration of the listing particulars on the date hereof
with the Registrar of Companies in accordance with Section
83 of the FSMA.
7.3 If after the preparation of the Offering Circular for
submission to the UKLA and before the commencement of
dealings in the Notes following their admission to the
Official List:
(a) there is a significant change affecting any matter
contained in the Offering Circular whose inclusion was
required by section 80 of the FSMA or by the listing
rules of the UKLA (the "Listing Rules"); or
(b) a significant new matter arises the inclusion of
information in respect of which would have been so
required if it had arisen when the Offering Circular
was prepared,
the Issuer shall give to CSFB, on behalf of the Managers,
full information about the change or matter and shall
publish supplementary listing particulars (in a form
approved by CSFB acting reasonably) as may be required by
the UKLA, and shall otherwise comply with sections 81 and 83
of the FSMA and the Listing Rules in that regard.
7.4 If the Notes cease to be listed on the London Stock
Exchange, the Issuer shall use reasonable endeavours to list
the Notes, within a reasonable period of time, on a stock
exchange to be agreed between the Issuer and CSFB, on behalf
of the Managers.
8. Conditions Precedent
8.1 The obligations of the Managers to subscribe and pay for the
Notes are subject to the following conditions precedent:
(a) the Agency Agreement shall have been executed by all
parties thereto on or prior to the Closing Date;
(b) the official listing of the Notes on the London Stock
Exchange (in accordance with paragraph 7.1) shall have
occurred on or prior to the Closing Date subject to
issue of the Notes;
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(c) upon the signing of this Agreement and on the Closing
Date, there shall have been delivered to CSFB, on
behalf of the Managers, comfort letters in the agreed
form, dated the date of this Agreement in the case of
the first letter and dated the Closing Date in the case
of the second letter, from PricewaterhouseCoopers LLP,
the auditors to the Issuer;
(d) on or prior to the Closing Date, there shall have been
delivered to CSFB, on behalf of the Managers, opinions,
in the agreed form, dated the Closing Date, of:
(i) Morgan, Lewis & Bockius LLP, legal advisers to the
Issuer as to U.S. law; and
(ii) Allen & Overy, legal advisers to the Managers as
to English law;
(e) at the Closing Date (i) the representations and
warranties of the Issuer herein shall be accurate and
correct at, and as if made on, the Closing Date; and
(ii) the Issuer shall have performed all of its
obligations hereunder to be performed on or before the
Closing Date; and (iii) there shall have been delivered
to CSFB, on behalf of the Managers, a certificate,
dated as of the Closing Date, of a duly authorised
officer of the Issuer to such effect;
(f) at the Closing Date there shall have occurred no
downgrading, nor shall any public announcement have
been made of any intended downgrading or placing on
creditwatch with negative implications in a rating
accorded to any other debt securities of the Issuer by
any rating agency; and
(g) at the Closing Date there shall not have occurred any
change in the condition (financial or other), business,
properties, prospects or results of operations of the
Issuer or the Group from the description thereof set
forth in the Offering Circular, which makes it, in the
reasonable opinion of CSFB, on behalf of the Managers,
impracticable to market the Notes on the terms and in
the manner contemplated in the Offering Circular.
8.2 If any of the conditions set forth in paragraph 8.1 is not
satisfied on or prior to the Closing Date, the parties
hereto shall be released and discharged from their
respective obligations hereunder (except for any liability
of the Issuer for the payment of costs and expenses as
provided in paragraph 5 and except for any liability of any
party arising before or in connection with such
termination). CSFB, on behalf of the Managers, may at its
discretion, however, waive compliance with the whole or any
part of paragraph 8.1.
8.3 For the purposes of paragraph 8.1 the "agreed form" means
the form initialled for identification by Allen & Overy and
Denton Wilde Sapte.
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9. Restrictions
9.1 Each Manager acknowledges that, except to the extent
indicated in this paragraph 9, no action has been taken or
will be taken in any jurisdiction by the Managers that would
permit a public offering of the Notes, or possession or
distribution of the Offering Circular (in preliminary or
final form) or any amendment or supplement thereto or any
other offering or publicity material relating to the Notes,
in any country or jurisdiction where action for that purpose
is required. Each Manager will comply with all applicable
laws and regulations in each jurisdiction in which it
acquires, purchases, offers, sells or delivers Notes or has
in its possession or distributes the Offering Circular (in
preliminary or final form) or any amendment or supplement
thereto or any other offering material, in all cases at its
own expense. The Issuer will have no responsibility for
obtaining, and each Manager will obtain, any consent,
approval or permission required by it for the acquisition,
offer, sale or delivery by it of Notes under the laws and
regulations in force in any jurisdiction to which it is
subject or in or from which it makes any acquisition, offer,
sale or delivery. No Manager is authorised to make any
representation or use any information in connection with the
issue, subscription and sale of the Notes other than as
contained in the Offering Circular (in final form) or any
amendment or supplement thereto.
9.2 Each Manager acknowledges that the Notes have not been
registered under the Securities Act and may not be offered
or sold within the United States or to, or for the account
or benefit of, U.S. persons except in accordance with
Regulation S or pursuant to an exemption from the
registration requirements of the Securities Act. Each
Manager represents and agrees that it has not offered and
sold the Notes, and will not offer and sell the Notes (i) as
part of their distribution at any time and (ii) otherwise
until 40 days after the later of the commencement of the
offering and the Closing Date, except in accordance with
Rule 903 under the Securities Act. Accordingly, neither
such Manager nor its affiliates, nor any persons acting on
its or their behalf, have engaged or will engage in any
directed selling efforts with respect to the Notes, and such
Manager, its affiliates and all persons acting on its or
their behalf have complied and will comply with the offering
restrictions requirement of Regulation S. Each Manager
agrees that, at or prior to confirmation of sale of the
Notes, such Manager will have sent to each distributor,
dealer or person receiving a selling concession, fee or
other remuneration that purchases the Notes from it during
the distribution compliance period a confirmation or notice
to substantially the following effect:
"The Securities covered hereby have not been registered
under the U.S. Securities Act of 1933 (the "Securities
Act") and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S.
persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the date of the
commencement of the offering and the Closing Date,
except in either case in accordance with Regulation S
under the Securities Act. Terms used above have the
meanings given to them by Regulation S."
Terms used in this sub-paragraph have the meanings given to
them by Regulation S.
9.3 (a) Except to the extent permitted under United States
Treas. Reg.ss.1.163-5(c)(2)(i)(D) (the "D Rules"), each
of the Managers represents and agrees that it (A) has
not offered or sold, and during the restricted period
will not offer or sell, Notes to a person who is within
the United States or its possessions or to a United
States person, and (B) has not delivered and will not
deliver within the United States or its possessions
definitive Notes that are sold during the restricted
period.
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(b) Each of the Managers represents and agrees that it has and
throughout the restricted period will have in effect
procedures reasonably designed to ensure that its
employees or agents who are directly engaged in selling
Notes are aware that such Notes may not be offered or
sold during the restricted period to a person who is
within the United States or its possessions or to a
United States person, except as permitted by the D
Rules.
(c) Each of the Managers that is a United States person
represents that it is acquiring the Notes for purposes
of resale in connection with their original issuance
and if it retains Notes for its own account, it will
only do so in accordance with the requirements of
United States Treas. Reg.ss.1.163-5(c)(2)(i)(D)(6).
(d) With respect to each affiliate of a Manager that acquires
Notes from one or more of the Managers for the purpose
of offering or selling such Notes during the restricted
period, such Manager (A) repeats and confirms the
representations and agreements contained in paragraphs
9.3(a), (b) and (c) on its behalf or (B) agrees that it
will obtain from such affiliate for the Issuer's
benefit the representations and agreements contained in
paragraphs 9.3(a), (b) and (c).
(e) Each of the Managers represents and agrees that it will
obtain from any distributor (within the meaning of
United States Treas. Reg. ss.1.163-5(c)(2)(i)(D)(ii))
that purchases any of the Notes from one or more of the
Managers (except a distributor who is an affiliate of
such Manager), for the benefit of the Issuer and such
Manager, an agreement to comply with the provisions,
representations and agreements contained in this
sub-paragraph, as if such distributor were a Manager
hereunder.
Terms used in this sub-paragraph have the meanings given to
them by the Internal Revenue Code of 1986, as amended and
regulations thereunder, including the D Rules.
9.4 Each Manager represents and agrees that:
(a) it has not offered or sold and will not offer or sell
any Notes to persons in the United Kingdom prior to
admission of the Notes to listing in accordance with
Part VI of the FSMA except to persons whose ordinary
activities involve them in acquiring, holding, managing
or disposing of investments (as principal or agent) for
the purposes of their businesses or otherwise in
circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities
Regulations 1995 (as amended) or the FSMA;
(b) it has only issued or passed on in the United Kingdom,
before the repeal of Section 57 of the Financial
Services Act 1986 (the "FSA"), any document received by
it in connection with the issue of the Notes, other
than any document which consists of or any part of
listing particulars, supplementary listing particulars
or any other document required or permitted to be
published by listing rules under Part IV of the FSA, to
a person who is of a kind described in Article 11(3) of
the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1996 (as amended) or
is a person to
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whom the document may otherwise lawfully be issued or
passed on and, after the repeal of Section 57 of the
FSA, it has only communicated or caused to be
communicated and will only communicate or cause to be
communicated an invitation or inducement to engage in
investment activity (within the meaning of Section 21
of the FSMA) received by it in circumstances in which
Section 21(1) of the FSMA does not apply to the Issuer;
and
(c) it has complied and will comply with all applicable
provisions of the FSA and, after it is brought into
force, the FSMA with respect to anything done by it in
relation to the Notes in, from or otherwise involving
the United Kingdom.
9.5 Each Manager undertakes that it will not, directly or
indirectly, offer to sell any Notes or distribute or publish
any offering circular, prospectus, form of application,
advertisement or other document or information in any
country or jurisdiction except under circumstances that
will, to the best of its knowledge and belief, result in
compliance with any applicable laws and regulations and all
offers and sales of Notes by it will be made on the same
terms.
9.6 Each Manager undertakes to the Issuer that if the Issuer or
any of its directors, officers and/or persons who control
the Issuer for the purposes of Section 15 of the Securities
Act incurs any loss, liability, cost, claim, action, demand
or expenses (including, but not limited to, all reasonable
costs, charges or expenses paid or incurred in disputing any
of the foregoing) (a "Loss") as a result of or in relation
to any failure by that Manager to observe any of the above
restrictions or requirements in this paragraph 9, such
Manager shall pay to the Issuer on demand an amount equal to
that Loss, provided that in the case of any Loss arising
from the sale of any Notes to any person believed in good
faith by that Manager, on reasonable grounds and after
making reasonable investigations, to be a person to whom the
Notes could legally be sold or to whom any material could
lawfully be given in compliance with the above restrictions
and requirements the liability of the Manager for that Loss
shall be limited to the amount of Loss that would have been
recovered had the action been one for breach of the relevant
undertaking rather than in respect of this indemnity. The
provisions of clause 2.2 with respect to the conduct and
settlement of actions shall apply, mutatis mutandis, to this
indemnity.
10. Termination
10.1 Notwithstanding anything contained herein, CSFB, on behalf
of the Managers, may, by notice to the Issuer given at any
time prior to payment of the net subscription monies for the
Notes to the Issuer, terminate this Agreement in any of the
following circumstances:
(a) if there shall have come to the notice of the Managers any
material breach of, or any event rendering untrue or
incorrect in any material respect, any of the
warranties and representations contained in paragraph 2
or any material failure to perform any of the Issuer's
undertakings or agreements in this Agreement;
(b) if any of the conditions specified in paragraph 8 has
not been satisfied or waived by the Managers; or
(c) if, in CSFB's opinion, there shall have been since the
date of this Agreement such a change in national or
international financial, political or economic
conditions or currency exchange rates or exchange
controls as would in its view be likely to prejudice
materially the success of the offering and distribution
of the Notes or dealings in the Notes in the secondary
market.
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10.2 Upon such notice being given this Agreement shall terminate
and be of no further effect and no party shall be under any
liability to any other in respect of this Agreement, except
that (i) the Issuer shall remain liable under paragraph 5.1
for the payment of the costs and expenses already therein
referred to and incurred or reasonably incurred in
consequence of such termination and (ii) the parties shall
remain liable in respect of any obligations arising before
or in connection with such termination.
11. Survival of Representations and Obligations
The representations, warranties, agreements, undertakings
and indemnities herein shall continue in full force and
effect notwithstanding completion of the arrangements for
the subscription and issue of the Notes.
12. Notices
Any notice or notification in any form to be given by the
Managers to the Issuer may be delivered in person or sent by
letter or facsimile transmission (in the case of
notification by facsimile transmission with subsequent
confirmation by letter provided, however, that the absence
of such confirmation shall not affect the validity of the
original notification) addressed to it at 570W, College
Avenue, York, Pennsylvania 17405-0872 (Attention: Brian
Addison, Secretary, facsimile: 001 717 8494753, ).
Any notice or notification to the Managers shall be
addressed to them, c/o Credit Suisse First Boston (Europe)
Limited, One Cabot Square, London E14 4QJ, England
(Attention:Debt Capital Markets, facsimile: 020 7516 3716).
Any such notice shall take effect, in the case of a letter,
at the time of delivery. In the case of facsimile
transmission at the time of receipt and in the case of a
telex on receipt of an answerback confirmation by the sender.
13. Governing Law
This Agreement shall be governed by and construed in
accordance with English law.
In relation to any legal action or proceedings arising out
of or in connection with this Agreement ("Proceedings") the
Issuer and each of the Managers irrevocably submits to the
non-exclusive jurisdiction of the courts of England and
waives any objection to Proceedings in such courts whether
on the grounds that the Proceedings have been brought in an
inconvenient forum or otherwise. This submission shall not
affect the right of any of the parties to take Proceedings
in any other court of competent jurisdiction nor shall the
taking of Proceedings in any court of competent jurisdiction
preclude any of them from taking Proceedings in any other
court of competent Jurisdiction (whether concurrently or
not).
The Issuer irrevocably appoints Denton Wilde Sapte of 1
Fleet Place, London EC4M 7WS as its authorised agent for
service of process in England. Nothing in this Agreement
shall affect the right to serve process in any other manner
permitted by law.
14. Counterparts
This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original.
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15. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement has no right
under the Contracts (Rights of Third Parties) Act 1999 to
enforce any term of this Agreement, but this does not affect
any right or remedy of a third party which exists or is
available apart from that Act.
Please confirm that this Agreement correctly sets out the
arrangements agreed between us.
Yours faithfully
DENTSPLY INTERNATIONAL INC.
By: JOHN C. MILES II
To: DENTSPLY INTERNATIONAL INC.
We confirm that the foregoing Agreement correctly sets out the
arrangements agreed between us.
Yours faithfully
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
By: ANDREA GULL
UBS AG, ACTING THOUGH ITS BUSINESS GROUP UBS WARBURG;
ABN AMRO BANK N.V.
FIRST UNION SECURITIES, INC.
TOKYO-MITSUBISHI INTERNATIONAL PLC
By: ANDREA GULL
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EXHIBIT 4.5(c)
Pages 4 through 16 of the Company's Eurobond Offering Circular
dated December 11, 2001.
CONDITIONS OF THE NOTES
The following is the text of the Conditions of the Notes
which (subject to modification) will be endorsed on each Note in
definitive form (if issued):
The e350,000,000 * per cent. Notes due 2006 (the "Notes",
which expression shall in these Conditions, unless the context
otherwise requires, include any further notes issued pursuant to
Condition 13 and forming a single series with the Notes) of
DENTSPLY International Inc. (the "Issuer") are issued subject
to and with the benefit of an Agency Agreement dated * December,
2001 (such agreement as amended and/or supplemented and/or
restated from time to time, the "Agency Agreement") made
between the Issuer, Citibank, N.A. as initial fiscal agent and
principal paying agent (the "Fiscal Agent") and the other
initial paying agents named in the Agency Agreement (together
with the Fiscal Agent, the "Paying Agents").
The statements in these Conditions include summaries of, and
are subject to, the detailed provisions of and definitions in the
Agency Agreement. Copies of the Agency Agreement are available
for inspection during normal business hours by the holders of the
Notes (the "Noteholders") and the holders of the interest
coupons appertaining to the Notes (the "Couponholders" and the
"Coupons", respectively) at the specified office of each of the
Paying Agents. The Noteholders and the Couponholders are entitled
to the benefit of, are bound by, and are deemed to have notice
of, all the provisions of the Agency Agreement applicable to
them. References in these Conditions to the Fiscal Agent and the
Paying Agents shall include any successor appointed under the
Agency Agreement.
1. FORM, DENOMINATION AND TITLE
(1) Form and Denomination
The Notes are in bearer form, serially numbered, in the
denominations of e1,000, e10,000 and
e100,000 each with Coupons attached on issue.
(2) Title
Title to the Notes and to the Coupons will pass by delivery.
(3) Holder Absolute Owner
The Issuer and any Paying Agent may (to the fullest extent
permitted by applicable laws) deem and treat the holder of any
Note or Coupon as the absolute owner for all purposes (whether or
not the Note or Coupon shall be overdue and notwithstanding any
notice of ownership or writing on the Note or Coupon or any
notice of previous loss or theft of the Note or Coupon).
2. STATUS
The Notes and the Coupons are direct, unconditional and (subject
to the provisions of Condition 3) unsecured obligations of the
Issuer and (subject as provided above) rank and will rank pari
passu, without any preference among themselves, with all other
outstanding unsecured and unsubordinated obligations of the
Issuer, present and future, but, in the event of insolvency, only
to the extent permitted by applicable laws relating to creditors'
rights.
3. NEGATIVE PLEDGE
(1) Negative Pledge
So long as any of the Notes remains outstanding, the Issuer will
not, and will procure that none of its Subsidiaries will, create
or have outstanding any mortgage, charge, lien, pledge or other
security interest (each a "Security Interest") other than a
Permitted Security Interest upon, or with respect to, any of its
present or future business, undertaking, assets or revenues
(including any uncalled capital) to secure any Relevant
Indebtedness (as defined below), unless the Issuer shall, in the
case of the creation by it of a Security Interest, before or at
the same time and, in any other case, promptly, take any and all
action necessary to ensure that:
(a) all amounts payable by it under the Notes and the Coupons are
secured by the Security
Interest equally and rateably with the Relevant Indebtedness; or
(b) such other Security Interest or other arrangement (whether or
not it includes the giving of a Security Interest) is provided as
shall be approved by an Extraordinary Resolution (which is
defined in the Agency Agreement as a resolution duly passed by a
majority of not less than three-fourths of the votes cast) of the
Noteholders.
(2) Interpretation
For the purposes of these Conditions:
(a) "Permitted Security Interest" means a Security Interest
granted by any company prior to its becoming a Subsidiary of the
Issuer provided that (i) the Security Interest shall not have
been granted in contemplation of such company becoming a
Subsidiary, (ii) the principal amount of Relevant Indebtedness
secured by such Security Interest is not increased or extended in
maturity after such company becomes a Subsidiary (other than
under arrangements entered into prior to such company becoming a
Subsidiary but not entered into in contemplation of its becoming
a Subsidiary) or in contemplation of such company becoming a
Subsidiary and (iii) the Security Interest is not extended in
scope after such company becomes a Subsidiary (other than under
arrangements entered into prior to such company becoming a
Subsidiary but not entered into in contemplation of its becoming
a Subsidiary) or in contemplation of such company becoming a
Subsidiary;
(b) "Relevant Indebtedness" means (i) any present or future
indebtedness (whether being
principal, premium, interest or other amounts) for or in respect
of any notes, bonds,
debentures, debenture stock, loan stock or other similar
securities and (ii) any guarantee or
indemnity of any such indebtedness; and
(c) "Subsidiary" means, in relation to the Issuer, a company
(i) in which the Issuer holds a
majority of the voting rights, (ii) of which the Issuer is a
member and has the right to appoint
or remove a majority of its board of directors or (iii) of which
the Issuer is a member and in
which the Issuer controls (whether or not pursuant to an
agreement with other shareholders
or members) a majority of the voting rights and includes any
company which is itself a
subsidiary (on the basis of one of the above tests) of a
subsidiary of the Issuer.
4. INTEREST
(1) Interest Rate and Interest Payment Dates
The Notes bear interest from and including December, 2001 at the
rate of per cent. per annum,
payable annually in arrear on * December (each an "Interest
Payment Date"). The first payment
(representing a full year's interest) shall be made on *
December, 2002.
(2) Interest Accrual
Each Note will cease to bear interest from and including its due
date for redemption unless, upon
due presentation, payment of the principal in respect of the Note
is improperly withheld or refused
or unless default is otherwise made in respect of payment. In
such event, interest will continue to
accrue until whichever is the earlier of:
(a) the date on which all amounts due in respect of such Note
have been paid; and
(b) five days after the date on which the full amount of the
moneys payable in respect of such
Notes has been received by the Fiscal Agent and notice to that
effect has been given to the
Noteholders in accordance with Condition 11.
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(3) Calculation of Broken Interest
When interest is required to be calculated in respect of a period
of less than a full year, it shall be calculated on the basis of
(a) the actual number of days in the period from and including
the date from which interest begins to accrue (the "Accrual
Date") to but excluding the date on which it falls due divided
by (b) the actual number of days from and including the Accrual
Date to but excluding the next following Interest Payment Date.
5. PAYMENTS
(1) Payments in respect of Notes
Payments of principal and interest in respect of each Note will
be made against presentation and surrender (or, in the case of
part payment only, endorsement) of the Note, except that payments
of interest due on an Interest Payment Date will be made against
presentation and surrender (or, in the case of part payment only,
endorsement) of the relevant Coupon, in each case at the
specified office outside the United States and its possessions of
any of the Paying Agents.
(2) Method of Payment
Payments will be made by credit or transfer to a euro account (or
any other account to which euro may be credited or transferred)
specified by the payee or, at the option of the payee, by euro
cheque. In no event will an interest payment with respect to a
Note be made by transfer to an account maintained by the payee
with a bank in the United States or its possessions or by cheque
mailed to any address in the United States or its possessions.
(3) Missing Unmatured Coupons
Each Note should be presented for payment together with all
relative unmatured Coupons, failing which the full amount of any
relative missing unmatured Coupon (or, in the case of payment not
being made in full, that proportion of the full amount of the
missing unmatured Coupon which the amount so paid bears to the
total amount due) will be deducted from the amount due for
payment. Each amount so deducted will be paid in the manner
mentioned above against presentation and surrender (or, in the
case of part payment only, endorsement) of the relative missing
Coupon at any time before the expiry of 10 years after the
Relevant Date (as defined in Condition 7) in respect of the
relevant Note (whether or not the Coupon would otherwise have
become void pursuant to Condition 8).
(4) Payments subject to Applicable Laws
Payments in respect of principal and interest on Notes are
subject in all cases to any fiscal or other laws and regulations
applicable in the place of payment, but without prejudice to the
provisions of Condition 7.
(5) Payment only on a Presentation Date
A holder shall be entitled to present a Note or Coupon for
payment only on a Presentation Date and shall not, except as
provided in Condition 4, be entitled to any further interest or
other payment if a Presentation Date is after the due date.
"Presentation Date" means a day which (subject to Condition 8):
(a) is or falls after the relevant due date;
(b) is a Business Day in the place of the specified office of the
Paying Agent at which the Note or Coupon is presented for
payment; and
(c) is a TARGET Settlement Day.
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In this Condition, "Business Day" means, in relation to any
place, a day on which commercial banks and foreign exchange
markets settle payments and are open for general business
(including dealing in foreign exchange and foreign currency
deposits) in that place and "TARGET Settlement Day" means a day
on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer (TARGET) System is open.
(6) Initial Paying Agents
The names of the initial Paying Agents and their initial
specified offices are set out at the end of these Conditions. The
Issuer reserves the right at any time to vary or terminate the
appointment of any Paying Agent and to appoint additional or
other Paying Agents provided that it will at all times maintain a
Paying Agent having its specified office in a European city
which, so long as the Notes are admitted to official listing on
the Official List of the UK Listing Authority and to trading on
theLondon Stock Exchange, shall be London or such other place as
the London Stock Exchange or any other relevant authority may
approve. In addition, if any European Union Directive on the
taxation of savings implementing the conclusions of the ECOFIN
Council meeting of 26th-27th November, 2000 or any law
implementing or complying with, or introduced in order to conform
to, such Directive is introduced, the Issuer will ensure that
there is a Paying Agent in a Member State (if any) of the
European Union that will not be obliged to withhold or deduct tax
pursuant to any such Directive or law. Notice of any termination
or appointment and of any changes in specified offices shall be
given to the Noteholders promptly by the Issuer in accordance
with Condition 11.
6. REDEMPTION AND PURCHASE
(1) Redemption at Maturity
Unless previously redeemed or purchased and cancelled as provided
below, the Issuer will redeem
the Notes at their principal amount on * December, 2006.
(2) Redemption for Taxation Reasons
If:
(a) (i) as a result of any change in, or amendment to, the laws
or regulations of the United States or any State therein, or any
change in the official interpretation of such laws or
regulations, which change or amendment becomes effective after *
December, 2001, on the next Interest Payment Date the Issuer
would be required to pay additional amounts as provided or
referred to in Condition 7 and (ii) the requirement cannot be
avoided by the Issuer taking reasonable measures available to it,
the Issuer may at its option, having given not less than 30 nor
more than 60 days' notice to the Noteholders in accordance with
Condition 11 (which notice shall be irrevocable), redeem all the
Notes, but not some only, at any time at their principal amount
together with interest accrued to but excluding the date of
redemption, provided that no notice of redemption shall be given
earlier than 90 days before the earliest date on which the Issuer
would be required to pay the additional amounts were a payment in
respect of the Notes then due. Prior to the publication of any
notice of redemption pursuant to this paragraph, the Issuer shall
deliver to the Fiscal Agent a certificate signed by two officers
of the Issuer whose names appear on a list of officers authorised
for the purpose and previously supplied to the Fiscal Agent by
the Issuer stating that the requirement referred to in (i) above
will apply on the next Interest Payment Date and cannot be
avoided by the Issuer taking reasonable measures available to it
and an opinion of independent legal advisers of recognised
standing to the effect that the Issuer has or will become obliged
to pay such additional amounts as a result of the change or
amendment; or
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(b) the Issuer determines that any payment made outside the
United States by it or any Paying Agent of principal or interest
due in respect of the Notes or Coupons would, under any present
or future laws or regulations of the United States, be subject to
any certification, documentation, information or other reporting
requirement of any kind, the effect of which requirement would be
the disclosure to the Issuer, any Paying Agent or any
governmental authority of the nationality, residence or identity
of a beneficial owner of such Note or Coupon who is a United
States Alien (as defined in Condition 7(3)) (other than such a
requirement (I) which would not be applicable to a payment made
by the Issuer or any of its Paying Agents (A) directly to the
beneficial owner or (B) to a custodian, nominee or other agent of
the beneficial owner or (ii) which can be satisfied by such
custodian, nominee or other agent certifying to the effect that
such beneficial owner is a United States Alien, provided that, in
each case referred to in (i)(B) and (ii), payment by such
custodian, nominee or agent to such beneficial owner is not
otherwise subject to any such requirement), the Issuer will, at
its election, either (x) redeem all (but not some only) of the
Notes at their principal amount together with interest accrued to
but excluding the date of redemption or (y) if and so long as the
provisions of Condition 7(2) are satisfied, pay the additional
amounts specified in such paragraph. The Issuer will publish
prompt notice of its election (the "Determination Notice"),
stating the effective date of such certification, documentation,
information or other reporting requirement, whether the Issuer
has elected to redeem the Notes or to pay such additional amounts
and (if applicable) the last date by which the redemption of the
Notes must take place. If the Issuer elects to redeem such Notes,
such redemption will take place on such date, not later than one
year after the publication of the Determination Notice, as the
Issuer may specify by notice to the Noteholders in accordance
with Condition 11 at least 30 days before the date fixed for
redemption. Notwithstanding the foregoing, the Issuer will not so
redeem the Notes if the Issuer subsequently determines, not less
than 30 days prior to the redemption date, that subsequent
payments in respect of the Notes or Coupons would not be subject
to any such certification, documentation, information or other
reporting requirement, in which case the Issuer will publish
prompt notice of such determination and any earlier redemption
notice will be revoked and of no further effect.
(3) Purchases
The Issuer or any of its Subsidiaries (as defined above) may at
any time purchase Notes (provided that all unmatured Coupons
appertaining to the Notes are purchased with the Notes) in any
manner and at any price. If purchases are made by tender, tenders
must be available to all Noteholders alike.
(4) Cancellations
All Notes which are (a) redeemed or (b) purchased by or on behalf
of the Issuer or any of its
Subsidiaries will forthwith be cancelled, together with all
relative unmatured Coupons attached to
the Notes or surrendered with the Notes, and accordingly may not
be reissued or resold.
(5) Notices Final
Upon the expiry of any notice as is referred to in paragraph (2)
above the Issuer shall be bound to
redeem the Notes to which the notice refers in accordance with
the terms of such paragraph.
7. TAXATION
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(1) Payment without Withholding
All payments in respect of the Notes and Coupons by or on behalf
of the Issuer shall be made without withholding or deduction for,
or on account of, any present or future taxes, duties,
assessments or governmental charges imposed or levied by or on
behalf of the United States or any political subdivision or any
authority thereof or therein, unless the withholding or deduction
is required by law. In that event, the Issuer will pay such
additional amounts as may be necessary in order that the net
amounts received by the Noteholders and Couponholders after the
withholding or deduction shall equal the respective amounts which
otherwise would have been receivable in respect of the Notes or,
as the case may be, Coupons in the absence of the withholding or
deduction; except that no additional amounts shall be payable in
respect of a withholding or deduction on account of any one or
more of the following:
(a) any tax, assessment or other governmental charge which would
not have been imposed but
for (i) the existence of any present or former connection between
such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of, or
possessor of a power over, such
holder, if such holder is an estate, a trust, a partnership, a
corporation or another entity, as
the case may be) and the United States or any political
subdivision or territory or possession
thereof, including, without limitation, such holder (or such
fiduciary, settlor, beneficiary,
member, shareholder or possessor of a power over) being or having
been a citizen or resident
or treated as a resident thereof or being or having been present
or engaged in trade or
business therein or having or having had a permanent
establishment therein or otherwise
having or having had some connection with the United States or
such political subdivision,
territory or possession other than the mere holding or ownership
of a Note or Coupon or (ii)
such holder's present or former status as (A) a personal holding
company, foreign personal
holding company or a controlled foreign corporation with respect
to the United States, (B) a
corporation which accumulates earnings to avoid United States
federal income tax, (C) a
private foundation or other exempt organisation or (D) a bank
receiving interest described in
section 881(C)(3)(A) of the United States Internal Revenue Code
of 1986, as amended;
(b) any tax, assessment or other governmental charge which would
not have been so imposed but
for presentation by the holder of a Note or Coupon for payment on
a date more than 15 days
after the Relevant Date;
(c) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax,
assessment or other governmental charge;
(d) any tax, assessment or other governmental charge which would
not have been imposed but
for the failure to comply with certification, documentation,
information or other reporting
requirements concerning the nationality, residence, identity or
connection with the United
States or any political subdivision thereof of the holder or
beneficial owner of such Note or
Coupon, if, without regard to any tax treaty, such compliance is
required by a statute or by
regulation or administrative practice of the United States as a
precondition to relief or
exemption from such tax, assessment or other governmental charge;
(e) any tax, assessment or other governmental charge which is (i)
payable otherwise than by
deduction or withholding from payments on such Note or Coupon or
(ii) required to be
withheld by a Paying Agent from any such payment, if such payment
can be made without
such withholding by any other Paying Agent outside the United
States;
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(f) any tax, assessment or other governmental charge imposed on a
person holding, actually or
constructively, 10 per cent. or more of a total combined voting
power of all classes of stock of
the Issuer or that is a controlled foreign corporation related to
the Issuer through stock
ownership;
(g) a withholding or deduction imposed on a payment to an
individual and required to be made
pursuant to any European Union Directive on the taxation of
savings implementing the
conclusions of the ECOFIN Council meeting of 26th-27th November,
2000 or any law
implementing or complying with, or introduced in order to conform
to, such Directive; or
(h) a withholding or deduction which would not have been made had
the relevant Note or
Coupon been presented to a Paying Agent in another Member State
of the European Union;
nor will Additional Amounts be paid with respect to a payment on
a Note or Coupon to any person which is a fiduciary or partnership
or other than the sole beneficial owner of such Note or Coupon to
the extent a beneficiary or settlor with respect to such fiduciary
or a member of such partnership or a beneficial owner would not
have been entitled to the additional amounts had such beneficiary,
settlor, member or beneficial owner been the holder of such Note
or Coupon.
(2) Backup Withholding
If and so long as the certification, documentation, information or
other reporting requirements referred to in Condition 6(2)(b)
would be fully satisfied by payment of a backup withholding tax or
similar charge, the Issuer may elect, by so stating in the
Determination Notice, to have the provisions of this Condition
7(2) apply in lieu of the provisions of Condition 6(2)(b). In
such event, the Issuer will pay as additional interest such
amounts as may be necessary so that any net payment made
following the effective date of such requirements outside the
United States by the Issuer or any of its Paying Agents of
principal or interest due in respect of the Notes or Coupons of
which the beneficial owner is a United States Alien (but without
any requirement that the nationality, residence or identity,
other than status as a United States Alien, of such beneficial
owner be disclosed to the Issuer, any Paying Agent or any
governmental authority), after deduction or withholding for or on
account of such backup withholding tax or similar charge (other
than a backup withholding tax or similar charge which (a) is the
result of certification, documentation, information or other
reporting requirements described in the second parenthetical
clause of the first sentence of Condition 6(2)(b), (b) is imposed
as a result of the fact that the Issuer or any of the Paying
Agents has actual knowledge that the beneficial owner of such Note
or Coupon is within the category of persons described in
subparagraph (a) of Condition 7(1), or (c) is imposed as a result
of presentation of such Note or Coupon for payment more than 15
days after the Relevant Date), will not be less than the amount
provided for in the Notes or Coupons to be then due and payable.
If the Issuer elects to pay additional amounts pursuant to this
Condition 7(2), the Issuer shall have the right to redeem all
(but not some only) of the Notes subject to the provisions of
Condition 6(2)(b).
(3) Interpretation
In these Conditions:
(a) "Relevant Date" means the date on which the payment first
becomes due but, if the full
amount of the money payable has not been received by the Fiscal
Agent on or before the due
date, it means the date on which, the full amount of the money
having been so received,
notice to that effect shall have been duly given to the
Noteholders by the Issuer in accordance
with Condition 11;
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(b) "United States Alien" means any person who, for United
States federal income tax purposes,
is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a
foreign estate or trust, or a foreign partnership or other entity
one or more of the members of
which is, for United States federal income tax purposes, a
foreign corporation, a non-resident
alien individual or a non-resident alien fiduciary of a foreign
estate or trust; and
(c) "United States" means the United States of America or any
political subdivision or any
authority thereof or therein having power to tax or any other
jurisdiction or any political
subdivision or any authority thereof or therein having power to
tax to which the Issuer
becomes subject in respect of payments made by it of principal
and interest on the Notes and
Coupons.
(4) Additional Amounts
Any reference in these Conditions to any amounts in respect of
the Notes shall be deemed also to refer to any additional amounts
which may be payable under this Condition.
8. PRESCRIPTION
Notes and Coupons will become void unless presented for payment
within periods of 10 years (in the case of principal) and five
years (in the case of interest) from the Relevant Date in respect
of the Notes or, as the case may be, the Coupons, subject to the
provisions of Condition 5.
9. EVENTS OF DEFAULT
(1) Events of Default
The holder of any Note may give notice to the Issuer that the
Note is, and it shall accordingly
forthwith become, immediately due and repayable at its principal
amount, together with interest
accrued to the date of repayment, if any of the following events
("Events of Default") shall have
occurred and be continuing:
(a) if default is made in the payment of any principal or
interest due in respect of the Notes or
any of them and the default continues for a period of five days in
the case of payment of
interest; or
(b) if the Issuer fails to perform or observe any of its other
obligations under these Conditions
and (except in any case where the failure is incapable of remedy
when no continuation or
notice as is hereinafter mentioned will be required) the failure
continues for the period of 30
days next following the service by any Noteholder on the Issuer
of notice requiring the same
to be remedied; or
(c) if: (i) any Indebtedness for Borrowed Money (as defined below)
of the Issuer or any of its
Subsidiaries becomes due and repayable prematurely by reason of
an event of default
(however described); (ii) the Issuer or any of its Subsidiaries
fails to make any payment in
respect of any Indebtedness for Borrowed Money on the due date
for payment as extended
by any originally applicable grace period; (iii) any security
given by the Issuer or any of its
Subsidiaries for any Indebtedness for Borrowed Money becomes
enforceable; (iv) default is made by the Issuer or any of its
Subsidiaries in making any payment due under any guarantee and/or
indemnity given by it in relation to any Indebtedness for
Borrowed Money of any other person; or
(d) if the Issuer or any Material Subsidiary makes an assignment
for the benefit of creditors or is
generally not paying its debts as such debts become due; or
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(e) if any decree or order for relief in respect of the Issuer or
any Material Subsidiary is entered
under any bankruptcy, reorganisation, compromise, arrangement,
insolvency, readjustment
of debt, dissolution or liquidation or similar law, whether now
or hereafter in effect (herein
called the "Bankruptcy Law") of any jurisdiction; or
(f) if the Issuer or any Material Subsidiary petitions or applies
to any tribunal for, or consents
to, the appointment of, or taking possession by, a trustee,
receiver, custodian, liquidator or
similar official of the Issuer or any Material Subsidiary, or of
any substantial part of the
assets of the Issuer or any Material Subsidiary, or commences a
voluntary case under the
Bankruptcy Law of the United States or any proceedings (other
than proceedings for the
voluntary liquidation and dissolution of a Material Subsidiary
where all the surplus assets of
such Material Subsidiary attributable to the Issuer are
transferred to the Issuer or another
Subsidiary) relating to the Issuer or any Material Subsidiary
under the Bankruptcy Law of
any other jurisdiction; or
(g) if any petition or application of the type referred to in
paragraph (f) above is filed, or any
such proceedings are commenced, against the Issuer or any
Material Subsidiary and the
Issuer or such Material Subsidiary by any act indicates its
approval thereof, consent thereto
or acquiescence therein, or an order, judgment or decree is
entered appointing such trustee,
receiver, custodian, liquidator or similar official, or approving
the petition in any such
proceedings, and such order, judgment or decree remains unstayed
and in effect for more
than 30 days; or
(h) if any order, judgment or decree is entered in any
proceedings against the Issuer or any
Material Subsidiary decreeing the dissolution of the Issuer or
any Material Subsidiary and
such order, judgment or decree remains unstayed and in effect for
more than 60 days; or
(i) if any order, judgment or decree is entered in any
proceedings against the Issuer or any
Material Subsidiary decreeing a split-up of the Issuer or such
Material Subsidiary which
requires the divestiture of assets representing a substantial
part of the consolidated assets of
the Issuer and its Subsidiaries or which requires the divestiture
of assets which shall have
contributed a substantial part of Consolidated Net Income for any
of the three fiscal years
then most recently ended, and such order, judgment or decree
remains unstayed and in effect
for more than 60 days; or
(j) if one or more final judgments in an aggregate amount in
excess of U.S.$10,000,000 is
rendered against the Issuer or any Subsidiary and, within 60 days
after entry thereof, or
within 60 days after the expiration of any stay, such judgment is
not discharged; or
(k) if any event occurs which under the laws of any relevant
jurisdiction has an analogous effect
to any of the events referred to in paragraphs (d) to (j) above;
or
(l) if the Issuer or any of its Material Subsidiaries ceases or
threatens to cease to carry on the
whole or a substantial part of its business, save (i) in the case
of a Material Subsidiary, where
the business or a substantial part of it is transferred to the
Issuer or another Subsidiary, (ii) in
the case of a solvent winding up of a Material Subsidiary where
any surplus assets
attributable to the Issuer are distributed to the Issuer or one
or more other Subsidiaries or
(iii) for the purposes of any other reorganisation on terms
approved by an Extraordinary
Resolution of Noteholders; or
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(m) if the validity of the Notes is contested by the Issuer or
the Issuer denies any of its obligations
under the Notes or the Agency Agreement or it is or will become
unlawful under English or
United States law for the Issuer to perform or comply with any of
its obligations under or in
respect of the Notes or the Agency Agreement or any of such
obligations shall be or become
unenforceable or invalid.
(2) Interpretation
For the purposes of this Condition:
"Consolidated" shall mean, as applied to any financial or
accounting term, such term determined on a consolidated basis in
accordance with accounting principles generally accepted in the
United States (except as otherwise required herein) for the
Issuer and each Subsidiary which is a Consolidated Subsidiary of
the Issuer;
"Consolidated Net Income" shall mean the net income (or net
loss) of the Issuer and its Consolidated Subsidiaries for the
period in question (taken as a whole), as determined in
accordance with generally accepted accounting principles;
provided that there shall be excluded:
(a) the net income (or net loss) of any person accrued prior to
the date it becomes a Subsidiary or
is merged into or consolidated with the person whose net income
is being determined or a
subsidiary of such person; and
(b) the net income (or net loss) of any person (other than a
Subsidiary) in which the person
whose net income is being determined or any subsidiary of such
person has an ownership
interest, except to the extent that any such income has actually
been received by such person
in the form of cash dividends or similar distributions;
"Consolidated Net Worth" shall mean, as at any date of
determination, the sum of the capital stock (less treasury
stock), additional paid-in capital plus retained earnings (or
minus accumulated deficit), other comprehensive income or loss and
unearned ESOP compensation of the Issuer and its Consolidated
Subsidiaries on a consolidated basis;
"Consolidated Subsidiary" means, in the case of the Issuer at
any date, any Subsidiary or other entity the accounts of which
are Consolidated with those of the Issuer in the Consolidated
financial statements of the Issuer as of such date;
"Indebtedness for Borrowed Money" means any indebtedness
(whether being principal, premium, interest or other amounts) for
or in respect of any notes, bonds, debentures, debenture stock,
loan stock or other securities or any borrowed money or any
liability under or in respect of any acceptance or acceptance
credit where the principal amount of such indebtedness is
U.S.$10,000,000 or more (or its equivalent in any other currency
or currencies); and
"Material Subsidiary" shall mean any Subsidiary (i) which
provided 5 per cent. or more of Consolidated Net Income during
the fiscal year of the Issuer most recently ended at any time of
determination, (ii) whose tangible assets represented 5 per cent.
or more of the tangible assets of the Issuer and its Subsidiaries
on a consolidated basis as of the last day of the fiscal year of
the Issuer most recently ended at any time of determination, or
(iii) whose net worth represented 5 per cent. or more of
Consolidated Net Worth as of the last day of the fiscal year of
the Issuer most recently ended at any time of determination;
provided that, if at any time the aggregate amount of net income,
tangible assets or net worth of all Subsidiaries incorporated or
otherwise organised in the United States that are not Material
Subsidiaries exceeds 15 per cent. of
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Consolidated Net Income for any such fiscal year, 15 per cent. of
Consolidated tangible assets of the Issuer and its Subsidiaries
as of the end of such fiscal year or 15 per cent. of Consolidated
Net Worth as of the end of any such fiscal year (as applicable),
the Issuer shall designate as "Material Subsidiaries"
Subsidiaries incorporated or otherwise organised in the United
States sufficient to eliminate such excess, and such designated
Subsidiaries incorporated in the United States shall for all
purposes of these Conditions constitute Material Subsidiaries.
10. REPLACEMENT OF NOTES AND COUPONS
Should any Note or Coupon be lost, stolen, mutilated, defaced or
destroyed it may be replaced at the specified office of the Fiscal
Agent, upon payment by the claimant of the expenses incurred in
connection with the replacement and on such terms as to evidence
and indemnity as the Issuer may reasonably require. Mutilated or
defaced Notes or Coupons must be surrendered before replacements
will be issued.
11. NOTICES
All notices to the Noteholders will be valid if published in a
leading English language daily newspaper published in London or
such other English language daily newspaper with general
circulation in Europe as the Issuer may decide. It is expected
that publication will normally be made in the Financial Times.
The Issuer shall also ensure that notices are duly published in a
manner which complies with the rules and regulations of any stock
exchange or other relevant authority on which the Notes are for
the time being quoted or listed. Any such notice will be deemed
to have been given on the date of the first publication or, where
required to be published in more than one newspaper, on the date
of the first publication in all required newspapers.
12. MEETINGS OF NOTEHOLDERS AND MODIFICATION
(1) Provisions for Meetings
The Agency Agreement contains provisions for convening meetings
of the Noteholders to consider any matter affecting their
interests, including the modification by Extraordinary Resolution
of these Conditions or the provisions of the Agency Agreement.
The quorum at any meeting for passing an Extraordinary Resolution
will be one or more persons present holding or representing more
than 50 per cent. in principal amount of the Notes for the time
being outstanding, or at any adjourned meeting one or more
persons present whatever the principal amount of the Notes held
or represented by him or them, except that at any meeting the
business of which includes the modification of certain of these
Conditions the necessary quorum for passing an Extraordinary
Resolution will be one or more persons present holding or
representing not less than two-thirds, or at any adjourned
meeting not less than one-third, of the principal amount of the
Notes for the time being outstanding. An Extraordinary Resolution
passed at any meeting of the Noteholders will be binding on all
Noteholders, whether or not they are present at the meeting, and
on all Couponholders.
(2) Modification
The Fiscal Agent may agree, without the consent of the
Noteholders or Couponholders, to any modification of any of these
Conditions or any of the provisions of the Agency Agreement
either (i) for the purpose of curing any ambiguity or of curing,
correcting or supplementing any defective provision contained
herein or therein or (ii) in any manner which is not materially
prejudicial to the interests of the Noteholders. Any modification
shall be binding on the Noteholders and the Couponholders and,
unless the Fiscal Agent agrees otherwise, any modification shall
be notified by the Issuer to the Noteholders as soon as
practicable thereafter in accordance with Condition 11.
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13. FURTHER ISSUES
The Issuer may from time to time without the consent of the
Noteholders or Couponholders create and issue further notes,
having conditions the same as those of the Notes, or the same
except for the amount of the first payment of interest, which may
be consolidated and form a single series with the outstanding
Notes.
14. GOVERNING LAW AND SUBMISSION TO JURISDICTION
(1) Governing Law
The Agency Agreement, the Notes and the Coupons are governed by,
and will be construed in
accordance with, English law.
(2) Jurisdiction of English Courts
The Issuer irrevocably agrees for the benefit of the Noteholders
and the Couponholders that the courts of England are to have
jurisdiction to settle any disputes which may arise out of or in
connection with the Notes or the Coupons and that accordingly any
suit, action or proceedings arising out of or in connection
therewith (together referred to as "Proceedings") may be
brought in the courts of England. The Issuer irrevocably and
unconditionally waives and agrees not to raise any objection
which it may have now or subsequently to the laying of the venue
of any Proceedings in the courts of England and any claim that
any Proceedings have been brought in an inconvenient forum and
further irrevocably and unconditionally agrees that a judgment in
any Proceedings brought in the courts of England shall be
conclusive and binding upon it and may be enforced in the courts
of any other jurisdiction. Nothing in this Condition shall limit
any right to take Proceedings against the Issuer in any other
court of competent jurisdiction, nor shall the taking of
Proceedings in one or more jurisdictions preclude the taking of
Proceedings in any other jurisdiction, whether concurrently or
not.
(3) Appointment of Process Agent
The Issuer hereby irrevocably and unconditionally appoints Denton
Wilde Sapte of 1 Fleet Place, London EC4M 7WS as its agent for
service of process in England in respect of any Proceedings and
undertakes that in the event of such agent ceasing so to act it
will appoint another person as its agent for that purpose.
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SUMMARY OF PROVISIONS RELATING TO THE NOTES WHILE REPRESENTED
BY THE GLOBAL NOTES
The following is a summary of the provisions to be contained in
the Global Notes which will
apply to, and in some cases modify, the Conditions of the Notes
while the Notes are represented by the
Global Notes.
1. Exchange
The Permanent Global Note will be exchangeable in whole but not
in part (free of charge to
the holder) for definitive Notes only if:
(a) an event of default (as set out in Condition 9) has occurred
and is continuing; or
(b) both Euroclear Bank and Clearstream, Luxembourg are closed
for business for a continuous
period of 14 days (other than by reason of holiday, statutory or
otherwise) or announce an
intention permanently to cease business or do in fact do so and
no successor clearing system
is available; or
(c) the Issuer has or will become subject to adverse tax
consequences which would not be
suffered were the Notes in definitive form; or
(d) the Issuer receives a notice from or on behalf of one or more
Accountholders (as defined
below) requiring such exchange.
The Issuer will promptly give notice to Noteholders if an
Exchange Event occurs. In the case of (a), (b) or (d) above, the
holder of the Permanent Global Note, acting on the instructions
of one or more of the Accountholders, may give notice to the
Issuer and the Fiscal Agent and, in the case of (c) above, the
Issuer may give notice to the Fiscal Agent and the Noteholders of
its intention to exchange the Permanent Global Note for definitive
Notes on or after the Exchange Date (as defined below).
On or after the Exchange Date the holder of the Permanent Global
Note may or, in the case of (c) above, shall surrender the
Permanent Global Note to or to the order of the Fiscal Agent. In
exchange for the Permanent Global Note the Issuer will deliver,
or procure the delivery of, an equal aggregate principal amount
of definitive Notes (having attached to them all Coupons in
respect of interest which has not already been paid on the
Permanent Global Note), security printed in accordance with any
applicable legal and stock exchange requirements and in or
substantially in the form set out in the Agency Agreement. On
exchange of the Permanent Global Note, the Issuer will procure
that it is cancelled and, if the holder so requests, returned to
the holder together with any relevant definitive Notes.
"Exchange Date" means a day specified in the notice requiring
exchange falling not less than 60 days after that on which such
notice is given, being a day on which banks are open for business
in the place in which the specified office of the Fiscal Agent is
located and, except in the case of exchange pursuant to (b)
above, in the place in which the relevant clearing system is
located.
2. Payments
On and after * January, 2002, no payment will be made on the
Temporary Global Note unless exchange for an interest in the
Permanent Global Note is improperly withheld or refused. Payments
of principal and interest in respect of Notes represented by a
Global Note will, subject as set out below, be made against
presentation for endorsement and, if no further payment falls to
be made in respect of the Notes, surrender of the relevant Global
Note to the order of the Fiscal Agent or such other Paying Agent
as shall have been noti(R)ed to the Noteholders for the purpose. A
record of each payment made will be endorsed on the appropriate
part of the schedule to the relevant Global Note by or on behalf
of the Fiscal Agent, which endorsement shall be prima facie
evidence that payment has been made in respect of the Notes.
Payments of interest on the Temporary Global Note (if permitted
by the first sentence of this paragraph) will be made only upon
certification as to non-U.S. beneficial ownership unless such
certification has already been made.
3. Notices
For so long as all of the Notes are represented by one or both of
the Global Notes representing the Notes and such Global Note(s)
is/are held on behalf of Euroclear Bank and/or Clearstream,
Luxembourg, notices to holders of the Notes may be given by
delivery of the relevant notice to Euroclear Bank and/or
Clearstream, Luxembourg (as the case may be) for communication to
the relevant Accountholders rather than by publication as
required by Condition 11, provided that, so long as the Notes are
admitted to official listing on the London Stock Exchange, the
London Stock Exchange and any other relevant authority so agrees.
Any such notice shall be deemed to have been given to the holders
of the Notes on the seventh day after the day on which such
notice is delivered to Euroclear Bank and/or Clearstream,
Luxembourg (as the case may be) as aforesaid.
4. Accountholders
For so long as all of the Notes are represented by one or both of
the Global Notes representing the Notes and such Global Note(s)
is/are held on behalf of Euroclear Bank and/or Clearstream,
Luxembourg, each person who is for the time being shown in the
records of Euroclear Bank or Clearstream, Luxembourg as the
holder of a particular principal amount of the Notes (each an
"Accountholder") (in which regard any certificate or other
document issued by Euroclear Bank or Clearstream, Luxembourg as
to the principal amount of the Notes standing to the account of
any person shall be conclusive and binding for all purposes)
shall be treated as the holder of such principal amount of the
Notes for all purposes (including for the purposes of any quorum
requirements of, or the right to demand a poll at, meetings of
the Noteholders) other than with respect to the payment of
principal and interest on the Notes, the right to which shall be
vested, as against the Issuer, solely in the bearer of the
relevant Global Note in accordance with and subject to its terms.
Each Accountholder must look solely to Euroclear Bank or
Clearstream, Luxembourg, as the case may be, for its share of
each payment made to the bearer of the relevant Global Note.
5. Prescription
Claims against the Issuer in respect of principal and interest on
the Notes represented by a Global Note will be prescribed after
10 years (in the case of principal) and five years (in the case of
interest) from the Relevant Date (as defined in Condition 7).
6. Cancellation
Cancellation of any Note represented by a Global Note and
required by the Conditions of the Notes to be cancelled following
its redemption or purchase will be effected by endorsement by or
on behalf of the Fiscal Agent of the reduction in the principal
amount of the relevant Global Note on the relevant part of the
schedule thereto.
7. Euroclear Bank and Clearstream, Luxembourg
References in the Global Notes and in the Conditions to Euroclear
Bank and/or Clearstream, Luxembourg shall be deemed to include
references to any other clearing system through which interests
in the Notes are held.
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EXHIBIT 10.15
EMPLOYMENT AGREEMENT
BETWEEN
DENTSPLY INTERNATIONAL INC.
AND
RUDOLF LEHNER
THIS AGREEMENT is entered into effective as of October 1,
2001, by and between DENTSPLY International Inc., a
Delaware USA corporation ("the Company") and Rudolf Lehner,
("Employee").
WHEREAS, Employee currently is a Managing Director and holds the
title of Chief Operating Officer for Degussa Dental GmbH & Co. KG
("DD") under a service contract dated July 4, 2000 (the "Service
Contract");
WHEREAS, Dentsply, through its indirect wholly owned subsidiary,
Dentsply Hanau KG ("Dentsply Hanau"), is acquiring DD;
WHEREAS, Dentsply and Employee desire to enter an agreement for
the employment of Employee, in connection with the business of
Dentsply Hanau, to replace all prior Service Contracts; and
WHEREAS, it is in the best interest of the Company and Employee
that the terms and conditions of Employee's services be formally
set forth.
NOW THEREFORE, in consideration of the mutual covenants herein,
the parties agree as follows:
1. Services
1.1 The Service Contract between Employee and DD is terminated
as of the effective date of this Agreement.
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1.2 The Employee shall be employed by Dentsply and Employee
accepts such employment and agrees to serve the Chief
Operating Officer of Dentsply Hanau until July 2, 2002
and, thereafter, as a Senior Vice President of the
Company, responsible for the operations of Dentsply
Hanau, effective as of the date stated above, and, if
elected thereto, as an officer or director of any
Affiliate, for the term and on the conditions herein set
forth. Employee shall be responsible for the activities
and duties presently associated with this position.
Employee shall perform such other services not
inconsistent with his position as shall from time to time
be assigned to him by the Board of Directors, the Chief
Executive Officer or the President of the Company.
Employee's services shall be performed at a location
suitable for the performance of the Employee's assigned
duties.
1.3 Employee shall at all times devote his full business time
and efforts to the performance of his duties and to
promote the best interests of the Company and its
Affiliates.
2. Period of Employment. Employment of the Employee hereunder
shall begin and continue from the effective date set forth above
and terminate on the happening of any of the following events:
2.1 Death The date of death of Employee;
2.2 Termination by Employee Without Good Reason The date
specified in a written notice of termination given to
the Company by Employee not less than one hundred
eighty (180) days in advance of such specified date, at
which date the Employee's obligation to perform
services pursuant to this Agreement shall cease.
2.3 Termination by Employee with Good Reason Thirty (30) days
following the date of a written notice of termination
given to the Company by Employee within thirty (30)
days after any one or more of the following events have
occurred:
(a) failure by the Company to maintain the duties, status and
responsibilities of the Employee at a level
substantially no less than those of Employee's
position as of the date of the Agreement, or
(b) a reduction by the Company in Employee's base salary as in
effect as of the date hereof plus all increases
therein subsequent thereto; other than any
reduction implemented as part of a formal
austerity program approved by the Board of
Directors of Dentsply and applicable to all
continuing employees of the Company, provided such
reduction does not reduce Employee's salary by a
percentage greater than the average reduction in
the compensation of all employees who continue as
employees of the Company during such austerity
program; or
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(c) the failure of the Company to maintain and to continue
Employee's participation in the benefit plans of
the Company or Dentsply Hanau, as applicable, in
accordance with the provisions of such plans, as
in effect from time to time on a basis
substantially equivalent to the participation and
benefits of Company employees similarly situated
to the Employee; or
(d) any substantial and uncorrected breach of the Agreement by
the Company.
2.4 Termination by the Company Upon written notice of
termination given to Employee by the Company not less than one
hundred eighty (180) days in advance of the date of termination,
the Employee's obligation to perform services pursuant to this
Agreement shall cease as of the date of termination stated in
such notice. The Company may release the Employee from the
performance of services after the provision of notice of
termination.
3. Payments to Employee
3.1 During the Period of Employment, the Employee shall be paid
for all services to be performed by Employee hereunder,
a salary of not less than 262,824 Euro per annum during
2001 and 295,677 Euro per annum beginning in 2002, or
such larger amount as may from time to time be fixed by
the Board of Directors of the Company or, if
applicable, by the Human Resources (or successor )
Committee of the Board, payable in accordance with the
normal pay schedule for Dentsply Hanau, or other
Affiliate where Employee may be working.
3.2 During the Period of Employment, Employee shall be entitled
to participate in all plans and other benefits made
available by the Company generally to its German
operations executive employees, provided that Employee
will be paid a bonus amount by the Company so that
Employee's total bonus in 2001 paid by DD and the
Company is no less than 109,510 Euro. Any payments to
be made to Employee under other provisions of this
Section 3 shall not be diminished by any payments made
or to be made to Employee or his designees pursuant to
any such plan, nor shall any payments to be made to
Employee or his designees pursuant to any such plan be
diminished by any payment made or to be made to
Employee under other provisions of this Section 3.
3.3 Upon termination of the Period of Employment for whatever
reason, Employee shall be entitled to receive the
compensation accrued and unpaid as of the date of his
termination. If Employee at the time of termination is
eligible to participate in any Company incentive or
bonus plan then in effect, Employee shall be entitled
to receive a pro-rata share of such incentive or bonus
award based upon the number of days he is employed
during the plan year up to the date of his
termination. Such pro-rata amount shall be calculated
in the usual way and paid at the usual time.
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3.4 If the Period of Employment terminates upon the death of
Employee, the Company shall continue payment of his
then current salary for a period of 12 months from the
date of death, together with his pro-rata share of any
incentive or bonus payments due for the period prior to
his death, to Employee's designated beneficiary or, if
no beneficiary has been effectively designated, then to
Employee's estate.
3.5 If the Period of Employment is terminated by the Employee
under Section 2.3, or by the Company under Section 2.4,
the Company shall continue to pay compensation and
provide benefits to the employee as provided in this
Section 3.5 for a period (the "Termination Period")
beginning on the date of termination and ending on the
earlier of: (i) the second annual anniversary of the
date that the Company provided notice to the Employee
under Section 2.4; or (ii) the date on which the
Employee would attain age 65, as follows:
(a) Compensation shall be paid to the Employee at the rate of
salary being paid to Employee under Section 3.1
immediately before the date of notice of
termination.
(b) Bonus and incentive compensation shall be paid to the
Employee in accordance with plans approved by the
Board of Directors and similar to which the
Employee participated at the date of notice of
termination, using the same formula and
calculations under any such plan as if termination
had not occurred. The Employee shall not be
entitled to receive any further grants of stock
options under any stock option or similar such
plan subsequent to the date of termination but
outstanding stock options shall continue to vest
during the Termination Period in accordance with
the applicable stock option plan.
(c) Employee shall receive the benefits that would have been
accrued by the Employee during the Termination
Period from participation by the Employee under
any pension, profit sharing, employee stock
ownership plan ("ESOP") or similar retirement plan
or plans of the Company or any Affiliate in which
the Employee participated immediately before the
date of notice of termination, in accordance with
the terms of any such plan (or, if not available,
in lieu thereof be compensated for such benefits),
based on service the Employee would have had
during the Termination Period and compensation
(and, if applicable, bonus and incentive
compensation)as determined under Section (a) (and,
if applicable, Subsection (b) above);
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(d) Employee shall receive continued coverage during the
Termination Period under all employee disability,
annuity, insurance or other employee welfare
benefit plans, programs or arrangements of the
Company or any Affiliate in which Employee
participated immediately before the notice of
termination, plus all improvements subsequent
thereto (or, if not available, in lieu thereof be
compensated for such coverage); and
(e) In the event of the death of Employee during the Termination
Period, the Company shall continue to make the
payments under Subsections 3.5(a) for the period
which is the lesser of the remainder of the
Termination Period or twelve (12) months and shall
pay any bonuses under Subsection 3.5 (b) on a
pro-rata basis until the date of Employee's
death, to Employee's designated beneficiary or,
if no beneficiary has been effectively designated,
then to Employee's estate.
Except as provided in Section 3.6, payment of
compensation under Subsection 3.5(a) above shall be
made at the same time as payments of compensation under
Section 3.1, and payments of other benefits under
Subsection 3.5(b) and (c) shall be paid at the same
time and to the same person as compensation or benefits
would have been paid under the plan, program or
arrangement to which they relate (after taking into
account any election made by the Employee with respect
to payments under such plan, program or arrangement and
shall be pro-rated for any partial year through the
date of expiration of the Termination Period).
3.6 If at any time after a Change of Control the Period of
Employment is terminated by the Employee under Section
2.3, or the Company terminates or gives written notice
of termination of the Period of Employment to the
Employee (whether or not in accordance with Section
2.4), then in lieu of the periodic payment of the
amounts specified in Subsections 3.5(a), (b) and (c)
(except as may be otherwise prohibited by law or by
said plans), the Company, at the written election of
Employee, shall pay to Employee within five (5)
business days of such termination or notice of
termination the present value of the amounts specified
in Subsections 3.5(a), (b) and (c), discounted at the
greatest rate of interest then payable by Mellon Bank
(or its successor) on any federally insured savings
account into which Employee could deposit such amount
and make immediate withdrawals therefrom without
penalty, and shall provide for the remainder of the
Termination Period, if any, the benefit coverage
required by Subsection 3.5(d). Employee shall not be
required to mitigate damages payable under this Section
3.6.
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3.7 In no event will the Company be obligated to continue
Employee's compensation and other benefits under the
Agreement beyond Employee's sixty-fifth (65th) birthday
or if Employee's employment is terminated because of
gross negligence or significant willful misconduct
(e.g. conviction of misappropriation of corporate
assets or serious criminal offense).
4. Non-Competition Agreement During the Period of Employment,
the Termination Period, and for a period of two (2) years after
the termination of the Termination Period, Employee shall not,
without the written consent of the Company, directly or
indirectly be employed or retained by, or render any services
for, or be financially interested in, any firm or corporation
engaged in any business which is competitive with any business in
which the Company or any of its Affiliates may have been engaged
during the Period of Employment. The foregoing restriction shall
not apply to the purchase by Employee of up to 5% of the
outstanding shares of capital stock of any corporation whose
securities are listed on any national securities exchange.
5. Loyalty Commitments During and after the Period of
Employment: (a) Employee shall not disclose any confidential
business information about the affairs of the Company or any of
its Affiliates; and (b) Employee shall not, without the prior
written consent of the Company, induce or attempt to induce any
employee or agency representative of the Company or any Affiliate
to leave the employment or representation of the Company or such
Affiliate.
6. Separability of Provisions The terms of this Agreement
shall be considered to be separable from each other, and in the
event any shall be found to be invalid, it shall not affect the
validity of the remaining terms.
7. Binding Effect This Agreement shall be binding upon and
inure to the benefit of (a) the Company and its successors and
assigns, and (b) Employee, his personal representatives, heirs
and legatees.
8. Entire Agreement This Agreement constitutes the entire
agreement between the parties and supersedes and revokes all
prior oral or written understandings between the parties relating
to Employee's employment, including specifically the Service
Contract dated July 4, 2000 and all prior Service Contracts,
except with respect to matters addressed in the offer letter
dated July 31, 2001 between the parties, to the extent such
matters are not covered in this Agreement. The Agreement may not
be changed orally but only by a written document signed by the
party against whom enforcement of any waiver, change,
modification, extension or discharge is sought.
9. Definitions The following terms herein shall (unless
otherwise expressly provided) have the following respective
meanings:
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9.1 "Affiliate" when used with reference to the Company means
any corporations, joint ventures or other business
enterprises directly or indirectly controlling,
controlled by, or under common control with the Company.
For purposes of this definition, "control" means
ownership or power to vote 50% or more of the voting
stock, venture interests or other comparable
participation in such business enterprises.
9.2 "Period of Employment" means the period commencing on the
date hereof and terminating pursuant to Section 2.
9.3 "Beneficiary" means the person or persons designated in
writing by Employee to Company.
9.4 "Change of Control" means any event by which (i) an
Acquiring Person has become such, or (ii) Continuing
Directors cease to comprise a majority of the members of
the Board of Directors of the Company or the applicable
Parent of the Company (a "Board"). For purposes of this
definition:
(a) An "Acquiring Person" means any person or group (as defined
in Section 13(d)(3) of the Securities Exchange Act
of 1934, as amended, and the rules and regulations
promulgated thereunder as in effect on the date of
this Agreement (the "Exchange Act") who or which,
together with all affiliates and associates (as
defined in Rule 12B-2 under the Exchange Act)
becomes, by way of any transaction, the beneficial
owner of shares of the Company, or such Parent,
having 20% or more of (i) the then outstanding
shares of Common Stock of the Company or such
Parent, or (ii) the voting power of then
outstanding voting securities of the Company, or
such Parent, entitled to vote generally in the
election of directors of the Company or such
Parent; and
(b) "Continuing Director" means any member of a Board, while
such person is a member of such Board who is not
an Acquiring Person, or an affiliate or associate
of an Acquiring Person or a representative of an
Acquiring Person or of any such affiliate or
associate and who (i) was a member of such Board
prior to the date of this Agreement, or (ii)
subsequently becomes a member of such Board and
whose nomination for election or election to such
Board is recommended or approved by resolution of
a majority of the Continuing Directors or who is
included as a nominee in a proxy statement of the
Company or the applicable Parent distributed when
a majority of such Board consists of Continuing
Directors.
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9.5 "Parent" means any Affiliate directly or indirectly
controlling (within the meaning of Section 9.1) the
Company.
10. Notices Where there is provision herein for the delivery of
written notice to either of the parties, such notice shall be
deemed to have been delivered for the purposes of this Agreement
when delivered in person, by recognized delivery service, or
placed in a sealed, postpaid envelope addressed to such party and
mailed by registered mail, return receipt requested to the
address set forth below or the most recent address as may be on
the Company records for the Employee:
Rudolf Lehner Drosselweg Number 2
Alzenau, Germany
63755
DENTSPLY International Inc. 570 West College Avenue
York, PA 17405
Attention: Secretary
11. Arbitration Any controversy arising from or related to
the Agreement shall be determined by arbitration in the City of
London, England, in accordance with the rules of the United
States, American Arbitration Association, and judgment upon any
such determination or award may be entered in any court having
jurisdiction. The arbitration shall be conducted in the English
language. In the event of any arbitration between Employee and
Company related to the Agreement, if employee shall be the
successful party, Company will indemnify and reimburse Employee
against any reasonable legal fees and expenses incurred in such
arbitration.
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12. Applicable Law the Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Pennsylvania.
IN WITNESS WHEREOF, the parties have executed the Agreement
on the day and year first above written.
Attest: DENTSPLY INTERNATIONAL INC.
__________________________________ By:
Secretary ________________________________
Chief Executive Officer
------------------------------------
Rudolf Lehner
D10
EXHIBIT 10.18
Summary of 2001 Incentive Compensation Plan
At the end of 2000, the Human Resources Committee of the Board of
Directors adopted the Year 2001 Incentive Compensation Plan (the
"Plan"). The Plan established target award opportunities ranging
from 23% of base salary for key employees to 75% of base salary for
the Chief Executive Officer. The bonuses were earned based on the
achievement of certain financial targets, which are established
based on the individual participant's position. For the Chief
Executive Officer and the Chief Operating Officer the bonus awards
for 100% of targeted performance were set at 75% and 60%,
respectively, of their base salaries. For the Senior Vice
Presidents and the General Counsel the bonus awards for 100% of
targeted performance were set at 55% and 40%, respectively, of
their base salaries. Messrs. Miles, Kunkle, Jellison, Roos, Weston,
Whiting and Addison received bonus awards for 2001 of 98.4%, 78.7%,
72.1%, 67.7%, 60.5%, 75.8% and 52.5%, respectively.
D11
EXHIBIT 10.22(a)
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT made this 30th day of November, 2001, by
and between FLEET PRECIOUS METALS INC., a Rhode Island
corporation with its principal offices at 111 Westminster
Street, Providence, Rhode Island 02903 ("FPM"), and DENTSPLY
INTERNATIONAL INC., a Delaware corporation with its principal
place of business at 570 West College Avenue, York,
Pennsylvania 17405 (the "Seller").
W I T N E S S E T H T H A T:
WHEREAS, the Seller wishes to sell to FPM certain gold,
silver, platinum and palladium ("Precious Metal"); and FPM
wishes to purchase said Precious Metal from the Seller; and
NOW, THEREFORE, for value received, in consideration of
the premises and of the mutual promises hereinafter contained,
and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties do hereby agree as
follows:
1. Purchase and Sale. The Seller hereby agrees to sell to
FPM and FPM hereby agrees to purchase from Seller, on the terms
and conditions hereinafter contained, the following (all of the
property described in this Section 1 is hereinafter
collectively referred to as the "Precious Metal Inventory"):
80,000 fine troy ounces of gold
-0- fine troy ounces of silver
-0- fine troy ounces of platinum
-0- fine troy ounces of palladium
For the purposes of Section 1, the term "troy ounces" shall
mean the fine troy ounce content contained in Seller's
inventory determined at a degree of fineness of not less than
99.5% in the case of gold, 99.90% in the case of silver, 99.95%
in the case of platinum, and 99.95% in the case of palladium.
2. Purchase Price. In consideration of the transfer of the
Precious Metal Inventory by Seller to FPM, FPM shall deliver to
Seller $22,272,960.00 (the "Purchase Consideration"). Nothing
in this Section 2 or elsewhere in this Agreement shall affect
the passage to FPM of title to the Precious Metal Inventory,
which title the parties intend and shall be deemed to pass on
the date of the Bill of Sale hereinafter described.
3. Conditions Precedent to Sale. The obligation of FPM to
purchase the Precious Metal Inventory is subject to the
following conditions precedent:
(a) Seller shall have executed and delivered to FPM a Bill of
Sale (the "Bill of Sale") covering and describing the
Precious Metal Inventory in the form of Exhibit A
attached hereto and made a part hereof.
(b)
D12
The representations and warranties of Seller set forth in
Section 4 hereof and in the Bill of Sale shall be
true and correct on and as of the date hereof and the
date of sale of the Precious Metal Inventory to FPM.
(c) Seller shall have delivered to FPM a certificate of a
financial officer of the Seller, certifying the
amount of Precious Metal Inventory by location (the
"Certificate").
4. Representations and Warranties. Seller hereby represents
and warrants to FPM that:
(a) Seller is duly organized, validly existing and in good
standing under the laws of its state of incorporation
and has the corporate power to execute and deliver
and perform its obligations under this Agreement and
the Bill of Sale.
(b) The execution and delivery and performance by Seller of
its obligations under this Agreement and the Bill of
Sale have been duly authorized by all requisite
corporate action.
(c) Seller is the lawful owner of, and has absolute title to,
the Precious Metal Inventory free and clear of all
claims, liens, security interests, encumbrances and
all other defects of title or of any kind whatsoever
except in favor of FPM.
(d) Seller has the right, power and authority to sell the
Precious Metal Inventory and has not made or
contracted to make any prior sale, assignment or
transfer of any item of Precious Metal Inventory to
any person, firm or corporation.
(e) All of the Precious Metal Inventory is located at the
locations set forth in the Certificate.
5. Consignment of the Precious Metal Inventory. The parties
hereto intend that, contemporaneously with the execution and
delivery of the Bill of Sale, FPM shall consign the Precious
Metal to the Seller AS IS AND WHERE IS pursuant to the terms of
a certain Consignment Agreement dated October 24, 2001 between
the Seller and FPM.
6. Governing Law. This Agreement shall be governed by and
shall be construed in accordance with the laws of the State of
New York.
*The next page is a signature page*
D12
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their duly authorized officers as
of the date first above written.
DENTSPLY INTERNATIONAL INC.
By:____________________________________
Title:
FLEET PRECIOUS METALS INC.
By:____________________________________
Title:
P82240.2
D12
EXHIBIT 10.22(b)
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT made this 20th day of December, 2001, by
and between JPMORGAN CHASE BANK, a New York corporation with
offices at 270 Park Avenue, 6th floor, Global Commodities, New
York, New York 10017 (the "Buyer"), and DENTSPLY INTERNATIONAL
INC., a Delaware corporation with its principal place of
business at 570 West College Avenue, York, Pennsylvania 17405
(the "Seller").
W I T N E S S E T H T H A T:
WHEREAS, the Seller has entered into forward contracts
("Forward Contracts") to sell certain gold, silver, platinum
and/or palladium ("Precious Metal") to Fleet Precious Metals
Inc. ("FPM"); and
WHEREAS, the Seller has requested that the Buyer satisfy
the Seller's obligations to FPM under the Forward Contracts by
delivering Precious Metal to FPM; and
WHEREAS, in consideration of the foregoing, the Seller
shall simultaneously sell an equal amount of Precious Metal to
the Buyer pursuant to the terms hereof and Buyer shall consign
such Precious Metal back to the Seller pursuant to the terms of
a Consignment Agreement (as hereinafter referred to); and
NOW, THEREFORE, for value received, in consideration of
the premises and of the mutual promises hereinafter contained,
and for other good and valuable consideration, the receipt of
which is hereby acknowledged, the parties do hereby agree as
follows:
1. Purchase and Sale. The Seller hereby agrees to sell to
the Buyer and the Buyer hereby agrees to purchase from Seller,
on the terms and conditions hereinafter contained, the
following (all of the property described in this Section 1 is
hereinafter collectively referred to as the "Precious Metal
Inventory"):
______ fine troy ounces of gold
______ fine troy ounces of silver
4,200 fine troy ounces of platinum
17,700 fine troy ounces of palladium
For the purposes of Section 1, the term "troy ounces" shall
mean the fine troy ounce content contained in Seller's
inventory determined at a degree of fineness of not less than
99.5% in the case of gold, 99.90% in the case of silver, 99.95%
in the case of platinum, and 99.95% in the case of palladium.
D13
2. Purchase Price. In consideration of the transfer of the
Precious Metal Inventory by Seller to the Buyer, the Buyer
shall deliver the following to the FPM for the account of the
Seller in satisfaction of the Seller's obligations to FPM under
the Forward Contracts (the "Purchase Consideration"):
______ fine troy ounces of gold
______ fine troy ounces of silver
4,200 fine troy ounces of platinum
17,700 fine troy ounces of palladium
Nothing in this Section 2 or elsewhere in this Agreement shall
affect the passage to the Buyer of title to the Precious Metal
Inventory, which title the parties intend and shall be deemed
to pass on the date of the Bill of Sale hereinafter described.
3. Conditions Precedent to Sale. The obligation of the Buyer
to purchase the Precious Metal Inventory is subject to the
following conditions precedent:
(a) Seller shall have executed and delivered to the Buyer a
Bill of Sale (the "Bill of Sale") covering and
describing the Precious Metal Inventory in the form
of Exhibit A attached hereto and made a part hereof.
(b) The representations and warranties of Seller set forth in
Section 4 hereof and in the Bill of Sale shall be
true and correct on and as of the date hereof and the
date of sale of the Precious Metal Inventory to the
Buyer.
(c) Seller shall have delivered to the Buyer a certificate of
a financial officer of the Seller, certifying the
amount of Precious Metal Inventory by location (the
"Certificate").
4. Representations and Warranties. Seller hereby represents
and warrants to the Buyer that:
(a) Seller is duly organized, validly existing and in good
standing under the laws of its state of incorporation
and has the corporate power to execute and deliver
and perform its obligations under this Agreement and
the Bill of Sale.
(b) The execution and delivery and performance by Seller of
its obligations under this Agreement and the Bill of
Sale have been duly authorized by all requisite
corporate action.
(c)
D13
Seller is the lawful owner of, and has absolute title to,
the Precious Metal Inventory free and clear of all
claims, liens, security interests, encumbrances and
all other defects of title or of any kind whatsoever
except in favor of the Buyer.
(d) Seller has the right, power and authority to sell the
Precious Metal Inventory and has not made or
contracted to make any prior sale, assignment or
transfer of any item of Precious Metal Inventory to
any person, firm or corporation.
(e) All of the Precious Metal Inventory is located at the
locations set forth in the Certificate.
5. Consignment of the Precious Metal Inventory. The parties
hereto intend that, contemporaneously with the execution and
delivery of the Bill of Sale, the Buyer shall consign the
Precious Metal to the Seller AS IS AND WHERE IS pursuant to the
terms of a certain Consignment Agreement
dated , 2001 between the Seller and
the Buyer.
6. Governing Law. This Agreement shall be governed by and
shall be construed in accordance with the laws of the State of
New York
*The next page is a signature page*
D13
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be executed by their duly authorized officers as
of the date first above written.
DENTSPLY INTERNATIONAL INC.
By:____________________________________
Title:
JPMORGAN CHASE BANK
By:____________________________________
Title:
P83310.1
D13
EXHIBIT 10.22(c)
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT made this 20th day of December, 2001, by and between
MITSUI & CO., PRECIOUS METALS INC., a Delaware corporation with offices at
200 Park Avenue, 36th Floor, New York, New York 10166 (the "Buyer"), and
DENTSPLY INTERNATIONAL INC., a Delaware corporation with its principal place
of business at 570 West College Avenue, York, Pennsylvania 17405 (the
"Seller").
W I T N E S S E T H T H A T:
WHEREAS, the Seller has entered into forward contracts ("Forward
Contracts") to sell certain gold, silver, platinum and/or palladium
("Precious Metal") to Fleet Precious Metals Inc. ("FPM"); and
WHEREAS, the Seller has requested that the Buyer satisfy the Seller's
obligations to FPM under the Forward Contracts by delivering Precious Metal
to FPM; and
WHEREAS, in consideration of the foregoing, the Seller shall
simultaneously sell an equal amount of Precious Metal to the Buyer pursuant
to the terms hereof and Buyer shall consign such Precious Metal back to the
Seller pursuant to the terms of a Consignment Agreement (as hereinafter
referred to); and
NOW, THEREFORE, for value received, in consideration of the premises and
of the mutual promises hereinafter contained, and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the parties do
hereby agree as follows:
1. Purchase and Sale. The Seller hereby agrees to sell to the Buyer and
the Buyer hereby agrees to purchase from Seller, on the terms and conditions
hereinafter contained, the following (all of the property described in this
Section 1 is hereinafter collectively referred to as the "Precious Metal
Inventory"):
______ fine troy ounces of gold
______ fine troy ounces of silver
4,200 fine troy ounces of platinum
8,800 fine troy ounces of palladium
For the purposes of Section 1, the term "troy ounces" shall mean the fine
troy ounce content contained in Seller's inventory determined at a degree of
fineness of not less than 99.5% in the case of gold, 99.90% in the case of
silver, 99.95% in the case of platinum, and 99.95% in the case of palladium.
D14
2. Purchase Price. In consideration of the transfer of the Precious Metal
Inventory by Seller to the Buyer, the Buyer shall deliver the following to
the FPM for the account of the Seller in satisfaction of the Seller's
obligations to FPM under the Forward Contracts (the "Purchase Consideration"):
______ fine troy ounces of gold
______ fine troy ounces of silver
4,200 fine troy ounces of platinum
8,800 fine troy ounces of palladium
Nothing in this Section 2 or elsewhere in this Agreement shall affect the
passage to the Buyer of title to the Precious Metal Inventory, which title
the parties intend and shall be deemed to pass on the date of the Bill of
Sale hereinafter described.
3. Conditions Precedent to Sale. The obligation of the Buyer to purchase
the Precious Metal Inventory is subject to the following conditions precedent:
(a) Seller shall have executed and delivered to the Buyer a Bill of Sale
(the "Bill of Sale") covering and describing the Precious Metal
Inventory in the form of Exhibit A attached hereto and made a part
hereof.
(b) The representations and warranties of Seller set forth in Section 4
hereof and in the Bill of Sale shall be true and correct on and as
of the date hereof and the date of sale of the Precious Metal
Inventory to the Buyer.
(c) Seller shall have delivered to the Buyer a certificate of a financial
officer of the Seller, certifying the amount of Precious Metal
Inventory by location (the "Certificate").
4. Representations and Warranties. Seller hereby represents and warrants
to the Buyer that:
(a) Seller is duly organized, validly existing and in good standing under
the laws of its state of incorporation and has the corporate power
to execute and deliver and perform its obligations under this
Agreement and the Bill of Sale.
(b) The execution and delivery and performance by Seller of its obligations
under this Agreement and the Bill of Sale have been duly authorized
by all requisite corporate action.
D14
(c) Seller is the lawful owner of, and has absolute title to, the Precious
Metal Inventory free and clear of all claims, liens, security
interests, encumbrances and all other defects of title or of any
kind whatsoever except in favor of the Buyer.
(d) Seller has the right, power and authority to sell the Precious Metal
Inventory and has not made or contracted to make any prior sale,
assignment or transfer of any item of Precious Metal Inventory to
any person, firm or corporation.
(e) All of the Precious Metal Inventory is located at the locations set
forth in the Certificate.
5. Consignment of the Precious Metal Inventory. The parties hereto intend
that, contemporaneously with the execution and delivery of the Bill of Sale,
the Buyer shall consign the Precious Metal to the Seller AS IS AND WHERE IS
pursuant to the terms of a certain Consignment Agreement
dated , 2001 between the Seller and the Buyer.
6. Governing Law. This Agreement shall be governed by and shall be
construed in accordance with the laws of the State of New York
*The next page is a signature page*
D14
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their duly authorized officers as of the date first above written.
DENTSPLY INTERNATIONAL INC.
By:____________________________________
Title:
JPMORGAN CHASE BANK
By:____________________________________
Title:
P83310.1
D14
EXHIBIT 13 - Pages 9 through 44 of the Company's Annual Report to
Shareholders for fiscal year 2001
DENTSPLY INTERNATIONAL INC. AND SUBSIDIARIES
SELECTED FINANCIAL DATA
Year ended December 31,
2001 2000 1999 1998 1997
Statement of Income Data: (dollars in thousands, except per share amounts)
Net sales $ 1,129,094 $889,796 $836,438 $800,456 $725,596
Net sales without precious metals content 1,078,831 889,796 836,438 800,456 725,596
Gross profit 569,671 463,594 431,811 416,304 368,726
Restructuring and other costs (income) 5,073 (56) - 71,500 -
Operating income 178,363 163,916 149,617 69,852 132,456
Income before income taxes 185,127 151,796 138,019 55,101 122,006
Net income $ 121,496 (1) $ 101,016 $ 89,863 $ 34,825 (2) $ 74,554
Earnings per Common Share:
Net income-basic $ 1.56 (1) $ 1.30 $ 1.14 $ 0.44 (2) $ 0.92
Net income-diluted 1.54 (1) 1.29 1.13 0.43 (2) 0.92
Cash dividends declared per
common share $ 0.18333 $ 0.17083 $ 0.15417 $ 0.14000 $ 0.13000
Weighted Average Common Shares Outstanding:
Basic 77,671 77,785 79,131 79,995 80,906
Diluted 78,975 78,560 79,367 80,396 81,344
Balance Sheet Data:
Working capital $ 125,726 $ 157,316 $ 138,448 $ 128,076 $ 107,678
Total assets 1,798,151 866,615 863,730 895,322 774,376
Total debt 731,158 110,294 165,467 233,761 129,510
Stockholders' equity 609,519 520,370 468,872 413,801 423,933
Return on average stockholders' equity 19.5% (3) 20.4% 20.4% 19.2% (3) 18.9%
Long-term debt to total capitalization 54.3% 17.4% 23.7% 34.4% 19.9%
Other Data:
Depreciation and amortization $ 54,334 $ 41,359 $ 39,624 $ 37,474 $ 32,405
Capital expenditures 49,337 (4) 28,425 33,386 31,430 27,660
Interest expense, net 20,574 9,291 14,640 14,168 11,006
Property, plant and equipment, net 240,890 181,341 180,536 158,998 147,130
Goodwill and other intangibles, net 1,012,160 344,753 349,421 346,073 336,905
Cash flows from operating activities 211,068 (5) 145,622 125,877 (5) 96,323 (5) 96,647
Inventory days 94 (6) 114 122 132 128
Receivable days 47 52 52 55 53
Income tax rate 34.4% 33.5% 34.9% 36.8% 38.9%
All share and per share amounts reflect the 3-for-2 common stock split effective January 31, 2002.
(1) Includes non-recurring income, after tax, of $11.6 million or $0.15 per common share.
(2) Includes non-recurring costs, after tax, of $45.4 million or $0.56 per common share.
(3) 2001 and 1998 exclude income statement effect of non-recurring income (costs), after tax, of $11.6 million and
($45.4 million), respectively.
(4) Includes $9.0 million for replacement of equipment lost in January 2001 fire.
(5) 2001, 1999 and 1998 include non-recurring cash inflows (outflows) of $29.1 million, ($13.1 million) and
($2.6 million), respectively.
(6) Reflects full year impact of Degussa Dental acquired in October 2001.
D15
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
Certain statements made by the Company, including without limitation,
statements containing the words "plans", "anticipates", "believes",
"expects", or words of similar import may be deemed to be forward-looking
statements and are made pursuant to the safe harbor provisions of the
Private Securities Litigation Reform Act of 1995. Investors are cautioned
that forward-looking statements involve risks and uncertainties which may
materially affect the Company's business and prospects, and should be read
in conjunction with the risk factors discussed within Item I, Part I of the
Company's Annual Report on Form 10-K.
RESULTS OF OPERATIONS, 2001 COMPARED TO 2000
The Company made three significant acquisitions during 2001. In January
2001, the Company acquired the outstanding shares of Friadent GmbH
("Friadent"), a global dental implant manufacturer and marketer headquartered
in Mannheim, Germany. In March 2001, the Company acquired the dental
injectible anaesthetic assets of AstraZeneca ("AZ Assets"). In October 2001,
the Company acquired the Degussa Dental Group ("Degussa Dental"), a
manufacturer and seller of dental products, including precious metal alloys,
ceramics, dental laboratory equipment and chairside products headquartered
in Hanau, Germany. The details of these transactions are discussed in Note
3 to the Consolidated Financial Statements. The results of these acquired
companies have been included in the consolidated financial statements since
the dates of acquisition. These acquisitions, accounted for using the
purchase method, significantly impact the comparability of 2001 results
versus 2000. Accordingly, unaudited pro forma information is presented in
Note 3 to the Consolidated Financial Statements to help facilitate
comparisons.
Net Sales
Net sales increased $239.3 million, or 26.9%, to $1,129.1 million, up
from $889.8 million in 2000. The internal sales growth rate for the year
was 6.2%, excluding a 22.4% increase due to acquisitions and a negative 1.7%
foreign currency translation impact due to the strong U.S. dollar against
the major currencies in Europe, Asia and Brazil. Sales in the United States
grew 13.3%; 7.4% from base business (internal sales growth exclusive of
acquisitions/divestitures and the impact of currency translation); and 5.9%
from net acquisitions/divestitures. Notable growth was achieved in
endodontics, orthodontics, intra-oral cameras and digital x-ray systems.
European sales, including the Commonwealth of Independent States ("CIS"),
increased 60.7%. European base business sales increased 5.6%. Currency
translation had a negative 2.4% impact on sales for the year. Acquisitions
added 57.5% to European sales during the year. Notable growth was achieved
in the German and U.K. consumables businesses, and in the endodontic product
line throughout Europe. Asia (excluding Japan) base business sales
increased 9.7% as the Company's subsidiaries in the key Asian countries,
especially South Korea, continued to gain market share. Acquisitions added
an additional 16.2% in Asia, offset by a negative 4.8% impact from currency
translation. Latin American base business sales decreased 2.9% primarily
due to weak economies in Brazil and Argentina. Acquisitions added 11.8% to
Latin American net sales offset by 8.9% for the negative impact of currency
translation. Sales in the rest of the world grew 48.5%; 4.4% from base
business, 48.4% from acquisitions less 4.3% from currency translation. Solid
sales growth in Canada and Australia was offset by negative sales growth in
the Middle East and Japan.
****
Graph titled "2001 Geographic Breakdown"
Information disclosed:
% of
Region 2001 Sales
United States 51%
Europe 29%
Pacific Rim, Asia and Latin America 9%
Other 11%
****
Base business sales for heavy equipment, including x-ray equipment and
intra-oral cameras, increased 9.1% while consumable and small equipment
sales increased 6.5%. These increases were offset slightly by softening net
sales of non-dental products in 2001.
****
Graph titled "2001 Product Breakdown"
Information disclosed:
% of
Product 2001 Sales
Consumables and Small Equipment 90%
Heavy Equipment 7%
Other 3%
****
Sales in 2001 of $1,129.1 million included sales from the acquisition of
Degussa Dental which was acquired at the beginning of the fourth quarter
2001. A significant portion of Degussa Dental's net sales is comprised of
sales of precious metals generated through its precious metal alloy product
offerings. Due to the fluctuations of precious metal prices, DENTSPLY will
report sales both with and without precious metals to give the reader a
clearer understanding of its business. DENTSPLY leases most of it precious
metals primarily to free up working capital and to minimize the effect of
any price movement in the underlying metals. DENTSPLY's net sales in 2001,
excluding the sales value of precious metals, were $1,078.8 million, an
increase of 21.2% over 2000.
D15
Gross Profit
Gross profit for 2001 represented 50.5% of net sales, or 52.8% excluding
sales of precious metals, compared to 52.1% of net sales in 2000. There were
no sales of precious metals in 2000. The gross profit margin, excluding
precious metals, was benefited by a favorable product mix, restructuring,
and operational improvements during 2001. These benefits were offset by the
negative impact of a stronger U.S. dollar and the negative impact of the
amortization of the Friadent and Degussa Dental inventory step-ups recorded
in connecton with the the purchase accounting. The Company continues to
drive projects, including lean manufacturing, waste elimination and
centralized warehousing, focused on improving our operating processes and
product flows. These efforts not only strengthen our gross profit margin
rates and reduce inventory levels, but also improve our overall competitive
advantage.
****
Graph titled "Gross Profit Percentage"
Information disclosed:
Gross Profit
Year Percentage
1997 50.8%
1998 52.0%
1999 51.6%
2000 52.1%
2001 52.8%
Footnote:
Excludes precious metals content of net sales.
****
Operating Expenses
Selling, general and administrative ("SG&A") expense increased $86.5
million, or 28.9%, in 2001. As a percentage of sales, SG&A expenses
increased to 34.2% compared to 33.7% in 2000. As a percentage of sales
without the precious metals content, SG&A expenses were 35.8% in 2001.
Acquisitions and higher research and development spending were the primary
reasons for this increase.
During 2001, the Company recorded net restructuring and other costs of
$5.1 million. In the first quarter 2001, the Company recorded a $5.5 million
restructuring charge to improve efficiencies in Europe, Brazil and North
America. In the fourth quarter 2001, the Company recorded $11.5 million of
restructuring and other costs primarily related to the Degussa Dental
acquisition and its integration with DENTSPLY. An additional cost of $2.4
million was recorded in the fourth quarter of 2001 for a payment to be made
at the point of regulatory filings related to Oraqix, aproduct to which the
Company acquired rights in the AZ Asset acquisition. These charges were
offset by a gain of $8.5 million related to the restructuring of the
Company's U.K. pension arrangements in October 2001 and a gain of $5.8
million for an insurance settlement for equipment destroyed in the fire at
the Company's Maillefer facility in Switzerland (see Note 13 to the
Consolidated Financial Statements).
****
Graph titled "Operating Income Percentage"
Information disclosed:
Operating Income
Year Percentage
1997 18.3%
1998 17.7%
1999 17.9%
2000 18.4%
2001 17.0%
Footnote:
Excludes precious metals content of net sales and non-recurring
costs.
****
Other Income and Expenses
Net interest expense increased $11.3 million due to higher debt levels in
2001 to finance the significant acquisition activity during 2001, offset
somewhat by a strong operating cash flow and lower interest rates. Other
income of $27.3 million in 2001 compares with other expense of $2.8 million
in 2000. The increase in 2001 was primarily the result of a $23.1 million
gain related to the Company's March 2001 sale of InfoSoft, LLC to
PracticeWorks, Inc. in exchange for 6.5% convertible preferred stock issued
by PracticeWorks, Inc., valued at $32 million. This investment is included
in "Other noncurrent assets" in the Company's balance sheet and is measured
for recoverability on a periodic basis (see Note 3 to the Consolidated
Financial Statements). Also contributing to the increase in other income was
$1.7 million of accrued dividends related to this preferred stock, a $1.4
million minority interest benefit recorded in the fourth quarter related to
an intangible impairment charge included in restructuring and other costs
and $1.2 million of gains from foreign exchange transactions. The other
expense in 2000 represented mainly losses on foreign exchange transactions.
Earnings
Income before income taxes in 2001 increased $33.3 million, or 21.9% to
$185.1 million, from $151.8 million in 2000. The effective tax rate for
operations increased to 34.4% in 2001 from 33.5% in 2000.
Net income increased $20.5 million, or 20.3%, to $121.5 million in 2001
from $101.0 million in 2000. Fully diluted earnings per share were $1.54 in
2001, an increase of 19.4% from $1.29 in 2000. Earnings in 2001 included
non-recurring net income of $11.6 million or $0.15 per diluted share which
included the restructuring and other costs of $5.1 million recorded in the
first and fourth quarters of 2001, offset by the related minority interest
benefit of $1.4 million and the gain on the Infosoft LLC sale of $23.1
million recorded in the first quarter of 2001. Excluding this non-recurring
income, net income was $109.9 million and diluted earnings per common share
were $1.39, an increase of 7.8% over 2000. Net income and diluted earnings
per common share for the year includes a negative impact from the $84.6
million Tulsa earn-out payment made in May for additional amortization and
interest costs and one-time inventory step-up charges for Friadent and
Degussa Dental during the year.
****
Graph titled "Earnings"
Information disclosed:
Earnings Per
Net Income Diluted Common
Year (in millions) Share
1997 $ 74.6 $ 0.92
1998 80.2 0.99
1999 89.9 1.13
2000 101.0 1.29
2001 109.9 1.39
Footnote:
The 5 year compounded annualized growth rates for net income
and earnings per diluted common share are 10% and 11%,
respectively. 1998 and 2001 are shown before non-recurring
income (costs). Per share data has been adjusted for the threefor-
two stock split effective January 2002.
****
D15
RESULTS OF OPERATIONS, 2000 COMPARED TO 1999
Net Sales
Net sales increased $53.4 million, or 6.4%, to $889.8 million, up from
$836.4 million in 1999. Base business accounted for 9.5% of the sales
growth in 2000. Currency translation negatively impacted net sales by 3.1%,
mainly due to the devaluation of the Brazilian Real and the strengthening of
the U.S. dollar against the major European currencies. Sales in the United
States grew 10.6%; 10.6% from base business and 0.1% from acquisitions,
offset by 0.1% from translation. There was strong base business growth in
the United States from equipment and consumable product lines. European
base business sales, including the Commonwealth of Independent States,
increased 3.2%. This, however, was offset by the impact of currency
translation on European sales, which had a negative 10.1% effect, and a
negative impact of 0.4% from divestitures. Both equipment and consumables
experienced an increase in base business sales in Europe in 2000. The
increase in consumable sales in Europe was tempered by European dealers who
sharply curtailed their fourth quarter consumable purchases as their annual
growth incentive rebate targets were not attainable. The economy in the
Pacific Rim continued to improve, resulting in a 24.0% increase in base
business sales. Pacific Rim net sales in 1999 were impacted by $1.4 million
of inventory returns from dealers in India. Excluding these returns, the
Pacific Rim base business sales grew 16.0% in 2000. Excluding acquisitions
and exchange, sales in Latin America grew 12.4%. Sales in the rest of the
world were up 11.3%; 13.5% from base business, offset by 0.1% from
divestitures and 2.1% from exchange. The increase was mainly due to base
business sales increases in Canada, the Middle East and Africa, Australia
and Japan.
Gross Profit
Gross profit increased $31.8 million, or 7.4%, to $463.6 million from
$431.8 million in 1999. As a percentage of sales, gross profit increased
from 51.6% in 1999 to 52.1% in 2000. The gross profit margin was benefited
by restructuring and operational improvements along with a favorable product
mix in 2000. The percentage improvement occurred despite the negative impact
of a strong U.S. dollar during 2000.
Operating Expenses
Selling, general and administrative expense increased $17.5 million, or
6.2%, in 2000. As a percentage of sales, expenses remained unchanged,
representing 33.7% of net sales in both periods. Increased research and
development spending, a sales force increase, and higher legal expenses were
offset by shared service initiatives and solid internal sales growth.
In the fourth quarter 2000, the Company recorded a $2.8 million pre-tax
gain on a settlement related to a property previously owned by the Company,
along with a $2.7 million pre-tax restructuring charge related to its French
and Latin American businesses. The primary focus of the restructuring was
the consolidation of operations in these regions in order to eliminate
duplicative functions. Both of these items are reflected in the
"Restructuring and other costs (income)" line on the income statement (see
Note 13 to the Consolidated Financial Statements).
Other Income and Expenses
The decrease in net interest expense of $5.3 million was mainly due to
debt repayment enabled by strong cash flow generation along with lower
interest rates as we converted a portion (approximately $60 million) of our
debt to lower rate Swiss Francs. Other expense was $2.8 million in 2000
compared to other income of $3.0 million in 1999. The expense in 2000
included a net increase of $2.6 million in exchange transaction losses due
to the strengthening of the U.S. dollar against the major European
currencies, while the prior year included other income of $2.4 million
related to the divestiture of medical businesses in 1994 and 1996, and $0.4
million due to a favorable settlement of a disputed lease commitment in the
United Kingdom.
D15
Earnings
Income before income taxes increased $13.8 million, or 10.0%, from $138.0
million in 1999 to $151.8 million in 2000. The effective tax rate for
operations decreased to 33.5% in 2000 from 34.9% in 1999. Net income
increased $11.1 million, or 12.4%, to $101.0 million in 2000 from $89.9
million in 1999 due to higher sales, higher gross profit as a percentage of
sales, lower net interest expense, and a lower provision for income taxes
partially offset by higher other expense in 2000.
Diluted earnings per common share increased from $1.13 in 1999 to $1.29
in 2000, or 14.2%.
FOREIGN CURRENCY
Since approximately 45% of the Company's 2001 revenues have been
generated in currencies other than the U.S. dollar, the value of the U.S.
dollar in relation to those currencies affects the results of operations of
the Company. The impact of currency fluctuations in any given period can be
favorable or unfavorable. The impact of foreign currency fluctuations of
European currencies on operating income is partially offset by sales in the
U.S. of products sourced from plants and third party suppliers located
overseas, principally in Germany and Switzerland.
CRITICAL ACCOUNTING POLICIES
In response to the SEC's Release No. 33-8040, "Cautionary Advice
Regarding Disclosure About Critical Accounting Policies," we have identified
below the accounting principles critical to our business and results of
operations. We determined these critical principles by considering
accounting policies that involve the most complex or subjective decisions or
assessments.
Goodwill and Other Long-Lived Assets
Effective January 1, 2002, the Company adopted Statement of Financial
Accounting Standards No. 142 ("SFAS 142"), "Goodwill and Other Intangible
Assets". This statement requires that the amortization of goodwill be
discontinued and instead an annual impairment approach be applied. The
impairment tests will be performed upon adoption and annually thereafter (or
more often if adverse events occur) and will be based upon a fair value
approach rather than an evaluation of the undiscounted cash flows. If
impairment exists, under SFAS 142, the resulting charge is determined by
recalculating goodwill through a hypothetical purchase price allocation of
the fair value and reducing the current carrying value to the extent it
exceeds the recalculated goodwill.
Other long-lived assets such as identifiable intangible assets and fixed
assets are amortized or depreciated over their estimated useful lives. These
assets are reviewed for impairment whenever events or circumstances provide
evidence that suggest that the carrying amount of the asset may not be
recoverable with impairment being based upon an evaluation of the
identifiable undiscounted cash flows. If impaired, the resulting charge
reflects the excess of the asset's carrying cost over its fair value.
If market conditions become less favorable, future cash flows, the key
variable in assessing the impairment of these assets, may decrease and as a
result the Company may be required to recognize impairment charges.
Inventories
Inventories are stated at the lower of cost or market. The cost of
inventories is determined primarily by the first-in, first-out ("FIFO") or
average cost methods, with a small portion being determined by the last-in,
first-out ("LIFO") method. The Company establishes reserves for inventory
estimated to be obsolete or unmarketable equal to the difference between the
cost of inventory and estimated market value based upon assumptions about
future demand and market conditions. If actual market conditions are less
favorable than those anticipated, additional inventory reserves may be
required.
D15
Accounts Receivable
The Company sells dental equipment and supplies primarily through a
worldwide network of distributors, although certain product lines are sold
directly to the end user. For customers on credit terms, the Company
performs ongoing credit evaluation of those customers' financial condition
and generally does not require collateral from them. The Company
establishes allowances for doubtful accounts for estimated losses resulting
from the inability of its customers to make required payments. If the
financial condition of the Company's customers were to deteriorate, their
ability to make required payments may become impaired, and increases in
these allowances may be required. In addition, a negative impact on sales to
those customers may occur.
Income Taxes
Income taxes are determined in accordance with Statement of Financial
Accounting Standards No. 109 ("SFAS 109"), which requires recognition of
deferred income tax liabilities and assets for the expected future tax
consequences of events that have been included in the financial statements
or tax returns. Under this method, deferred income tax liabilities and
assets are determined based on the difference between financial statements
and tax bases of liabilities and assets using enacted tax rates in effect
for the year in which the differences are expected to reverse. SFAS 109 also
provides for the recognition of deferred tax assets if it is more likely
than not that the assets will be realized in future years. A valuation
allowance has been established for deferred tax assets for which realization
is not likely. In assessing the valuation allowance, the Company has
considered future taxable income and ongoing tax planning strategies.
Changes in these circumstances, such as a decline in future taxable income,
may result in an additional valuation allowance being required.
Litigation
The Company and its subsidiaries are from time to time parties to
lawsuits arising out of their respective operations. The Company records
liabilities when a loss is probable and can be reasonably estimated. These
estimates are based on an analysis made by internal and external legal
counsel which considers information known at the time. The Company believes
it has estimated well in the past; however, court decisions could cause
liability to be incurred in excess of estimates.
IMPACT OF INFLATION
The Company has generally offset the impact of inflation on wages and the
cost of purchased materials by reducing operating costs and increasing
selling prices to the extent permitted by market conditions.
LIQUIDITY AND CAPITAL RESOURCES
Cash flows from operating activities increased to $211.1 million in 2001
or 45.0% from 2000. Excluding one-time precious metals inventory reductions
of $29.1 million, cash flows from operating activities increased 25% to
$182.0 million in 2001. The increase of $36.4 million was due primarily to
increased earnings, reductions in both inventory days and receivable days to
94 and 47, respectively, along with an increase in short-term liabilities.
****
Graph titled "Working Capital Management"
Information disclosed:
Inventory Receivable
Year Days Days
1997 128 53
1998 132 55
1999 122 52
2000 114 52
2001 94 47
Footnote:
Inventory days for 2001 reflects full-year impact of Degussa Dental
acquired in October 2001.
****
Within investment activities for 2001 were capital expenditures of $49.3
million, which includes approximately $9.0 million for replacement of
equipment destroyed in the January 2001 fire at the Company's Maillefer
facility in Switzerland, which was funded through insurance proceeds. In
addition, the Company's acquisition activity in 2001 resulted in cash
outflows of $812.5 million (see Note 3 to the Consolidated Financial
Statements).
During 2001, the Company repurchased 37,500 shares of its common stock
for $0.9 million. The Board of Directors did not authorize any share
repurchases for 2002. The timing and amounts of any future purchases will
depend upon many factors, including market conditions and the Company's
business and financial condition.
At December 31, 2001, the Company's current ratio was 1.4 with working
capital of $125.7 million. This compares with a current ratio of 1.9 and
working capital of $157.3 million at December 31, 2000.
D15
In order to fund its significant acquisition activity, the Company
completed numerous financing initiatives during 2001. In March 2001, the
Company issued Series A and B private placement notes to Prudential Capital
Group totaling Swiss francs 166.9 million ($100 million) at an average rate
of 4.49% with six year final maturities. The notes were issued to finance
the acquisition of the AZ Assets. In May 2001, the Company replaced and
expanded its revolving credit agreements to $500 million from its previous
level of $300 million. In October 2001, the Company issued a Series C
private placement note to Prudential Capital Group for Swiss francs 80.4
million ($50 million) at a rate of 4.96% with a five year final maturity.
The series A and B notes were also amended to increase the interest rate by
30 basis points, reflecting the Company's higher leverage. In December
2001, the Company issued a private placement note through ABN AMRO for
Japanese yen 6.2 billion ($50 million) at a rate of 1.39% with a four year
final maturity. In December 2001, the Company issued 350 million Eurobonds
($315 million) with a coupon of 5.75%, maturing December 2006 at an
effective yield of 5.89%. The Company simultaneously entered into a series
of fixed to variable rate swaps to convert its fixed rate 5.75% coupon
Eurobond into variable rate debt, currently at 3.2%. Additionally, the
Company entered into a series of freestanding Euro to U.S. dollar cross
currency basis swaps to effectively convert the Eurobonds and related
interest expense to U.S. dollar. The Series C note, the ABN AMRO note and
the Eurobonds were issued to finance the Degussa Dental acquisition. Also
contributing to the overall funding of the Degussa Dental acquisition was
the reduction of approximately $71 million of precious metals inventory
through a combination of a sale/leaseback and excess quantity reductions,
the proceeds of which were used to pay down debt (see Note 9 to the
Consolidated Financial Statements).
Due to this activity, the Company's long-term debt increased $614.0
million from $109.5 million at December 31, 2000 to $723.5 million at
December 31, 2001. The resulting long-term debt to total capitalization at
December 31, 2001 was 54.3% compared to 17.4% at December 31, 2000.
Under its recently updated multi-currency revolving credit agreement, the
Company is able to borrow up to $250 million on an unsecured basis through
May 2006 ("the five-year facility") and $250 million through May 2002 ("the
364 day facility"). The 364-day facility terminates in May 2002, but may be
extended, subject to certain conditions, for additional periods of 364
days. This revolving credit agreement is unsecured and contains various
financial and other covenants.
The Company also has available a $200 million commercial paper facility
which was established in September 1999. The 364-day facility serves as a
back-up to this commercial paper facility. The total available credit under
the commercial paper facility and the 364-day facility is $250 million.
The Company also has access to $70.4 million in uncommitted short-term
financing under lines of credit from various financial institutions.
Substantially all of these lines of credit have no major restrictions and
are provided under demand notes between the Company and the lending
institutions.
In total, the Company had unused lines of credit of $357.9 million at
December 31, 2001. Access to most of these available lines of credit is
contingent upon the Company being in compliance with certain affirmative and
negative covenants relating to its operations and financial condition. The
most restrictive of these covenants pertain to asset dispositions,
maintenance of certain levels of net worth, and prescribed ratios of
indebtedness to total capital and operating income plus depreciation and
amortization to interest expense. At December 31, 2001, the Company was in
compliance with these covenants.
The following table presents the Company's scheduled contractual cash
obligations at December 31, 2001:
Less Than 1-4 5 Years
Contractual Obligations 1 Year Years Or More Total
(in thousands)
Long-term debt $214,282 $ 91,370 $417,872 $ 723,524
Operating leases 72,367 20,239 16,597 109,203
$286,649 $ 111,609 $434,469 $ 832,727
D15
The Company expects on an ongoing basis, to be able to finance cash
requirements, including capital expenditures, stock repurchases, debt
service, operating leases and potential future acquisitions, from the funds
generated from operations and amounts available under its existing credit
facilities.
PENDING ACCOUNTING CHANGES
In June 2001 Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards No. 141 ("SFAS 141"), "Business
Combinations" and Statement of Financial Accounting Standards No. 142 ("SFAS
142"), "Goodwill and Other Intangible Assets". SFAS 141 addresses financial
accounting and reporting for business combinations. Specifically, effective
for business combinations occurring after July 1, 2001, it eliminates the
use of the pooling method of accounting and requires all business
combinations to be accounted for under the purchase method. SFAS 142
addresses financial accounting and reporting for acquired goodwill and other
intangible assets. The primary change related to this new standard is that
the amortization of goodwill and intangible assets with indefinite useful
lives will be discontinued and instead an annual impairment approach will be
applied. Except for goodwill and intangible assets with indefinite lives
related to acquisitions after July 1, 2001 (in which case, amortization will
not be recognized at all), the Company discontinued amortization of goodwill
and intangible assets with indefinite lives effective January 1, 2002. The
application of these new standards will have a positive impact on earnings
per share of approximately $0.15 in 2002. Based upon preliminary
evaluations, the Company does not believe the adoption of SFAS 142 will
result in the recognition of any material impairment charges.
In June 2001, the FASB issued Statement of Financial Accounting Standards
No. 143 ("SFAS 143"), "Accounting for Asset Retirement Obligations". It
applies to legal obligations associated with the retirement of long-lived
assets that result from the acquisition, construction, development and (or)
the normal operation of a long-lived asset, except for certain obligations
of lessees. SFAS 143 requires that the fair value of a liability for an
asset retirement obligation be recognized in the period in which it is
incurred if a reasonable estimate of fair value can be made. The associated
asset retirement costs are capitalized as part of the carrying amount of the
long-lived asset and subsequently allocated to expense over the asset's
useful life. SFAS 143 is effective for the Company in 2003 and the effect
of adopting it is not expected to be material.
In August 2001, the FASB issued Statement of Financial Accounting
Standards No. 144 ("SFAS 144"), "Accounting for the Impairment or Disposal
of Long-Lived Assets." SFAS 144 supercedes SFAS 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed
Of," and APB 30, " Reporting the Results of Operations-Reporting the Effects
of Disposal of a Segment of Business and Extraordinary, Unusual and
Infrequently Occurring Events and Transactions." SFAS 144 requires an
impairment loss to be recognized only if the carrying amounts of long-lived
assets to be held and used are not recoverable from their expected and
undiscounted future cash flows. SFAS 144 is effective for fiscal years
beginning after December 15, 2001. The effect of adopting this standard is
not expected to be material.
EURO CURRENCY CONVERSION
On January 1, 1999, eleven of the fifteen member countries of the
European Union (the "participating countries") established fixed conversion
rates between their legacy currencies and the newly established Euro
currency.
The legacy currencies remained legal tender in the participating
countries between January 1, 1999 and January 1, 2002 (the "transition
period"). On January 1, 2002, the European Central Bank issued
Euro-denominated bills and coins for use in cash transactions. On or before
July 1, 2002, the legacy currencies of participating countries will no
longer be legal tender for any transactions.
The Company's various operating units which are affected by the Euro
conversion adopted the Euro as the functional currency effective January 1,
2001. At this time, the Company does not expect the reasonably foreseeable
consequences of the Euro conversion to have material adverse effects on the
Company's business, operations or financial condition.
D15
QUANTITATIVE AND QUALITATIVE DISCLOSURE ABOUT MARKET RISK
The information below provides information about the Company's market
sensitive financial instruments and includes "forward-looking statements"
that involve risks and uncertainties. Actual results could differ
materially from those expressed in the forward-looking statements. The
Company's major market risk exposures are changing interest rates, movements
in foreign currency exchange rates and potential price volatility of
commodities used by the Company in its manufacturing processes. The
Company's policy is to manage interest rates through the use of floating
rate debt and interest rate swaps to adjust interest rate exposures when
appropriate, based upon market conditions. A portion of the Company's
borrowings are denominated in foreign currencies which exposes the Company
to market risk associated with exchange rate movements. The Company's
policy generally is to hedge major foreign currency exposures through
foreign exchange forward contracts. These contracts are entered into with
major financial institutions thereby minimizing the risk of credit loss. In
order to limit the unanticipated earnings fluctuations from volatility in
commodity prices, the Company selectively enters into commodity price swaps
to convert variable raw material costs to fixed costs.The Company does not
hold or issue derivative financial instruments for speculative or trading
purposes. The Company is subject to other foreign exchange market risk
exposure as a result of non-financial instrument anticipated foreign
currency cash flows which are difficult to reasonably predict, and have
therefore not been included in the table below. All items described are
non-trading and are stated in U.S. dollars.
Financial Instruments
The fair value of financial instruments is determined by reference to
various market data and other valuation techniques as appropriate. The
Company believes the carrying amounts of cash and cash equivalents, accounts
receivable (net of allowance for doubtful accounts), prepaid expenses and
other current assets, accounts payable, accrued liabilities, income taxes
payable and notes payable approximate fair value due to the short-term
nature of these instruments. The Company estimates the fair value of its
long-term debt was $720.6 million versus its carrying value of $723.5
million as of December 31, 2001. The fair value was relatively similar to
the carrying value since the fixed rate Eurobonds were effectively converted
to variable rate as a result of an interest rate swap and the interest rates
on revolving debt and commercial paper are variable and reflect current
market rates. In addition, the face value of the Japanese yen private
placement note approximates fair value as its issue date was December 28,
2001. The fixed rate Swiss franc denominated notes were the only debt
instruments where the fair values were lower than the carrying values due to
higher Swiss rates at December 31, 2001 versus the rates at issuance of the
notes.
Derivative Financial Instruments
The Company employs derivative financial instruments to hedge certain
anticipated transactions, firm commitments, or assets and liabilities
denominated in foreign currencies, interest rate swaps to convert floating
rate debt to fixed rate, fixed rate debt to floating rate, cross currency
basis swaps to convert debt denominated in one currency to another currency
and commodity swaps to fix its variable raw materials.
Foreign Exchange Risk Management The Company enters into forward
foreign exchange contracts to selectively hedge assets and liabilities
denominated in foreign currencies. Market value gains and losses are
recognized in income currently and the resulting gains or losses offset
foreign exchange gains or losses recognized on the foreign currency
assets and liabilities hedged. Determination of hedge activity is based
upon market conditions, the magnitude of the foreign currency assets and
liabilities and perceived risks. The Company's significant contracts
outstanding as of December 31, 2001 are summarized in the table that
follows. These foreign exchange contracts generally have maturities of
less than six months and counterparties to the transactions are typically
large international financial institutions.
D15
Interest Rate Risk Management The Company enters into interest rate
swaps to convert floating rate debt to fixed rate, fixed rate debt to
floating rate, and cross currency basis swaps to convert Euro debt to
U.S. dollar cash flows. In July 1998, the Company entered into interest
rate swap agreements with notional amounts totaling $80.0 million which
converts a portion of the Company's variable rate financing to fixed
rates. The average fixed rate of these agreements was 5.7% with an
original maturity of five years. The U.S. dollar swaps were terminated in
February 2001 at a cost of $1.2 million, $0.3 million remains to be
amortized over the remaining term of the related debt. In January 2000
and February 2001, the Company entered into interest rate swap agreements
with notional amounts totaling 180 million Swiss francs which converts a
portion of the Company's variable rate financing to fixed rates. The
average fixed rate of these agreements is 3.3% and fixes the rate for an
average of four years. In December 2001, the Company entered into a
series of fixed to variable rate swaps to convert its fixed rate 5.75%
coupon Eurobonds into variable debt, currently at 3.2%. Additionally, the
Company entered into a series of freestanding Euro to U.S. dollar cross
currency basis swaps to effectively convert the Eurobonds and related
interest expense to U.S. dollar. DENTSPLY Sankin, the Company's Japanese
subsidiary acquired in the Degussa Dental transaction, has a yen interest
rate swap of notional amounts totaling Japanese yen 70 million to convert
its variable rate debt into fixed rate of 2.9% which matures in December
2002. The fair value of these swap agreements is the estimated amount the
Company would receive (pay) at the reporting date, taking into account
the effective interest rates. At December 31, 2001 the estimated fair
values of the swap agreements was $(12.8) million.
Commodity Price Risk Management The Company selectively enters into
commodity price swaps to convert variable raw material costs to fixed.
In August 2000, the Company entered into a commodity price swap agreement
with notional amounts totaling 270,000 troy ounces of silver bullion
throughout calendar year 2001. The average fixed rate of this agreement
was $5.10 per troy ounce. In November 2001, the Company entered into a
commodity price swap agreement with notional amounts totaling 270,000
troy ounces of silver bullion throughout calendar year 2002. The average
fixed rate of this agreement is $4.20 per troy ounce. At December 31,
2001, the estimated fair value was $0.1 million.
As of December 31, 2001, the Company leased $59.6 million of precious
metals. Under this arrangement the Company leases fixed quantities of
precious metals which are used in producing alloys and pays a lease rate
(a percent of the value of the leased inventory) to the lessor. These
precious metal leases are accounted for as operating leases and the lease
fee is recorded as cost of goods sold. The terms of the leases are less
than one year, and the average lease rate at December 31, 2001 was 2.5%.
The Company's objective for using these operating lease arrangements to
supply its precious metals needs is to free up working capital and smooth
the effects of commodity price volatility.
D15
EXPECTED MATURITY DATES DECEMBER 31, 2001
Carrying Fair
2002 2003 2004 2005 2006 Value Value
(dollars in thousands)
Notes Payable and Current Portion
of Long-term Debt
U.S. dollar denominated $ 4,014 $ - $ - $ - $ - $ 4,014 $ 4,014
Average interest rate 3.1%
Australian dollar denominated 77 - - - - 77 77
Average interest rate 8.0%
Euro denominated 1,163 - - - - 1,163 1,163
Average interest rate 6.3%
Japanese yen denominated 2,380 - - - - 2,380 2,380
Average interest rate 2.0%
Long Term Debt:
U.S. dollar denominated 6,669 - 822 - - 7,491 7,491
Average interest rate 2.3% 4.4%
Swiss franc denominated 137,372 - - 33,175 114,309 284,856 281,907
Average interest rate 2.5% 4.5% 4.8%
Japanese yen denominated 67,899 15,843 17,009 16,796 - 117,547 117,547
Average interest rate 0.7% 1.4% 1.4% 1.4%
Australian dollar denominated 255 - - - - 255 255
Average interest rate 4.6%
Euro denominated 600 7,725 - - 303,563 311,888 311,888
Average interest rate 5.5% 6.2% 5.75%
Thai baht denominated 1,086 - - - - 1,086 1,086
Average interest rate 3.7%
Chile peso denominated 266 - - - - 266 266
Average interest rate 8.8%
Brazil real denominated 135 - - - - 135 135
Average interest rate 19.6%
Foreign Exchange Forward Contracts:
Forward purchase, 36.4 million Japanese yen 282 - - - - 282 277
Forward purchase, 0.4 million Swiss francs 216 - - - - 216 221
Forward sales, 234.5 million Japanese yen 1,911 - - - - 1,911 1,799
Forward sales, 6.9 million Euro 6,028 - - - - 6,028 6,079
Interest Rate Swaps:
Interest rate swaps - U.S. dollar,
terminated 2/2001 (152) (58) (34) (21) - (265) (265)
Average interest rates
Interest rate swaps - Japanese yen 533 - - - - (12) (12)
Average interest rates 2.9%
Interest rate swaps - Swiss francs - 29,825 38,774 - 38,774 (1,122) (1,122)
Average interest rates 3.4% 3.3% 3.3%
Interest rate swaps - Euro - - - - 309,190 (5,627) (5,627)
Average interest rates 4.8%
Basis swap - Euro-U.S. Dollar - - - - 315,000 (5,810) (5,810)
Average interest rates 3.2%
Silver Swap - U.S. dollar 1,134 - - - - 84 84
D15
Management's Financial Responsibility
The management of DENTSPLY International Inc. is responsible for the
preparation and integrity of the consolidated financial statements and all
other information contained in this Annual Report. The financial statements
were prepared in accordance with generally accepted accounting principles
and include amounts that are based on management's informed estimates and
judgments.
In fulfilling its responsibility for the integrity of financial
information, management has established a system of internal accounting
controls supported by written policies and procedures. This provides
reasonable assurance that assets are properly safeguarded and accounted for
and that transactions are executed in accordance with management's
authorization and recorded and reported properly.
The financial statements have been audited by our independent
accountants, PricewaterhouseCoopers LLP, whose unqualified report is
presented below. The independent accountants perform audits of the
financial statements in accordance with generally accepted auditing
standards, which include a review of the system of internal accounting
controls to the extent necessary to determine the nature, timing and extent
of audit procedures to be performed.
The Audit and Information Technology Committee (the "Committee") of the
Board of Directors, consisting solely of outside Directors, meets with the
independent accountants with and without management to review and discuss
the major audit findings, internal control matters and quality of financial
reporting. The independent accountants also have access to the Committee to
discuss auditing and financial reporting matters with or without management
present.
/s/John C. Miles II /s/Gerald K. Kunkle /s/William R. Jellison
John C. Miles II Gerald K. Kunkle William R. Jellison
Chairman and President and Senior Vice President and
Chief Executive Officer Chief Operating Officer Chief Financial Officer
Report of Independent Accountants
To the Board of Directors and Stockholders
of DENTSPLY International Inc.
In our opinion, the accompanying consolidated balance sheets and the related
consolidated statements of income, of changes in stockholders' equity and of
cash flows present fairly, in all material respects, the financial position
of DENTSPLY International Inc. and its subsidiaries at December 31, 2001 and
2000, and the results of their operations and their cash flows for each of
the two years in the period ended December 31, 2001 in conformity with
accounting principles generally accepted in the United States of America.
These financial statements are the responsibility of the Company's
management; our responsibility is to express an opinion on these financial
statements based on our audits. We conducted our audits of these statements
in accordance with auditing standards generally accepted in the United
States of America, which require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free
of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for our opinion. The
financial statements of the Company for the year ended December 31, 1999
were audited by other independent accountants whose report dated, January
20, 2000, expressed an unqualified opinion on those statements.
/s/ PricewaterhouseCoopers LLP
Philadelphia, PA
January 21, 2002, except for Note 16, as to which the date is January 31,
2002
D15
DENTSPLY INTERNATIONAL INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
Year Ended December 31,
2001 2000 1999
(in thousands, except per share amounts)
Net sales (Note 4) $ 1,129,094 $ 889,796 $ 836,438
Cost of products sold 559,423 426,202 404,627
Gross profit 569,671 463,594 431,811
Selling, general and administrative expenses 386,235 299,734 282,194
Restructuring and other costs (income) (Note 13) 5,073 (56) -
Operating income 178,363 163,916 149,617
Other income and expenses:
Interest expense 21,676 10,153 15,758
Interest income (1,102) (862) (1,118)
Other (income) expense, net (27,338) 2,829 (3,042)
Income before income taxes 185,127 151,796 138,019
Provision for income taxes (Note 11) 63,631 50,780 48,156
Net income $ 121,496 $ 101,016 $ 89,863
Earnings per common share (Notes 2 and 16):
Basic $ 1.56 $ 1.30 $ 1.14
Diluted 1.54 1.29 1.13
Cash dividends declared per common share (Note 16) $ 0.18333 $ 0.17083 $ 0.15417
Weighted average common shares outstanding (Notes 2 and 16):
Basic 77,671 77,785 79,131
Diluted 78,975 78,560 79,367
The accompanying notes are an integral part of these financial statements.
D15
DENTSPLY INTERNATIONAL INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
December 31,
2001 2000
(in thousands)
Assets
Current Assets:
Cash and cash equivalents $ 33,710 $ 15,433
Accounts and notes receivable-trade, net (Note 1) 191,534 133,643
Inventories, net (Notes 1 and 5) 197,454 133,304
Prepaid expenses and other current assets 61,545 43,074
Total Current Assets 484,243 325,454
Property, plant and equipment, net (Notes 1 and 6) 240,890 181,341
Identifiable intangible assets, net (Notes 1 and 7) 248,890 80,730
Costs in excess of fair value of net
assets acquired, net (Note 1) 763,270 264,023
Other noncurrent assets 60,858 15,067
Total Assets $ 1,798,151 $ 866,615
Liabilities and Stockholders' Equity
Current Liabilities:
Accounts payable $ 69,904 $ 45,764
Accrued liabilities (Note 8) 194,357 88,058
Income taxes payable 86,622 33,522
Notes payable and current portion
of long-term debt (Note 9) 7,634 794
Total Current Liabilities 358,517 168,138
Long-term debt (Note 9) 723,524 109,500
Deferred income taxes 32,526 16,820
Other noncurrent liabilities 73,628 47,226
Total Liabilities 1,188,195 341,684
Minority interests in consolidated subsidiaries 437 4,561
Commitments and contingencies (Note 15)
Stockholders' Equity:
Preferred stock, $.01 par value; .25 million
shares authorized; no shares issued - -
Common stock, $.01 par value; 100 million shares authorized;
81.4 million shares issued at December 31, 2001 and December 31, 2000 814 543
Capital in excess of par value 152,916 151,899
Retained earnings 597,414 490,167
Accumulated other comprehensive loss (77,388) (49,296)
Unearned ESOP compensation (3,419) (4,938)
Treasury stock, at cost, 3.5 million shares at December 31, 2001
and 4.0 million shares at December 31, 2000 (60,818) (68,005)
Total Stockholders' Equity 609,519 520,370
Total Liabilities and Stockholders' Equity $ 1,798,151 $ 866,615
The accompanying notes are an integral part of these financial statements.
D15
DENTSPLY INTERNATIONAL INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
Accumulated
Capital in Other Unearned Total
Common Excess of Retained Comprehensive ESOP Treasury Stockholders'
Stock Par Value Earnings Loss Compensation Stock Equity
(in thousands)
Balance at December 31, 1998 $ 543 $ 152,871 $ 324,745 $ (14,730) $ (7,977) $ (41,651) $ 413,801
Comprehensive Income:
Net income - - 89,863 - - - 89,863
Other comprehensive loss:
Foreign currency translation adjustment,
net of $1,797 tax - - - (28,479) - - (28,479)
Comprehensive Income 61,384
Exercise of stock options and warrants - (1,823) - - - 5,998 4,175
Tax benefit from stock options
and warrants exercised - 730 - - - - 730
Reissuance of treasury stock - (269) - - - 3,622 3,353
Repurchase of common stock, at cost - - - - - (3,890) (3,890)
Cash dividends ($0.15417 per share) - - (12,200) - - - (12,200)
Decrease in unearned ESOP compensation - - - - 1,519 - 1,519
Balance at December 31, 1999 543 151,509 402,408 (43,209) (6,458) (35,921) 468,872
Comprehensive Income:
Net income - - 101,016 - - - 101,016
Other comprehensive loss:
Foreign currency translation adjustment,
net of $688 tax - - - (5,416) - - (5,416)
Minimum pension liability adjustment - - - (671) - - (671)
Comprehensive Income 94,929
Exercise of stock options - (583) - - - 8,008 7,425
Tax benefit from stock options exercised - 973 - - - - 973
Repurchase of common stock, at cost - - - - - (40,092) (40,092)
Cash dividends ($0.17083 per share) - - (13,257) - - - (13,257)
Decrease in unearned ESOP compensation - - - - 1,520 - 1,520
Balance at December 31, 2000 543 151,899 490,167 (49,296) (4,938) (68,005) 520,370
Comprehensive Income:
Net income - - 121,496 - - - 121,496
Other comprehensive loss:
Foreign currency translation adjustment,
net of $6,264 tax - - - (26,566) - - (26,566)
Cumulative effect of change in accounting
principle for derivative and hedging
activities (SFAS 133) - - - (503) - - (503)
Net loss on derivative financial
instruments - - - (810) - - (810)
Minimum pension liability adjustment - - - (213) - - (213)
Comprehensive Income 93,404
Exercise of stock options - (45) - - - 8,062 8,017
Tax benefit from stock options exercised - 1,333 - - - - 1,333
Repurchase of common stock, at cost - - - - - (875) (875)
Cash dividends ($0.18333 per share) - - (14,249) - - - (14,249)
Decrease in unearned ESOP compensation - - - - 1,519 - 1,519
Three-for-two common stock split 271 (271) - - - - -
Balance at December 31, 2001 $ 814 $ 152,916 $ 597,414 $ (77,388) $ (3,419) $ (60,818) $ 609,519
The accompanying notes are an integral part of these financial statements.
D15
DENTSPLY INTERNATIONAL INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Year Ended December 31,
---------------------------------------------------
2001 2000 1999
(in thousands)
Cash flows from operating activities:
Net income $ 121,496 $ 101,016 $ 89,863
Adjustments to reconcile net income to net cash
provided by operating activities:
Depreciation 25,219 22,024 19,933
Amortization 29,115 19,335 19,691
Deferred income taxes 6,451 4,249 5,885
Restructuring and other costs (income) 5,073 (56) -
Other non-cash transactions (3,849) 815 319
Gain on sale of business (23,121) - -
Loss on disposal of property, plant and equipment 54 482 304
Non-cash ESOP compensation 1,519 1,520 1,519
Changes in operating assets and liabilities, net of
acquisitions and divestitures:
Accounts and notes receivable-trade, net (3,709) (9,218) 2,384
Inventories, net (2001 includes one-time precious
metals inventory reduction of $29,087) 14,763 (1,216) 4,394
Prepaid expenses and other current assets 47 (1,526) (2,223)
Accounts payable 9,180 1,492 1,040
Accrued liabilities 28,704 7,018 (14,343)
Income taxes 4,295 (834) 11
Other, net (4,169) 521 (2,900)
Net cash provided by operating activities 211,068 145,622 125,877
Cash flows from investing activities:
Acquisitions of businesses, net of cash acquired (812,523) (14,995) (673)
Expenditures for identifiable intangible assets (4,265) (1,423) (3,256)
Proceeds from bulk sale of precious metals inventory 41,814 - -
Insurance proceeds received for fire-destroyed equipment 8,980 - -
Proceeds from sale of property, plant and equipment 645 215 1,825
Capital expenditures (49,337) (28,425) (33,386)
Net cash used in investing activities (814,686) (44,628) (35,490)
Cash flows from financing activities:
Proceeds from exercise of stock options and warrants 8,017 7,425 4,175
Cash paid for treasury stock (875) (40,092) (3,890)
Cash dividends paid (14,228) (13,004) (11,859)
Proceeds from the termination of a pension plan 8,486 - -
Proceeds from long-term borrowings, net of deferred financing costs 1,435,175 114,341 99,407
Payments on long-term borrowings (819,186) (149,390) (177,946)
Increase (decrease) in short-term borrowings 7,511 (18,389) 4,909
Net cash provided by (used in) financing activities 624,900 (99,109) (85,204)
Effect of exchange rate changes on cash and cash equivalents (3,005) 2,130 (4,238)
Net increase in cash and cash equivalents 18,277 4,015 945
Cash and cash equivalents at beginning of period 15,433 11,418 10,473
Cash and cash equivalents at end of period $ 33,710 $ 15,433 $ 11,418
The accompanying notes are an integral part of these financial statements.
D15
DENTSPLY INTERNATIONAL INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Year Ended December 31,
2001 2000 1999
(in thousands)
Supplemental disclosures of cash flow information:
Interest paid $ 15,967 $ 7,434 $ 13,863
Income taxes paid 47,215 39,064 34,951
Supplemental disclosures of non-cash transactions:
Receipt of convertible preferred stock in connection
with the sale of a business 32,000 - -
Issuance of treasury stock in connection with the
acquisition of certain assets - - 3,353
The company assumed liabilities in conjunction
with the following acquisitions:
Fair Value Cash Paid for
of Assets Assets or Liabilities
Date Acquired Acquired Capital Stock Assumed
(in thousands)
Degussa Dental Group October 2001 $ 624,270 $ 502,947 $ 121,323
CeraMed Dental (remaining 49%) July 2001 20,000 20,000 -
Tulsa Dental Products (earn-out payment) May 2001 84,627 84,627 -
Dental injectible anesthetic assets of
AstraZeneca March 2001 104,405 98,725 5,680
Friadent GmbH January 2001 135,632 105,025 30,607
PreVest, Inc. October 2000 2,000 2,000 -
San Diego Swiss Machining, Inc. September 2000 7,729 7,702 27
ESP, LLC August 2000 2,452 2,452 -
Darway, Inc. July 2000 3,485 3,469 16
Midwest Orthodontic Manufacturing, LLC July 2000 999 604 395
The accompanying notes are an integral part of these financial statements.
D15
DENTSPLY INTERNATIONAL INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTE 1 - SIGNIFICANT ACCOUNTING POLICIES
Description of Business
DENTSPLY designs, develops, manufactures and markets a broad range of
products for the dental market. The Company believes that it is the world's
leading manufacturer and distributor of dental prosthetics, precious metal
dental alloys, dental ceramics, endodontic instruments and materials,
prophylaxis paste, dental sealants, ultrasonic scalers, dental injectible
anesthetics and crown and bridge materials; the leading United States
manufacturer and distributor of dental x-ray equipment, dental handpieces,
intraoral cameras, dental x-ray film holders, film mounts and bone
substitute/grafting materials; and a leading worldwide manufacturer or
distributor of impression materials, orthodontic appliances, dental cutting
instruments and dental implants. The Company distributes its dental products
in over 120 countries under some of the most well established brand names in
the industry. DENTSPLY is committed to the development of innovative, high
quality, cost-effective new products for the dental market
Principles of Consolidation
The consolidated financial statements include the accounts of the Company
and all majority-owned subsidiaries. Intercompany accounts and transactions
are eliminated in consolidation.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the amounts reported in the financial statements and
accompanying notes. Actual results could differ from those estimates and
assumptions.
Cash and Cash Equivalents
The Company considers all highly liquid investments with an original
maturity of three months or less to be cash equivalents.
Accounts and Notes Receivable-Trade
The Company sells dental equipment and supplies primarily through a
worldwide network of distributors, although certain product lines are sold
directly to the end user. For customers on credit terms, the Company
performs ongoing credit evaluation of those customers' financial condition
and generally does not require collateral from them. The Company establishes
allowances for doubtful accounts for estimated losses resulting from the
inability of its customers to make required payments. Accounts and notes
receivable-trade are stated net of these allowances which were $12.6 million
and $6.4 million at December 31, 2001 and 2000, respectively. Certain of the
Company's larger distributors are offered cash rebates based on targeted
sales increases. The Company records an accrual based on its projected cash
rebate obligations.
Inventories
Inventories are stated at the lower of cost or market. At December 31,
2001 and 2000, the cost of $23.6 million, or 12%, and $14.0 million, or
10%, respectively, of inventories was determined by the last-in, first-out
("LIFO") method. The cost of other inventories was determined by the
first-in, first-out ("FIFO") or average cost method. The Company establishes
reserves for inventory estimated to be obsolete or unmarketable equal to the
difference between the cost of inventory and estimated market value based
upon assumptions about future demand and market conditions.
If the FIFO method had been used to determine the cost of LIFO
inventories, the amounts at which net inventories are stated would be higher
than reported at December 31, 2001 by $2.3 million and lower than reported
at December 31, 2000 by $0.2 million.
D15
Property, Plant and Equipment
Property, plant and equipment are stated at cost, net of accumulated
depreciation. Except for leasehold improvements, depreciation for
financial reporting purposes is computed by the straight-line method over
the following estimated useful lives: buildings - generally 40 years and
machinery and equipment - 4 to 15 years. The cost of leasehold improvements
is amortized over the shorter of the estimated useful life or the term of
the lease. Maintenance and repairs are charged to operations; replacements
and major improvements are capitalized.
Identifiable Intangible Assets
Identifiable intangible assets, which primarily consist of patents,
trademarks and licensing agreements, are amortized on a straight-line basis
over their estimated useful lives, ranging from 5 to 40 years. Long-lived
assets are reviewed for impairment whenever events or circumstances provide
evidence that suggest that the carrying amount of the asset may not be
recoverable Impairment is based upon an evaluation of the identifiable
undiscounted cash flows. If impaired, the resulting charge reflects the
excess of the asset's carrying cost over its fair value (see Note 13).
Costs in Excess of Fair Value of Net Assets Acquired
The excess of costs of acquired companies and product lines over the fair
value of net assets acquired ("goodwill") is amortized on a straight-line
basis over 25 to 40 years. Costs in excess of the fair value of net assets
acquired are stated net of accumulated amortization of $80.1 million and
$62.0 million at December 31, 2001 and 2000, respectively. Costs in excess
of fair value of net assets acquired are evaluated periodically to determine
whether later events or circumstances warrant revised estimates of useful
lives. The recovery of goodwill is evaluated by an analysis of operating
results and consideration of other significant events or changes in the
business environment. If an operating unit has current operating losses and
based upon projections there is a likelihood that such operating losses will
continue, the Company will evaluate whether impairment exists on the basis
of undiscounted expected future cash flows from operations. If impairment
exists, the carrying amount of goodwill is reduced by the estimated
shortfall of cash flows on a discounted basis.
Effective January 1, 2002, the Company adopted Statement of Financial
Accounting Standards No. 142 ("SFAS 142"), "Goodwill and Other Intangible
Assets". This statement requires that the amortization of goodwill be
discontinued and instead an annual impairment approach be applied. The
impairment tests will be performed upon adoption and annually thereafter (or
more often if adverse events occur) and will be based upon a fair value
approach rather than an evaluation of the undiscounted cash flows. If
impairment exists, under SFAS 142, the resulting charge is determined by
recalculating goodwill through a hypothetical purchase price allocation of
the fair value and reducing the current carrying value to the extent it
exceeds the recalculated goodwill.
Derivative Financial Instruments
The Company employs derivative financial instruments to hedge certain
anticipated transactions, firm commitments, or assets and liabilities
denominated in foreign currencies, interest rate swaps to convert floating
rate debt to fixed rate or fixed rate debt to floating rate, cross currency
basis swaps to convert debt denominated in one currency to another currency
and commodity swaps to fix its variable raw materials.
The Company adopted Statement of Financial Accounting Standards No. 133
("SFAS 133"), "Accounting for Derivative Instruments and Hedging Activities"
on January 1, 2001. This standard, as amended by SFAS 138, requires that all
derivative instruments be recorded on the balance sheet at their fair value
and that changes in fair value be recorded each period in current earnings
or comprehensive income. See Note 14 for additional information.
Litigation
The Company and its subsidiaries are from time to time parties to
lawsuits arising out of their respective operations. The Company records
liabilities when a loss is probable and can be reasonably estimated. These
estimates are based on an analysis made by internal and external legal
counsel which considers information known at the time.
D15
Foreign Currency Translation
The functional currency for foreign operations, except for those in
highly inflationary economies, has been determined to be the local currency.
Assets and liabilities of foreign subsidiaries are translated at exchange
rates on the balance sheet date; revenue and expenses are translated at the
average year-to-date rates of exchange. The effects of these translation
adjustments are reported in a separate component of stockholders' equity.
Exchange gains and losses arising from transactions denominated in a
currency other than the functional currency of the entity involved and
translation adjustments in countries with highly inflationary economies are
included in income. Exchange gains of $1.2 million in 2001 and exchange
losses of $2.7 million in 2000 and $0.1 million in 1999 are included in
other (income) expense, net.
Revenue Recognition
Revenue, net of related discounts and allowances, is recognized when
product is shipped and risk of loss has transferred to the customer.
Research and Development Costs
Research and development costs are charged to expense as incurred and are
included in selling, general and administrative expenses. Research and
development costs amounted to approximately $28.3 million, $20.4 million and
$18.5 million for 2001, 2000 and 1999, respectively.
Income Taxes
Income taxes are determined in accordance with Statement of Financial
Accounting Standards No. 109 ("SFAS 109"), which requires recognition of
deferred income tax liabilities and assets for the expected future tax
consequences of events that have been included in the financial statements
or tax returns. Under this method, deferred income tax liabilities and
assets are determined based on the difference between financial statements
and tax bases of liabilities and assets using enacted tax rates in effect
for the year in which the differences are expected to reverse. SFAS 109 also
provides for the recognition of deferred tax assets if it is more likely
than not that the assets will be realized in future years. A valuation
allowance has been established for deferred tax assets for which realization
is not likely.
Earnings Per Share
Basic earnings per share is calculated by dividing net earnings by the
average number of shares outstanding for the period. Diluted earnings per
share is calculated by dividing net earnings by the average number of shares
outstanding for the period, adjusted for the effect of an assumed exercise
of all dilutive options outstanding at the end of the period.
Stock Compensation
The Company applies the intrinsic value method in accordance with
Accounting Principles Board Opinion No. 25 and related interpretations in
accounting for stock compensation plans. Under this method, no compensation
expense is recognized for fixed stock option plans, provided that the
exercise price is greater than or equal to the price of the stock at the
date of grant.
Reclassifications
Certain reclassifications have been made to prior years' data in order to
conform to the current year presentation.
D15
Pending Accounting Changes
In June 2001 Financial Accounting Standards Board ("FASB") issued
Statement of Financial Accounting Standards No. 141 ("SFAS 141"), "Business
Combinations" and Statement of Financial Accounting Standards No. 142 ("SFAS
142"), "Goodwill and Other Intangible Assets". SFAS 141 addresses financial
accounting and reporting for business combinations. Specifically, effective
for business combinations occurring after July 1, 2001, it eliminates the
use of the pooling method of accounting and requires all business
combinations to be accounted for under the purchase method. SFAS 142
addresses financial accounting and reporting for acquired goodwill and other
intangible assets. The primary change related to this new standard is that
the amortization of goodwill and intangible assets with indefinite useful
lives will be discontinued and instead an annual impairment approach will be
applied. Except for goodwill and intangible assets with indefinite lives
related to acquisitions after July 1, 2001 (in which case, amortization will
not be recognized at all), the Company discontinued amortization of goodwill
and intangible assets with indefinite lives effective January 1, 2002. The
application of these new standards will have a positive impact on earnings
per share of approximately $0.15 in 2002. Based upon preliminary
evaluations, the Company does not believe the adoption of SFAS 142 will
result in the recognition of any material impairment charges.
In June 2001, the FASB issued Statement of Financial Accounting Standards
No. 143 ("SFAS 143"), "Accounting for Asset Retirement Obligations". It
applies to legal obligations associated with the retirement of long-lived
assets that result from the acquisition, construction, development and (or)
the normal operation of a long-lived asset, except for certain obligations
of lessees. SFAS 143 requires that the fair value of a liability for an
asset retirement obligation be recognized in the period in which it is
incurred if a reasonable estimate of fair value can be made. The associated
asset retirement costs are capitalized as part of the carrying amount of the
long-lived asset and subsequently allocated to expense over the asset's
useful life. SFAS 143 is effective for the Company in 2003 and the effect
of adopting it is not expected to be material.
In August 2001, the FASB issued Statement of Financial Accounting
Standards No. 144 ("SFAS 144"), "Accounting for the Impairment or Disposal
of Long-Lived Assets." SFAS 144 supercedes SFAS 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed
Of," and APB 30, " Reporting the Results of Operations-Reporting the Effects
of Disposal of a Segment of Business and Extraordinary, Unusual and
Infrequently Occurring Events and Transactions." SFAS 144 requires an
impairment loss to be recognized only if the carrying amounts of long-lived
assets to be held and used are not recoverable from their expected and
undiscounted future cash flows. SFAS 144 is effective for fiscal years
beginning after December 15, 2001. The effect of adopting this standard is
not expected to be material.
D15
NOTE 2 - EARNINGS PER COMMON SHARE
The following table sets forth the computation of basic and diluted
earnings per common share:
Income Shares Per Share
(Numerator) (Denominator) Amount
(in thousands, except per share amounts)
Year Ended December 31, 2001
Basic EPS $121,496 77,671 $ 1.56
Incremental shares from assumed exercise
of dilutive options - 1,304
Diluted EPS $121,496 78,975 $ 1.54
Year Ended December 31, 2000
Basic EPS $101,016 77,785 $ 1.30
Incremental shares from assumed exercise
of dilutive options - 775
Diluted EPS $101,016 78,560 $ 1.29
Year Ended December 31, 1999
Basic EPS $ 89,863 79,131 $ 1.14
Incremental shares from assumed exercise
of dilutive options and warrants - 236
Diluted EPS $ 89,863 79,367 $ 1.13
Options to purchase 1.4 million and 1.0 million shares of common stock
that were outstanding during the years ended 2000 and 1999, respectively,
were not included in the computation of diluted earnings per share since the
options' exercise prices were greater than the average market price of the
common shares and, therefore, the effect would be antidilutive.
D15
NOTE 3 - BUSINESS ACQUISITIONS AND DIVESTITURES
Each acquisition completed in 2001 and 2000 was accounted for under the
purchase method of accounting; accordingly, the results of their operations
are included in the accompanying financial statements since the respective
dates of the acquisitions. The purchase prices were allocated on the basis
of estimates of the fair values of assets acquired and liabilities assumed.
The preliminary allocation of purchase prices, subject primarily to the
completion of fixed asset and intangible asset valuations, is outlined below.
In October 2001, the Company completed the acquisition of Degussa Dental
Group ("Degussa Dental"), a unit of Degussa AG, pursuant to the May 2001
Sale and Purchase Agreement. The preliminary purchase price for Degussa
Dental was 548 million Euros or $503 million, which was paid at closing. The
preliminary purchase price is subject to increase or decrease, based on
certain working capital levels of Degussa Dental as of October 1, 2001. The
Company expects that the final purchase price will be approximately 576
million Euros or $530 million, excluding restructuring and other costs
associated with the acquisition of approximately $8.0 million. In accordance
with Statement of Financial Accounting Standards No. 142, "Goodwill and
Other Intangible Assets", the goodwill and indefinite lived intangible
assets associated with this acquisition were not amortized. Degussa Dental
manufactures and sells dental products, including precious metal alloys,
ceramics and dental laboratory equipment, and chairside products.
Headquartered in Hanau-Wolfgang, Germany since 1992, Degussa Dental Group
has production facilities throughout the world.
In August 1996, the Company purchased a 51% interest in CeraMed Dental
("CeraMed") for $5 million with the right to acquire the remaining 49%
interest. In March 2001, the Company entered into an agreement for an early
buy out of the remaining 49% interest in CeraMed at a cost of $20 million,
which was made in July 2001, with a potential contingent consideration
("earn-out") provision capped at $5 million. The earn-out is based on future
sales of CeraMed products during the August 1, 2001 to July 31, 2002 time
frame with any additional pay out due on September 30, 2002. In accordance
with Statement of Financial Accounting Standards No. 142, "Goodwill and
Other Intangible Assets", the goodwill associated with the acquisition of
the 49% interest was not amortized.
Certain assets of Tulsa Dental Products LLC were purchased in January
1996 for $75.1 million, plus $5.0 million paid in May 1999 related to
earn-out provisions in the purchase agreement based on performance of the
acquired business. The purchase agreement provided for an additional
earn-out payment based upon the operating performance of the Tulsa Dental
business for one of the three two-year periods ending December 31, 2000,
December 31, 2001 or December 31, 2002, as selected by the seller. The
seller chose the two-year period ended December 31, 2000 and the final
earn-out payment of $84.6 million was made in May 2001 resulting in an
increase in goodwill.
In January 2001, the Company agreed to acquire the dental injectible
anesthetic assets of AstraZeneca ("AZ Assets"), including permanent,
exclusive and royalty-free licensing rights to the dental products and
tradenames, for $136.5 million and royalties on future sales of a new
anesthetic product for scaling and root planing, Oraqix(TM) ("Oraqix"), that
was in Stage III clinical trials at the time of the agreement. The $136.5
million purchase price was composed of the following: an initial $96.5
million payment which was made at closing in March 2001; a $20 million
contingency payment associated with the first year sales of injectible
dental anesthetic which has been accrued in 2001 and will be paid in the
first quarter of 2002; a $10 million payment upon submission of an Oraqix
New Drug Application ("NDA") in the U.S., and Marketing Authorization
Application ("MAA") in Europe for the Oraqix product under development; and
a $10 million payment upon approval of the NDA and MAA. Because the Oraqix
product has not received regulatory approvals for its use, payments made
with respect to this product prior to approval are considered to be research
and development costs and are expensed as incurred. After an analysis of the
available clinical data, the Company concluded that the Oraqix product does
not provide pain relief equivalent to that provided by injectible
anesthetic. As a result, the Company renegotiated the contract to require a
$2.0 million payment upon submission of the NDA and MAA, an $8.0 million
payment and a $10.0 million prepaid royalty upon approval of both
applications. The $2.0 million payment was accrued and expensed during the
fourth quarter of 2001 (see Note 13).
In January 2001, the Company acquired the outstanding shares of
Friadent GmbH ("Friadent") for 220 million German marks or $106 million
($105 million, net of cash acquired). Headquartered in Mannheim, Germany,
Friadent is a major global dental implant manufacturer and marketer with
subsidiaries in Germany, France, Denmark, Sweden, the United States,
Switzerland, Brazil, and Belgium.
D15
The acquisitions above were accounted for under the purchase method of
accounting; accordingly, the results of their operations are included in the
accompanying financial statements since the respective dates of the
acquisitions. The purchase prices plus direct acquisition costs have been
allocated on the basis of estimated fair values at the dates of acquisition,
pending final determination of the fair value of certain acquired assets and
liabilities. The acquisition costs for Tulsa and Ceramed were allocated to
goodwill. The preliminary purchase price allocations for Degussa Dental,
Friadent and the AZ Assets are as follows:
Degussa
Dental Friadent AZ Assets
(in thousands)
Current assets $ 173,537 $ 16,244 $ -
Property, plant and equipment 45,979 4,184 1,082
Identifiable intangible assets and costs in excess of
fair value of net assets acquired 396,099 114,085 123,945 *
Other long-term assets 8,655 1,119 -
Current liabilities (86,987) (27,553) (5,680)
Other long-term liabilities (34,336) (3,054) -
$ 502,947 $ 105,025 $ 119,347
* Includes accrual made for the earn-out payment of $20.6 million.
Unaudited pro forma results of operations assume the acquisitions made
during 2001 had occurred on January 1, 2000 and are presented below. No
effect has been given in this pro forma information for any of the
acquisitions made during 2000 as their effect would not be significant.
Though useful for comparison, these pro forma results are not intended to
reflect actual earnings had the acquisitions occurred on the dates indicated
and are not a projection of future results or trends.
Pro Forma
Results
As Reported (Unaudited)
(in thousands, except per share amounts)
Year ended December 31, 2001
Net sales $ 1,129,094 $ 1,449,141
Net income 121,496 121,137
Earnings per common share
Basic $ 1.56 $ 1.56
Diluted 1.54 1.54
Year ended December 31, 2000
Net sales $ 889,796 $ 1,455,289
Net income 101,016 86,357
Earnings per common share
Basic $ 1.30 $ 1.11
Diluted 1.29 1.10
D15
In October 2000, the Company acquired certain assets and the business of
PVI, Inc., doing business as PreVest, Inc. ("PreVest"), for $2.0 million.
The business is a multi-industry manufacturer of investment materials
produced for the precision casting of metal alloys.
In September 2000, the Company purchased the assets of the ultrasonic
dental tip business of San Diego Swiss Machining, Inc. ("SDSM") for $7.7
million. Headquartered in Chula Vista, California, the dental tip business
of SDSM produces and distributes a proprietary line of ultrasonic instrument
tips used to shape and clean root canals during endodontic therapy.
In August 2000, the Company acquired a 51% interest in ESP, LLC ("ESP"),
located in New Orleans, Louisiana, for $2.5 million. ESP manufactures and
markets the Chimal product lines of lotions and creams to the worldwide
dental, medical, automotive, cosmetology, industrial and food markets. The
Chimal skin shield contains ingredients that bond to the skin and seal out
irritants such as chemicals and solvents while sealing in natural
moisturizers.
In July 2000, the Company purchased the assets of Darway Inc. ("Darway"),
of San Mateo, California, for $3.5 million. Darway manufactures the
patented Palodent Contoured Sectional Matrix System, which is used by
dentists to provide a means to contain filling material when the restoration
of a tooth requires removing tooth structure that faces an adjacent tooth,
the tongue or the cheek.
In July 2000, the Company purchased certain assets of Midwest Orthodontic
Manufacturing, LLC ("MOM"), based in Columbus, Indiana, for $0.6 million.
MOM produces a broad array of ancillary materials used in orthodontia from
its Indiana facility, including elastics, retainer cases and springs.
No acquisitions were completed in 1999.
In January 2002, the Company acquired the partial denture business of
Austenal Inc., in a cash transaction valued at approximately $23.8 million,
including debt assumed. Headquartered in Chicago, Illinois, Austenal
manufactures dental laboratory products and is the world leader in the
manufacture and sale of systems used by dental laboratories to fabricate
partial dentures.
In March 2001, the Company sold InfoSoft, LLC to PracticeWorks, Inc.
InfoSoft, LLC, a wholly owned subsidiary of the Company, that developed and
sold software and related products for dental practice management.
PracticeWorks is the dental software management and dental claims processing
company which was spun-off by Infocure Corporation. In the transaction, the
Company received 6.5% convertible preferred stock in PracticeWorks, with a
fair value of $32 million. This investment plus accrued dividends to date
are included in "Other noncurrent assets". These preferred shares are
convertible into approximately 1.0 million shares of PracticeWorks common
stock. If not previously converted, the preferred shares are redeemable for
cash after 5 years. This sale resulted in a $23.1 million pretax gain which
is included in "Other (income) expense, net". The Company will measure
recoverability on this investment on a periodic basis.
D15
NOTE 4 - SEGMENT AND GEOGRAPHIC INFORMATION
The Company follows Statement of Financial Accounting Standards No. 131
("SFAS 131"), "Disclosures about Segments of an Enterprise and Related
Information". SFAS 131 establishes standards for reporting information
about reporting segments in financial statements. The Company has four
operating segments that report to the chief operating decision maker. Each
of the operating segments cover a wide range of product and geographic
responsibility. These operating segments are aggregated into one reportable
segment for purposes of SFAS 131. Substantially all of the Company's
operating segments do business as a designer, manufacturer and distributor
of dental products. Dental products represented approximately 97%, 95% and
94% of sales in 2001, 2000 and 1999, respectively.
The Company's operations are structured to achieve consolidated
objectives. As a result, significant interdependencies exist among the
Company's operations in different geographic areas. Intercompany sales of
manufacturing materials between areas are at prices which, in general,
provide a reasonable profit after coverage of all manufacturing costs.
Intercompany sales of finished goods are at prices intended to provide a
reasonable profit for purchasing locations after coverage of marketing and
general and administrative costs.
The following table sets forth information about the Company's operations
in different geographic areas for 2001, 2000 and 1999. Net sales reported
below represents revenues from external customers of operations resident in
the country or territory identified. Assets by geographic area are those
used in the operations in the geographic area.
United Other
States Germany Foreign Consolidated
(in thousands)
2001
Net sales $ 627,358 $156,595 $ 345,141 $ 1,129,094
Long-lived assets 138,380 66,756 91,584 296,720
2000
Net sales $ 560,692 $57,989 $ 271,115 $ 889,796
Long-lived assets 87,314 42,049 66,519 195,882
1999
Net sales $ 509,004 $65,688 $ 261,746 $ 836,438
Long-lived assets 82,768 43,932 66,454 193,154
The following table presents sales information by product for the Company:
Year Ended December 31,
2001 2000 1999
(in thousands)
Consumables and small equipment $ 1,008,133 $765,751 $ 716,519
Heavy equipment 81,913 76,374 71,867
Other 39,048 47,671 48,052
$ 1,129,094 $889,796 $ 836,438
Third party export sales from the United States are less than ten percent
of consolidated net sales. One customer, a distributor, accounted for 11%,
14% and 13% of consolidated net sales in 2001, 2000 and 1999, respectively.
Another customer, a distributor, accounted for 9% of consolidated net sales
in 2001 and 10% in 2000 and 1999.
D15
NOTE 5 - INVENTORIES
Inventories consist of the following:
December 31,
2001 2000
(in thousands)
Finished goods $119,030 $ 84,436
Work-in-process 35,539 22,102
Raw materials and supplies 42,885 26,766
$197,454 $133,304
NOTE 6 - PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment consist of the following:
December 31,
2001 2000
(in thousands)
Assets, at cost:
Land $19,752 $14,525
Buildings and improvements 128,053 87,381
Machinery and equipment 262,265 170,141
Construction in progress 20,566 13,211
430,636 285,258
Less: Accumulated depreciation 189,746 103,917
$240,890 $181,341
D15
NOTE 7 - IDENTIFIABLE INTANGIBLE ASSETS
Identifiable intangible assets consist of the following:
December 31,
2001 2000
(in thousands)
Patents $ 64,514 $ 47,605
Trademarks 64,710 31,737
Licensing agreements 150,477 29,733
Other 44,961 34,922
324,662 143,997
Less: Accumulated amortization 75,772 63,267
$248,890 $ 80,730
NOTE 8 - ACCRUED LIABILITIES
Accrued liabilities consist of the following:
December 31,
2001 2000
(in thousands)
Payroll, commissions, bonuses and
other cash compensation $39,139 $ 20,129
Employee benefits 15,458 7,893
General insurance 13,886 12,052
Sales and marketing programs 21,533 7,428
Restructuring and other costs 24,497 6,897
Earn-out related to the AZ Asset purchase 20,622 -
Other 59,222 33,659
$ 194,357 $ 88,058
D15
NOTE 9 - FINANCING ARRANGEMENTS
Short-Term Borrowings
Short-term bank borrowings amounted to $3.5 million and $0.4 million at
December 31, 2001 and 2000, respectively. The weighted average interest
rates of these borrowings were 3.3% and 8.61% at December 31, 2001 and 2000,
respectively. Unused lines of credit for short-term financing at December
31, 2001 and 2000 were $66.9 million and $54.7 million, respectively.
Substantially all short-term borrowings were classified as long-term as of
December 31, 2001 and 2000, reflecting the Company's intent and ability to
refinance these obligations beyond one year and are included in the table
below. Substantially all unused lines of credit have no major restrictions
and are provided under demand notes between the Company and the lending
institution. Interest is charged on borrowings under these lines of credit
at various rates, generally below prime or equivalent money rates.
Long-Term Borrowings
December 31,
2001 2000
(in thousands)
$250 million multi-currency revolving credit agreement expiring May 2006,
Japanese yen 1.3 billion at 0.63%, Swiss francs 230.0 million at 2.52% $ 147,028 $ -
$250 million multi-currency revolving credit agreement expiring May 2002,
Japanese yen 7.3 billion at 0.65% 55,338 -
Prudential Private Placement Notes, Swiss franc denominated, 84.4 million at 4.56% and
82.5 million at 4.42% maturing March 2007, 80.4 million at 4.96% maturing October 2006 147,489 -
ABN Private Placement Note, Japanese yen 6.2 billion at 1.39% maturing December 2005 47,527 -
Euro 350.0 million Eurobonds at 5.75% maturing December 2006 303,563 -
$200 million commercial paper facility rated A/2-P/2 U.S. dollar borrowings at 2.30% 6,650 -
$175 million multi-currency revolving credit agreement expiring October 2002 - 92,105
$20 million bank multi-currency revolving credit agreement expiring October 2001 - 8,031
Other borrowings, various currencies and rates 20,061 9,740
727,656 109,876
Less: Current portion (included in notes payable and
current portion of long-term debt) 4,132 376
$ 723,524 $ 109,500
The table below reflects the contractual maturity dates of the various
borrowings at December 31, 2001. The borrowings contractually due in 2002 have
been classified as long-term due to the Company's intent and ability to renew or
refinance these obligations beyond 2002.
2002 $ 214,282
2003 23,568
2004 17,831
2005 49,971
2006 and thereafter 417,872
$ 723,524
D15
In July 1998, the Company entered into interest rate swap agreements with
notional amounts totaling $80.0 million which converted a portion of the
Company's variable rate financing to fixed rates. The average fixed rate of
these agreements was 5.7% and fixed the rate for an average of five years.
The U.S. dollar swaps were terminated in February 2001 at a cost of $1.2
million, which is being amortized over the remaining term of the related
debt. In January 2000 and February 2001, the Company entered into interest
rate swap agreements with notional amounts totaling Swiss franc 180 million
which converts a portion of the Company's variable rate financing to fixed
rates. The average fixed rate of these agreements is 3.3% and fixes the
rate for an average of four years. In December 2001, the Company entered
into a series of fixed to variable rate swaps to convert its fixed rate
5.75% coupon Eurobonds into variable debt, currently at 3.2%. Additionally,
the Company entered into a series of freestanding Euro to U.S. dollar cross
currency basis swaps to effectively convert the Eurobonds and related
interest expense to U.S. dollar. DENTSPLY Sankin, the Company's Japanese
subsidiary acquired in the Degussa transaction, has an interest rate swap
with a notional amount of Japanese yen 70 million to convert its variable
rate debt into fixed rate of 2.9% which matures in December 2002.
In May 2001, the Company replaced and increased its multiple revolving
credit agreements with a single agreement providing a total available credit
of $500 million with participation from thirteen banks. The revolving credit
agreements contain certain affirmative and negative covenants as to the
operations and financial condition of the Company, the most restrictive of
which pertain to asset dispositions, maintenance of certain levels of net
worth, and prescribed ratios of indebtedness to total capital and operating
income plus depreciation and amortization to interest expense. The Company
pays a facility fee of 0.125 % annually on the amount of the commitment
under the $250 million five year facility and 0.10 % annually under the $250
million 364-day facility. Interest rates on amounts borrowed under the
facility will depend on the maturity of the borrowing, the currency
borrowed, the interest rate option selected, and the Company's long-term
credit rating from Moody's and Standard and Poors.
The $250 million 364-day facility A may be extended, subject to certain
conditions, for additional periods of 364 days, which the Company intends to
extend annually. The entire $500 million revolving credit agreement has a
usage fee of 0.125 % annually if utilization exceeds 50% of the total
available facility.
The $200 million commercial paper facility has utilization, dealer, and
annual appraisal fees which on average cost 0.11 % annually. The $250
million 364-day revolving credit facility A acts as back-up credit to this
commercial paper facility. The total available credit under the commercial
paper facility and the 364-day facility is $250 million. The short-term
commercial paper borrowings were classified as long-term, as of December 31,
2001, reflecting the Company's intent and ability to renew these obligations
beyond 2002.
In March 2001, the Company issued Series A and B private placement notes
to Prudential Capital Group totaling Swiss francs 166.9 million ($100
million) at an average rate of 4.49% with six year final maturities. The
notes were issued to finance the acquisition of the AZ Assets. In October
2001 the Company issued a Series C private placement note to Prudential
Capital Group for Swiss francs 80.4 million ($50 million) at rate of 4.96%
with a five year final maturity. The series A and B notes were also amended
to increase the interest rate by 30 basis points, reflecting the Company's
higher leverage. In December 2001, the Company issued a private placement
note through ABN AMRO for Japanese yen 6.2 billion ($50 million) at rate of
1.39% with a four year final maturity. The Series C note and the ABN note
were issued to partially finance the Degussa Dental acquisition.
The Company issued 350 million Eurobonds with a coupon of 5.75%, maturing
December 2006 at an effective yield of 5.89%. These bonds were issued to
partially finance the Degussa Dental acquisition.
D15
NOTE 10 - STOCKHOLDERS' EQUITY
The Board of Directors authorized the repurchase of 1.5 million, 6.0
million and 0.8 million shares of common stock for the years ended December
31, 2001, 2000 and 1999, respectively, on the open market or in negotiated
transactions. Each of these authorizations to repurchase shares expired on
December 31 of the respective years. The Company repurchased 37,500 shares
for $0.9 million, 2.2 million shares for $40.1 million and 0.3 million
shares for $3.9 million in 2001, 2000 and 1999, respectively.
A former Chairman of the Board holds options to purchase 45,000 shares of
common stock at an exercise price of $14.83, which was equal to the market
price on the date of grant. The options are exercisable at any time through
January 2004.
The Company has four stock option plans (1987 Plan, 1992 Plan, 1993 Plan
and 1998 Plan). Under the 1987, 1992 and 1993 Plans, a committee appointed
by the Board of Directors granted to key employees and directors of the
Company options to purchase shares of common stock at an exercise price
determined by such committee, but not less than the fair market value of the
common stock on the date of grant. Options expire ten years and one month
or ten years and one day after date of grant under the 1987 Plan and 1992
Plan, respectively. Options generally expire ten years after the date of
grant under the 1993 Plan. For the 1987 Plan, 1992 Plan and 1993 Plan,
grants become exercisable over a period of three years after the date of
grant at the rate of one-third per year, except that they become immediately
exercisable upon death, disability or retirement.
The 1998 Plan authorized that 6.5 million shares of common stock, plus
shares not granted under the 1993 Plan, may be granted under the plan,
subject to adjustment as follows: each January, if 7% of the outstanding
common shares of the Company exceed 6.5 million, the excess becomes
available for grant under the plan. No further grants can be made under the
1993 Plan. The 1998 Plan enables the Company to grant "incentive stock
options" ("ISOs") within the meaning of Section 422 of the Internal Revenue
Code of 1986, as amended, to key employees of the Company, and
"non-qualified stock options" ("NSOs") which do not constitute ISOs to key
employees and non-employee directors of the Company. Each non-employee
director receives automatic NSOs to purchase 9,000 shares of common stock on
the date he or she becomes a non-employee director and an additional 9,000
options on the third anniversary of the date the non-employee director was
last granted an option. Grants of options to key employees are solely
discretionary. ISOs and NSOs generally expire ten years from date of grant
and become exercisable over a period of three years after the date of grant
at the rate of one-third per year, except that they become immediately
exercisable upon death, disability or retirement.
D15
The following is a summary of the status of the Plans as of December 31,
2001, 2000 and 1999 and changes during the years ending on those dates:
Outstanding Exercisable
--------------------------------- ----------------------------------
Weighted Weighted Available
Average Average for
Exercise Exercise Grant
Shares Price Shares Price Shares
December 31, 1998 3,692,567 $ 15.46 2,041,451 $ 13.89 5,480,850
Authorized - 641,316
Granted 1,839,000 15.86 (1,839,000)
Exercised (310,449) 12.98 -
Expired/Canceled (153,750) 16.78 153,750
December 31, 1999 5,067,368 15.72 2,401,523 14.95 4,436,916
Authorized - 15,957
Granted 1,377,600 24.43 (1,377,600)
Exercised (501,531) 14.75 -
Expired/Canceled (151,194) 16.65 151,194
December 31, 2000 5,792,243 17.85 2,989,478 15.64 3,226,467
Authorized - 250,730
Granted 1,605,900 30.43 (1,605,900)
Exercised (497,813) 16.01 -
Expired/Canceled (167,087) 18.47 (167,087)
December 31, 2001 6,733,243 $ 20.97 3,732,179 $ 16.76 1,704,210
The following table summarizes information about stock options outstanding
under the Plans at December 31, 2001:
Options Outstanding Options Exercisable
---------------------------------------------------- -----------------------------------
Weighted
Number Average Number
Outstanding Remaining Weighted Exercisable Weighted
at Contractual Average at Average
December 31 Life Exercise December 31 Exercise
Exercise Price Range 2001 (in years) Price 2001 Price
$10.01 - $13.33 551,664 3.2 $ 12.35 551,664 $ 12.35
13.34 - 16.67 2,574,486 6.5 15.58 2,150,643 15.65
16.68 - 20.00 699,596 6.6 18.96 573,351 19.06
20.01 - 23.33 226,550 8.3 22.51 67,455 21.51
23.34 - 26.67 1,188,599 8.9 24.95 389,066 24.95
26.68 - 30.00 86,400 9.5 28.12 - -
30.01 - 33.33 1,405,948 9.9 31.17 - -
6,733,243 7.5 $ 20.97 3,732,179 $ 16.76
D15
The Company uses the Black-Scholes option pricing model to value option
awards. The per share weighted average fair value of stock options and the
weighted average assumptions used to determine these values are as follows:
Year Ended December 31,
2001 2000 1999
Per share fair value $ 11.47 $ 9.01 $ 6.16
Expected dividend yield 0.61% 0.75% 1.04%
Risk-free interest rate 5.01% 5.37% 6.16%
Expected volatility 33% 32% 29%
Expected life (years) 5.50 5.50 6.50
The Black-Scholes option pricing model was developed for tradable options
with short exercise periods and is therefore not necessarily an accurate
measure of the fair value of compensatory stock options.
The Company applies Accounting Principles Board Opinion No. 25 in
accounting for the Plans and, accordingly, no compensation cost has been
recognized for stock options in the financial statements. Had the Company
determined compensation cost based on the fair value of stock options at the
grant date under SFAS 123, the Company's net income and earnings per common
share would have been reduced as indicated below:
Year Ended December 31,
2001 2000 1999
(in thousands, except per share amounts)
Net income
As reported $ 121,496 $ 101,016 $ 89,863
Pro forma under SFAS 123 115,359 96,402 86,703
Basic earnings per common share
As reported 1.56 1.30 1.14
Pro forma under SFAS 123 1.49 1.24 1.10
Diluted earnings per common share
As reported 1.54 1.29 1.13
Pro forma under SFAS 123 1.46 1.23 1.09
D15
NOTE 11 - INCOME TAXES
The components of income before income taxes are as follows:
Year Ended December 31,
2001 2000 1999
(in thousands)
United States ("U.S.") $136,135 $120,149 $111,038
Foreign 48,992 31,647 26,981
$185,127 $151,796 $138,019
The components of the provision for income taxes are as follows:
Year Ended December 31,
2001 2000 1999
(in thousands)
Current:
U.S. federal $ 44,237 $ 34,291 $ 33,813
U.S. state 1,331 1,330 1,497
Foreign 11,612 10,910 11,252
Total 57,180 46,531 46,562
Deferred:
U.S. federal 13,813 7,356 (1,943)
U.S. state 1,141 669 (274)
Foreign (8,503) (3,776) 3,811
Total 6,451 4,249 1,594
$ 63,631 $ 50,780 $ 48,156
The reconcilation of the U.S. federal statutory tax rate to the effective
rate is as follows:
Year Ended December 31,
2001 2000 1999
Statutory federal income tax rate 35.0 % 35.0 % 35.0 %
Effect of:
State income taxes, net of federal benefit 0.9 0.9 0.6
Nondeductible amortization of goodwill 1.0 1.2 1.4
Foreign earnings at various rates (2.7) (2.3) 1.5
Foreign tax credit (0.8) (0.5) (5.0)
Foreign losses with no tax benefit 0.5 0.8 0.9
Extraterritorial income (0.9) (1.0) (1.0)
Tax exempt income - (0.7) -
Other 1.4 0.1 1.5
Effective income tax rate 34.4 % 33.5 % 34.9 %
D15
The tax effect of temporary differences giving rise to deferred tax assets
and liabilities are as follows:
December 31, 2001 December 31, 2000
Current Noncurrent Current Noncurrent
Asset Asset Asset Asset
(Liability) (Liability) (Liability) (Liability)
(in thousands)
Employee benefit accruals $ 1,725 $ 7,711 $ 1,536 $ 5,023
Product warranty accruals 2,055 - 1,703 -
Facility relocation accruals 107 217 15 217
Insurance premium accruals 4,145 - 4,402 -
Restructuring and other cost accruals 3,025 5,602 168 14,180
Differences in financial reporting and tax basis for:
Inventory 5,418 - 907 -
Property, plant and equipment - (23,866) - (23,107)
Identifiable intangible assets - (16,151) - (13,985)
Other 11,105 (1,011) 5,082 1,378
Tax loss carryforwards in foreign jurisdictions - 2,864 - 2,353
Valuation allowance for tax loss carryforwards - (2,864) - (2,353)
$ 27,580 $(27,498) $ 13,813 $ (16,294)
Current and noncurrent deferred tax assets and liabilities are included in
the following balance sheet captions:
December 31,
2001 2000
(in thousands)
Prepaid expenses and other current assets $ 29,069 $ 16,554
Income taxes payable (1,489) (2,741)
Other noncurrent assets 5,028 526
Deferred income taxes (32,526) (16,820)
Certain foreign subsidiaries of the Company have tax loss carryforwards
of $28.8 million at December 31, 2001, of which $7.7 million expire through
2009 and $21.1 million may be carried forward indefinitely. The tax benefit
of these tax loss carryforwards has been partially offset by a valuation
allowance. The valuation allowance of $2.8 million and $2.4 million at
December 31, 2001 and 2000, respectively, relates to foreign tax loss
carryforwards for which realizability is uncertain. The change in the
valuation allowances for 2001 and 2000 results primarily from the generation
of additional foreign tax loss carryforwards.
The Company has provided for the potential repatriation of certain
undistributed earnings of its foreign subsidiaries and considers earnings
above the amounts on which tax has been provided to be permanently
reinvested. Income taxes have not been provided on $132 million of
undistributed earnings of foreign subsidiaries, which will continue to be
reinvested. If remitted as dividends, these earnings could become subject
to additional tax, however such repatriation is not anticipated. Any
additional amount of tax is not practical to estimate, however, the Company
believes that U.S. foreign tax credits would largely eliminate any U.S. tax
payable.
D15
NOTE 12 - BENEFIT PLANS
Defined Contribution Plans
Substantially all of the employees of the Company and its subsidiaries
are covered by government or Company-sponsored benefit plans. Total costs
for Company-sponsored defined benefit, defined contribution and employee
stock ownership plans amounted to $7.9 million in 2001, $5.1 million in 2000
and $5.3 million in 1999.
The DENTSPLY Employee Stock Ownership Plan ("ESOP") is a non-contributory
defined contribution plan that covers substantially all of the United States
based non-union employees of the Company. Contributions to the ESOP for
2001, 2000 and 1999 were $2.1 million for each year. The Company makes
annual contributions to the ESOP of not less than the amounts required to
service ESOP debt. In connection with the refinancing of ESOP debt in March
1994, the Company agreed to make additional cash contributions totaling at
least $1.7 million through 2003. Dividends received by the ESOP on
allocated shares are either reinvested in participants' accounts or passed
through to Plan participants, at the participant's election. Most ESOP
shares were initially pledged as collateral for its debt. As the debt is
repaid, shares are released from collateral and allocated to active
employees based on the proportion of debt service paid in the year. At
December 31, 2001, the ESOP held 8.2 million shares, of which 7.5 million
were allocated to plan participants and 0.7 million shares were unallocated
and pledged as collateral for the ESOP debt. Unallocated shares were
acquired prior to December 31, 1992 and are accounted for in accordance with
Statement of Position 76-3. Accordingly, all shares held by the ESOP are
considered outstanding and are included in the earnings per common share
computations.
The Company sponsors an employee 401(k) savings plan for its United
States workforce to which enrolled participants may contribute up to IRS
defined limits.
Defined Benefit Plans
The Company maintains a number of separate contributory and
non-contributory qualified defined benefit pension plans and other
postretirement medical plans for certain union and salaried employee groups
in the United States. Pension benefits for salaried plans are based on
salary and years of service; hourly plans are based on negotiated benefits
and years of service. Annual contributions to the pension plans are
sufficient to satisfy legal funding requirements. Pension plan assets are
held in trust and consist mainly of common stock and fixed income
investments.
The Company maintains defined benefit pension plans for its employees in
Germany, Japan, The Netherlands, and Switzerland. These plans provide
benefits based upon age, years of service and remuneration. The German
plans are unfunded book reserve plans. Other foreign plans are not
significant individually or in the aggregate. Most employees and retirees
outside the United States are covered by government health plans.
Postretirement Healthcare
The plans for postretirement healthcare have no plan assets. The
postretirement healthcare plan covers certain union and salaried employee
groups in the United States and is contributory, with retiree contributions
adjusted annually to limit the Company's contribution to $21 per month per
retiree for most participants who retired after June 1, 1985. The Company
also sponsors unfunded non-contributory postretirement medical plans for a
limited number of union employees and their spouses and retirees of a
discontinued operation.
D15
Reconciliations of changes in the above plans' benefit obligations, fair
value of assets, and statement of funded status are as follows:
Other Postretirement
Pension Benefits Benefits
------------------------------ -----------------------------
December 31, December 31,
2001 2000 2001 2000
(in thousands)
Reconciliation of Benefit Obligation
Benefit obligation at beginning of year $ 60,781 $ 55,227 $ 7,552 $ 6,756
Service cost 1,877 1,960 205 182
Interest cost 3,548 3,072 539 542
Participant contributions 813 60 391 -
Actuarial losses 1,561 4,615 268 1,163
Amendments - 358 - -
Acquisitions 19,540 - - -
Effects of exchange rate changes (3,126) (1,922) - -
Benefits paid (3,860) (2,589) (1,078) (1,091)
Benefit obligation at end of year $ 81,134 $ 60,781 $ 7,877 $ 7,552
Reconciliation of Plan Assets
Fair value of plan assets at beginning of year $ 41,183 $ 40,204 $ - $ -
Actual return on assets (471) 1,498 - -
Acquisitions 4,751 - - -
Effects of exchange rate changes (1,395) (377) - -
Employer contributions 2,327 1,832 687 1,091
Participant contributions 813 615 391 -
Benefits paid (3,860) (2,589) (1,078) (1,091)
Fair value of plan assets at end of year $ 43,348 $ 41,183 $ - $ -
Reconciliation of Funded Status
Actuarial present value of projected
benefit obligations $ 81,134 $ 60,781 $ 7,877 $ 7,552
Plan assets at fair value 43,348 41,183 - -
Funded status (37,786) (19,598) (7,877) (7,552)
Unrecognized transition obligation 1,590 1,949 - -
Unrecognized prior service cost 678 801 - -
Unrecognized net actuarial gain (loss) 1,482 (3,406) (2,450) (1,914)
Unfunded benefit obligations at
end of year $(34,036) $(20,254) $(10,327) $(9,466)
D15
The amounts recognized in the accompanying Consolidated Balance Sheets
are as follows:
Other Postretirement
Pension Benefits Benefits
--------------------------- ---------------------------
December 31, December 31,
2001 2000 2001 2000
(in thousands)
Other noncurrent liabilities $ (43,589) $ (29,492) $ (10,327) $ (9,466)
Other noncurrent assets 8,669 8,567 - -
Accumulated other
comprehensive loss 884 671 - -
Unfunded benefit obligation at
end of year $ (34,036) $ (20,254) $ (10,327) $ (9,466)
The aggregate benefit obligation for those plans where the accumulated
benefit obligation exceeded the fair value of plan assets was $43.6 million and
$29.5 million at December 31, 2001 and 2000, respectively.
Components of the net periodic benefit cost for the plans are as follows:
Other Postretirement
Pension Benefits Benefits
------------------------------------------- ------------------------------------------
2001 2000 1999 2001 2000 1999
(in thousands)
Service cost $ 1,877 $ 1,960 $ 2,090 $ 205 $ 182 $ 160
Interest cost 3,548 3,072 3,170 539 542 488
Expected return on plan assets (2,525) (2,020) (2,435) - - -
Net amortization and deferral 287 (2,368) (1,300) (63) 174 (108)
Net periodic benefit cost $ 3,187 $ 644 $ 1,525 $ 681 $ 898 $ 540
The weighted average assumptions used in accounting for the Company's
plans, principally in foreign locations, are as follows:
Other Postretirement
Pension Benefits Benefits
------------------------------------------- ------------------------------------------
2001 2000 1999 2001 2000 1999
Discount rate 4.4% 5.7% 5.6% 7.3% 7.0% 7.5%
Expected return on plan assets 5.0% 5.7% 5.0% n/a n/a n/a
Rate of compensation increase 2.5% 3.5% 3.0% n/a n/a n/a
Health care cost trend n/a n/a n/a 7.0% 7.0% 7.0%
Assumed health care cost trend rates have an impact on the amounts reported
for postretirement benefits. A one percentage point change in assumed healthcare
cost trend rates would have the following effects for the year ended December
31, 2001:
Other Postretirement
Benefits
---------------------------
1% Increase 1% Decrease
(in thousands)
Effect on total of service and interest cost components $ 86 $ (61)
Effect on postretirement benefit obligation 804 (327)
D15
NOTE 13 - RESTRUCTURING AND OTHER COSTS (INCOME)
Restructuring and other costs (income) consists of the following:
Year Ended December 31,
2001 2000 1999
(in thousands)
Gain on pension plan termination $ (8,486) $ - $ -
Gain on insurance settlement associated with fire (5,758) - -
Costs related to the Oraqix agreement 2,345 - -
Reversal of 1998 restucturing charge (802) - -
Restructuring and other costs 17,774 2,702 -
German property settlement - (2,758) -
Total restructuring and other costs (income) $ 5,073 $ (56) $ -
The Company's subsidiary in the United Kingdom restructured its pension
plans in the fourth quarter of 2001, simplifying its structure by
consolidating its two separate defined contribution plans into one plan and
terminating the other plan. An unallocated surplus of approximately $8.5
million existed in the terminated plan. As a result, these unallocated funds
reverted back to the Company.
On January 25, 2001, a fire broke out in one the Company's Swiss
manufacturing facilities. The fire caused severe damage to a building and to
most of the equipment it contained. The Company has received insurance
proceeds for its destoyed equipment, and it expects some additional proceeds
to be received by the second quarter of 2002 to settle the building damage.
These payments resulted in the Company recognizing a net gain on the
disposal of the destroyed equipment of approximately $5.8 million.
As discussed in Note 3, the Company has agreed in 2001 to a payment of
$2.0 million to AstraZenaca related to the submission of the Oraqix product
New Drug Application in the U.S., and Marketing Authorization Application in
Europe. Under the terms of the agreement, the Company expensed and accrued
this payment and related estimated application costs as of December 31, 2001.
In the fourth quarter of 1998, the Company recorded a restructuring
charge of $42.5 million related to the discontinuance of the intra-oral
camera business at the Company's New Image division located in Carlsbad,
California. The charge included the write-off of certain intangible assets,
including goodwill associated with the business, write-off of discontinued
products, write-down of fixed assets and other assets, and severance and
other costs associated with the discontinuance of the New Image division and
closure of its facility. During 2001 this plan was completed and the
remaining accrual balances of $0.8 million were reversed as a change in
estimate.
In the fourth quarter of 2001, the Company recorded a charge of $12.3
million for restructuring and other costs. The charge included costs of
$6.0 million to restructure the Company's existing operations, primarily in
Germany, Japan and Brazil, as a result of the integration with Degussa
Dental. The primary effect of this plan is the elimination of duplicative
functions created as a result of combining the Company's operations in these
countries with those of Degussa Dental. Included in this charge were
severance costs of $2.1 million, lease/contract termination costs of $1.1
and other restructuring costs of $0.2 million. In addition, the Company
recorded $2.6 million of impairment charges on fixed assets that will be
disposed of as a result of the restructuring plan. This restructuring plan
will result in the elimination of approximately 160 administrative and
manufacturing positions in Germany, Japan and Brazil, substantially all of
which remain to be eliminated as of December 31, 2001. The Company
anticipates that most aspects of this plan will be completed by the fourth
quarter of 2002. The remaining charge of $6.3 million involves impairment
charges on intangible assets.
D15
In the first quarter of 2001, the Company recorded a charge of $5.5
million related to reorganizing certain functions within Europe, Brazil and
North America. The primary objectives of this reorganization were to
consolidate duplicative functions and to improve efficiencies within these
regions and are expected to contribute to future earnings. Included in this
charge were severance costs of $3.1 million, lease/contract termination
costs of $0.6 million and other restructuring costs of $0.8 million. These
other costs are primarily for legal costs associated with the severance
arrangements. In addition, the Company recorded $1.0 million of impairment
charges on fixed assets that will be disposed of as a result of the
restructuring plan. This restructuring plan will result in the elimination
of approximately 330 administrative and manufacturing positions in Brazil
and Germany. At December 31, 2001, approximately 20 of these positions
remain to be eliminated. The Company anticipates that most aspects of this
plan will be completed by the first quarter of 2002.
As part of combining Friadent and Degussa Dental with the Company, $14.1
million of liabilities were established through purchase price accounting
for the restructuring of the acquired companies' operations in Germany,
Brazil, the United States and Japan. These liabilities relate primarily to
the elimination of duplicative functions created as a result of combining
the companies. Included in this liability were severance costs of $11.9
million, lease/contract termination costs of $1.1 million and other
restructuring costs of $1.1 million. This restructuring plan will result in
the elimination of approximately 200 administrative and manufacturing
positions in Germany, Brazil and the United States, substantially all of
which remain to be eliminated as of December 31, 2001. The Company
anticipates that most aspects of this plan will be completed by the fourth
quarter of 2002.
The major components of these restructuring charges and the amounts
recorded through purchase price accounting and the remaining outstanding
balances at December 31, 2001 are as follows:
Amounts
Recorded
Through Amounts Balance
2001 Purchase Price Applied December 31,
Provisions Accounting 2001 2001
Severance $ 5,270 $ 11,929 $ (1,850) $ 15,349
Lease/contract terminations 1,682 1,071 (563) 2,190
Other restructuring costs 897 1,062 - 1,959
Fixed asset impairment charges 3,634 - (3,634) -
Intangible asset impairment charges 6,291 - (6,291) -
$ 17,774 $ 14,062 $ (12,338) $ 19,498
During the fourth quarter, of 2000 the Company recorded a settlement of
$2.8 million related to a claim against the German government in connection
with the confiscation and subsequent sale of a property formally owned by
the Company in Berlin, Germany.
In the fourth quarter of 2000, the Company recorded a charge of $2.7
million related to the reorganization of its French and Latin American
businesses. The primary focus of the reorganization was the consolidation of
operations in these regions in order to eliminate duplicative functions. The
Company anticipates that this plan will increase operational efficiencies
and contribute to future earnings. Included in this charge were severance
costs of $2.3 million and other costs of $0.4 million. The restructuring
will result in the elimination of approximately 40 administrative positions,
mainly in France. At December 31, 2001, approximately 5 of these positions
remain to be eliminated. The Company anticipates that most aspects of this
plan will be completed by the first quarter of 2002. The major components of
this restructuring charge and the remaining outstanding balances follow:
Amounts Amounts Balance
2000 Applied Applied December 31,
Provision 2000 2001 2001
(in thousands)
Severance $ 2,299 $ (611) $ (825) $ 863
Other restructuring costs 403 - (403) -
$ 2,702 $ (611) $ (1,228) $ 863
D15
In the second quarter of 1998, the Company rationalized and restructured
the Company's worldwide laboratory business, primarily for the closure of
the Company's German tooth manufacturing facility. All major aspects of the
plan were completed in 1999, except for the disposition of the property and
plant located in Dreieich, Germany, which has been written-down to its
estimated fair value, but which has not been sold as of December 31, 2001.
The Company continues active efforts to sell this idle property.
NOTE 14 - FINANCIAL INSTRUMENTS AND DERIVATIVES
Fair Value of Financial Instruments
The fair value of financial instruments is determined by reference to
various market data and other valuation techniques as appropriate. The
Company believes the carrying amounts of cash and cash equivalents, accounts
receivable (net of allowance for doubtful accounts), prepaid expenses and
other current assets, accounts payable, accrued liabilities, income taxes
payable and notes payable approximate fair value due to the short-term
nature of these instruments. The Company estimates the fair value of its
long-term debt was $720.6 million versus its carrying value of $723.5
million as of December 31, 2001. The fair value was relatively similar to
the carrying value since the fixed rate Eurobonds were effectively converted
to variable rate as a result of an interest rate swap and the interest rates
on revolving debt and commercial paper are variable and reflect current
market rates. In addition, the face value of the Japanese yen private
placement note approximates fair value as its issue date was December 28,
2001. The fixed rate Swiss franc denominated notes were the only debt
instruments where the fair values were lower than the carrying values due to
higher Swiss rates at December 31, 2001 versus the rates at issuance of the
notes.
Adoption of SFAS 133
Statement of Financial Accounting Standards No. 133 ("SFAS 133"),
"Accounting for Derivative Instruments and Hedging Activities," was issued
by the Financial Accounting Standards Board (FASB) in June 1998. This
statement establishes accounting and reporting standards for derivative
instruments, including certain derivative instruments embedded in other
contracts, and for hedging activities. It requires recognition of all
derivatives as either assets or liabilities on the balance sheet and
measurement of those instruments at fair value. This statement, as amended,
was adopted effective January 1, 2001, and as required, the Company
recognized a cumulative adjustment for the change in accounting principle.
This adjustment increased other current liabilities by $1.1 million and
resulted in a cumulative loss, reflected in current earnings of $0.3 million
($0.2 million, net of tax), and a reduction in other comprehensive income of
$0.8 million ($0.5 million, net of tax). The cumulative loss on adoption of
SFAS 133 recognized in the income statement was recorded in "Other (income)
expense, net" and was considered immaterial for presentation as a cumulative
effect of a change in accounting principle.
Derivative Instruments and Hedging Activities
The Company's activities expose it to a variety of market risks which
primarily include the risks related to the effects of changes in foreign
currency exchange rates, interest rates and commodity prices. These
financial exposures are monitored and managed by the Company as part of its
overall risk-management program. The objective of this risk management
program is to reduce the potentially adverse effects that these market risks
may have on the Company's operating results.
A portion of the Company's borrowings and certain inventory purchases are
denominated in foreign currencies which exposes the Company to market risk
associated with exchange rate movements. The Company's policy generally is
to hedge major foreign currency transaction exposures through foreign
exchange forward contracts. These contracts are entered into with major
financial institutions thereby minimizing the risk of credit loss. In
addition, the Company's investments in foreign subsidiaries are denominated
in foreign currencies, which creates exposures to changes in exchange rates.
The Company uses debt denominated in the applicable foreign currency as a
means of hedging some of this risk.
D15
With the Company's significant level of long-term debt, changes in the
interest rate environment can have a major impact on the Company's earnings,
depending upon its interest rate exposure. As a result, the Company manages
its interest rate exposure with the use of interest rate swaps, when
appropriate, based upon market conditions.
The manufacturing of some of the Company's products requires a
significant volume of commodities with potentially volatile prices. In
order to limit the unanticipated earnings fluctuations from such volatility
in commodity prices, the Company selectively enters into commodity price
swaps to convert variable raw material costs to fixed costs.
Cash Flow Hedges
The Company uses interest rate swaps to convert a portion of its variable
rate debt to fixed rate debt. In January 2000, the Company entered into an
interest rate swap agreement with notional amounts totaling 50 million Swiss
francs which converts a portion of the Company's variable rate Swiss franc
financing to a fixed rate of 3.4% for a period of three years. In February
2001, the Company entered into interest rate swap agreements with notional
amounts totaling 130 million Swiss francs which converts a portion of the
Company's variable rate financing to an average fixed rate of 3.3% for an
average period of four years. In addition, the Company's Japanese subsidiary
acquired in the Degussa Dental transaction, has an interest rate swap
agreement with notional amounts totaling 70 million Japanese yen which
converts a portion of its variable rate Japanese yen financing to a fixed
rate of 2.9% through December 2002.
The Company selectively enters into commodity price swaps to convert
variable raw material costs to fixed. In August 2000, the Company entered
into a commodity price swap agreement with notional amounts totaling 270,000
troy ounces of silver bullion throughout calendar year 2001. The average
fixed rate of this agreement was $5.10 per troy ounce. In November 2001, the
Company entered into a commodity price swap agreement with notional amounts
totaling 270,000 troy ounces of silver bullion throughout calendar year
2002. The average fixed rate of this agreement is $4.20 per troy ounce. The
Company generally hedges between 33% and 67% of its projected annual silver
needs.
For the year ended December 31, 2001, the Company recognized a net loss
of $0.4 million in "Other expense (income), net", which represented the
total ineffectiveness of all cash flow hedges.
As of December 31, 2001, $0.1 million of deferred net losses on
derivative instruments recorded in accumulated other comprehensive income
are expected to be reclassified to current earnings during the next twelve
months. Transactions and events that are expected to occur over the next
twelve months that will necessitate such a reclassification include: the
sale of inventory that includes previously hedged purchases of silver and
the amortization of a portion of the net deferred loss on interest rate
swaps terminated as part of a swap restructuring in February 2001, which is
being amortized over the remaining term of the underlying loan being hedged.
The maximum term over which the Company is hedging exposures to variability
of cash flows (for all forecasted transactions, excluding interest payments
on variable-rate debt) is eighteen months.
Fair Value Hedges
The Company also uses interest rate swaps to convert a portion of its
fixed rate debt to variable rate debt. In addition cross currency basis
swaps are used to convert debt denominated in one currency to another
currency. In December 2001, the Company completed two integrated
transactions where it entered into an interest rate swap agreement with
notional amounts totalling Euro 350 million which converted its 5.75%
coupon, fixed rate Eurobond financing into variable rate Euro denominated
financing and it then entered into a cross currency basis swap which
converted this variable based Euro denominated financing to variable based
U.S. dollar financing at a current rate of 3.2%.
D15
Hedges of Net Investments in Foreign Operations
The Company has numerous investments in foreign subsidiaries. The net
assets of these subsidiaries are exposed to the volatility in currency
exchange rates. Currently, the Company uses non-derivative financial
instruments (debt at the parent company level) to hedge some of this
exposure. The translation gains and losses related to the net assets of the
foreign subsidiaries are offset by gains and losses in the parent company's
debt obligations. At December 31, 2001, the Company had Swiss franc
denominated and Japenese yen denominated debt (at the parent company level)
to hedge the currency exposure related to the net assets of its Swiss and
Japanese subsidiaries.
For the year ended December 31, 2001, $10.9 million of net gains related
to this foreign currency denominated debt were included in the Company's
foreign currency translation adjustment.
Other
As of December 31, 2001, the Company had recorded the fair value of
derivative instrument assets of $2.7 million in "Prepaid expenses and other
current assets" and $0.3 million in "Other noncurrent assets" on the balance
sheet. The Company recorded the fair value of derivative instrument
liabilities of $1.4 million in "Accounts payable" and $14.1 million in
"Other noncurrent liabilities" on the balance sheet.
In accordance with SFAS 52, "Foreign Currency Translation", the Company
utilizes long-term intercompany loans to eliminate foreign currency
transaction exposures of certain foreign subsidiaries. Net gains or losses
related to these long-term intercompany loans, those for which settlement is
not planned or anticipated in the foreseeable future, are included in the
Company's foreign currency translation adjustment.
Precious Metal Lease Agreement
As of December 31, 2001, the Company leased $59.6 million of precious
metals. Under this arrangement the Company leases fixed quantities of
precious metals which are used in producing alloys and pays a lease rate (a
percent of the value of the leased inventory) to the lessor. These precious
metal leases are accounted for as operating leases and the lease fee is
recorded as cost of goods sold. The terms of the leases are less than one
year, and the average lease rate at December 31, 2001 was 2.5%. The
Company's objective for using these operating lease arrangements to supply
its precious metals needs is to free up working capital and smooth the
effects of commodity price volatility.
NOTE 15 - COMMITMENTS AND CONTINGENCIES
Leases
The Company leases automobiles and certain office, warehouse, machinery
and equipment and manufacturing facilities under non-cancelable operating
leases. These leases generally require the Company to pay insurance,
property taxes and other expenses related to the leased property. Total
rental expense for all operating leases was $13.0 million for 2001, $10.5
million for 2000, and $10.3 million for 1999.
Rental commitments, principally for real estate (exclusive of taxes,
insurance and maintenance), automobiles and office equipment amount to:
$12.8 million for 2002, $9.6 million for 2003, $6.7 million for 2004, $4.0
million for 2005, $3.4 million for 2006, and $13.2 million thereafter.
D15
Litigation
DENTSPLY and its subsidiaries are from time to time parties to lawsuits
arising out of their respective operations. The Company believes that
pending litigation to which DENTSPLY is a party will not have a material
adverse effect upon its consolidated financial position or results of
operations.
In June 1995, the Antitrust Division of the United States Department of
Justice initiated an antitrust investigation regarding the policies and
conduct undertaken by the Company's Trubyte Division with respect to the
distribution of artificial teeth and related products. On January 5, 1999
the Department of Justice filed a complaint against the Company in the U.S.
District Court in Wilmington, Delaware alleging that the Company's tooth
distribution practices violate the antitrust laws and seeking an order for
the Company to discontinue its practices. Three follow on private class
action suits on behalf of dentists, laboratories and denture patients in
seventeen states, respectively, who purchased Trubyte teeth or products
containing Trubyte teeth, were filed and transferred to the U.S. District
Court in Wilmington, Delaware. The class action filed on behalf of the
dentists has been dismissed by the plaintiffs. The private party suits seek
damages in an unspecified amount. The Company filed motions for summary
judgment in all of the above cases, which were argued to the court in
December 2000. The Court denied the Company's motion for summary judgment
regarding the Department of Justice action, granted the motion on the lack
of standing of the patient class action and granted the motion on the lack
of standing of the laboratory class action to pursue damage claims. In an
attempt to avoid the effect of the Court's ruling, the attorneys for the
laboratory class action filed a new complaint naming DENTSPLY and its
dealers as co-conspirators with respect to DENTSPLY's distribution policy.
The Company filed a motion to dismiss this re-filed complaint. The Court
again granted DENTSPLY's motion on the lack of standing of the laboratory
class action to pursue damage claims. The attorneys for the patient class
have also filed a new action to avoid the effect of the Court's ruling.
This action is filed in the U.S. District Court in Delaware. Four private
party class actions on behalf of indirect purchasers were filed in
California state court. These cases are based on allegations similar to
those in the Department of Justice case. In response to the Company's
motion, these cases have been consolidated in one Judicial District in Los
Angeles. It is the Company's position that the conduct and activities of
the Trubyte division do not violate the antitrust laws.
Other
The Company has no material non-cancelable purchase commitments.
The Company has employment agreements with its executive officers. These
agreements generally provide for salary continuation for a specified number
of months under certain circumstances. If all of the employees under
contract were to be terminated by the Company without cause (as defined),
the Company's liability would be approximately $10.1 million at December 31,
2001.
NOTE 16 - SUBSEQUENT EVENTS
On December 12, 2001, the Board of Directors approved a three-for-two
split of the Company's common stock. The stock split was effective Jaunuary
31, 2002.
The effect of the stock split has been recognized retroactively in the
stockholders' equity accounts on the balance sheets as of December 31, 2001
and in all share and per share data in the accompanying financial statements
and notes to financial statements. Stockholders' equity accounts have been
restated to reflect the reclassification of an amount equal to the par value
of the increase in issued common shares from the capital in excess of par to
the common stock account.
D15
NOTE 17 - QUARTERLY FINANCIAL INFORMATION (UNAUDITED)
First Second Third Fourth Total
Quarter Quarter Quarter Quarter Year
(in thousands, except per share amounts)
2001
Net sales $ 245,669 $ 254,635 $ 253,501 $ 375,289 $1,129,094
Gross profit 129,814 133,727 132,385 173,745 569,671
Operating income 34,921 44,336 44,410 54,696 178,363
Net income 34,326 27,404 25,919 33,847 121,496
Earnings per common share-basic $ 0.44 $ 0.36 $ 0.33 $ 0.43 $ 1.56
Earnings per common share-diluted 0.44 0.34 0.33 0.43 1.54
Cash dividends declared per common share 0.04583 0.04583 0.04583 0.04584 0.18333
2000
Net sales $ 213,956 $ 224,788 $ 216,699 $ 234,353 $ 889,796
Gross profit 110,475 118,431 112,260 122,428 463,594
Operating income 36,740 39,731 38,137 49,308 163,916
Net income 22,193 24,627 23,335 30,861 101,016
Earnings per common share-basic $ 0.28 $ 0.32 $ 0.30 $ 0.40 $ 1.30
Earnings per common share-diluted 0.28 0.32 0.29 0.40 1.29
Cash dividends declared per common share 0.04167 0.04167 0.04167 0.04582 0.17083
D15
Supplemental Stock Information
The common stock of the Company is traded on the NASDAQ National Market
under the symbol "XRAY". The following table sets forth high, low and
closing sale prices of the Company's common stock for the periods indicated
as reported on the NASDAQ National Market:
Market Range of Common Stock
Period-end Cash
Closing Dividend
High Low Price Declared
2001
First Quarter $ 26.67 $ 21.67 $ 24.33 $0.04583
Second Quarter 31.07 23.33 29.57 0.04583
Third Quarter 31.63 26.01 30.63 0.04583
Fourth Quarter 34.69 28.62 33.47 0.04584
2000
First Quarter $ 19.25 $ 15.42 $ 18.92 $0.04167
Second Quarter 21.75 16.75 20.54 0.04167
Third Quarter 24.92 19.67 23.29 0.04167
Fourth Quarter 28.92 20.59 26.08 0.04582
1999
First Quarter $ 18.33 $ 14.29 $ 15.50 $0.03750
Second Quarter 19.42 14.21 19.25 0.03750
Third Quarter 19.54 13.67 15.17 0.03750
Fourth Quarter 16.50 13.96 15.75 0.04167
All amounts reflect the 3-for-2 stock split effective January 31, 2002.
The Company estimates, based on information supplied by its transfer agent,
that there are approximately 26,500 holders of common stock, including 456
holders of record.
D15
EXHIBIT 21.1
Subsidiaries of the Company
I. Direct Subsidiaries of the Company
A. Ceramco Inc. (Delaware)
B. Ceramco Manufacturing Co. (Delaware)
C. CeraMed Dental, L.L.C. (Delaware)
D. Dentsply Argentina S.A.C.e.I. (Argentina)
E Dentsply Dental (Tianjin) Co. Ltd. (China)
F. DENTSPLY Finance Co. (Delaware)
a) Dentsply International, Inc. (Chile) Limitada (Chile)
G. Dentsply India Pvt. Ltd. (India)
H. Dentsply Industria e Comercio Ltda. (Brazil)
I. Dentsply Japan Limited, L.L.C. (Japan)
J. Dentsply (Philippines) Inc. (Philippines)
K. Dentsply Research & Development Corp. ("Dentsply R&D")
(Delaware)
L. Dentsply (Thailand) Ltd. (Thailand)
M. DeTrey do Brasil Industria e Comercio Ltda. (Brazil)
N. Dentsply Tianjin International Trading Co. Ltd. (China)
O. GAC International Inc. (New York)
a) Old Country Road Sales Consultants, Inc.
b) Orthodental International, Inc.
c) Orthodental S.A. de C.V. (Mexico)
P. Austenal, Inc. (Illinois)
a) Lab. Des Produits Dentaires Odoncia S.A. (France)
b) Austenal GmbH (Germany)
Q. Dentsply Mexico S.A. de C.V. (Mexico)
R. ESP, LLC (Delaware)
S. Ceramco Europe Limited (Cayman Islands)
a) Ceramco UK Limited (Dormant)
T. DENTSPLY North America Inc. (Delaware)
D16
II. Indirect Subsidiaries of the Company
A. Subsidiaries of Dentsply Research & Development Corp.
1. Dentsply SE Limited (Gibraltar)
a) Dentsply A.G. (Switzerland)
2. Dentsply EU S.a.r.L (Luxembourg)
3. Dentsply Australia Pty. Ltd. (Australia (Victoria))
a) Dentsply (NZ) Limited (New Zealand)
4. Dentsply Canada Ltd. (Canada (Ontario))
5. Dentsply Export Sales Corporation (Barbados)
6. PT Dentsply Indonesia (Indonesia)
7. The International Tooth Co. Limited (United Kingdom)
8. Ransom & Randolph Company (Delaware)
9. Tulsa Dental Products Inc. (Delaware)
a) Tulsa Finance Co. (Delaware)
b) Tulsa Manufacturing Inc. (Delaware)
10. Dentsply Espana SL (Spain)
11. Friadent North America, Inc. (California)
12. Sankin Kogyo K.K. (Japan)
a) Sankin Laboratories K.K. (Japan)
13. Degussa Dental Ltda. (Brazil)
a) Degussa Dental da Amazonia Ltda. (Brazil)
b) Degpar Participacoes e Empreendimentos S.A.(Brazil)
c) Problem Laboratorio de Produtos Farmaceuticos e
Odontonlogicos S.A. (Brazil)
B. Subsidiaries Dentsply EU S.a.r.L.
1. Dentsply Germany Holdings GmbH (Germany)
a) VDW GmbH (Germany)
b) RoyDent, Inc.(Michigan)
c) Dentsply DeTrey GmbH (Germany)
d) Friadent GmbH (Germany)
i) Friadent Brasil Ltda. (Brazil)
ii) Friadent Denmark ApS (Denmark)
iii) Friadent France Sarl (France)
iv) Friadent N.V. (Belgium)
v) Friadent Scandinavia AB(Sweden)
vi) Friadent Schweiz AG (Switzerland)
e) Degussa Dental GmbH (Germany)
i) Bios Dental GmbH (Germany)
ii) Ducera Dental Verwaltungs-ges.m.b.H.(Germany)
f) Elephant Dental GmbH (Germany)
D16
2. Dentsply Capital Ltd. (U.K.)
3. Dentsply Capital II Ltd. (U.K.)
a) Dentsply DeTrey Sarl. (Switzerland)
d) Maillefer Instruments Holding S.A.(Switzerland)
i) Maillefer Instruments Trading Sarl (Switzerland)
ii) Maillefer Instruments Consulting Sarl (Switzerland)
iii) Maillefer Instruments Manufacturing Sarl (Switzerland)
iv) Maillefer Plastiques Sarl (Switzerland)
4. Elephant Dental B.V. (Netherlands)
a) Cicero Dental Systems B.V. (Netherlands)
b) Degussa Dental Benelux B.V. (Netherlands)
c) Elephant Danmark ApS (Denmark)
d) Dental Trust B.V. (Netherlands)
5. Degussa Dental Austria GmbH (Austria)
6. Dentsply Limited (Cayman Islands)
a) Dentsply Holdings Unlimited (U.K.)
b) Dentsply Russia Limited (U.K.)
c) Amalco Holdings Ltd (U.K., Dormant)
d) Keith Wilson Limited (U.K., Dormant)
e) Oral Topics Limited (U.K., Dormant)
f) AD Engineering Limited (Dormant)
7. Dentsply Italia SrL (Italy)
8. Dentsply France S.A.S. (France)
9. Dentsply South Africa (Pty) Limited (South Africa)
D16
EXHIBIT 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the
Registration Statements on Form S-8 (Nos. 33-41775, 33-52616,
33-71792, 33-79094, 33-89786, and 333-56093) and Registration
Statement on Form S-3 (No. 333-76089) of DENTSPLY International
Inc. of our report dated January 21, 2002, except for Note 16, as
to which the date is January 31, 2002 relating to the financial
statements, which appears in the Annual Report to Shareholders,
which is incorporated in this Annual Report on Form 10-K. We
also consent to the incorporation by reference of our report
dated March 28, 2002 relating to the financial statement
schedule, which appears in this Form 10-K.
PricewaterhouseCoopers LLP
Philadelphia, PA
March 28, 2002
D17
EXHIBIT 23.2
Consent of Independent Auditors
The Board of Directors
DENTSPLY International Inc.:
We consent to incorporation by reference in the registration
statements (Nos. 333-56093, 33-52616, 33-41775, 33-71792,
33-79094, and 33-89786) on Form S-8 and registration statement
No. 333-76089 on Form S-3 of DENTSPLY International Inc. of our
report dated January 20, 2000, relating to the consolidated
statements of income, stockholders' equity, and cash flows of
DENTSPLY International Inc. and subsidiaries and related
schedule for the year ended December 31, 1999, which report
appears in the December 31, 2001 annual report on Form 10-K of
DENTSPLY International Inc.
KPMG LLP
Philadelphia, Pennsylvania
March 28, 2002
D18
EXHIBIT 99.1
Independent Auditors' Report
The Board of Directors and Stockholders
DENTSPLY International Inc.:
We have audited the accompanying consolidated statements of
income, stockholders' equity, and cash flows of DENTSPLY
International Inc. and subsidiaries for the year ended December
31, 1999. In connection with our audit of the consolidated
financial statements, we also have audited the financial
statement schedule for the year ended December 31, 1999. These
consolidated financial statements and financial statement
schedule are the responsibility of the Company's management.
Our responsibility is to express an opinion on these
consolidated financial statements and financial statement
schedule based on our audit.
We conducted our audit in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used
and significant estimates made by management, as well as
evaluating the overall financial statement presentation. We
believe that our audit provides a reasonable basis for our
opinion.
In our opinion, the consolidated financial statements referred
to above present fairly, in all material respects, the results
of operations and cash flows of DENTSPLY International Inc. for
the year ended December 31, 1999, in conformity with generally
accepted accounting principles. Also in our opinion, the
related financial statement schedule, when considered in
relation to the basic consolidated financial statements taken
as a whole, presents fairly, in all material respects, the
information set forth therein.
KPMG LLP
Philadelphia, Pennsylvania
January 20, 2000
D19
